Opinion
B299562
08-20-2020
In re A.C. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.L. et al., Defendants and Appellants.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant M.L. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant L.B. Andre F. F. Toscano, under appointment by the Court of Appeal, for Respondent A.C.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP03568A-D) APPEAL from an order of the Superior Court of Los Angeles County. Pete R. Navarro, Judge Pro Tempore. Reversed and remanded with directions. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant M.L. Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant L.B. Andre F. F. Toscano, under appointment by the Court of Appeal, for Respondent A.C.
This is an appeal from the juvenile court's order finding that 16-year-old Alyssa had three parents under Family Code section 7612, subdivision (c). The minor's mother and stepfather contend there is insufficient evidence to support the court's finding that the minor's biological father (Alejandro) is a third parent under that statute.
When the court detained Alyssa and her siblings it initially found that stepfather, who was married to mother, was Alyssa's presumed father. At the jurisdiction hearing, Alejandro appeared and also sought to be named a presumed father. Although Alejandro had not seen Alyssa since she was a toddler, he had provided child support for her and was interested in visiting her. The juvenile court found that Alejandro was also Alyssa's presumed father, and ordered visitation for him.
Mother and stepfather appeal, and argue this was not an appropriate case in which to recognize more than two parents under Family Code section 7612, subdivision (c) because Alejandro did not have an existing parent-child relationship with Alyssa. We agree, reverse, and remand for the juvenile court to consider stepfather's and Alejandro's competing claims for presumed fatherhood·
On November 25, 2019, the Department of Children and Family Services advised this court that it would not be filing a brief in this matter.
FACTUAL AND PROCEDURAL BACKGROUND
In 2002, Alyssa was born to mother and Alejandro. The next year, mother began dating stepfather. Mother and stepfather had three children together and married in 2016.
In 2019, the Department of Children and Family Services (Department) received a referral alleging that 16-year-old Alyssa had been kicked out of her home, had been hospitalized twice for being a danger to herself and had attempted suicide. The Department filed a petition alleging that domestic violence between stepfather and mother, stepfather's physical abuse of his youngest child, and stepfather's substance abuse and mental problems placed the children at risk of harm.
At the detention hearing in June 2019, the juvenile court found stepfather was Alyssa's presumed father and that Alejandro was an alleged father. Stepfather said Alyssa had lived with him since she was an infant, and he had raised her as his own daughter. He participated in daily childcare activities with Alyssa and provided her with food, clothing, and shelter. Alyssa also spent holidays with stepfather's family, and considered his parents as her family.
When the Department interviewed Alejandro, the biological father, he said Alyssa had lived with him when she was an infant until she was two years old, and that he had held her out as his child, fed her and provided childcare for her. He had not been in contact with Alyssa since she was two or three years old, but had paid monthly child support for her and provided her with medical insurance. When Alyssa was hospitalized in 2018, he had talked to her by telephone. He was interested in visiting with her.
Alejandro made his first appearance at the jurisdiction hearing, and asked to be declared Alyssa's presumed father. Stepfather's, mother's and Alyssa's counsel objected, arguing that Alejandro did not meet the requirements for third-parent status under Family Code section 7612, subdivision (c). Stepfather's counsel argued, "Given that [Alejandro] does not have any sort of relationship with [Alyssa], it would not be detrimental to her to not recognize him as a presumed father."
The court found that Alejandro was Alyssa's "presumed noncustodial parent." The court acknowledged that Alyssa had indicated she did not want to visit with Alejandro, but expressed hope she would change her mind. The court sustained allegations about the domestic violence in the home and stepfather's drug use, and declared all the children dependents. The court ordered family maintenance services for mother and stepfather, and enhancement services for Alejandro, including monitored visitation with Alyssa should she acquiesce to seeing him.
Mother and stepfather appealed.
DISCUSSION
1. Three Parents Under Family Code Section 7612 , subdivision (c)
"The Uniform Parentage Act (UPA) (Fam. Code, § 7600 et seq.) 'provides the framework by which California courts make paternity determinations. (§ 7610, subd. (b).)' [Citation.]" (In re L.L. (2017) 13 Cal.App.5th 1302, 1309-1310.) " 'Dependency law recognizes three types of fathers: presumed, alleged and biological. [Citations.]' " (In re M.Z. (2016) 5 Cal.App.5th 53, 63.) Presumed fathers are accorded greater parental rights than alleged or biological fathers. (In re Zacharia D. (1993) 6 Cal.4th 435, 448-449.)
All further statutory references are to the Family Code unless otherwise stated.
" 'Presumed father status is governed by [Family Code] section 7611, which sets out several rebuttable presumptions under which a man may qualify for this status, generally by marrying or attempting to marry the child's mother or by publicly acknowledging paternity and receiving the child into his home. [Citations.] Biological fatherhood does not, in and of itself, qualify a man for presumed father status under section 7611. On the contrary, presumed father status is based on the familial relationship between the man and child, rather than any biological connection.' [Citation.]" (In re M.R. (2017) 7 Cal.App.5th 886, 898.) The laws on eligibility for reunification services reflect these differences: "Only a presumed, not a mere biological, father is a 'parent' entitled to receive reunification services, and only a presumed father is entitled to custody of his child. [Citation.] In contrast, the juvenile court 'may' order reunification services for a biological father if the court determines that the services will benefit the child. [Citation.]" (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596.)
Under section 7611, subdivision (d), "A person is presumed to be the natural parent of a child if . . . . [¶] The presumed parent receives the child into their home and openly holds out the child as their natural child."
"It used to be that a child could have only one presumed father, even if more than one individual might fulfill the statutory criteria. [Citation.] In 2013, however, the Legislature amended Family Code section 7612 to permit the court to declare more than one presumed parent if it concludes 'recognizing only two parents would be detrimental to the child.' (Fam. Code, § 7612, subd. (c).) 'In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time.' (Fam. Code, § 7612, subd. (c).)" (In re M.R., supra, 7 Cal.App.5th at pp. 898-899.)
Section 7612, subdivision (c) provides: "In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage."
The Legislature intended amendments to section 7612, subdivision (c) "to be narrow in scope and to apply only in 'rare cases' in which a child 'truly has more than two parents' who are parents 'in every way.' [Citation.] In those rare cases, the Legislature sought to protect the child from the 'devastating psychological and emotional impact' that would result from '[s]eparating [the] child from a parent.' [Citation.] Accordingly, 'an appropriate action' for application of section 7612, subdivision (c) is one in which there is an existing parent-child relationship between the child and the putative third parent, such that 'recognizing only two parents would be detrimental to the child.' " (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1090-1091.)
"On appeal, we independently interpret statutes. However, we review factual findings regarding parentage under either section 7611 or section 7612 for substantial evidence. [Citations.]" (In re M.Z., supra, 5 Cal.App.5th at p. 64.) We also "review the juvenile court's finding of detriment within the meaning of [section 7612], subdivision (c) for substantial evidence. [Citation.]" (In re M.R., supra, 7 Cal.App.5th at p. 898.) 2. Insufficient Evidence Supports the Section 7612 , Subdivision (c) Third Parent Finding for Alejandro
Mother and stepfather argue the juvenile court erred in declaring Alejandro a third parent because he did not have "an existing parent-child relationship" with Alyssa. (In re Donovan L., supra, 244 Cal.App.4th at pp. 1093-1094.) Alejandro, the respondent on appeal, argues that even though he did not have a parent-child relationship with Alyssa, substantial evidence showed it would be detrimental to Alyssa to recognize only two parents because he helped provide for her financially.
Alejandro cites to no authority for his position that a court may recognize more than two parents even when there is no existing parent-child relationship between the child and putative third parent. He essentially asks us to reject out of hand Donovan L.'s holding that an existing parent-child relationship is required under section 7612, subdivision (c). What he fails to do is address Donovan L.'s analysis of the statute.
Donovan L. held that section 7612, subdivision (c) "is ambiguous as to what constitutes 'an appropriate action' so as to allow a court to find a child has more than two parents." (In re Donovan L., supra, 244 Cal.App.4th at p. 1088.) The court examined the statute's legislative history to resolve the ambiguity, and found that legislative reports indicate that "section 7612, subdivision (c) seeks to 'protect[] children from harm by preserving the bonds between children and their parents' [citation] and avoid the ' "disastrous emotional, psychological, and financial consequences for a child, who may be separated from one or both of the parents he or she has always known." ' [Citation.]" (Id. at p. 1089.) Accordingly, Donovan L. concluded that " 'an appropriate action' for application of section 7612, subdivision (c) is one in which a court finds an existing, rather than potential, relationship between a child and a putative third parent, such that 'recognizing only two parents would be detrimental to the child.' (§ 7612, subd. (c).)" (Id. at p. 1090, fn. omitted.)
That description does not fit the present case. Although the juvenile court's order may be sensible from a practical standpoint, in line with Donovan L. we conclude the juvenile court misapplied section 7612, subdivision (c) in finding Alejandro to be a third parent under that statute because it is undisputed he did not have an existing relationship with Alyssa, and had not seen in her in over ten years. (See In re L.L., supra, 13 Cal.App.5th at p. 1302 [the juvenile court may not recognize a person as a third parent under section 7612, subdivision (c) because there is no evidence in the record showing he had an existing relationship with the child].)
Donovan L. also puts into context why the lack of an existing relationship between Alyssa and Alejandro undermines the trial court's finding of detriment. We find it significant that the statute is framed in terms of whether denying third parent status would be detrimental to the child. The language does not state the converse: the court may grant third parent status if it finds it would be in the child's best interest. This phrasing is consistent with Donovan L.'s holding that section 7612, subdivision (c) is "narrow in scope." (In re Donovan L., supra, 244 Cal.App.4th at pp. 1075, 1090.) It is not enough that the trial court may find some benefit to third parent status: the court must find the failure to grant third parent status would itself be detrimental to the child.
Alejandro's position here is that recognizing only two parents would be detrimental to Alyssa because he might "become unable or unwilling to continue" providing child support or insurance to her. However, the "detriment to the child" standard set forth in section 7612, subdivision (c), only applies to situations where an existing parent-child relationship exists. When drafting the 2013 amendment to section 7612, subdivision (c), the "Legislature borrowed the 'detriment to the child' standard from section 3041, which governs custody awards to a nonparent over the objection of a parent. [Citation.] Detriment under section 3041 considers 'the prospect that a successful, established custodial arrangement would be disrupted' [citation] or the harm in 'removing a child from what has been a stable, continuous, and successful placement is detrimental to the child' [citation]." (In re Donovan L., supra, 244 Cal.App.4th at p. 1089, fn. omitted, italics added.) Accordingly, there can only be "detriment" within the meaning of section 7612, subdivision (c) when a child is separated from a parent with whom she has an existing child-parent relationship. That was not the case here. 3. Remand for the Section 7612 , Subdivision (b) Weighing Process
While this appeal was pending, at stepfather's request, we granted judicial notice of family law exit orders granting custody of Alyssa to stepfather and mother. In stepfather's request for judicial notice, he argued that we should "invalidate the portion of the family law exit orders" that state Alejandro is a presumed father who had been provided visitation. At oral argument, stepfather's counsel stated that stepfather and mother had filed "protective appeals" from these family law exit orders, and asked that we dismiss those appeals when we reverse the third-parent order. However, as the family law exit orders are not before us on this appeal, we decline to address them further.
Mother contends the juvenile court also erred by not conducting the weighing process required by section 7612, subdivision (b) to determine the competing claims of stepfather and Alejandro as Alyssa's presumed father. We agree. Mother and stepfather further argue remand is unnecessary for the court to conduct that weighing process because no court could reasonably conclude Alejandro should be Alyssa's presumed father. Alejandro argues we should remand for the juvenile court to conduct that weighing process. Mother and stepfather may have the better argument, but we conclude that remand is more in keeping with the statutory scheme.
If the court does not declare more than one presumed father under section 7612, subdivision (c), subdivision (b) sets forth the procedure for reconciling any competing interests when two or more men claim paternity of a child. Under subdivision (b), " 'If two or more presumptions arise under [s]ection . . . 7611 that conflict with each other . . . the presumption which on the facts is founded on the weightier considerations of policy and logic controls.' [] When presented with conflicting claims of paternity under section 7612, subdivision (b), the court must make factual findings as to each claim, and then determine which one is entitled to greater weight. [Citations.]" (In re P.A. (2011) 198 Cal.App.4th 974, 981 [italics removed].) A person's offer to sign a voluntary declaration of parentage may be considered as a factor, but shall not be determinative, as to the issue of legal parentage in a proceeding regarding the establishment of parental rights. (§ 7612, subd. (e).)
This express weighing is fact-intensive, and we are reluctant to undertake that task when the trial court is in a better position to determine the fathers' competing interests. Section 7612, subdivision (b) directs the court to consider the presumptions and factors of four different Family Law sections: sections 7540, 7541, 7555 and 7611. This mandate is better suited for the trial court. (See In re Alexander P. (2016) 4 Cal.App.5th 475, 489 [reversing a third party finding and declining to address competing claims for presumed parent status "before the juvenile court has had an opportunity to do so"]; see also In re L.L., supra, 13 Cal.App.5th at p. 1318 [reversing a third party finding and remanding for court to conduct the weighing process under section 7612, subdivision (b)]; cf. In re Donovan L., supra, 244 Cal.App.4th at p. 1094 [determining parentage where one person's "conclusive marital presumption" under section 7540 (the child of spouses who cohabited at the time of conception and birth) defeated the other person's "parentage claim under section 7611, subdivision (d)"].)
Both stepfather's and Alejandro's claims for presumed fatherhood relied on section 7611, subdivision (d) which provides for the presumption when the person "receives the child into their home and openly holds out the child as their natural child." (See In re L.L., supra, 13 Cal.App.5th at p. 1311.)
DISPOSITION
We reverse the July 18, 2019 order to the extent it found that Alejandro is a third parent under section 7612, subdivision (c). In all other respects, we affirm the order. The matter is remanded with directions that the juvenile court: (1) enter a new order finding that Alejandro is not a third parent under section 7612, subdivision (c); and (2) conduct a new hearing in which the court expressly weighs the competing claims of Alejandro and stepfather as required by section 7612, subdivision (b).
RUBIN, P. J. WE CONCUR:
BAKER, J.
MOOR, J.