Filed 1/14/22 In re E.G. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re E.G., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E076796
Plaintiff and Respondent, (Super.Ct.No. J287678)
v. OPINION
M.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Erin K. Alexander,
Judge. Affirmed.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore and Tom Bunton, County Counsel, and Richard W.
Van Frank, Deputy County Counsel, for Plaintiff and Respondent.
1 INTRODUCTION
M.G. (father), the biological father of E.G. (the child), appeals from a juvenile
court’s disposition order finding that he was the child’s biological father and not his
presumed father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 2021, the San Bernardino County Children and Family Services
(CFS) filed a Welfare and Institutions Code section 300 petition on behalf of the child
and his half siblings, Ad.E. and Al.E.1 The child was nine years old at the time. The
petition alleged that he came within Welfare and Institutions Code section 300, former
subdivision (b) (failure to protect) and subdivision (g) (no provision for support). It
specifically alleged that the child’s mother S.G. (mother)2 had a substance abuse
problem, and father knew or should have known of the problem and failed to protect the
child. It also alleged that father’s whereabouts were unknown.
The social worker filed a detention report and stated that CFS received a referral
after mother tested positive for methamphetamines at the birth of Al.E. The social
worker interviewed mother, who reported that she was married to J.E., but was separated
from him. She also reported that father was the biological father of the child, but she had
not had any contact with him since the child was an infant. The social worker went to
J.E.’s home to speak with him. J.E. said he and mother were trying to reconcile their
1 Ad.E. and Al.E. are not subjects of this appeal. Thus, this opinion will focus on the child.
2 Mother is not a party to this appeal. 2 relationship, and he was going to move out of his current residence and move into an
apartment with her.
The court held a detention hearing on January 6, 2021, and detained the child in
foster care. It also ordered father and mother (the parents) to produce the child’s birth
certificate.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on January 28, 2021, and
recommended that the court sustain the petition, declare the child, Ad.E., and Al.E. (the
children) dependents of the court, provide reunification services to both mother and
father, and place the children with J.E. on family maintenance. The social worker
reported that J.E. was married to mother and was the father of Ad.E. and Al.E.
The social worker interviewed mother, who said she and father separated after the
death of their second child. She stated that father was listed on the child’s birth record
but had not been in the child’s life since the child was two years old and had not provided
for him financially or emotionally. She said J.E. has raised the child as his own since the
child was two years old. The child only knew J.E. as his father and called him “daddy.”
The social worker also interviewed J.E., who confirmed that he had raised the
child as his own since the child was two years old. J.E. said he loved the child as his
own, he was the only father the child has ever known, and he has provided for the child
both emotionally and financially. J.E. requested presumed father status and wanted to
have the child returned to him.
3 The social worker interviewed father, as well. He said he got out of prison in 2019
and was currently on parole. Father said he had not been involved in the child’s life since
2013, due to his life situation, but would now like to become involved.
The court held a jurisdiction/disposition hearing on February 2, 2021. This was
father’s first appearance in court, so the court asked him several questions. Father
informed the court that he was never married to mother, but they were together for a long
time. He said he was present at the hospital when the child was born, and he signed the
birth certificate. He said he recognized the child as his son. When the court asked if he
had provided any emotional or financial support, father said no. The court asked how
often he had seen the child since 2013, and father said he had not seen him since then.
The court stated that it understood J.E. had raised the child for the majority of his life,
that the child saw him as his father, and that J.E. was requesting presumed father status.
The court said it would be inclined to initially find two presumed fathers, but would
“balance that out in favor of [J.E.], then find[ father] biological only and not in the best
interest to offer services.” Father’s counsel requested a trial on the matter and also
requested a visitation order. The court noted that it was not clear if the child understood
that J.E. was not his father. It then authorized visitation to father, but only after CFS
assessed whether it was in the child’s best interest.
On March 8, 2021, the social worker filed an informational memorandum with the
court. Pursuant to the report, J.E. said the child was aware that he was not his biological
father, and that, “4 years ago or more,” the child told his mother and J.E. that he no
longer wanted to visit his biological father because father would make him walk on train 4 tracks in the middle of the night. The social worker talked with the child, who said he
may or may not recognize his father. The child could not describe anything about the last
time he saw father but said he would like to visit him. The social worker opined it would
not be detrimental for the child to have supervised contact with father.
The court held a contested jurisdiction/disposition hearing on March 9, 2021.
Father’s counsel asked the court to find father to be the presumed father, asserting that he
signed a voluntary declaration of parentage under Family Code section 7570,3 which
entitled him to presumed father status. Counsel further argued that, under section 7611,
subdivision (d), and pursuant to father’s statement at the last hearing, he lived with the
child for the first two years of his life and held out the child as his own. Counsel asked
the court to find father to be a presumed father; however, if it was going to find J.E. to be
a presumed father and was “inclined to weigh the two,” the court should find father to be
the presumed father, primarily because he had been in the child’s life, he did live with the
child, and he signed the voluntary declaration of parentage. In the alternative, counsel
argued that if the court found two presumed fathers, they would both be entitled to
reunification services.
Counsel for the child stated that the child was now nine years old, and J.E. had
been a stable father figure for more than half of his life. The child also lived with his half
siblings, since J.E. was caring for them as well. Moreover, the child did not fully
understand who father was, and he referred to J.E. as his father during an interview.
3 All further statutory references are to the Family Code unless otherwise indicated. 5 Thus, the child’s counsel requested the court to weigh in favor of J.E., find that father
was merely a biological father, and find that it was not in the child’s best interest to give
father services. County counsel stated that CFS believed both fathers rose to the level of
a presumed father, but “as the court is weighing the two fathers,” it should find J.E. was
the presumed father since he had been raising the child his entire life.
The court initially noted father’s indication that he lived with the child and mother
from 2009 to 2013, and the child was born in 2011. Father also said he had not seen the
child since 2013, which was consistent with the information in the jurisdiction/disposition
report, as well as the child’s statement that he had a parental relationship with J.E., but
really did not remember father. The court found, based on the fact that father signed the
birth certificate at the hospital and did live with the child, that father was a presumed
father. It also found, based on section 7611 and the established paternal relationship that
J.E. had with the child, that J.E. was a presumed father. The court stated: “Upon
balancing then, the issue is would it be—first, let me start with would it be detrimental to
the child to not have two presumed fathers? And I don’t find any evidence of detriment.
[¶] The child does seem open to visitation but he has no current relationship with
[father], hasn’t seen him since he was a toddler, is secure in his relationship with [J.E.]
and the siblings and has remained in [J.E.’s] care, so I don’t find that there’s any proof of
detriment if there is not two presumed fathers and I find the weightier balance then is
with [J.E.] is that [sic] the paternal relationship that the child has. He clearly looks to
[J.E.] to meet his needs and has been residing in his care since he was a toddler. So I’m
6 going to balance out [father] to a biological father. [¶] I will be making orders regarding
visitation but I’m going to leave [J.E.] as the sole presumed father.”
The court then sustained the petition. Regarding disposition, the court found that
it would be detrimental to place the child with father, based on his lack of relationship
and contact over the last seven years, that he was recently released from custody, and that
he would need to show a period of stability and sobriety. The court reiterated its finding
that father was a biological father and that it was not in the child’s best interest to offer
him services, based on the fact that the child was in family maintenance with J.E.
DISCUSSION
I. The Voluntary Declaration of Parentage Did Not Entitle Father to Presumed Father
Status
Father first contends that as a matter of law the juvenile court was required to
grant him presumed father status since he executed a voluntary declaration of parentage
when the child was born. He claims the voluntary declaration of parentage has the legal
effect of a paternity judgment; thus, under section 7612, subdivision (d), it rebutted J.E.’s
“presumption” of paternity under section 7611, subdivision (d). We disagree.
A. Relevant Law
1. Uniform Parentage Act
“ ‘The Uniform Parentage Act (UPA), Family Code section 7600 et seq., provides
the statutory framework for judicial determinations of parentage, and governs private
adoptions, paternity and custody disputes, and dependency proceedings.’ ” (In re D.A.
(2012) 204 Cal.App.4th 811, 824.) With regard to paternity, the UPA distinguishes 7 between “alleged,” “biological,” and “presumed” fathers. (See Francisco G. v. Superior
Court (2001) 91 Cal.App.4th 586, 595-596.) “A man who may be the father of the
dependent child but has not been established to be the natural or presumed father is an
‘alleged father.’ A man who has been established to be the biological father is a ‘natural
father.’ A man who has held the child out as his own and received the child into his
home is a ‘presumed father.’ ’’ (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns.
omitted (Jerry P.).) “Presumed father status ranks highest.” (Ibid.) Only a “statutorily
presumed father” is entitled to reunification services and custody of a child. (Ibid.)
Presumed parent status is governed by section 7611 of the UPA. In relevant part,
section 7611 provides: “A person is presumed to be the natural parent of a child if the
person meets the conditions provided in . . . Chapter 3 (commencing with Section 7570)
of Part 2 [which governs voluntary declarations of parentage] or in any of the following
subdivisions: [¶] . . . [¶] (d) The presumed parent receives the child into their home and
openly holds out the child as their natural child.” “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.” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018,
superseded by statute on other grounds, as stated in In re Alexander P. (2016) 4
Cal.App.5th 475, 486.) “ ‘[T]he core issues are the person’s established relationship with
and demonstrated commitment to the child.’ [Citation.] ‘Presumed parent status is
afforded only to a person with a fully developed parental relationship with the child
. . . .’ ” (In re L.L. (2017) 13 Cal.App.5th 1302, 1310 (L.L.); see Jerry P., supra, 95 8 Cal.App.4th at pp. 801-802, fn. omitted [“Presumed fatherhood, for purposes of
dependency proceedings, denotes one who ‘promptly comes forward and demonstrates a
full commitment to his paternal responsibilities—emotional, financial,
and otherwise.’ ”].)
Not all presumptions of parentage result in presumed parent status. Rather, when
multiple individuals claim presumptions under section 7611, section 7612 addresses how
those claims must be resolved. Prior to 2013, section 7612 only provided for recognition
of one presumed father. (Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119,
1131 (Kevin Q.) [“ ‘Although more than one individual may fulfill the statutory criteria
that give rise to a presumption of paternity, “there can be only one presumed
father.” ’ ”].) As a result, former section 7612 provided various mechanisms for
assessing which presumption would have priority and give rise to a presumed father.
Section 7612, former subdivision (a), provided, “ ‘Except as provided in . . . Chapter 3
(commencing with Section 7570) [(voluntary declaration of paternity)] of Part 2 . . . , a
presumption under Section 7611 is a rebuttable presumption affecting the burden of proof
and may be rebutted in an appropriate action only by clear and convincing evidence.’ ”
(Kevin Q., at p. 1133, fn. omitted.) Former subdivision (b) further stated: “ ‘If two or
more presumptions arise under Section . . . 7611 that conflict with each other, . . . the
presumption which on the facts is founded on the weightier considerations of policy and
logic controls.’ ” (Kevin Q., at p. 1133.) Former subdivision (c) of section 7612
provided that presumptions under section 7611 were rebutted by a judgment establishing
paternity of the child by another man. (Kevin Q., at p. 1133.) 9 In 2013, the Legislature amended section 7612 to allow for the recognition of
multiple presumed parents. (Stats. 2013, ch. 564, § 6.) While subdivisions (a) and (b)
remained unchanged, a new 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.” (§ 7612, subd. (c).)
2. Voluntary Declaration of Parentage
Pursuant to section 7570, the Legislature declared, “There is a compelling state
interest in establishing parentage for all children. Establishing parentage is the first step
toward a child support award, which, in turn, provides children with equal rights and
access to benefits, . . .” (§ 7570, subd. (a)(1).) Upon the event of a live birth, a hospital
is required to “provide to the woman giving birth and shall attempt to provide, at the
place of birth, to the person identified by the woman giving birth as . . . the only possible
genetic parent other than the woman who gave birth . . . a voluntary declaration of
parentage . . . . Staff in the hospital shall witness the signatures of parents signing a
voluntary declaration of parentage and shall forward the signed declaration to the
Department of Child Support Services within 20 days of the date the declaration was
signed.” (§ 7571, subd. (a).) A voluntary declaration of parentage establishes the
parentage of a child and “takes effect on the filing of the document with the Department
of Child Support Services.” (§ 7573, subd. (c).) “[A] completed voluntary declaration of
parentage . . . that has been filed with the Department of Child Support Services is
10 equivalent to a judgment of parentage of the child and confers on the declarant all rights
and duties of a parent.” (§ 7573, subd. (d).)
3. Standard of Review
“On appeal, we independently interpret statutes and apply the substantial evidence
standard in reviewing a juvenile court’s finding whether a person is a presumed parent.
[Citations.] In so doing, we consider the evidence and all reasonable inferences
therefrom in favor of the court’s finding and do not reweigh the evidence or credibility of
witnesses.” (L.L., supra, 13 Cal.App.5th at p. 1310.)
B. Father is Not Entitled to Presumed Father Status as a Matter of Law Solely
Because He Executed a Voluntary Declaration of Parentage
Father claims the fact that he executed a voluntary declaration of parentage
(VDOP) at the hospital when the child was born automatically established that he was the
child’s presumed father. At the outset, we note respondent’s argument that there was no
evidence presented that father signed a VDOP. Father contends that we should infer he
signed a VDOP since he is listed on the child’s birth certificate. (Health & Saf. Code,
§ 102425, subd. (a)(4)(C).) However, we observe that the record does not contain a copy
of the child’s birth certificate or the VDOP. Even assuming father did properly sign and
file a VDOP, we conclude that a VDOP does not confer presumed father status.
Section 7611 states that an individual “is presumed to be the natural parent of a
child if the person meets the conditions provided in . . . Chapter 3 (commencing with
Section 7570) of Part 2”—i.e., executed a valid VDOP. (§ 7611, italics added.) This
language is clear and unambiguous. Thus, under the express language of section 7611, 11 father is presumed to be the natural father of the child. Moreover, this presumption is not
rebuttable. Section 7612, subdivision (a), sets forth the standard for rebutting
presumptions arising under section 7611. That subdivision, however, expressly exempts
from its language presumptions arising from VDOP’s. (§ 7612, subd. (a) [“Except as
provided in . . . Chapter 3 (commencing with Section 7570) of Part 2, . . .”].)
While the VDOP gives father a conclusive presumption of parentage, we disagree
that it mandates his designation as a presumed parent. There is a line of cases holding
that the signing of a VDOP by itself is insufficient to confer presumed parent status in a
dependency case. A VDOP “gives rise to an evidentiary presumption that the declarant is
the child’s biological father, [but] it does not entitle him to presumed father status.” (In
re Jovanni B. (2013) 221 Cal.App.4th 1482, 1492 (Jovanni B.); see In re Brianna M.
(2013) 220 Cal.App.4th 1025, 1048 (Brianna M.)4.) In In re E.O. (2010) 182
Cal.App.4th 722 (E.O.), N.M. argued he was entitled to presumed father status in a
dependency proceeding because a judgment entered in a separate action had found him to
be the father of the dependent children and ordered him to pay child support. He noted
that section 7636 provides that a “ ‘judgment . . . of the court determining the existence
4 The California Supreme Court granted review of Brianna M. and subsequently dismissed the appeal due to the petitioner’s failure to file an opening brief. (In re Brianna M. (2014) 317 P.3d 1182; In re Brianna M. (2014) 330 P.3d 327.) Pursuant to California Rules of Court, rule 8.1115(e)(2), “After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court under (3), a published opinion of a Court of Appeal in the matter . . . is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.” Accordingly, Brianna M. is citable since the petition for review was dismissed. 12 . . . of the parent and child relationship is determinative for all purposes.’ ” (E.O., at p.
727.) He then claimed the paternity judgment “ ‘required the juvenile court to consider
[him] the children’s presumed father.’ ” (Ibid.) The court disagreed, stating “case law
holds that in order to become a presumed father, a man ‘must’ fall within one of the
categories set forth in Family Code section 7611.” (Ibid.)
The E.O. court further explained as follows: “[A]ppellant’s argument on this point
misconstrues the nature of the prior judgment. A paternity judgment is, as the name
implies, a judicial determination that a parent-child relationship exists. It is designed
primarily to settle questions of biology and provides the foundation for an order that the
father provide financial support. . . . Presumed father status, by contrast, is concerned
with a different issue: whether a man has promptly come forward and demonstrated his
‘ “full commitment to his parental responsibilities—emotional, financial, and
otherwise.” ’ [Citation.] We would endorse ‘an interpretation that would lead to absurd
consequences’ if we were to conclude that a paternity judgment that is focused narrowly
on biological and financial issues is determinative on subsequent issues that are unrelated
to and far beyond its scope.” (E.O., supra, 182 Cal.App.4th at pp. 727-728.)
In Brianna M., supra, 220 Cal.App.4th 1025, the court specifically addressed the
issue of whether a VDOP entitles a man to presumed father status in a dependency
proceeding. Applying the analysis of E.O., the court concluded that “while executing a
voluntary declaration of paternity entitles a man to be presumed a child’s biological
father, it does not entitle him to presumed father status in a dependency proceeding.” (Id.
at p. 1048.) The court explained as follows: “Like a paternity judgment, a voluntary 13 declaration of paternity is ‘designed primarily to settle questions of biology.’ ” (Ibid.)
The Brianna M. court further concluded that “there is no suggestion in the dependency
statutes that the Legislature intended to grant preferred status in a dependency action to a
man who has completed a voluntary declaration of paternity, but has not otherwise
established a relationship with his child.” (Brianna M., at p. 1049.)
Relying on Brianna M., and E.O., the court in Jovanni B., also held that a VDOP
does not entitle a man to presumed father status in a dependency proceeding. (Jovanni
B., supra, 221 Cal.App.4th at pp. 1491-1494.) As the court in Jovanni B. reiterated,
presumed father status is concerned with the issue of whether a man has promptly come
forward and demonstrated his commitment to his parental responsibilities. (Id. at
p. 1492.)
We fully agree with the rulings and rationales set forth in E.O., Brianna M., and
Jovanni B., and conclude that father’s VDOP did not entitle him to presumed father
status. A determination otherwise would lead to the absurd result that a person who has
had no contact and provided no support for his child for many years and who does not fit
within the definition of a presumed father set forth in section 7611 would undeservedly
achieve the status of presumed father—the highest status for a father in a dependency
proceeding—ordinarily “ ‘afforded only to a person with a fully developed parental
relationship with the child.’ ” (L.L., supra, 13 CalApp.5th at p. 1310.) We further note
father has not argued, nor does the record show, that he has achieved presumed father
status by promptly coming forward and demonstrating his commitment to his parental
responsibilities. 14 C. The VDOP Did Not Rebut J.E.’s Presumed Father Status
Father also contends that his claim of parentage based on the VDOP
“automatically rebut[s]” J.E.’s presumed father status under section 7611. It is
undisputed that J.E. was entitled to presumed father status under section 7611,
subdivision (d), since he “receive[d] the child into [his] home and openly [held] out the
child as [his] natural child.” Father appears to contend that, pursuant to sections 7573
and 7612, subdivision (d), his VDOP extinguished J.E.’s presumed father status. As a
result, there are not two conflicting presumptions subject to the weighing process under
section 7612, subdivision (b). We disagree.
Section 7612, subdivision (d), provides: “Unless a court orders otherwise after
making the determination specified in subdivision (c), a presumption under Section 7611
is rebutted by a judgment establishing parentage of the child by another person.” Section
7573 provides that a completed VDOP “is equivalent to a judgment of parentage of the
child . . . .” (§ 7573, subd. (d).) We agree that, by the plain language of section 7612,
subdivision (d), father’s VDOP “rebuts” the presumption of paternity under section 7611.
As we have said, the presumption created by section 7611 is that a man is the natural
father of a child. (§ 7611.) Thus, under these statutes, father’s VDOP “rebuts the
evidentiary presumption of section 7611[, subdivision] (d),” that J.E. is the child’s natural
father. (Brianna M., supra, 220 Cal.App.4th at pp. 1049-1050.) “But as such, it is
irrelevant to these proceedings, because [father’s] biological relationship with [the child]
has never been at issue.” (Ibid.)
15 We do not agree, however, that the VDOP has the effect of extinguishing J.E.’s
presumed father status for purposes of this dependency proceeding. (Brianna M., supra,
220 Cal.App.4th at p. 1050.) “The primary purpose of section 7611, a part of the
Uniform Parentage Act, is to establish a child’s paternity through a series of rebuttable
presumptions. In dependency proceedings, however, the purpose of section 7611 is not
to establish paternity. Rather, as discussed above, the purpose is to determine whether
the alleged father has demonstrated a sufficient commitment to his parental
responsibilities to be afforded rights not afforded to natural fathers—the rights to
reunification services and custody of the child. Therefore, in dependency proceedings the
term ‘presumed father’ does not denote a presumption of fatherhood in the evidentiary
sense and presumed father status is not rebutted by evidence someone else is the natural
father.” (Jerry P., supra, 95 Cal.App.4th at p. 804, fn. omitted, italics added; see
Brianna M., supra, 220 Cal.App.4th at p. 1050.) In other words, “[s]ince a paternity
judgment is a judicial determination of only biological paternity—and because biological
paternity is irrelevant to presumed father status in the dependency context—a judgment
establishing biological paternity in one man cannot overcome a court’s finding of
substantive presumed father status in another man.” (Brianna M., supra, 220
Cal.App.4th at p. 1050.)
16 Father relies on Kevin Q., supra, 175 Cal.App.4th 1119 and In re Levi H. (2011)
197 Cal.App.4th 1279 (Levi H.),5 in support of his claim that his VDOP rebuts J.E.’s
presumed father status. However, neither case is applicable. Both cases were decided
prior to the 2013 amendment to section 7612, which allows courts to recognize more than
two presumed parents. As a result, the courts deciding Kevin Q. and Levi H. were
required to select a single presumed parent. 6 (Kevin Q., supra, 175 Cal.App.4th at
p. 1131 [“How the various Family Code sections are reconciled and prioritized to identify
a single presumed father is the subject of our inquiry here.”]; Levi H., supra, 197
Cal.App.4th at p. 1287 [“ ‘ “[T]here can be only one presumed father.” ’ ”].)
Moreover, former subdivision (c) of section 7612, in effect at the time of both
decisions, stated, “The presumption under Section 7611 is rebutted by a judgment
establishing paternity of the child by another man.” (Legis. Counsel’s Digest, Assem.
Bill No. 1349 (2011-2012 Reg. Sess.) § 3.) Accordingly, former subdivision (c) required
courts to find that a VDOP rebutted any section 7611 presumptions when evaluating two
potential presumed parents. With the other presumptions rebutted, only the presumption
arising from the VDOP remained, and there were no conflicting presumptions to weigh
5 Overruled in part on other grounds, as stated in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, footnote 7.
6 At oral argument, father’s counsel suggested that, since we are rejecting the reasoning of Kevin Q. and Levi H. because they were decided prior to the 2013 amendment to section 7612, we should also reject E.O., Brianna M., and Jovanni B., since they were also decided prior to the 2013 amendment. However, we cite to and agree with the analyses of E.O., Brianna M., and Jovanni B. in concluding that a man’s VDOP does not entitle him to presumed father status. These cases are still applicable here and not affected by the 2013 amendment. 17 under section 7612, subdivision (b). (Kevin Q., supra, 175 Cal.App.4th at p. 1139
[“Brent signed and filed a valid declaration of paternity that has the force of a judgment
under section 7573 and trumps Kevin’s presumption under section 7611, subdivision
(d).”]; Levi H., supra, 197 Cal.App.4th at p. 1290 [[B]ecause the voluntary declaration of
paternity “extinguishes” the other presumption, “there are not two conflicting
presumptions subject to the weighing process.”].)
However, since those cases were decided, the Legislature amended the relevant
statutory provisions. As discussed in part I.A.1., ante, section 7612 was amended to
authorize courts to recognize more than two parents. (Sen. Com. on Judiciary, Rep. on
Sen. Bill No. 274 (2013-2014 Reg. Sess.) Apr. 29, 2013.) In doing so, former
subdivision (c) was relettered as subdivision (d) and amended to provide, “Unless a court
orders otherwise after making the determination specified in subdivision (c), a
presumption under Section 7611 is rebutted by a judgment establishing parentage of the
child by another person.” (§ 7612, subd. (d), italics added; see Sen. Com. on Judiciary,
Rep. on Sen. Bill. No. 274, supra, at p. 6.) In other words, a VDOP no longer
automatically rebuts other presumptions of parentage under section 7611, as father
claims, since a court may order otherwise.
We further note that Kevin Q. was a paternity action, not a dependency
proceeding. “The question before the court, therefore, was which man, Brent or Kevin,
was the child’s biological father. [As such, t]he case has no bearing on the question
before us—i.e., which man is entitled to presumed father status in this dependency
18 proceeding, not who is [the child’s] biological father.” (Brianna M., supra, 220
Cal.App.4th at p. 1054; see Kevin Q., supra, 175 Cal.App.4th at pp. 1137-1139.)
II. The Court Properly Applied the Statutes and Found That J.E. Was the Presumed
Father and Father Was a Biological Father
Father further contends the court misapplied the statutes when evaluating his
parentage claim, and he was consequently not offered reunification services. He argues
the court did not find that it would be detrimental to the child to have only two parents
under section 7612, subdivision (c); thus, because his parentage established through the
VDOP rebutted J.E.’s presumed father status, and the court found it would not be
detrimental for the child to have only two parents, the court erred in applying the
balancing test under section 7612, subdivision (b), and “balancing him out” to be a
biological father. He now asks us to remand the matter for the court to properly apply the
statutory framework and offer him services. We conclude the court properly applied the
statutes and found that J.E. was the child’s presumed father and father was a mere
biological father. Therefore, father was not entitled to reunification services.
A. Background
After counsels’ arguments, the court found father to be a presumed father because
“he signed the birth certificate at the hospital” and lived with the child. It also found J.E.
to be a presumed father based on his established parental relationship with the child under
section 7611, subdivision (d). Finding both fathers to be presumed fathers, the court
stated: “[L]et me start with would it be detrimental to the child to not have two presumed
fathers? And I don’t find any evidence of detriment.” It proceeded to find that father had 19 no current relationship with the child, noting that father had not seen him since he was a
toddler. The court then contrasted father’s relationship (or lack thereof) with the child’s
relationship with J.E. and found that the child was secure in his relationship with J.E. and
in his relationships with his half siblings, noting that the child had been in J.E.’s care.
The court stated: “[S]o I don’t find that there’s any proof of detriment if there is not two
presumed fathers and I find the weightier balance is then with [J.E., since that is] the
paternal relationship that the child has.” The court stated that the child clearly looked to
J.E. to meet his needs, and the child had been in his care since he was a toddler. As such,
the court declared it was going to “balance out” father to be a biological father. The court
also found it was not in the child’s best interest to offer father services.
B. Section 7612, Subdivision (c)
As previously discussed, “[i]n 2013, the Legislature enacted section 7612,
subdivision (c) to allow courts to recognize that a child has more than two parents in
certain limited contexts.” (In re Donovan L. (2016) 244 Cal.App.4th 1075, 1086-1087.)
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
enacting section 7612, subdivision (c), the Legislature expressed its intent that it ‘only
apply in the rare case where a child truly has more than two parents, and a finding that a
child has more than two parents is necessary to protect the child from the detriment of
being separated from one of his or her parents.’ ” (L.L., supra, 13 Cal.App.5th at p. 1316,
italics added.) 20 In Donovan L., supra, 244 Cal.App.4th 1075, the court examined the legislative
history of section 7612, subdivision (c), and harmonized it with the UPA, concluding:
“There is no indication the Legislature intended section 7612, subdivision (c) to apply to
a person . . . who, at the time of the contested disposition hearing on parentage, lacked an
existing relationship with the child. A person who lacks an existing parent-child
relationship is not a child’s ‘parent in every way.’ [Citation.] Nor would separation from
such a person cause ‘devastating psychological and emotional impact on the child.’ ”
(Donovan L., at pp. 1092-1093.) The court further concluded: “ ‘[A]n 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.’ [Citation.]” (Id. at
pp. 1093-1094.) In that case, the court found the putative third parent “ ‘does not have a
strong relationship,’ ” with the child. (Id. at p. 1092.) Because the court found the
putative third parent did not have an existing parent-child relationship, it concluded there
was no substantial evidence to support a finding of detriment under section 7612,
subdivision (c). (Donovan L., at p. 1094; see L.L., supra, 13 Cal.App.5th at p. 1316.)
21 C. Section 7612, Subdivision (b) Weighing Process
“If a third parent is not recognized under section 7612, subdivision (c), then a
juvenile court generally must weigh the competing presumptions of two or more
presumed fathers and determine which one should be recognized as the child’s presumed
father. [Citations.] Section 7612, subdivision (b), provides: ‘If two or more
presumptions arise under Section 7610 or 7611 that conflict with each other, or if a
presumption under Section 7611 conflicts with a claim pursuant to Section 7610, the
presumption which on the facts is founded on the weightier considerations of policy and
logic controls.’ Accordingly, where there are conflicting claims of two or more
presumed fathers, the juvenile court must make factual findings as to each claim and then
determine which claim is entitled to greater weight under section 7612, subdivision (b).”
(L.L., supra, 13 Cal.App.5th at pp. 1317-1318; see § 7612, subd. (b).)
D. The Court Properly Recognized J.E. as the Child’s Presumed Father
Father specifically contends the court found “that there would be no detriment to
have only two parents. Thus, the court did not make the determination of detriment
under subdivision (c).” He proceeds to conclude that, because the court did not make the
detriment finding under subdivision (c), only the latter part of section 7612, subdivision
(d), applies. Subdivision (d) states, “Unless a court orders otherwise after making the
determination specified in subdivision (c), a presumption under Section 7611 is rebutted
by a judgment establishing parentage of the child by another person.” Thus, father claims
that, because the court “resolved subdivision (c) in the negative,” the “controlling
provision” in section 7612, subdivision (d), was the portion stating that “a presumption 22 under Section 7611 is rebutted by a judgment establishing parentage of the child by
another person.” He further claims that, where that clause is operative, “any additional
balancing is improper.” In other words, he argues the court erred in not applying the
“controlling provision” and instead applying the weighing process of section 7612,
subdivision (b), and electing to “balance [him out] to a biological father.” We disagree.
The court here apparently concluded that this was not an appropriate action to find
that recognizing only two parents would be detrimental to the child. (§ 7612, subd. (c).)
“ ‘[A]n 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.’ ”
(Donovan L., supra, 244 Cal.App.4th at pp. 1093-1094.) The court here stated, “I don’t
find that there’s any proof of detriment if there is not two presumed fathers and I find the
weightier balance then is with [J.E. since] that [is] the paternal relationship that the child
has.” In other words, the court did not find that this was “the ‘rare case’ in which section
7612, subdivision (c) allows a court to find that a child has more than two parents.” (Id.
at p. 1094.) It expressly found that father did not have a current relationship with the
child, noting that he had not seen the child since the child was a toddler. Indeed, at the
jurisdiction/disposition hearing, father admitted he had not seen the child since 2013 and
had not provided him any emotional or financial support. Thus, at the time of the
hearing, father had not had a relationship with the child for at least eight years. Since
there was no existing relationship between father and the child, the court did not need to
23 recognize three parents. Accordingly, there was no substantial evidence to support a
finding of detriment under the statute. (Donovan L., at pp. 1092-1093.)
Because the court did not recognize a third parent under section 7612, subdivision
(c), it properly went on to “weigh the competing presumptions of two or more presumed
fathers and determine which one should be recognized as the child’s presumed father.”
(L.L., supra, 13 Cal.App.5th at p. 1317; see § 7612, subd. (b).) As mentioned ante, the
court found that both father and J.E. were presumed fathers. Assuming without deciding
that the court properly found father to be a presumed father, we conclude that it weighed
the competing presumptions and properly determined that J.E. should be recognized as
the child’s presumed father. Father had no relationship with the child, while J.E. had
raised the child as his own since the child was two years old, loved him as his own, and
provided for him both emotionally and financially.
Ultimately, the court properly applied the relevant statutes and found that J.E. was
the child’s presumed father, and that father was merely a biological father.
Consequently, the court did not err in denying father reunification services. (In re
Zacharia D. (1993) 6 Cal.4th 435, 451 [“[O]nly a presumed, not a mere biological, father
is a ‘parent’ entitled to receive reunification services.”].)
24 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J.
We concur:
McKINSTER Acting P. J.
MENETREZ J.