San Diego Cnty. Health & Human Servs. Agency v. D.Z. (In re L.L.)

220 Cal. Rptr. 3d 904, 13 Cal. App. 5th 1302
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 3, 2017
DocketD071661
StatusPublished
Cited by22 cases

This text of 220 Cal. Rptr. 3d 904 (San Diego Cnty. Health & Human Servs. Agency v. D.Z. (In re L.L.)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
San Diego Cnty. Health & Human Servs. Agency v. D.Z. (In re L.L.), 220 Cal. Rptr. 3d 904, 13 Cal. App. 5th 1302 (Cal. Ct. App. 2017).

Opinion

*907McCONNELL, P.J.

*1305The juvenile court issued an order finding B.S. is a presumed father of L.L., a 10-year-old girl, pursuant to *1306Family Code 1 section 7611, subdivision (d), and also finding he is a third parent pursuant to section 7612, subdivision (c). T.L., another presumed father of L.L., and D.Z., L.L.'s mother (Mother), appeal that order, arguing: (1) there is insufficient evidence to support the court's finding that B.S. is a presumed father of L.L. under section 7611, subdivision (d) ; (2) the court erred in interpreting section 7612, subdivision (c), and by finding B.S. is a third parent under that statute; and (3) the court erred by not conducting the weighing process between the claims of the two presumed fathers that section 7612, subdivision (b), requires. Based on our reasoning below, we conclude there is substantial evidence to support the court's finding that B.S. is a presumed father of L.L., but the court erred in interpreting section 7612, subdivision (c), by finding B.S. is a third parent under that statute, and by not conducting the weighing process required under section 7612, subdivision (b).

FACTUAL AND PROCEDURAL BACKGROUND

L.L. was born in 2006. Her birth certificate named Mother and T.L. as her parents.

In June 2016, a probation department search of Mother's home found drugs, drug paraphernalia, and sulfuric acid. Mother was arrested for probation violations and placed in custody at the Las Colinas Detention Facility. L.L. was taken into protective custody and detained at the Polinsky Children's Center.

On June 9, the San Diego County Health and Human Services Agency (Agency) filed a dependency petition on behalf of L.L. pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging she was at substantial risk of neglect by her parents' failure to provide her with adequate food, clothing, shelter, or medical treatment. In its report for L.L.'s detention hearing, Agency stated that L.L. had previously been taken into protective custody on her birth in 2006 because she tested positive for amphetamines and methamphetamines. Mother and T.L. reunified with L.L. later that year.2 In 2016, T.L. lived in the home with his girlfriend, L.L., Mother, and her boyfriend. Mother and T.L. had extensive criminal histories. An Agency social worker interviewed L.L., who was mature for her age. L.L. stated that T.L. was the only person in her home who went to work, was the one who made sure she was fed well, and transported her to school every morning. T.L. had been her father since she was one year old. Her biological father had been in jail for years. L.L. asked for visits with T.L.

*1307Mother told the Agency social worker that L.L.'s biological father was B.S., who was a "murderer" sentenced to state prison in 2010, and T.L. was the only father L.L. had ever known. Although B.S. sought and was awarded visitation with L.L. shortly after her birth, Mother stated she rarely allowed him to visit L.L.

At L.L.'s detention hearing, the juvenile court amended the petition to designate T.L. as a presumed father pursuant to *908sections 7611, subdivision (d), and 7573. It detained L.L. out of the home, ordered Agency to offer voluntary services to the parents, and set a date for the jurisdiction and disposition hearing.

At the jurisdiction and disposition hearing, the court recognized B.S. as an alleged father of L.L. T.L. submitted a 2013 family court stipulation and order for custody of L.L. The court stated it was in possession of a file from another family court case in which B.S. was the petitioner and involved custody orders. It then set a date for a trial on the dependency petition's allegations. Prior to that trial, the court received a letter from B.S. in which he stated he was awarded joint custody of L.L. after filing a court case, but Mother and T.L. refused to allow L.L. to interact with him. Records from B.S.'s criminal case showed that in 2005 he stabbed and killed a person, pled guilty in 2011 to voluntary manslaughter, and was sentenced to a prison term of 12 years.

In July, Mother was sentenced in her criminal case and later released on the condition that she complete a residential drug treatment program. At a settlement conference in L.L.'s case, the juvenile court raised a question regarding B.S.'s standing in the case. B.S.'s counsel requested a paternity test, which the court denied, but B.S. remained an alleged father.

The court held a contested jurisdiction and disposition hearing and found it had jurisdiction, removed L.L. from parental care, placed her with relatives, ordered visitation with L.L. for Mother and T.L., and set dates for review hearings.

A couple of months later, the court held a special hearing on B.S.'s request to address the issue of L.L.'s paternity. B.S. submitted, inter alia, a 2007 family court order finding he established a parental relationship with L.L. and awarding him joint legal custody of her with Mother and regular visitation with L.L.3 B.S. requested that the juvenile court elevate his status as a parent and renewed his request for a genetic paternity test. After clarifying confusion *1308regarding L.L.'s name,4 the court found there was insufficient evidence at that time for it to find B.S. was either a presumed father or a father under Adoption of Kelsey S. (1992) 1 Cal.4th 816, 4 Cal.Rptr.2d 615, 823 P.2d 1216. However, it ordered a genetic test to determine whether B.S. was L.L.'s biological father. It also set a date for a trial on his request for a presumed parent finding.

The results of the genetic test showed that B.S. is L.L.'s biological father. The court amended the dependency petition to reflect that B.S. is her biological father.

In November, Mother was released from custody and began drug treatment, individual therapy, and a parenting course. She regularly visited L.L. Although T.L. had struggled with homelessness, in January 2017, he entered a sober living environment, maintained his employment, engaged in services, and tested negative for drugs. He regularly visited L.L. L.L. stated she loved spending time with T.L. and felt safe when visiting him.

In its report for the six-month review hearing, Agency recommended that the court offer an additional six months of services for Mother and T.L. and continue L.L.'s placement out of the home. Agency *909reported that T.L. loved and cared for L.L. and wanted her back in his care.

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Cite This Page — Counsel Stack

Bluebook (online)
220 Cal. Rptr. 3d 904, 13 Cal. App. 5th 1302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-diego-cnty-health-human-servs-agency-v-dz-in-re-ll-calctapp5d-2017.