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San Diego County Health and Human Services Agency v. Roger S

August 29, 2011


APPEAL from a judgment of the Superior Court of San Diego County, Martin W. Staven, Judge. (Super. Ct. No. J517765A)

The opinion of the court was delivered by: McINTYRE, J.


In re P.A., a Person Coming Under the Juvenile Court Law.

(Retired Judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.

In March 2010, six-year-old P.A. came to the attention of the San Diego County Health and Human Services Agency (Agency) as a result of domestic violence between her mother, Patricia H., and stepfather, Roger S. The juvenile court found Roger was P.A.'s presumed father under Family Code section 7611, subdivision (d). (Statutory references are to the Family Code unless otherwise specified.) When genetic testing showed Alvaro A. was P.A.'s biological father, the court entered a judgment of paternity in his favor, and found that judgment necessarily rebutted Roger's presumed father status. Roger appeals, contending the court erred by entering a judgment of paternity for Alvaro without considering Roger's competing paternity interests under section 7612, subdivision (b). Roger asserts this denied him his due process right to a fair hearing on his paternity status. We conclude that where, as here, a child has both a presumed and a biological father, the court must hold an evidentiary hearing at which it reconciles the competing paternity interests to determine which of those interests are founded on the weightier considerations of policy and logic. Accordingly, we reverse the judgment of paternity in favor of Alvaro and remand the case for a hearing under the standard articulated in section 7612, subdivision (b).


Patricia came to San Diego from Mexico when she was pregnant with P.A. She met Roger when P.A. was two months old, and married him several months later. Roger provided a home, food and clothing for P.A., and told everyone he was her father. P.A. considered Roger to be her father. The relationship between Patricia and Roger was marred by domestic violence. P.A. told the social worker she did not feel safe when her "dad" was at home because she twice saw him push her mother to the floor.

In March 2010 Agency filed a petition in the juvenile court under Welfare and Institutions Code section 300, subdivision (b), alleging P.A. was at substantial risk of harm as a result of domestic violence between Patricia and Roger. Patricia identified Alvaro as P.A.'s father and said he lived in Mexico City. A parent search was initiated for him. Alvaro was eventually located in Canada, and requested a paternity test. On a paternity form, he stated he had never lived with P.A., but she had been in his home two times. The court appointed counsel for Alvaro and ordered paternity testing for him. Alvaro said he was not seeking custody of P.A. and was not interested in receiving services from Agency. He intended to return to Mexico.

The court sustained the allegations of the petition, declared P.A. a dependent and placed her with Patricia. The court found Roger was P.A.'s presumed father under section 7611, subdivision (d), but deferred entry of a paternity judgment until proper notice was given to Alvaro so that he could request a hearing "to rebut the presumption or establish his own paternity." The court ordered reunification services for Roger, including supervised visits with P.A.

When genetic tests showed Alvaro was P.A.'s biological father, he requested a judgment of paternity. Patricia and P.A. supported Alvaro's request, noting P.A. was enjoying frequent telephone calls from Alvaro, and she no longer wanted visits with Roger. Roger opposed the request for a paternity judgment in favor of Alvaro and asked for a hearing to allow the court to balance the interests of the two fathers, and ultimately, to have a judgment of paternity entered in Roger's favor. The court, however, found it was unlikely that Roger could disprove Alvaro's biological paternity, and Alvaro's status as P.A.'s biological father entitled him to a judgment of paternity, thereby rebutting Roger's presumed father status. The court entered a judgment of non-paternity as to Roger, but nevertheless gave Agency discretion to allow Roger to visit P.A. if she wanted visits.


The issue presented in this appeal, which implicates the rights of a presumed father and a biological father, is whether the court can use evidence of biological paternity to enter "a judgment establishing paternity" under section 7612, subdivision (c), for the purpose of rebutting the presumption of paternity under section 7611, subdivision (d), without weighing the competing interests of a statutorily presumed father. "The resolution of this issue depends solely on statutory interpretation and is subject to our independent review." (In re Liam L. (2000) 84 Cal.App.4th 739, 743.) "The objective of statutory interpretation is to ascertain and effectuate legislative intent. To accomplish that objective, courts must look first to the words of the statute, giving effect to their plain meaning." (In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437; see also Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 864.)


Before we begin our analysis, we address the issue of mootness raised by Alvaro in his request for judicial notice, which we grant. (Evid. Code, ยง 452, subd. (d).) According to a March 24, 2011 minute order, the juvenile court placed P.A. with Patricia and terminated its jurisdiction. Although P.A. is no longer a dependent child, the issue on appeal--whether Roger was entitled to a hearing to have the court weigh competing paternity claims--is not moot because Roger's rights were adversely affected by the court's judgment of paternity for Alvaro, which may have consequences for Roger in the future. (See In re A.R. (2009) 170 Cal.App.4th 733, 740; Clifford S. v. Superior Court (1995) 38 Cal.App.4th 747, 752.) Further, "[w]e exercise ...

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