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In Re Cheyenne B., A Person Coming Under the Juvenile Court v. Richard B

February 28, 2012

IN RE CHEYENNE B., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
RICHARD B., DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. CK81042) APPEAL from a judgment of the Superior Court of Los Angeles County, Marilyn Mordetzky, Juvenile Court Referee.

The opinion of the court was delivered by: Croskey, Acting P. J.

CERTIFIED FOR PUBLICATION

Judgment is affirmed in part and reversed in part and remanded with directions.

INTRODUCTION

The appellant, Richard B. (Richard),*fn1 challenges the trial court's order of August 24, 2010 which (1) denied his request to be recognized as the presumed father*fn2 of Cheyenne B. (Cheyenne) and (2) found that Dennis M. (Dennis) was her presumed father.*fn3 The findings of that order formed the basis for the September 29, 2010 judgment declaring Cheyenne and D.H.*fn4 (D.H.) to be dependents of the court and permanently placing them with Dennis. Richard asserts that his August 20, 2009 Judgment Regarding Parental Obligations is a judgment establishing his paternity with respect to Cheyenne and, therefore, the Family Code*fn5 section 7611, subdivision (d)*fn6 presumption that Dennis is Cheyenne's presumed father is rebutted pursuant to section 7612, subdivision (c).*fn7 He also asserts that the trial court was required to give effect to the previous judicial determination regarding his paternity because, under section 7636,*fn8 such an adjudication establishes that he is her father "for all purposes," including a finding that he is Cheyenne's presumed father, and the trial court was without authority to make a paternity determination with respect to Dennis as a result.

In addition, Richard contends, notwithstanding the foregoing, that there was substantial evidence to support a finding that he is Cheyenne's presumed father under section 7611, subdivision (d). And, he argues, the trial court erred in finding otherwise. Similarly, Richard contends that the trial court's finding that Dennis is Cheyenne's presumed father under section 7611, subdivision (d), was not based on substantial evidence.

After a careful review of the relevant authorities, we hold that a paternity judgment establishing that a man is the father of a child for child support purposes is nonetheless a "paternity judgment" within the meaning of section 7612, subdivision (c), and that such judgment will rebut the section 7611, subdivision (d) presumption. However, the rebuttal of the section 7611, subdivision (d) presumption does not require a trial court to find that a man with a prior paternity judgment shall be designated as a presumed father of the child at issue; in order for such a designation to be made, the requirements of one of the categories of section 7611 must be satisfied (see fn. 6, ante). Falling within section 7612, subdivision (c), is not one of those categories. Similarly, section 7636 does not require that a trial court find a man to be a presumed father solely on the basis of having a prior paternity judgment.

Finally, we conclude that the evidence in the record before us supports the trial court's finding that Richard, despite such prior paternity judgment, does not satisfy any of the categories set out in section 7611 in order for him to be given presumed father status with respect to Cheyenne. As such, the trial court's ruling that he is not her presumed father was not erroneous.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Facts

On or around May 13, 2010, the Department of Children and Family Services (DCFS) received a referral stating that Summer P. (Summer) took her daughter, Cheyenne, then 12 years old, to the house of another minor child and encouraged Cheyenne to get into an altercation with the other child. The referral alleged that Summer and Cheyenne assaulted the other child. The police became involved and Summer was arrested for child endangerment, assault with a deadly weapon and terrorist threats. DCFS detained all five of Summer's children: Cheyenne, Dennis M.*fn9 (born in June 2001), twins W.M. and S.M. (born in March 2004) and D.H.

Minor child Dennis, and his twin sisters, W.M. and S.M., were all placed with their biological father, Dennis, in Nevada before DCFS filed its dependency petition. Richard was identified by Summer as the biological father of Cheyenne, and W.H. was identified as the biological father of D.H. Summer initially stated Richard's whereabouts were unknown to her and W.H. was incarcerated in a federal penitentiary. Both Cheyenne and D.H. were placed in foster care.

2. The Proceedings

The parties to this appeal include Richard, DCFS, Cheyenne and Dennis.*fn10 Summer, D.H. and W.H., although parties to the dependency case below, are not parties to this appeal. Cheyenne's other half-siblings were not parties to the dependency case below.

At the detention hearing on May 18, 2010*fn11 (continued to May 20, 2010 to allow Summer to attend), Dennis was in attendance, was appointed an attorney and asked for presumed father status and custody of both Cheyenne and D.H. The trial court found Dennis had these children "in his care and custody for a substantial period of time . . . [and assumed] that he was providing support to those children, not only financially but emotionally and physically . . . he accepts them as his own, and these children recognize him as their father." The court also stated, "I've seen the interaction between those children and this father. [¶] I don't know what [Richard and W.H. who] have been found to be the alleged fathers[*fn12 ] can provide to this court that would be different. Neither one of them are [sic] in the position to take these children." The court stated that Cheyenne was 12 years old and Richard had not previously asserted any paternity rights. The court then found Dennis to be Cheyenne's presumed father and released her to him, allowing him to take the children to Nevada, over DCFS's objections. DCFS's request for a stay of the release order was denied.

The trial court held a paternity hearing on August 24, 2010. Richard was in attendance and was appointed an attorney. Richard moved the court to set aside its finding that Dennis was Cheyenne's presumed father and to name Richard as her presumed father instead.*fn13 At the hearing, Richard testified that Cheyenne was his daughter but that he was not present at her birth due to his being incarcerated. He testified further that he first saw her when Summer brought Cheyenne to the prison less than a month after her birth. Additionally, he testified that he called, wrote letters and sent money from prison.

On the day he was released from prison in July of 2006, he visited with Cheyenne, who was then approximately nine years old, and was living in Nevada. He also saw her again one or two months later. Richard stated that because he was on parole he could not leave California and, as a result, he was only able to visit Cheyenne when Summer came to California. He did not indicate the frequency of these visits. Richard submitted contradictory testimony with respect to how many overnight visits he had with Cheyenne stating first, "She stayed at my house - not very often, but she's been to my house maybe three or four times for a few days at a time." But then when counsel clarified whether such visits were monthly or every two months, Richard stated, "Oh, no. It was - it was when she first moved back to California. I had her on through the weekend, the first weekend. I can tell you it was right around her birthday. I had her for about a week right before her birthday. Then she went back to her mother's."

Richard stated to DCFS that he was unable to see Cheyenne as consistently as he'd liked because Summer kept her from him. Richard testified that Summer informed him that she stopped bringing Cheyenne to see him when he was incarcerated because she did not want Cheyenne to be at the prison. He testified that Summer subsequently ceased bringing Cheyenne to see him and would not allow other family members to do so. He also testified that after his parole ended his infrequent visitation with Cheyenne was due to a "lack of communication" between ...


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