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In Re D.A., A Person Coming Under the Juvenile Court Law. v. M.C.

March 28, 2012

IN RE D.A., A PERSON COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
M.C., ET AL., DEFENDANTS AND RESPONDENTS; C.R., INTERVENOR AND APPELLANT.



(Los Angeles County Super. Ct. No. CK82418) APPEAL from orders of the Superior Court of Los Angeles County. Marilyn Mackel, Juvenile Court Referee. Reversed with directions.

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

CERTIFIED FOR PUBLICATION

In this juvenile dependency case, the six-month-old minor, D.A., was detained from his mother, M.C. (mother), and placed with E.A., whom the trial court ruled was D.A.'s presumed father although E.A. and mother had never married or attempted to marry, E.A. had lived with mother for just two weeks before and two weeks after D.A. was born, and mother suspected that E.A. was not D.A.'s biological father. Subsequent genetic testing revealed that another man, C.R., is D.A.'s biological father. C.R. and mother are now engaged to be married.

Since being identified as D.A.'s biological father, C.R. has consistently sought to be determined to be D.A.'s presumed father and has sought visitation. The trial court has consistently denied those requests and, until recently, ordered C.R. to have no contact at all with D.A. Under the most recent order contained in the record on appeal, C.R. is now allowed no more than two visits per month, monitored by the Department of Children and Family Services (DCFS).

C.R. appeals from the trial court's rulings on paternity issues and visitation. We conclude that the court's denial of C.R.'s request to be determined to be a presumed father of D.A. is not supported by substantial evidence, and that the court's determination that E.A. is a presumed father of D.A. is likewise not supported by substantial evidence. We accordingly reverse with directions and remand for further proceedings.

BACKGROUND

C.R. and mother were involved in an intimate and exclusive relationship that ended in approximately 2003. In approximately early 2008 they resumed a sexual but nonexclusive relationship. In early 2009, mother also began an intimate relationship with E.A. At some point in 2009, when her relationship with E.A. became more serious, mother ceased all contact with C.R. for several months.

At some point in 2009, mother informed E.A. that she might be pregnant. He took her to get a pregnancy test, which confirmed the pregnancy. She told him that he was the father, and he believed her.

Several months into the pregnancy, mother contacted C.R., told him she was pregnant, and told him that he might be the father of the child but that she was not sure. C.R. told her that he wanted a paternity test as soon as the child was born, and he offered to help her with any expenses associated with the pregnancy, childbirth, or the baby. He also took mother to two doctor visits during the pregnancy, at one of which they learned that she was carrying a boy.

Soon after the second doctor visit, however, mother disconnected her phone, leaving C.R. with no other phone number to contact her directly. C.R. repeatedly attempted to reach mother by calling the maternal aunt in order to "find out how the pregnancy was going" and to see if he "could help and participate in the process," but the maternal aunt always either refused to answer his calls or refused to allow him to speak to mother. According to C.R., he had no other way of contacting mother.

Also during the pregnancy, mother told E.A. that E.A. was not the father. According to E.A., he and mother "were not getting along" at the time, so he did not believe her and "thought she was just saying this to get back at" him.

Late in the pregnancy, mother and E.A. resolved their differences. About two weeks before the baby was born, E.A. moved in with mother at the home of the maternal grandmother. He took mother to some prenatal appointments and was present at the hospital when D.A. was born in November 2009.

Also on the day D.A. was born, C.R. called the maternal aunt and was informed that mother was at the hospital in labor. He asked if he could speak to mother and asked where she was giving birth, but the maternal aunt refused to give him any more information.

D.A.'s birth certificate, signed by mother, lists E.A. as the father. Mother subsequently informed C.R., however, that D.A. was "more developed" at birth than was expected and that she consequently believed that C.R. "almost definitely was the father" (presumably because of the timing of her relationships with C.R. and E.A.). Mother similarly informed DCFS that because of her due date and date of conception she believed that D.A.'s "father may be [C.R.]"

Two weeks after D.A. was born, mother asked E.A. to move out, which he did. According to E.A., he "continued to provide all of [D.A.'s] basic necessities and had regular and ongoing contact with [D.A.]," and on some unspecified number of occasions mother "drop[ped] [D.A.] off for overnights while she was out partying and pick[ed] him up the next morning."

A few months after D.A. was born, mother contacted C.R., who "begged to see her and the baby." She agreed, and they met at a restaurant and then went back to C.R.'s home, where C.R. introduced D.A. to members of his family. C.R. again told mother that he wanted a genetic test to determine whether he was D.A.'s father. Mother agreed but, according to C.R., "kept making excuses why it couldn't be done right away." C.R. located a company on the Internet that he intended to use for the test, but one week later, before the test could be performed, D.A. was detained.

The following incident gave rise to D.A.'s detention: In May 2010, when D.A. was six months old, mother and E.A. became involved in a physical altercation after mother picked up E.A. at work. Apparently E.A. tried to take mother's cell phone after accusing her of "cheating" on him, and she started "screaming" at him and hitting him. He was holding D.A. at the time, and one of mother's blows struck D.A. in the face, giving him a bloody nose. Mother was arrested at the scene, and D.A. was transported by ambulance to a hospital, where he was treated and released to E.A. (The detention report states that according to the hospital records D.A. was diagnosed with a concussion, but the hospital records in the clerk's transcript do not state such a diagnosis.) When sheriff's deputies arrested mother, they found her to be in possession of methamphetamine and a glass pipe, but they believed she was not under the influence.

The day after the altercation, a DCFS social worker interviewed E.A. In addition to describing the altercation of the previous day, E.A. "stated that in the past he had used marijuana and had a current medicinal marijuana prescription." He also stated that he had a criminal record of vandalism and driving under the influence and was currently on informal probation and "taking classes for his DUI ticket."

The social worker also interviewed the maternal grandmother, who said that D.A. resided in her home and that she cared for him when mother was at work. The maternal grandmother "began to cry and stated that [E.A.] might not be the child's biological father. However, she did not know who the child's biological father was." She added that "she never approved of [E.A.] because he had a criminal history, was not responsible as he had not provided for the child and had never lived more than two weeks with the child."

Despite misgivings about E.A.'s criminal history and drug use, as well as uncertainty about his ability "to protect the child from the mother without court intervention," DCFS detained D.A. from mother and released him to E.A.

On May 26, 2010, DCFS filed a juvenile dependency petition alleging that D.A. came within the jurisdiction of the juvenile court under subdivisions (a) and (b) of Welfare and Institutions Code section 300. The petition identified mother as D.A.'s biological mother and E.A. as an alleged father. It stated that D.A. had resided with mother until DCFS intervened and that he was now detained at E.A.'s home. The petition alleged that mother's "physical abuse of the child during the violent confrontation between the parents" and her possession of methamphetamine and a "drug pipe" endangered D.A.'s physical and emotional health and safety. It further alleged that E.A. "has a history of illicit drug use and is a current abuser of marijuana, which renders [him] incapable of providing regular care for the child," endangering D.A.'s physical and emotional health and safety.

Mother was present at the detention hearing on May 26, 2010, but E.A. was not. After the court stated that E.A. "is the presumed father of the child," mother's counsel informed the court that mother and E.A. "were both aware that there is a possibility there is another biological father." The court reiterated that E.A. "is still the presumed father of the child" but never stated the factual or legal basis for that determination. Mother expressed "grave concerns about the child remaining in the care of" E.A. and indicated that E.A. had not been entirely forthcoming with the social worker when discussing his criminal history and present circumstances. The court acknowledged that there were "red flags" in the detention report and directed DCFS to "investigate the situation," including "unannounced visits" to E.A.'s home. The court ordered ...


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