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In Re D.S. et al., Persons Coming Under the Juvenile Court v. San Diego County Health and Human Services Agency

July 18, 2012

IN RE D.S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. ELIZABETH D., PLAINTIFF AND APPELLANT,
v.
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, DEFENDANT AND RESPONDENT; CRYSTAL S., OBJECTOR AND RESPONDENT.



(Super. Ct. No. EJ3377A-B) APPEAL from an order of the Superior Court of San Diego County, Ana L. Espana, Judge.

The opinion of the court was delivered by: O'rourke, J.

CERTIFIED FOR PUBLICATION

Reversed.

Elizabeth D. appeals a juvenile court order denying her petition to vacate the finding that her children's stepmother was their presumed mother under Family Code*fn1 section 7611, subdivision (d). We reverse.

INTRODUCTION

Elizabeth D. is the natural mother of D.S. and E.S. At each child's birth, she and the children's father, Derrick S., executed a voluntary declaration of paternity. Elizabeth cared for the children until 2004, when Derrick was granted sole legal and physical custody. She stopped visiting and contacting the children after May 2007. Derrick's wife, Crystal S., raised the children and held them out as her own.

In 2011 the San Diego County Health and Human Services Agency (Agency) initiated dependency proceedings on behalf of the children. Elizabeth was not present at the jurisdictional hearing. The court granted Crystal's request for status as the children's presumed mother under section 7611, subdivision (d). A short time later, Elizabeth appeared in the dependency proceedings and petitioned the court to vacate its finding that Crystal was the children's presumed mother. The court denied Elizabeth's petition.

We conclude the juvenile court erred when it denied Elizabeth's petition to vacate its finding that Crystal was the children's presumed mother. Elizabeth's status as the children's natural mother was established by proof of her having given birth to them. (§ 7610, subd. (a).) The rebuttable presumptions of paternity described in section 7611 apply to determine the identity of a child's natural mother only in very limited circumstances, none of which are present here. Except in rare cases, a maternity claim against the natural mother of the child is not an appropriate action under section 7612, subdivision (a). When a natural mother has first assumed and later appears to have abandoned her parental rights and responsibilities to her child, as here, the appropriate mechanism for a stepparent to gain parental rights is through a stepparent adoption proceeding. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Derrick S. and Elizabeth D. are the unmarried parents of D.S., born September 1999, and E.S., born February 2002 (together, the children). Derrick and Elizabeth have histories of homelessness, crime, substance abuse, domestic violence and child welfare referrals. Elizabeth's history is particularly troubled.

Derrick married Crystal S. in 2003. At that time, he and Elizabeth had joint legal and physical custody of the children. In March 2004, Derrick gained sole legal and physical custody of the children. Elizabeth last saw the children in May 2007 and had no contact with them after that date.

In April 2011 Agency detained the children in protective custody after Derrick used methamphetamine, suffered hallucinations and hurt E.S. when he tried to carry her out of the house. Crystal hit Derrick to prevent him from leaving with E.S. (Welf.

& Inst. Code, § 300, subds. (a), (b), (j).)

Crystal asked the juvenile court to find she was the children's presumed mother because she raised the children, met their medical, educational and day-to-day needs, and held them out as her own. The children viewed Crystal as their mother and called her "Mom."

At the May 2011 jurisdictional and dispositional hearing, the social worker said she tried to contact Elizabeth, who lived in Los Angeles County, by mail and telephone, but did not receive any response. Elizabeth's court-appointed attorney told the court she did not know whether Elizabeth intended to appear in the proceedings and object to Crystal's request. The court, without objection, amended the petition to add Crystal as the children's presumed mother. The court declared the children dependents of the juvenile court, removed them from Derrick and Crystal's custody and ordered a plan of family reunification services. The court relieved Elizabeth's court-appointed counsel.

In June Elizabeth telephoned the social worker to request family reunification services and visitation with D.S. and E.S. At a special hearing in August, the court appointed counsel for her. In September Elizabeth filed a petition for modification under Welfare and Institutions Code section 388 asking the court to vacate its finding that Crystal was the children's presumed mother.

A hearing on Elizabeth's Welfare and Institutions Code section 388 petition was held on September 23 and 30. The juvenile court reviewed the family court file and found that Derrick's and Elizabeth's voluntary declarations of paternity conferred a conclusive presumption of parentage to Derrick, but not to Elizabeth. The court noted there was no case law holding that the statutory mechanisms to determine and establish paternity applied to maternity. It further found that Elizabeth had qualified as the children's presumed mother in their early years; however, the presumption of maternity was rebutted by her subsequent lack of contact with the children and Crystal's maternal role in their lives. The court said the children would gain the greatest stability if they were reunified with Derrick and Crystal as their presumed parents, and Elizabeth were involved in their lives as their biological mother. The court denied Elizabeth's petition to vacate its finding that ...


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