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In Re E.M., A Person Coming Under the Juvenile Court Law. v. T.M

July 25, 2012

IN RE E.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.M., DEFENDANT AND APPELLANT.



(Super. Ct. No. JD231495)

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

In re E.M. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In July 2010, E.M. (minor) was born premature, positive for THC and opiates, and addicted to methadone. At the commencement of dependency proceedings, his mother GB (mother) identified T.M. and K.B. as alleged fathers. At a combined contested paternity and disposition hearing, the juvenile court set aside the declaration of paternity signed by T.M. and adjudged biological father K.B. the presumptive father.

T.M. appeals, contending the juvenile court's finding that K.B. qualifies as a presumptive father under Family Code*fn1 section 7611, subdivision (d) is unsupported by the evidence. (Welf. & Inst. Code, §§ 358, 395.) As we will explain, we disagree and shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the paternity hearing, T.M. had been living with mother and minor's older half sibling, J.S., for four and a half years. K.B., who mother had known for 15 years, had a three-year sporadic romantic relationship with mother, primarily when T.M. was incarcerated (as he was for several separate periods during the relevant time).

Mother's Pregnancy and Minor's Birth

Around December 2009, mother discovered she was pregnant with minor. K.B. was present when she took the home pregnancy test. Mother took another test in the presence of T.M. Mother led each man to believe that he was minor's biological father.

Upon discovering mother was pregnant, K.B. told his friends and family of the pregnancy and that he was the father. He also went to one of mother's prenatal appointments. T.M., however, was also at the appointment and both men were surprised and angry to find the other there. K.B. took a parenting class with mother. K.B. and mother also discussed a 50/50 parenting plan.*fn2

After minor was born, he remained in the hospital for two months for medical reasons. T.M. was present when minor was born and continued, thereafter, to visit him in the hospital. K.B. found out about minor's birth from a friend but was unable to determine where mother and minor were located. About a month later, mother finally told K.B. where minor was and K.B. visited once. He also had minor's name, birth date, and birth weight and length tattooed on his arm.

Mother told K.B. she had left the father's name blank on minor's birth certificate. In fact, mother had put T.M.'s name on the birth certificate and she and T.M. signed a declaration of paternity the day after minor was born.*fn3 Mother also told K.B. that minor bore her last name, but K.B. discovered from minor's medical card that minor bore T.M.'s last name.

When minor was released from the hospital in August 2010, K.B. drove mother and minor home and spent the night. T.M. was incarcerated at the time. From the time K.B. brought minor home from the hospital to the time of T.M.'s release from incarceration in November 2010, K.B. spent approximately 10 nights at mother's home with minor and visited approximately 30 times. He visited "[a]s much as [mother] would let [him]." The ...


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