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In re D.S.

California Court of Appeals, Sixth District

October 27, 2014

In re D.S., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent,
v.
A.V., Defendant and Respondent; D.S. et al., Appellants.

Santa Clara County Superior Court Superior Court No. 1-12-JD21412 Hon. L. Michael Clark

Page 1239

COUNSEL

Neale B. Gold, under appointment by the Court of Appeal, for Appellant L.S.-E.

Deborah H. Wald, under appointment by the Court of Appeal, for Appellant D.S.

Page 1240

Haworth Law Office and James W. Haworth for Appellant B.E.

Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Respondent.

No appearance for Plaintiff and Respondent.

OPINION

PREMO, J.

This appeal involves competing claims for presumed father status of four-year-old D.S. by the boy’s biological father, A.V., and his stepfather, B.E. The juvenile court ruled that A.V. qualifies as a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.) and that B.E. is a statutorily presumed father under Family Code section 7611, subdivision (d).[1] As required by section 7612, the juvenile court weighed those competing paternity presumptions in view of the relevant facts and ruled that A.V.’s presumption was founded on weightier considerations of policy and logic and, thus, controlled.

B.E., D.S., and D.S.’s mother (mother) appeal. They maintain the juvenile court erred in ruling that A.V. is a presumed father under Kelsey S. and abused its discretion in resolving the conflicting paternity presumptions in A.V.’s favor. We find their first challenge has merit and, therefore, shall reverse with directions.

I. Factual and Procedural Background

Mother and A.V. met in 2009, when mother was 19 years old and A.V. was 45 years old. Mother had just been released from jail and needed a place to stay, so she moved in with A.V., who had an extensive criminal history. Mother began prostituting herself at A.V.’s request, as she had done in the past. On December 8, 2009, mother and A.V. were arrested for shoplifting. Following that arrest, A.V. remained incarcerated until November 8, 2010. Mother, however, was released on bail.

Mother learned that she was pregnant in February or March 2010 and believed A.V. to be the father. She informed A.V., who was incarcerated, about the pregnancy and sent him an ultrasound picture. Also in approximately March 2010 mother began living with a new boyfriend, B.E.

On July 2, 2010, after mother informed A.V. that California law precluded him from appearing on the baby’s birth certificate if he was not present at the

Page 1241

birth, A.V. sought to obtain a declaration of paternity form. He never received the form. While A.V. was incarcerated, mother withdrew ...


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