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In re Alexander P.

California Court of Appeals, First District, First Division

July 29, 2016

In re ALEXANDER P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
HEIDI S. et al., Defendants and Appellants; MICHAEL P et al.. Appellants. In re ALEXANDER P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
v.
HEIDI S., et al., Defendants; MICHAEL P., Appellant.

         [CERTIFIED FOR PARTIAL PUBLICATION [*]]

         San Francisco County Superior Court No. JD15-3101, Hon. Nancy L. Davis, Hon. Newton J. Lam, Trial Judges.

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         COUNSEL

         Marin Williamson, under appointment by the Court of Appeal, for Appellant Alexander P.

         Carol A. Koenig, under appointment by the Court of Appeal, for Appellant Michael P.

         Linda Rehm, under appointment by the Court of Appeal, for Appellant Joel D.

         Ross Walker,, under appointment by the Court of Appeal, for Defendant and Appellant Heidi S.

         Konrad S. Lee, under appointment by the Court of Appeal, for Respondent.

         Dennis J. Herrera, City Attorney, Kimiko Burton, Lead Attorney; Gordon-Creed, Kelley Holl and Sugerman and Jeremy Sugerman, for Plaintiff and Respondent.

         OPINION

         MARGULIES, J.

         Alexander P. (minor), then three years old, became the subject of a dependency petition after his stepfather, Donald Q. (Donald)

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assaulted his mother, appellant Heidi S. (Mother), in the minor’s presence. At the time of the filing of the dependency petition, the minor’s paternity was the subject of competing motions filed in a family court action by two other men, appellants Michael P. (Michael) and Joel D. (Joel). Joel is the minor’s biological father, while Michael is the man with whom Mother was living at the time of the minor’s birth. Two weeks after the filing of the dependency petition, the family court ruled that both Michael and Joel qualify as presumed parents and designated both under Family Code[1] section 7612, subdivision (c), which authorizes multiple presumed parents.

         When the juvenile court inquired into the minor’s paternity during the initial stages of this dependency proceeding, all three men sought to be declared the minor’s presumed parent. Michael and Joel based their claims on the family court’s order, while Donald provided evidence that he had, as a practical matter, served in the role of the minor’s father for the 20 months prior to his assault on Mother. Considering itself bound by the family court’s order, the juvenile court found both Michael and Joel to be presumed parents. The court also found that Donald satisfied the requirements for presumed parent status and designated him as well, pursuant to 7612, subdivision (c).

         Michael and the minor have appealed the designation of Donald as a presumed parent, while several of the parties have challenged Michael’s designation. In addition, Michael has challenged the juvenile court’s subsequent denial to him of visitation with the minor.

         We conclude that the juvenile court erred in finding Michael to be a presumed parent. Because Welfare and Institutions Code section 316.2 grants exclusive jurisdiction over paternity issues to the juvenile court upon the filing of a dependency petition, the family court order on which the juvenile court relied, issued subsequent to the filing, was void. The same reasoning applies to the designation of Joel as a presumed parent. We vacate the juvenile court’s designation of Michael and Joel as presumed parents and remand to the juvenile court for an independent determination of their requests for presumed parent status. We find no error in the designation of Donald as a presumed parent, which was supported by substantial evidence. Finally, we vacate the juvenile court’s order denying visitation to Michael and remand for reconsideration of his request in the event the court designates Michael as a presumed parent.

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         I. BACKGROUND

         A. Presumed Parent Proceedings

         The minor was conceived during an intermittent, three-year relationship between Mother and Michael, but neither believed Michael to be the child’s biological father. When Mother informed Joel, whom she believed to be the father, of her pregnancy, Joel told her he was not ready for fatherhood and expressed concern about her decision not to abort the fetus. Mother thereafter ceased communication with Joel for well over a year.

         Notwithstanding Michael’s belief he was not the child’s father, he remained in the relationship with Mother throughout her pregnancy, intending to raise the child as his own. Michael was present at the birth in February 2012, executed a voluntary declaration of paternity, and was identified as the minor’s father on the birth certificate. During much of the first year of the minor’s life, Michael lived with Mother, held himself out as the minor’s father, and was characterized by Mother as “ ‘very attentive’ ” to the infant.

         From before the minor’s birth, the relationship between Mother and Michael was characterized by oppressive domestic violence. In January 2013, prior to the minor’s first birthday, a criminal protective order issued to protect Mother from Michael. He was arrested for a separate act of domestic violence against her two months later and eventually suffered a misdemeanor conviction. A year later, in April 2014, another restraining order was granted in favor of Mother against Michael. She remained fearful of him long after.

         At the time the first restraining order was entered, Michael filed a petition for custody of the minor. He and Mother eventually entered into a mediated stipulation providing for joint legal and physical custody and allowing Michael substantial visitation with the minor. But after entry of the April 2014 restraining order, Mother was granted sole legal and physical custody of the minor, and Michael was restricted to twice weekly supervised visits. Reports of the supervised visits found a loving and appropriate relationship between the minor and Michael, except Michael badgered the minor to refer to him as “Daddy.” As will be discussed below, the supervised visits were later terminated by the family court.

         In the meantime, in late 2013, Joel was given an opportunity to become involved in the minor’s life and submitted to a DNA test, which confirmed he is the minor’s biological father. Beginning in September 2013 and continuing to the present day, Mother has permitted Joel to have weekly visits with the minor, during which they have spent time together reading, talking, exploring, and playing in the park. Joel filed a paternity action in April 2014, which was eventually consolidated with Michael’s custody petition.

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         In July 2013, Mother began living with Donald, whom she had known since high school. They married in August 2014. Within their household, it is acknowledged that Donald is not the minor’s biological father, and Donald respects Joel’s role in the minor’s life. Nonetheless, Donald has assumed “the day-to-day physical and emotional responsibilities” of a father since he began living with Mother and the minor. Donald changed the minor’s diapers and participated in his potty training, feeds and clothes him, puts him to sleep, and engages in typical parent-child play activities. Donald believes he treats the minor as his own child and is in turn regarded by the minor “as his psychological parent.” By early 2015, the minor alternated between referring to Donald as “Don” and “Daddy, ” without coaching from Donald. Donald has introduced the minor to his extended family, who “have embraced [the minor] and accepted him into our family, ” and the minor has become “the center of attention at [Donald’s] family functions.” In a report prepared for the family court around June 2014, appointed counsel for the minor found the minor to be “most comfortable” in the care of Donald, rather than Michael or Joel.[2]

         On August 14, 2014, the family court conducted a hearing in the consolidated custody and paternity proceedings on two motions: a motion by Michael to compel Mother’s compliance with the order granting him supervised visitation and Joel’s motion for an order of paternity. Mother and Joel appeared in pro. per. for the hearing, but Michael did not attend because of a misunderstanding with respect to scheduling. Unaware of Michael’s mistake, the family court set aside Michael’s voluntary declaration of paternity, denied his claim of presumed parent status, vacated his visitation order, declared Joel to be a presumed parent, and awarded joint legal custody to Mother and Joel. If a judgment was entered on the basis of this order, it was not included in the appellate record.

         Michael thereafter filed a request to set aside the orders entered in his absence and declare him to be the minor’s legal father. Although Michael’s request was filed in September 2014, the family court did not conduct an evidentiary hearing on the request until March 6, 2015. Following the March 6 hearing, in an order entered on March 17, 2015, the court vacated most of the orders entered after the August 2014 hearing, but it permitted the finding of presumed parent status for ...


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