California Court of Appeals, First District, First Division
In re ALEXANDER P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
HEIDI S. et al., Defendants and Appellants; MICHAEL P. et al., Objectors and Appellants. In re ALEXANDER P., a Person Coming Under the Juvenile Court Law. SAN FRANCISCO HUMAN SERVICES AGENCY, Plaintiff and Respondent,
HEIDI S. et al., Defendants; MICHAEL P., Objector and Appellant
FOR PARTIAL PUBLICATION[*]]
Superior Court of San Francisco City & County, No.
JD15-3101, Nancy Davis, Newton J. Lam, Judges.
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A. Koenig, under appointment by the Court of Appeal, for
Objector and Appellant Michael P.
Williamson, under appointment by the Court of Appeal, for
Objector and Appellant Alexander P.
Rehm, under appointment by the Court of Appeal, for Objector
and Appellant Joel D.
Walker, under appointment by the Court of Appeal, for
Defendant and Appellant Heidi S.
S. Lee, under appointment by the Court of Appeal, for
Respondent Donald Q.
J. Herrera, City Attorney, Kimiko Burton, Lead Attorney;
Gordon-Creed, Kelley Holl and Sugerman and Jeremy Sugerman
for Plaintiff and Respondent San Francisco Human Services
by Margulies, J., with Humes, P. J., and Dondero, J.,
Cal.Rptr.3d 134] MARGULIES, J.
Alexander P. (minor), then three years old, became the
subject of a dependency petition after his stepfather, Donald
Q. (Donald), assaulted his mother, appellant Heidi S.
(Mother), in the minor's presence. [209 Cal.Rptr.3d 135]
At the time of the filing of the dependency petition, the
minor's paternity was the subject of separate family
court proceedings filed 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 qualified as presumed
parents and designated both under Family Code section 7612,
subdivision (c), which authorizes multiple presumed parents.
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 section 7612, subdivision (c).
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.
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. We vacate
the juvenile court's designation of Michael as a presumed
parent and remand to the juvenile court for an independent
determination of his request 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.
Presumed Parent Proceedings
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.
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
Cal.Rptr.3d 136] 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.
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.
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. In
April 2014, Joel filed an action to establish his paternity.
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.
Michael was not a party to Joel's paternity proceeding
and Joel was not a party to Michael's custody proceeding,
the family court conducted a joint hearing in the two
proceedings on August [209 Cal.Rptr.3d 137] 14, 2014. The
joint hearing addressed two separate 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. Following the
hearing, in a document entitled " Findings and Order
After Hearing" (August 2014 order), 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. The August
2014 order was filed in Michael's custody proceeding. The
family court also prepared a document entitled "
Judgment" (August 2014 judgment), which was entered in
Joel's paternity proceeding. The August 2014 judgment is
a printed form, to which the court attached the August 2014
order. With respect to a line item in the
printed judgment stating " THE COURT FURTHER
ORDERS," the family court stated, " See [the August
than a month later, Michael 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 that hearing, in an order entered on March 17, 2015
(March 2015 order), the court vacated most of the orders
entered after the August 2014 hearing and took " the
issue of paternity for both [Michael] and [Joel] under
submission." The March 2015 order, however, expressly
preserved the finding of presumed parent status for Joel and
the suspension of Michael's visitation.
to any further ruling by the family court, on March 30, 2015,
the San Francisco Human Services Agency (Agency) filed a
dependency petition in connection with the minor. The
petition alleged the minor, then three years old, was at risk
of harm due to domestic violence in Mother's home. (Welf.
& Inst. Code, § 300, subd. (b)(1).) According to the
Agency's jurisdictional report, Donald, while
intoxicated, had attacked Mother. With the minor watching
from a hallway, Donald climbed on top of Mother and began
striking her face, pulling her hair, and attempting to choke
her. In tears, the minor rushed forward and attempted to pull
Donald off. Donald was later arrested on domestic violence
charges, and a restraining order was entered. The petition
alleged this was only the most recent of five separate
incidents of domestic violence by Donald against Mother.
weeks after the dependency petition was filed, on April 15,
the family court consolidated the proceedings filed by
Michael and Joel, and issued a statement of decision,
findings and order, and two judgments, finding both Joel and
Michael to be presumed parents of the minor. [209
Cal.Rptr.3d 138] Although recognizing that Michael's
voluntary declaration of paternity could be set aside, the
family court declined to do so because the minor " has
formed an attachment and strong relationship with [Michael]
in his first years of life" and Michael " seeks to
continue his relationship with the child," which the
court found to be in the minor's " best
interest." The court found that Joel was the minor's
biological father and noted that through weekly visits Joel
had formed a companionable relationship with the minor. The
court declined to choose between them, finding the minor
would suffer detriment if either was not declared to be a
presumed parent. (§ 7612, subd. (c).) The court also
reinstated Michael's supervised visitation and entered
judgments designating both men as the minor's father. So
far as we are aware, none of the family court rulings were
thereafter, the juvenile court scheduled a hearing in the
dependency proceedings " for status of Parentage."
Prior to the hearing, Michael, Joel, and Donald all filed
requests to be declared the minor's father. Michael also
sought an ...