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In re Alexander P.

California Court of Appeals, First District, First Division

October 21, 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., Objectors and 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., Objector and Appellant

         [CERTIFIED FOR PARTIAL PUBLICATION[*]]

          Superior Court of San Francisco City & County, No. JD15-3101, Nancy Davis, Newton J. Lam, Judges.

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         COUNSEL

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

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

         Linda Rehm, under appointment by the Court of Appeal, for Objector and 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 Donald Q.

         Dennis 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 Agency.

         Opinion by Margulies, J., with Humes, P. J., and Dondero, J., concurring.

          OPINION

          [209 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[1] section 7612, subdivision (c), which authorizes multiple presumed parents.

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         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 section 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. 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.

         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

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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.

          [209 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.

         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. In April 2014, Joel filed an action to establish his paternity.

         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

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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]

         Although 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.[3] With respect to a line item in the printed judgment stating " THE COURT FURTHER ORDERS," the family court stated, " See [the August 2014 order]."

         Less 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

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submission." The March 2015 order, however, expressly preserved the finding of presumed parent status for Joel and the suspension of Michael's visitation.[4]

         Prior 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.

         Two 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.[5] [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 appealed.

         Soon 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 ...


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