In Re Donovan

198 Cal.Rptr.3d 550 (2016)

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Nature of the Case

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Facts

San Diego County Health and Human Services Agency (Agency) filed a juvenile dependency petition alleging risk of harm to DJ due to Shannon's, the biological mother (W), substance abuse. W was married to Donovan (H) at the time of DJ's conception in 2010 and birth in 2011. In 2010, W had an affair with David (BF) and informed him she was pregnant. BF did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw W and one-year-old DJ at a shopping center parking lot in July 2012. BF took a paternity test on his own initiative and determined he was DJ's biological father. He told friends and family he was DJ's father and asked W for visits with DJ. She facilitated a few visits between DJ and BF, unbeknown to H. W and DJ stayed at BF's apartment for two weeks in August 2012, because W and H were having marital problems. W called the police because BF locked her out after they fought over child custody. Police found DJ “passed out” on the bed with approximately 50 marijuana plants growing in the apartment. The Agency filed the 2012 dependency petition. The juvenile court found H to be DJ's conclusively presumed father. BF asked to be named DJ's biological father. The court conferred biological father status to BF. W tested positive for methadone when giving birth to her second child. H and W agreed to a voluntary case and services to address W's addiction issues. The Agency became involved a third time in March 2015, after W tested positive for hydromorphone when giving birth to her third child. The juvenile court noted H was DJ's conclusively presumed father under section 7540 and allowed DJ to live with him, provided that W moved out of their home. BF appeared at the disposition hearing and requested presumed father status under section 7611, subdivision (d). The court ordered supervised visitation for BF. The court deferred the paternity issue. In part, it held that there is a question of fact whether or not the court, under section 7612, subdivision (c), the new statute, should recognize him as a father and give DJ two fathers. At the hearing, the court declared BF to be DJ's presumed father under section 7611, subdivision (d), and applying section 7612, subdivision (c), held DJ would suffer detriment were the court to rule he had only two parents. It held that H had been “a great father” and a “superlative dad,” stating it could make that finding “beyond a reasonable doubt, conclusively.” Finding BF to be a presumed parent under section 7611, the court turned to section 7612, subdivision (c) and determined DJ would suffer detriment if the court found he had only two parents. In reaching this decision, the juvenile court relied heavily on BF's biological ties to DJ. In finding detriment under section 7612, subdivision (c), the court found no existing bond between BF and DJ. The court found there was clear and convincing evidence of a substantial risk to DJ's “physical health, safety, protection or physical or emotional well-being” if he were returned to W's custody. The court placed DJ with H and ordered services and visitation. W and H each filed a timely notice of appeal.