In re J.R. CA6 ( 2021 )

Filed 9/14/21 In re J.R. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re J.R., a Person Coming Under the H048689
Juvenile Court Law. (Santa Clara County
Super. Ct. No. 20JD026505)
SANTA CLARA COUNTY
DEPARTMENT OF FAMILY AND
CHILDREN’S SERVICES,
Plaintiff and Respondent,
v.
A.R.,
Defendant and Appellant.
On July 7, 2020, the Santa Clara County Department of Family and Children’s
Services (Department) filed a petition (twice amended thereafter) under Welfare and
Institutions Code section 300, subdivisions (b)(1) and (c) relative to an infant boy, J.R.
(the minor), who was born in September 2019. The child’s mother is A.R. (mother).
There were two alleged fathers identified in the petition, D.R. and B.D.; neither of the
individuals had been located. The Department alleged that the minor had been previously
placed into protective custody because he was at substantial risk in the care of mother
because of her chronic untreated substance abuse and her inability to protect the minor
from domestic violence perpetrated by her former boyfriend, V.A. Mother had advised
the Department that V.A. was not the minor’s father. On July 8, 2020, the court found
that a prima facie showing had been made and that the continued detention of the minor
with out-of-home placement was necessary.
On June 29,1 three days before the minor was placed into protective custody, V.A.
was arrested for domestic violence and kidnapping after an incident in which V.A.
allegedly struck mother in the face (causing her temporary vision loss), and then took the
minor. On that day, V.A. twice denied he was the minor’s father: (1) he introduced
himself to an emergency response social worker as mother’s cousin, said he was not
related to the minor, and that B.D. was the child’s father; and (2) he told the police that
he was not the minor’s father. But in an interview three weeks later, V.A. told the
Department that he was the minor’s father as he supported him and loved him like a son;
V.A. said he wanted to be part of the child’s life. He stated he was willing to take a
paternity test even though he was not in a relationship with mother. In September, the
juvenile court ordered DNA testing of V.A. and the minor. On October 27, the court
made a provisional finding that V.A. was the presumed father of the minor under Family
Code section 7611, subdivision (d) (§ 7611(d)).2
On December 2, the juvenile court conducted a contested jurisdiction/disposition
hearing. After testimony and argument, the court found V.A. to be the minor’s presumed
father under section 7611(d). The juvenile court thereafter sustained the allegations of
the second amended petition; it ordered that the minor continue his placement out of the
home, and that mother and V.A. receive family reunification services.
On appeal, mother contends that the court erred in finding V.A. the minor’s
presumed father. She asserts that there was no substantial evidence supporting the
1 All dates stated hereafter are 2020 unless otherwise specified.
2 Further statutory references are to the Family Code unless otherwise stated.
2
court’s conclusion that V.A. met the two requirements of a presumed parent under
section 7611(d) of “receiv[ing] the child into [his] home and openly hold[ing] out the
child as [his] natural child.”
As was explained by the Second District Court of Appeal, relying on Supreme
Court precedent, “[p]resumed fatherhood, for purposes of dependency proceedings,
denotes one who ‘promptly comes forward and demonstrates a full commitment to his
paternal responsibilities—emotional, financial, and otherwise [.]’ ” (In re Jerry P. (2002)
95 Cal.App.4th 793, 801-802, fn. omitted, quoting Adoption of Kelsey S. (1992) 1 Cal.4th
816, 849.) Here, after a careful review of the entire record, we determine that there was
an absence of evidence that V.A. came forward promptly to “ ‘demonstrate[] a full
commitment to his paternal responsibilities—emotional, financial, and otherwise’ ”
toward the minor. We therefore conclude that there was no substantial evidence to
support the finding that V.A. was the presumed father of the minor under
section 7611(d). We will reverse the order after the December 2, 2020 jurisdictional and
dispositional hearing with directions that the court enter a new order denying V.A.’s
request that he be determined the presumed father.
I. F ACTS AND PROCEDURAL HISTORY
A. Petition and Detention (July 2020)
The Department filed a petition on behalf of the minor under Welfare and
Institutions Code section 300, subdivisions (b)(1) and (c) on July 7. The minor had been
placed into protective custody on July 2.3 The Department identified two men, D.R. and
B.D., as alleged fathers, the whereabouts of both individuals being unknown.
3Mother was not home at the time of the minor’s removal. She had left the child
with an unidentified female for an undetermined period of time. The protective custody
warrant was served on mother later in the day after the Department was able to make
contact with her.
3
It was alleged in the petition that mother had a history of untreated substance
abuse, including prior use of heroin and recent use of methamphetamine and marijuana,
and she had repeatedly refused treatment referrals and had minimized concerns about her
substance abuse. The Department also alleged that mother was unable to protect the
minor from exposure to domestic violence that her former boyfriend, V.A., perpetrated
upon her. V.A was volatile and verbally aggressive toward mother and that aggression
had escalated to emotional and physical violence. V.A. had a history of “control[ling]
mother’s social media accounts, taken her belongings, and prevented her from leaving
their home.” There had been incidents of domestic violence for more than six years.
Mother reported to the social worker on June 29 that V.A.—who mother said was not the
minor’s father—was “violent towards her ‘all the time.’ ” Mother stated, however, that
she “ha[d] not reported the incidents because she [said] she [was] not a ‘snitch.’ ”
The Department alleged that early in the morning on June 29, V.A. had
“threatened . . . mother, [had] called [her] derogatory names, and [had] struck her in the
face causing her to experience temporary vision loss.” According to mother’s report to
the Department, the incident arose when V.A. followed her to the store and ordered her to
get into his car with the minor. After threatening and assaulting mother in the minor’s
presence, V.A. left with the minor. Mother went home and fell asleep. Mother took no
steps to attempt to locate or protect the child until that afternoon, after she was prompted
to do so by the emergency response social worker. The Department alleged that mother
had permitted V.A. to care for the minor on occasion, and she had “minimize[d] concerns
about this despite [V.A.’s] repeatedly perpetrating violence against her, his substance
abuse history, and his gang [involvement].”
The emergency response social worker made an unannounced visit to the minor’s
location on June 29. The social worker spoke with V.A., who said that mother had left
the minor in his care. He stated that he had access to mother’s home and visited regularly
to check up on the minor. V.A. denied that he was the minor’s father, saying that B.D.
4
was the father. V.A. said he did not have contact information for B.D. V.A.
acknowledged that he had a criminal history of being in gangs, fights, and child
endangerment. He also confirmed that he had prior substance abuse charges. V.A. told
the social worker that he had a 12-year-old daughter, who had been removed from his
care and had been placed with her paternal grandmother. After locating V.A. and the
minor, V.A. was arrested on June 29 by law enforcement for domestic violence and
kidnapping.
It was alleged by the Department that the whereabouts of alleged fathers, B.D. and
D.R., were unknown, and that neither had taken any steps to ensure the safety and well-
being of the minor in mother’s care.
On July 8, 2020, the court found that a prima facie showing had been made and
that the continued detention of the minor with out-of-home placement was necessary.
B. Reports & Hearings Prior to Jurisdiction and Disposition Hearing
1. Jurisdiction/Disposition Report (August 2020)
In its report filed August 5 in connection with the jurisdiction/disposition hearing,
the Department stated that in late June during a child welfare visit, mother told the social
worker that she had used marijuana and methamphetamine a few days earlier. She said
she used drugs to ease her anxiety when V.A. was around because he was violent toward
her. Mother told the social worker that she had completed a rehabilitation program in
2017, and she was in Homes of Loving Father during her pregnancy. The Department
offered mother substance abuse services which she declined.
The Department interviewed mother on July 6. She stated that she had been using
methamphetamine since she was 13 years old (i.e., 24 years). Mother admitted she had
used methamphetamine on July 5. The Department interviewed mother again on July 21.
She admitted she had used methamphetamine on July 20; she said she used
methamphetamine every other day because she was alone and depressed.
5
Mother advised the Department that B.D. and D.R. were the alleged fathers but
she could not provide personal information about them to assist the Department in its
search to locate them. Neither alleged father supported the child. Mother stated she did
not believe that V.A. was the minor’s father, but she wanted him to participate in a
paternity test. She stated that her relationship with V.A. had been on and off since
March 2020. Mother said that V.A. had “made a key to her house and he would come by
the house and help out with the baby and bring them food when she was depressed. . . .
[He] was just trying to help out.” She was no longer in a relationship with V.A. because
of the domestic violence he perpetrated and because he was “very controlling and call[ed]
her names.”
The Department social worker supervised visits between mother and the minor on
two occasions in July. Mother did not appear for two other supervised visits in July.
On July 21, the Department spoke with V.A. He denied that there had been
physical violence between mother and him, and he stated he had not raised his voice in
front of the minor. V.A. said he was the minor’s father as he supported him and loved
him like a son; V.A. stated that he wanted to be part of the child’s life. He said he was
willing to take a paternity test even though he was not in a relationship with mother.
V.A. advised the Department that, in addition to having two adult children, he had
a 12-year-old daughter who had been placed by the court in the custody of her paternal
grandmother. He said he had been charged in 2013 with domestic violence for which he
received probation, and he had completed a 52-week batterer’s intervention program
imposed as a probation condition. V.A. told the Department that he began using
methamphetamine when he was 19 years old and had ceased using drugs after
approximately 20 years in 2018. That year, he was arrested for possession of a controlled
substance. V.A. was convicted of theft (Pen. Code, § 485) and was on probation until
2021. V.A. had been participating in an outpatient program until the Covid-19 pandemic
prevented it.
6
The Department recommended that mother receive family reunification services,
and that, because paternity had not been established, no services be offered to the three
alleged fathers, V.A., B.D., and D.R.
On September 17, the juvenile court continued the jurisdiction/disposition hearing
to allow for DNA testing of V.A. and the minor. Counsel for V.A. was appointed at that
time.
2. Addendum Report (September 2020)
In an addendum report filed September 25, the Department reported that V.A. was
making arrangements for a paternity test.4 It noted further that, as indicated in an
investigative narrative by an emergency response worker, in a June 29 interview, V.A.
had introduced himself as mother’s cousin and had said he was not related to the minor.
And the Department advised that, as reflected in a June 29 report of the San Jose Police
Department, V.A. had told the police that he was not the minor’s father.
The Department also advised that mother had tested positive for
methamphetamines on August 6, negative for any drugs on August 11, and had missed six
drug tests thereafter. Mother had not participated in services, and she had reported that
she was not doing anything because she was depressed because the minor was not with
her. During an interview on September 23, mother explained that she did not believe that
V.A. was the minor’s father. They were no longer in a relationship. She said she had
never permitted V.A. to take care of the minor for more than two hours. The Department
reported that mother’s interactions with the minor during visits were good but that she
had missed a number of visits.
The Department advised that V.A. had told the social worker on September 22 that
he was no longer in a relationship with mother, and he again denied prior domestic
4The record does not reflect when any paternity testing of V.A. was completed or
the results of such testing.
7
violence with her. He also said that he had not contacted the Department for two months
because he was hurt and depressed after he was advised that the minor would not be
returned to him and he could not visit the minor until paternity was established. V.A. also
told the social worker “that regardless of what the paternity test results indicate, he is the
father of [the minor] even if [the minor] is not his biological son.” When the social
worker asked why he had told the police and the emergency response social worker that
he was not the minor’s father, V.A. responded that “everyone ‘wrote it down wrong’ . . .
[and] that he told them that he is not the biological father of [the minor] but he is the
father of the child.”
At mother’s request, on September 30, the court set a contested
jurisdiction/disposition hearing for December 2, 2020.
On October 27, the court made a provisional finding that that V.A. was the
presumed father of the minor under section 7611(d).
3. Second Addendum Report (November 2020)
In a second addendum report filed November 20, the Department reported that
mother had not been engaging in recommended services, but that she was on a waiting
list to enter a residential treatment program. Mother advised the Department that one of
the alleged fathers had recently been released from jail. She said he had too many
children, and he did not want to be part of the minor’s life. Mother stated that she had
been unable to reach the second alleged father. She told the Department she did not want
to provide any contact information concerning the two alleged fathers because one was
married to her cousin, and she did “not want to cause . . . trouble with her family. Mother
had missed six drug tests between October 1 and November 18. She had been
appropriate during her visits with the minor; she had missed two visits.
The Department advised that there had been 10 prior child welfare referrals
involving V.A.’s children that dated back to 2002. During November interviews, V.A.
advised the social worker that he wanted to be part of the minor’s life and would like the
8
opportunity to take care of him. He said he was not seeking custody because he did not
have stable housing. V.A. told the social worker that he did not have a plan to raise the
minor, but that he would like to receive family reunification services. He said he needed
help with employment and housing. V.A. began supervised visits with the minor on
November 3; he missed one visit because he said he had forgotten about it. He was
appropriate during the visits.
V.A. told the Department that he became homeless in 2018, and that he had been
staying with family and friends since that time. He advised that he smoked marijuana to
address headaches he suffered as a result of a prior brain injury sustained in or prior to
2011 He declined to participate in a voluntary drug test because he stated he would test
positive for marijuana.
The Department recommended that, assuming the court found him to be the
presumed father, V.A. be offered family reunification services.
The Department filed a first amended petition on November 25. It filed a second
amended petition on December 2. As compared with the original petition, the
amendments contained in the second amended petition included, inter alia, the allegation
that V.A. was the father of the minor; deletion of references to V.A.’s having struck
mother on June 29; and deletion of references to V.A.’s gang involvement.5
5 The first amended petition contained new allegations, subsequently deleted in the
second amended petition, including that V.A. had previously completed a 52-week
batterer’s intervention program but had continued to perpetrate domestic violence toward
mother; V.A. had an untreated substance abuse problem (i.e., smoking marijuana three
times a week) that negatively affected his ability to care for the minor; and V.A. has three
older children for whom there had been 10 prior child welfare referrals, including a
referral that resulted in a 2011 family court determination that it was in the best interest
V.A.’s daughter that sole legal and physical custody for her be granted to her paternal
grandmother because of V.A.’s brain injury and drug use.
9
C. Contested Jurisdiction/Disposition Hearing (December 2020)6
The court conducted a contested jurisdiction and disposition hearing on
December 2, 2020. The court first heard evidence concerning V.A.’s request that he be
determined the minor’s presumed father pursuant to section 7611(d). Two witnesses,
V.A. and mother, provided testimony on this issue. After hearing argument of counsel,7
the juvenile court found that V.A. met the requirements of a presumed father under
section 7611(d).
The court stated that it could consider a variety of factors in determining whether a
finding of presumed parent status should be made and that “[n]o single factor is
determinative.” The court observed that V.A. (1) lived with mother and the minor for at
least one week; (2) made daily visits for some period of time; (3) provided “very limited”
financial support in the form of food, diapers, and gifts; (4) had, at times held the minor
out as his child; and (5) had been visiting the minor, which the court described as
“commendable.” Additionally, the court acknowledged that “there has been some
equivocation by [V.A.] about whether he really considers [the minor] his own.” It
concluded that although it was “not the strongest case,” it was sufficient to satisfy the
standard of proof by a preponderance of the evidence.
6 The evidence presented at the contested jurisdiction/disposition hearing is
discussed in detail, post.
7 Argument in support of finding V.A. the presumed father was offered by counsel
for V.A. and counsel for the minor. Counsel for mother argued in opposition to the
finding. Counsel for the Department, while indicating that the agency would “submit the
ultimate findings to the court,” presented argument that disputed that V.A. had made a
showing that he had a parental relationship with the minor. Department’s counsel
asserted, inter alia, that (1) V.A. did not satisfy many of the factors relevant to a finding
of presumed father status recited in case law; (2) V.A. had made statements to a social
worker and to the police that he was not the minor’s father; and (3) the evidence in its
totality did not yield the conclusion that V.A. had a “fully developed relationship” with
the minor.
10
The juvenile court, addressing mother’s opposition, observed that it appeared to be
based primarily upon concerns that “[V.A.] is stepping up to claim paternity as a means
to exert control over [mother].” The court stated that it understood mother’s concerns,
and that it “has some of those same concerns as to [V.A.’s] true motives in this case,
particularly given that he did not initially appear for a couple of months in this case
There seems to have been a little bit of equivocation as to whether he wanted to be a
presumed father. So [the court] think[s] mother’s fears are certainly understandable.”
The juvenile court held, however, that mother’s concerns were insufficient to rebut by
clear and convincing evidence V.A.’s showing establishing presumed father status under
section 7611(d).
The juvenile court sustained the allegations of the second amended petition, and it
found the minor to be a dependent child. The court ordered out-of-home placement. It
ordered that mother and V.A. receive reunification services. And the court included
random drug and alcohol testing, a parenting class, and supervised visitation in the
respective case plans of mother and V.A. V.A. was also ordered to complete a 52-week
batterer’s intervention program.
Mother filed a timely notice of appeal from the order after the December 2, 2020
jurisdiction/disposition hearing.
II. DISCUSSION
A. Presumed Father Status Under Section 7611(d)8
There are four categories of fathers in dependency proceedings, namely, “de facto
fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a
stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be
8Although section 7611 uses the term “presumed parent,” because in this instance
we are dealing with a presumed father, and some cases use that terminology, we will
generally use the term “presumed father” here.
11
the father of the dependent child but has not been established to be the natural or
presumed father is an ‘alleged father.’ A man who has been established to be the
biological father is a ‘natural father.’ A man who has held the child out as his own and
received the child into his home is a ‘presumed father.’ A ‘natural father’ can be, but is
not necessarily, a ‘presumed father’ and a ‘presumed father’ can be, but is not
necessarily, a ‘natural father.’ (In re Jerry P., supra, 95 Cal.App.4th at p. 801, fns.
omitted.) “Presumed father status ranks the highest.” (Ibid.) “Presumed father status
entitles the father to appointed counsel, custody (absent a finding of detriment), and a
reunification plan. [Citations.]” (In re T.R. (2005) 132 Cal.App.4th 1202, 1209, fn.
omitted (T.R.).)
“Presumed fatherhood, for purposes of dependency proceedings, denotes one who
‘promptly comes forward and demonstrates a full commitment to his paternal
responsibilities—emotional, financial, and otherwise [.]’ ” (In re Jerry P., supra, 95
Cal.App.4th at pp. 801-802, fn. omitted, quoting Adoption of Kelsey S., supra, 1 Cal.4th
at p. 849.) “To identify fathers who, by reason of their parenting relationship, are entitled
to seek reunification services and custody the Legislature borrowed the categories of men
who are ‘presumed to be the natural father[s]’ of children under Family Code
section 7611, hence the term ‘presumed father.’ ” (In re Jerry P., supra, at p. 802.)
Section 7611 provides for presumed status under several circumstances, most of
which involve marriage or attempted marriage between the natural mother and the
presumed parent. (See § 7611, subds. (a)–(c).) The statutory presumption provision
relevant here is subdivision (d), under which “[t]he presumed parent receives the child
into their home and openly holds out the child as their natural child.” (§ 7611(d).) The
fact that the man does not have “a biological relationship to the child [does not]
automatically defeat[] presumed father status.” (In re Jerry P., supra, 95 Cal.App.4th at
p. 803, original italics.) Further, “ ‘[b]iological fatherhood does not, in and of itself,
12
qualify a man for presumed father status under section 7611.’ [Citation.]” (In re L.L.
(2017) 13 Cal.App.5th 1302, 1310.)
As a panel of this court has explained, presumed fatherhood under section 7611(d)
“requires something more than a man’s being the mother’s casual friend or long-term
boyfriend; he must be ‘someone who has entered into a familial relationship with the
child: someone who has demonstrated an abiding commitment to the child and the
child’s well-being’ regardless of his relationship with the mother. [Citation.]” (In re
D.M. (2012) 210 Cal.App.4th 541, 553.) “ ‘[T]he core issues are the person’s established
relationship with and demonstrated commitment to the child.’ [Citation.] ‘Presumed
parent status is afforded only to a person with a fully developed parental relationship with
the child . . . .’ [Citation.]” (In re L.L., supra, 13 Cal.App.5th at p. 1310; see also W.S. v.
S.T. (2018) 20 Cal.App.5th 132, 147-148 [“common thread . . . is that the parent seeking
presumed parent status could show the existence of a parent-child relationship based on
assuming parental responsibilities, demonstrating commitment to the child, and providing
support”].)
There are no particular factors that must be considered by the trial court in
determining whether there has been receipt of the child into the home (W.S. v. S.T., supra,
20 Cal.App.5th at p. 145), and “[n]o single factor is determinative.” (R.M. v. T.A. (2015)
233 Cal.App.4th 760, 774.) Further, there “is no requirement that a child live with a
parent for the parent to achieve presumed parent status. [Citation.]” (Id. at p. 144.) But
as explained by the court in T.R., supra, 132 Cal.App.4th at page 1211, courts consider
various factors in determining whether, to establish presumed fatherhood, the man has
“receive[d] the child into [his] home and openly [held] out the child as [his] natural
child.” (§ 7611(d).) A nonexclusive list of these factors includes “[1] whether the man
actively helped the mother in prenatal care; [2] whether he paid pregnancy and birth
expenses commensurate with his ability to do so; [3] whether he promptly took legal
action to obtain custody of the child; [4] whether he sought to have his name placed on
13
the birth certificate; [5] whether and how long he cared for the child; [6] whether there is
unequivocal evidence that he had acknowledged the child; [7] the number of people to
whom he had acknowledged the child; [8] whether he provided for the child after [the
child] no longer resided with him; [9] whether, if the child needed public benefits, he had
pursued completion of the requisite paperwork; and [10] whether his care was merely
incidental. [Citations.]” (T.R., supra, at p. 1211.) “[T]he court may consider all the
circumstances when deciding whether the person demonstrated a parental relationship by
holding out the child as his or her own and assuming responsibility for the child by
receiving the child into his or her home. [Citations.]” (R.M. v. T.A., supra, at p. 774.)
B. Standard of Review
V.A., as the man claiming status as a presumed father, bears the burden of proving
the facts in support of his entitlement to that status by a preponderance of the evidence.
(In re J.O. (2009) 178 Cal.App.4th 139, 147, abrogated on other grounds by In re R.T.
(2017) 3 Cal.5th 622.) If the presumption under section 7611(d) is established, it “may
be rebutted in an appropriate action only by clear and convincing evidence.” (§ 7612,
subd. (a).)
We review the trial court’s factual findings concerning a determination regarding
presumed parent status, including findings as to whether the claimant received the child
into his or her home and whether he or she openly held the child out as claimant’s natural
child, for substantial evidence. (S.Y. v. S.B. (2011) 201 Cal.App.4th 1023, 1031.) Under
that standard, we “must view the evidence in a light most favorable to the respondent.
We must indulge in all legitimate and reasonable inferences to uphold the [decision]. If
there is substantial evidence supporting the judgment, our duty ends and the judgment
must not be disturbed. [Citations.] ‘ “ ‘[W]hen two or more inferences can reasonably be
deduced from the facts,’ either deduction will be supported by substantial evidence, and
‘a reviewing court is without power to substitute its deductions for those of the trial
court.’ [Citations.]” [Citation.]’ [Citation.]” (In re Misako R. (1991) 2 Cal.App.4th
14538, 545.) “The ultimate test is whether it is reasonable for a trier of fact to make the
ruling in question in light of the whole record. [Citation.]” (Roddenberry v. Roddenberry
(1996) 44 Cal.App.4th 634, 652 (Roddenberry).)
C. The Order Finding V.A. the Presumed Father Must Be Reversed
1. Contentions of the Parties
Mother argues that V.A. failed to establish that he was the minor’s presumed
father. Reciting the requirements of section 7611(d) that to be a presumed father, the man
must show that he “receive[d] the child into [his] home and openly [held] out the child as
[his] natural child,” mother asserts that V.A. did not hold the minor out as his natural son
She argues further that although there was “at least some evidence [V.A.] brought [the
minor] to his home and—on some occasions—indicated he wished to be thought of as the
child’s father,” viewing the circumstances as a whole, there was no substantial evidence
to support the juvenile court’s conclusion that V.A. showed a parental relationship and
assumed responsibility for the minor to attain presumed father status.9
V.A. responds that mother is barred from challenging whether V.A. satisfied the
requirements of section 7611(d) because of an alleged concession made by mother’s
counsel at the hearing. V.A. argues further that substantial evidence supports the court’s
finding that V.A. was the minor’s presumed father under section 7611(d).10
9 Mother does not challenge the findings of the court from the combined
jurisdiction and disposition hearing other than the finding that V.A. was the presumed
father.
10 The Department submitted a letter to this court stating it would not be taking a
position in the appeal concerning the court’s presumed parent finding. The Department
indicated that while it “recognizes its general obligation to ‘aid the appellate court in
sustaining the judgment’ [citation], [its] decision not to take a position on this issue
comports with its actions below, where the Department did not take a position on the
parentage issue before the juvenile court.”
15
2. Evidence Presented at the Hearing
a. Testimony of V.A.
V.A. testified that at the time mother learned of her pregnancy, they were together.
V.A. went to the hospital after the minor was born. He signed no paperwork at the
hospital indicating he was the father. V.A. testified that he was not the minor’s biological
father. But he considered himself to be the minor’s father, and he “tell[s] everybody he’s
my son.” V.A. stated that he tells family members that the minor is his baby. The minor
calls him “Dada.”
V.A. explained that there was a “very short” period of time—in approximately
May 2020—that V.A., mother, and the minor lived together.11 Before dependency
proceedings commenced in July, V.A. on occasion took the minor to the home of V.A.’s
daughter to visit with her son; one occasion was an overnight visit. The minor had one
overnight visit with V.A.’s niece; V.A. did not sleep over on that occasion. V.A. testified
that approximately three times a week, he took the minor for day visits to V.A.’s home—
which was apparently the home of V.A.’s mother. There was one overnight visit. V.A.
testified that his family “would all welcome [him] as if he were—they know that he’s
biologically not my child, but they treat him still as if he is.”
V.A. testified that before the proceedings commenced in July, he visited the minor
daily at mother’s home.12 He would sometimes stay for three to four hours, leave, and
11 V.A. expressed uncertainty as to the precise month in 2020 that he had lived for
a short time with mother. Mother testified that V.A. lived with her for approximately one
week in March after the County’s shelter-in-place directive went into effect. We believe
from our review of the record that it is more likely that the short period mother and V.A.
lived together was in March.
12 The record from V.A.’s testimony is vague as to the timing of these daily visits.
While it appears that they occurred up to the time the minor was detained in July 2020, it
is unclear when they started. Based upon evidence in the record that mother was in
Homes of Loving Father during her pregnancy and apparently did not obtain housing
after the birth of the minor (September 2019) until March 2020, it appears that the period
16
then return for another two hours. The amount of time V.A. spent at the home of mother
and the minor varied; on some days, he was there all day. V.A. on occasion would bring
toys, snacks, baby formula, and diapers. He would change the minor’s diapers, play with
him, and feed him. V.A. agreed that mother on some occasions asked V.A. to come over
to take care of the minor. But many times, V.A. went over to visit the minor even if
mother did not need help. On cross-examination by counsel for the Department, V.A.
agreed that he had never been the minor’s primary caretaker.
V.A. testified that on one occasion, and without consulting mother, he had taken
the minor to the emergency room to have a bad diaper rash examined. V.A. did not attend
any of the minor’s medical appointments, nor did mother ever ask him to take the minor
to such appointments.
V.A. testified that since the court ordered that he receive visitation, he had been
visiting the minor and that those visits had been getting better as the minor became
comfortable with him. V.A. felt he was beginning to build a bond again with the minor.
During the visits, he would do “[s]illy things” with the minor, and would bring toys for
the minor to play with. V.A. admitted that the Department had offered him expanded
visitation (from one-hour to two-hour visits), but he had declined the offer, telling the
social worker he was not ready to spend more time with the minor and he wanted the
child to get more comfortable with him.
V.A. was asking for presumed father status with the understanding that such a
finding might have consequences relative to child support. He testified that he wanted to
become the presumed father because “[p]lain and simply because I love him. I fell in
love with his smile when I first [saw] him. . . . And that just made me smile. Words can’t
of time V.A. visited the minor was from March (after mother had him move out) to early
July.
17
explain how much I love him. But I do treat him as one of my own. And I would do just
about anything in my power to make him happy.”
V.A. testified that he was not seeking custody of the minor; he wanted to show that
he was ready “for that big step.” He needed help with employment and housing, and he
had told the social worker that he would like a chance.
b. Testimony of Mother
Mother testified that she and V.A. were second cousins, and they had known each
other their whole lives. They had been a couple on and off for seven years, but before
March 2020, they had never lived together. After the minor was born in September 2019,
mother had wanted to work things out with V.A. Mother testified that before
March 2020, V.A. had not visited the minor and had not provided things for him, such as
diapers or food. But mother testified that she could not say how much time V.A. and the
minor spent together after he was born because the minor did bond with V.A. V.A.,
mother, and the minor spent Thanksgiving night in 2019 at the home of V.A.’s mother.
For approximately one week in March 2020, after the shelter-in-place directive of
the Covid-19 pandemic was instituted, V.A. lived with her and the minor; this was,
however, not his only residence. This occurred just after mother had retained housing.
After about one week, mother asked V.A. to leave after he had returned “to his old ways”
of domestic abuse. Mother said she “just . . . refused to put [her] son through that.”
Mother denied that V.A. had provided for the minor, stating, “No. I had . . . money. It
was my money he used probably.” During that approximate one week, V.A. changed the
minor’s diapers and did fatherly things with him.
After V.A. moved out, he initially did not have a key and for two or three weeks
did not visit the minor. After some period of time, V.A.—through intimidation—
convinced mother to give him a key in about early May. V.A. would come over every
day, during the daytime. As time went on, he would show up at 3:00 or 4:00 in the
morning, when the minor was asleep. V.A. brought diapers that had been donated and
18
brought movies to watch with the minor. One time, V.A. took the minor with mother’s
consent because she was depressed. When V.A. returned with the minor, she “had an
anxiety attack because [the minor] came back screaming with no bottle and his eyes were
all red.” Mother testified that she had never allowed V.A. to take the minor out of the
home after that occasion, “[b]ut [V.A.] would take him anyways.” On one occasion,
mother permitted V.A.’s niece to take the minor overnight because she and V.A. were
fighting, and she thought it would be best for the child.
Mother testified that V.A. had told their family that the minor was his son. They
acted like family with the extended relatives. She admitted that V.A. loved the minor.
Mother testified that the minor called V.A. “Dada,” but that the child called every man,
including the social worker supervising visitation, “Dada.”
Mother explained that she opposed a determination that V.A. was the minor’s
presumed father because of his domestic violence history with her. She was concerned
that V.A.’s efforts to become presumed father were another attempt to assert control and
power over mother and her life.
3. Mother’s Challenge Is Not Waived
V.A. contends that mother has waived her appellate challenge based upon an
alleged concession below that V.A. met the criteria specified in section 7611(d).13 He
13 V.A. in fact argues that by virtue of the statement made by counsel below,
mother has forfeited her appellate challenge As our Supreme Court has explained:
“Although the loss of the right to challenge a ruling on appeal because of the failure to
object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss
of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to
preserve a claim forfeits that claim. In contrast, a waiver is the ‘ “intentional
relinquishment or abandonment of a known right.” ’ [Citations.]” (In re S.B. (2004) 32
Cal.4th 1287, 1293, fn. 2.) Here, V.A.’s contention is that mother’s counsel below
conceded that V.A. met the requirements of section 7611(d) by his express statements
during the hearing. It thus appears that the proper term here that describes the alleged
conduct asserted by V.A. as precluding the appellate claim is waiver.
19
bases this contention upon the following statement made by mother’s counsel during
argument below: “I agree superficially that, you know, the evidence presented today,
[V.A.] probably does meet the 7611(d) factors, including telling others that [the minor] is
his son, providing for him, however minimally, and taking him into his home.” (Italics
added.) We do not find waiver here.
First, the statement of mother’s counsel must be considered in the context of the
entire argument. Counsel argued that V.A.’s contacts with the minor should be
considered in the context of his being “a long time off[-]and[-]on boyfriend of [mother].”
The contention of mother’s counsel was that V.A.’s involvement with the minor was
insincere, in that V.A.’s contacts with the minor were, in fact, efforts to control and get
closer to mother. Counsel therefore requested that the court deny presumed father status
to V.A. Thus, contrary to V.A.’s position here that mother waived her appellate challenge
because her trial counsel agreed that V.A. met the qualifications of a presumed father,
mother’s counsel in fact opposed the requested finding. There was no waiver.
Second, the statement relied on by V.A. is not a concession that precludes mother’s
appellate challenge. Mother’s counsel argued that “superficially . . . the evidence
presented today . . . probably does meet the 7611(d) factors . . . .” (Italics added.) The
italicized qualifiers included in counsel’s statement militate against concluding that
counsel conceded V.A. was entitled to a presumed father finding. “[A] waiver is the ‘
“intentional relinquishment or abandonment of a known right.” ’ [Citations.]” (In re
S.B., supra, 32 Cal.4th at p. 1293, fn. 2.) Counsel’s statement did not constitute such an
intentional relinquishment or abandonment of a known right to challenge V.A.’s claim to
be considered a presumed father. Mother did not waive her appellate claim here. (See
Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 53 [where statement attributed to “counsel
is ambiguous regarding waiver of the right to appeal, it does not constitute an express
waiver of that right”].)
20
4. Presumed Father Finding Not Supported by Substantial Evidence
In order for V.A. to have been found to be a presumed father here, he must have
established by a preponderance of the evidence (In re J.O., supra, 178 Cal.App.4th at
p. 147) that he “receive[d] the child into [his] home and openly [held] out the child as
[his] natural child.” (§ 7611(d).) As explained by case law, in the context of a
dependency proceeding, a presumed father is “one who ‘promptly comes forward and
demonstrates a full commitment to his paternal responsibilities—emotional, financial,
and otherwise[.]’ ” (Jerry P., supra, 95 Cal.App.4th at pp. 801-802, fn. omitted.)
Otherwise explained, “ ‘[p]resumed parent status is afforded only to a person with a fully
developed parental relationship with the child . . . .’ [Citation.]” (In re L.L., supra, 13
Cal.App.5th at p. 1310.) We examine whether the juvenile court’s factual findings for its
conclusion that V.A. met the requirements under section 7611(d) for presumed
fatherhood were supported by substantial evidence. (S.Y. v. S.B., supra, 201 Cal.App.4th
at p. 1031.)
Although there are no specific factors that the juvenile court must consider in
determining whether the claimed father received the child into his home (W.S. v. S.T.,
supra, 20 Cal.App.5th at p. 145), “the court may consider all the circumstances when
deciding whether the person demonstrated a parental relationship by holding out the child
as his . . . own and assuming responsibility for the child by receiving the child into his . . .
home. [Citations.]” (R.M. v. T.A., supra, 233 Cal.App.4th at p. 774, italics added.) We
consider those circumstances here in reviewing the juvenile court’s findings. In doing so,
we are mindful that presumed fatherhood “requires something more than a man’s being
the mother’s casual friend or long-term boyfriend . . . [Rather, it involves] ‘someone who
has entered into a familial relationship with the child: someone who has demonstrated an
abiding commitment to the child and the child’s well-being’ regardless of his relationship
with the mother. [Citation.]” (In re D.M., supra, 210 Cal.App.4th at p. 553.)
21
The T.R court identified 10 concerns in its nonexclusive list of relevant factors in
making a presumed fatherhood determination under section 7611(d): “[1] [W]hether the
man actively helped the mother in prenatal care; [2] whether he paid pregnancy and birth
expenses commensurate with his ability to do so; [3] whether he promptly took legal
action to obtain custody of the child; [4] whether he sought to have his name placed on
the birth certificate; [5] whether and how long he cared for the child; [6] whether there is
unequivocal evidence that he had acknowledged the child; [7] the number of people to
whom he had acknowledged the child; [8] whether he provided for the child after [the
child] no longer resided with him; [9] whether, if the child needed public benefits, he had
pursued completion of the requisite paperwork; and [10] whether his care was merely
incidental. [Citations.]” (T.R., supra, 132 Cal.App.4th at p.1211.) We consider these
10 T.R. factors in our review of the juvenile court’s finding that V.A. met his burden of
establishing by a preponderance of the evidence his status as a presumed father.
1. Prenatal care assistance. There is no evidence that V.A. actively helped
mother in any way in connection with her prenatal care.
2, Pregnancy and birth expenses. There is nothing in the record that suggests
that V.A. paid any of mother’s pregnancy or birth expenses.
3. Prompt legal action. There is no evidence that V.A. took legal action—
prompt or otherwise—to obtain custody of the minor. To the contrary, as of the time of
the jurisdiction/disposition hearing—when the minor was 15 months old—V.A.
eschewed custody of the minor, indicating in his testimony that he wanted to demonstrate
in the future his readiness “for that big step.”
4. Birth certificate listing. There is no evidence that V.A. sought to have his
name placed on the minor’s birth certificate.
5. Whether (and how long) care was provided to child. The issue of
whether—and the length of time—V.A. provided care for the minor should be considered
separately as to two different time periods: (1) from the minor’s birth in September 2019
22
to March 2020; and (2) from March to July 2, 2020, when the minor was placed into
protective custody after the June 29 domestic violence incident resulting in V.A.’s arrest.
For the first six months of the minor’s life—from September 2019 to
March 2020—there was no evidence that V.A. provided any care of the minor. The only
evidence of V.A.’s involvement with—not care of—the child was his going to the
hospital after the minor was born, and his having an overnight visit on Thanksgiving
night with mother and the minor at the home of V.A.’s mother.
V.A. admitted in his testimony that he had never been the minor’s primary
caretaker. And, as discussed, there was no evidence that he provided any care to the
minor for the first six months of the minor’s life. During the period of March to June 29,
however, V.A. provided some care to the child. For the approximate week in March that
he lived with mother and the minor, V.A. (according to mother’s testimony) changed the
minor’s diapers and did fatherly things with him. After V.A. moved out, he frequently
visited the minor, oftentimes making multiple visits per day. (Some of those visits by
V.A., according to mother’s testimony, were in the middle of the night, so that they
involved no care of the minor.) According to V.A.’s testimony, he would on occasion
would bring toys, snacks, baby formula, and diapers, and he would change the minor’s
diapers, play with him, and feed him. The juvenile court characterized this as V.A.’s
having provided “very limited” financial support. Occasionally, V.A. went to mother’s
home to take care of the minor at mother’s request. And on one occasion, and without
consulting mother, he took the minor to the emergency room to have a bad diaper rash
examined. But V.A. did not attend any of the minor’s medical appointments, nor did
mother ever ask him to take the minor to such appointments. Therefore, the record shows
that V.A., at most, provided occasional care to the minor, and then, for only four of the
first ten months of the minor’s life.
6. Unequivocal evidence of acknowledgment of minor. V.A. testified that he
told family members the minor was his baby, and he told “everyone” the minor was his
23
son. Mother also testified that V.A. had told their family that the minor was his son. But
the evidence that V.A. acknowledged the minor as his child was not unequivocal. On
June 29, V.A. introduced himself to an emergency response social worker as mother’s
cousin and said he was not related to the minor. Further, on the same day, V.A. told the
police that he was not the minor’s father. V.A., addressing these June 29 statements
approximately three months later, told the Department that “everyone ‘wrote it down
wrong’ . . . [and] that he told them that he is not the biological father of [the minor] but he
is the father of the child.” We observe that, in light of the fact that V.A. made the
statement to the police at or about the time he was arrested for kidnapping the minor, it
would have been seemingly to V.A.’s advantage to have made it clear to the police that
he was the minor’s father. V.A.’s dispute about what he said notwithstanding, the
evidence that V.A. acknowledged the minor as his child was not unequivocal.
The juvenile court found V.A.’s statements disavowing his relationship with the
minor significant enough to specifically comment about them twice at the hearing. The
juvenile court judge said, “I do think there has been some equivocation by [V.A.] about
whether or not he really considers [the minor] his own. . . . Although, I do understand
that it could have been a little bit of a misunderstanding as to whether he was denying
biological relationship with [the minor], as opposed to denying that he was the father.
But, in any event, you would think that if he wanted to be construed as the father[,] he
[would] have made that clear.” And, in addressing mother’s opposition, the court
reiterated that “[t]here seems to have been a little bit of equivocation as to whether [V.A.]
wanted to be a presumed father.”
The evidence that V.A. acknowledged the minor as his child was not unequivocal.
7. Number of people to whom V.A. acknowledged minor. V.A. testified that
he told family members the minor was his baby and told “everyone” the minor was his
son. But the record is entirely unclear as to the number of people to whom V.A.
24
acknowledged the minor as his child, since his testimony was in general terms that he
made this acknowledgement to his family and to “everyone.”14
8. Providing for child after he no longer lived with presumed parent. On the
question of “whether [V.A.] provided for the child after [he] no longer resided with him”
(T.R., supra, 132 Cal.App.4th at p.1211), as noted, there was only about one week that
V.A. lived with the minor. And during that time, according to mother’s testimony, it was
her money that was used for support, and V.A. provided no support for the minor.
Nonetheless, to the extent this factor applies at all, there was evidence from V.A. that
after he moved out in March, he would bring toys, snacks, baby formula, and diapers for
the minor during V.A.’s visits, which the court characterized as “very limited” financial
support. There was no evidence that V.A. provided any other financial support to mother
in caring for the minor.
9. Public benefits procurement. There was evidence that mother was
unemployed, and the minor may have therefore needed public benefits. There was no
evidence that V.A. pursued completion of paperwork for this purpose.
10. Whether care was incidental. As discussed, ante, there was no evidence
that V.A. provided any care to the minor for the first six months of his life—from
September 2019 to sometime in March 2020. There was approximately one week, in
March, that V.A. lived with mother and the minor in which V.A. changed the minor’s
diapers and did fatherly things with him. And after V.A. moved out in March to June 29,
14 Mother emphasizes in her opening brief that V.A. at the hearing admitted under
oath that he was not the minor’s biological father. To the extent mother suggests from
this fact that V.A. could not therefore be determined the minor’s presumed father under
section 7611(d), we disagree. A man claiming to be a presumed father cannot be
penalized for testifying truthfully under oath that he is not the child’s biological father.
To hold otherwise would be contrary to the law. (See In re Jerry P., supra, 95
Cal.App.4th at p. 803 [fact that the man does not have “a biological relationship to the
child [does not] automatically defeat[] presumed father status”].)
25
he made frequent visits to the minor at mother’s home, some occurring in the middle of
the night. V.A. would on occasion would bring toys, snacks, baby formula, and diapers,
and he would change the minor’s diapers, play with him, and feed him. On one occasion,
he took the minor to the emergency room to have a bad diaper rash examined. But V.A.
did not attend any of the minor’s medical appointments. Therefore, the record below
shows that V.A., at most, provided incidental or occasional care to the minor, and that this
limited amount of care was provided during only four of the first ten months of the
minor’s life.15
15 Several cases in which the alleged father was not a presumed father because of a
lack of commitment to the child are illustrative here. For example, in In re D.A. (2012)
204 Cal.App.4th 811, 815, the alleged father, who was the mother’s boyfriend, had lived
with the mother and the child for a period of two weeks before, and two weeks after, the
child was born. He took mother to some prenatal appointments, and he was with mother
when the child was born. (Ibid.) After they no longer lived together, the alleged father
occasionally cared for the child overnight when the mother dropped the child off at his
home. (Ibid.) He did not sign a voluntary declaration of paternity, although mother had
listed him as the father on the birth certificate, apparently without his involvement in the
process. (Id. at pp. 815, 826, 827.) The alleged father did not openly admit paternity.
(Id. at p. 827.) The appellate court concluded that the trial court’s presumed father
finding as to the alleged father was not supported by substantial evidence. (Ibid.) In In
re Spencer W. (1996) 48 Cal.App.4th 1647, 1650, the alleged father had lived with the
mother and the child for two years but was unemployed during that time. He was
equivocal in asserting a parental relationship with the child. He told friends, relatives,
and neighbors he was the father, and the child called him “ ‘daddy.’ ” (Id. at p. 1651.)
But on one occasion after the child fell from a window, he told the social worker
investigating the incident he was not the father. (Ibid.) The alleged father never (1)
contacted ADFC to inform it of his relationship with the child, (2) sought to place his
name on a birth certificate, (3) took any other legal action to establish paternity (ibid.),
(4) sought custody, or (5) paid child support (id. at p. 1652.) The trial court found that
the alleged father had failed to establish “a consistent commitment to assume the burdens
of parenthood” (id. at p. 1653), and the appellate court held that substantial evidence
supported that finding (id. at pp. 1653-1655). And in In re Sarah C. (1992) 8
Cal.App.4th 964, 969, the alleged father, who was the biological father, lived with the
mother and the child for a few months; he provided care to the child, but he did not
provide financial support to either of them. He acknowledged the child as his own to a
few friends and family. (Ibid.) But he took no steps to have his name put on the child’s
26
From the foregoing discussion, we conclude that V.A. satisfied none of the
10 relevant factors identified by the T.R. court in making a presumed fatherhood
determination under section 7611(d). (See T.R., supra, 132 Cal.App.4th at p.1211.) We
acknowledge that, in considering a presumed father claim under section 7611(d), there
are no specific factors the juvenile court must consider (W.S. v. S.T., supra, 20
Cal.App.5th at p. 145), and that “[n]o single factor is determinative” (R.M. v. T.A., supra,
233 Cal.App.4th at p. 774). But it is, indeed, significant that a consideration of the T.R.
factors individually and collectively negates a presumed fatherhood finding here.
5. Conclusion
We have carefully considered the evidence in its totality. We cannot conclude
there was substantial evidence to support the finding that V.A. had established that he had
“receive[d] the child into [his] home and openly [held] out the child as [his] natural
child.” (§ 7611(d).) In making this determination, we rely on In re Jerry P., quoting
Supreme Court precedent, that to be a presumed father, the man must have “ ‘promptly
come[] forward and demonstrate[d] a full commitment to his paternal responsibilities—
emotional, financial, and otherwise [.]’ ” (In re Jerry P., supra, 95 Cal.App.4th at
pp. 801-802, fn. omitted, italics added, quoting Adoption of Kelsey S., supra, 1 Cal.4th at
p. 849.) There is no substantial evidence that V.A. “promptly came forward.” The
evidence concerning V.A.’s actions toward the minor for the first six months of his life is
vague, at best. There is no indication in the record as to the specifics of V.A.’s contacts
or his relationship with the minor. There was certainly no demonstration by V.A. from
birth certificate or to identify the child to governmental agencies as his daughter. (Ibid.)
He provided the child with little economic support; and he made negligible efforts while
imprisoned to contact her or establish a relationship with her. (Id. at pp. 972–973, 977.)
The juvenile court held that he was not a presumed father (id. at p. 971), and the appellate
court concluded that substantial evidence supported the finding, concluding, inter alia,
that the alleged father had “only incidentally provided care to” the child. (Id. at p. 973.)
27
September 2019 to March 2020 of a full commitment—or, indeed, any commitment—to
paternal responsibilities to the minor.
There is likewise no substantial evidence—without restricting the focus to the first
six months of the minor’s life—that V.A. “ ‘demonstrate[d] a full commitment to his
paternal responsibilities—emotional, financial, and otherwise [.]’ ” (In re Jerry P.,
supra, 95 Cal.App.4th at pp. 801-802, fn. omitted, italics added.) In so concluding, we
acknowledge (1) that V.A., according mother’s testimony, acted in a fatherly way toward
the minor during the approximate one week V.A. lived with mother and the minor in
March; (2) V.A.’s frequent visits with the minor after V.A. moved out of the home,
including his providing some care for the minor and presenting him for visits with
members of V.A.’s family; and (3) V.A.’s testimony, corroborated by mother’s
testimony, that he loves the minor. These actions of V.A. and his declaration of love for
the minor, by themselves, however, are insufficient for a finding by a preponderance of
the evidence that he made a full commitment to his parental responsibilities to the child.
As discussed, a presumed fatherhood determination under section 7611(d) here
cannot be supported by reference to any of the 10 factors identified in T.R. (See T.R.,
supra, 132 Cal.App.4th at p.1211.) Any care V.A. provided to the minor “was merely
incidental” (ibid.) and occurred for no more than four months when the child was
between six and ten months old. V.A.’s financial commitment to the minor was minimal,
and then, only after the minor was six months old. Likewise, from the record, any
emotional commitment V.A. had to the minor manifested itself in or after March 2020.
And any financial or emotional commitment did not include V.A.’s unequivocal
acknowledgment of the minor as his child, a declaration of paternity, attempts to procure
public benefits for the minor, or prompt (or any) legal action to obtain custody. V.A.
never sought custody of the minor. In fact, he testified—consistent with what he had
previously told the Department—that he was not seeking custody of the minor, indicating
that he wanted to demonstrate in the future his readiness “for that big step.” Further,
28
V.A. admitted at the hearing that he had declined the Department’s offer for expanded
visitation of the minor because V.A.—after 15 months had elapsed since the child’s
birth—was not ready for it.
Moreover, V.A.’s twin denials on March 29 that he was the minor’s father—
V.A.’s explanation that he was misunderstood by the police and the social worker
notwithstanding—belie a full commitment by V.A. to his parental responsibilities. The
juvenile court highlighted V.A.’s “equivocation” both in terms of his denials of paternity
and his failing to “appear for a couple of months in this case.” And it is also significant
that the juvenile court shared mother’s concerns that V.A.’s motivations in seeking
presumed fatherhood were more about exerting control over the mother than being
committed to the minor.16
In reaching the conclusion that the juvenile court erred in its finding that V.A. was
the minor’s presumed father, we acknowledge that our review of the juvenile court’s
findings for substantial evidence is a “deferential” one. (Chino Commercial Bank, N.A. v.
Peters (2010) 190 Cal.App.4th 1163, 1169.) However, although “[s]ubstantial evidence
is a deferential standard, . . . it is not toothless. It is well settled that the standard is not
satisfied simply by pointing to ‘ “isolated evidence torn from the context of the whole
record.” ’ [Citations.] Rather, the evidence supporting the . . . finding must be
considered ‘ “in the light of the whole record” ’ ‘to determine whether it discloses
16 Although the juvenile court found mother’s concerns about V.A.’s true
motivation for seeking presumed father status “certainly understandable” and “ha[d]
some of those same concerns as to [V.A.’s] true motives,” it concluded that they did not
rise to the level of a clear and convincing showing by mother to rebut the presumption of
fatherhood that V.A. had proved. Because we conclude there was no substantial evidence
to support the court’s finding that V.A. had met his burden of establishing presumed
father status under section 7611(d) by a preponderance of the evidence, there was no
presumption that was subject to rebuttal by mother.
29
substantial evidence—that is, evidence which is reasonable, credible, and of solid
value . . . .’ [Citation.]” (In re I.C. (2018) 4 Cal.5th 869, 892.)
As we have observed, in considering a claim of presumed parent status, “ ‘[t]he
core issues are the person’s established relationship with and demonstrated commitment
to the child.’ [Citation.] ‘Presumed parent status is afforded only to a person with a fully
developed parental relationship with the child . . . .’ [Citation.]” (In re L.L., supra, 13
Cal.App.5th at p. 1310.) In considering the juvenile court’s ruling, we must determine
whether “it [was] reasonable for the trier of fact to [have made] the ruling in question in
light of the whole record. [Citation.]” (Roddenberry, supra, 44 Cal.App.4th at p. 652.)
We have carefully reviewed the entire record, and we conclude that there was no
substantial evidence that V.A. had an “ ‘established relationship with and demonstrated
commitment to the child’ [and] a fully developed parental relationship with [him] . . . .’
[Citation.]” (In re L.L., supra, at p. 1310.) In so concluding, we acknowledge that
“[t]here is a compelling state interest in establishing parentage.” (§ 7570, subd. (a)(1).)
But that interest does not extend to finding a person to be a presumed parent under
section 7611 where the statutory criteria are not satisfied.
The juvenile court therefore erred in determining that V.A. was the presumed
father of the minor under section 7611(d).
III. DISPOSITION
The order after the December 2, 2020 jurisdictional and dispositional hearing is
reversed. The matter is remanded to the juvenile court with directions to enter a new and
different order denying V.A.’s request that he be determined the presumed father of the
minor and modifying the prior order further as appropriate in light of such denial of
presumed father status.
30
BAMATTRE-MANOUKIAN, J.
WE CONCUR:
ELIA, ACTING P.J.
DANNER, J.
In re J.R.; DFCS v. A.R.
H048689