San Diego County Health & Human Services Agency v. Shannon L. , 198 Cal. Rptr. 3d 550 ( 2016 )

Filed 2/11/16
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re DONOVAN L., JR., a Person Coming
Under the Juvenile Court Law.
D068304
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,
(Super. Ct. No. J518488A)
Plaintiffs and Respondents,
v.
SHANNON L. et al.,
Defendants and Appellants.
APPEALS from an order of the Superior Court of San Diego County, Gary M.
Bubis, Judge. Reversed in part and affirmed in part.
Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and
Appellant Shannon L.
Patti Dikes, under appointment by the Court of Appeal, for Defendant and
Appellant Donovan L., Sr.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Paula C. Roach, Senior Deputy County Counsel, for Plaintiff and
Respondent San Diego County Health and Human Services Agency.
Jamie A. Moran, under appointment by the Court of Appeal, for Plaintiff and
Respondent David S.
Andrea R. St. Julian, under appointment by the Court of Appeal, for Minor
Donovan L., Jr.
Shannon L., the biological mother of minor Donovan L., Jr. (DJ), and her husband
Donovan L., Sr. (Donovan) appeal from the juvenile court's June 2015 disposition order.
The juvenile court ruled that although Donovan was DJ's conclusively presumed father
under Family Code1 section 7540, David S. was DJ's presumed father under
section 7611, subdivision (d), and DJ had three parents under recently enacted
section 7612, subdivision (c). Section 7612, subdivision (c) provides that in an
appropriate action, "if the court finds that recognizing only two parents would be
detrimental to the child," a court may find a child has more than two parents. We
conclude the juvenile court erred in applying section 7612, subdivision (c) in this case,
given its determination that David and DJ lacked an existing parent-child relationship.
Accordingly, we reverse the disposition order insofar as it determines David is DJ's
presumed father under Family Code section 7612, subdivision (c) and orders services and
visitation for David.
1 All further statutory references are to the Family Code, unless otherwise indicated.
2
I.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2015, the San Diego County Health and Human Services Agency
(Agency) filed a juvenile dependency petition under Welfare and Institutions Code,
section 300, subdivision (b), alleging risk of harm to DJ due to Shannon's substance
abuse. The 2015 case is the third dependency proceeding involving four-year-old DJ; as
described below, the Agency previously filed petitions in 2012 and 2014.
Shannon was married to Donovan at the time of DJ's conception in 2010 and birth
in 2011. In 2010, Shannon had an affair with David and informed him she was pregnant.
David did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw
Shannon and one-year-old DJ at a shopping center parking lot in July 2012. Seeing a
resemblance, David 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 Shannon for
visits with DJ. She facilitated a few visits between DJ and David, unbeknownst to
Donovan.
Shannon and DJ stayed at David's apartment for two weeks in August 2012, when
she and Donovan were having marital problems. During that time, Shannon called the
police because David locked her out after they fought over child custody. When officers
arrived, they found David and DJ " 'passed out' " on the bed with approximately 50
marijuana plants growing in the apartment. Following this incident, the Agency filed the
2012 dependency petition under Welfare and Institutions Code, section 300,
subdivision (b).
3
At the detention hearing in the 2012 case, the juvenile court found Donovan to be
DJ's conclusively presumed father under section 7540 and authorized the Agency to
release DJ to Donovan.2 David initially sought presumed father status, but he later
withdrew that request and asked to be named DJ's biological father. In October 2012, the
court conferred biological father status to David, "[b]ased on the agreement of all parties
and the LabCorp paternity test results." In November 2012, the court terminated
jurisdiction in the 2012 case, after the parties voluntarily agreed to facilitate visitation
between David and DJ.
In 2014, Shannon tested positive for methadone when giving birth to her second
child. Shannon and Donovan agreed to a voluntary case and services to address
Shannon's addiction issues.
The Agency became involved with DJ for a third time in March 2015, after
Shannon tested positive for hydromorphone when giving birth to her third child. The
2015 dependency petition underlies the present appeal. At the detention hearing on
March 24, 2015, the juvenile court noted Donovan was DJ's conclusively presumed
father under section 7540 and allowed DJ to live with him, provided that Shannon move
out of their home.
2 Section 7540 provides: "Except as provided in Section 7541, the child of a wife
cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to
be a child of the marriage." Section 7541 provides an exception to the conclusive
presumption based on blood tests performed before the child's second birthday. (§ 7541,
subd. (b); Craig L. v. Sandy S. (2004) 125 Cal. App. 4th 36, 46.)
4
In April 2015, David appeared at the disposition hearing and requested presumed
father status under section 7611, subdivision (d).3 The court noted that Donovan had
already been named a conclusively presumed father and continued the disposition hearing
to May 2015. At the continued hearing, the court made a true finding on the Agency's
petition and ordered supervised visitation for David. The court deferred the paternity
issue, explaining:
"First of all, there's a question of fact whether or not [David] is presumed.
That's going to require an evidentiary hearing. Secondly, if he is found to
be a presumed father, he is not entitled to a weighing process because a
[section ]7540 father [Donovan] is a conclusively presumed father.
Thirdly, there's a question of fact whether or not the court, under
[section 7612, subdivision (c),4] the new statute, should recognize him as a
father and give [DJ] two fathers."
At the contested disposition hearing on June 12, 2015, the court heard testimony
from the social worker, David, David's mother, Shannon, Donovan, and Donovan's
father. DJ's position, expressed during closing arguments, was that David did not qualify
as a third parent under section 7612, subdivision (c). The court took judicial notice of
3 Pursuant to section 7611, subdivision (d), a person is a presumed parent if he or
she "receives the child into his or her home and openly holds out the child as his or her
natural child."
4 Section 7612, subdivision (c) provides: "In an appropriate action, a court may find
that more than two persons with a claim to parentage under this division are parents if the
court finds that recognizing only two parents would be detrimental to the child. In
determining detriment to the child, the court shall consider all relevant factors, including,
but not limited to, the harm of removing the child from a stable placement with a parent
who has fulfilled the child's physical needs and the child's psychological needs for care
and affection, and who has assumed that role for a substantial period of time. A finding
of detriment to the child does not require a finding of unfitness of any of the parents or
persons with a claim to parentage."
5
orders from the 2012 dependency case and received into evidence the Agency's reports
and the parties' paternity questionnaires. On the basis of this evidence, the court declared
David 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.
In pronouncing its ruling, the court expressed "no doubt" that Donovan had been
"a great father" and a "superlative dad," stating it could make that finding "beyond a
reasonable doubt, conclusively." The court believed Shannon sought out David in 2012
because she wanted options while facing marital problems with Donovan. The court did
not rule David was a Kelsey S.5 father, but suggested that to the extent Shannon initially
sought out David and later changed her mind, the case supported a Kelsey S. argument to
some degree. The court believed Donovan and Shannon would likely prevent DJ from
learning David was his biological father and that Donovan sought to move the family to
Arizona to "get as far away as possible" from David.
The court credited David's testimony that although he did not get involved with DJ
initially, he decided to seek visitation and parental status after seeing DJ in 2012.
Although David withdrew his request for presumed father status in the 2012 case, the
5 In Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 849 (Kelsey S.), the Supreme Court
recognized a "child's well-being is presumptively best served by continuation of the
[biological] father's parental relationship" where "an unwed [biological] father promptly
comes forward and demonstrates a full commitment to his parental responsibilities —
emotional, financial, and otherwise —" but is precluded from establishing a meaningful
relationship with the child as a result of actions unilaterally taken by a third party.
6
court concluded he did so because of an agreement between the parties that "made the
whole case go away." The court relied on the social worker's testimony and photographs
to conclude that DJ had "nice visits" with David and "seem[ed] pretty happy at these
various events." The court rejected "very similar and consistent" testimony from
Shannon, Donovan, and Donovan's father that DJ referred to David as a "mean man" and
exhibited behavioral problems after supervised visits began in May 2015, instead
attributing those behavioral problems to Shannon's departure from the home.
Finding David 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
David's biological ties to DJ:
"With regard to [section ]7612[, subdivision ](c), I would find that it would
be detrimental for this child to only have two parents.
"Now, I want to be clear. [The statute] says 'in determining detriment to
the child, the court shall consider all rel[evant] factors.' And that's what I'm
considering. In particular, I am considering the fact that this child has a
cultural heritage; that this child has DNA running through his veins; that
this child has another family that was introduced to him at a younger [stage
of his] life who seemed to want to be involved with him; that this child will,
in fact, have to do those family trees; that this child will, if he finds out at
age 21 that he had a different bio father that was hidden from him, will
have an effect on him. It will affect him — because I've been doing this a
long time and I've seen those type of effects. It's just one of those things.
It's not fair to lie to these kids about this type of situation, it just isn't.
"Under certain circumstances they may not [find] out. But under this
circumstance, lying is not going to do any good. And I don't believe for a
second that either [Donovan or Shannon] have any real intention of
introducing [David], this father, in the near future. Because I don't know
when the good time would be . . . . They want their own family together.
If this marriage falls apart, and [Donovan] for some reason gets custody,
7
he's not going to warm up to [David], considering [David] slept with his
wife. Those are all the types of problems that can arise in this very
complex situation, which is all fueled by drugs. So I will make that
detriment finding, because I think that the evidence supports it.
"Now, I understand that it says that I have to consider the harm of removing
the child from a stable placement with a parent who has fulfilled the child's
physical needs. [Donovan] defines that exactly. I'm not removing the child
from [Donovan]. I don't know if it will ever happen. But the fact of the
matter is, I envision more visitation happening, that [DJ] learns about this
'mean man,' [David], and that he warms up to him and that he will learn to
have two fathers like a lot of kids learn. Like kids learn that they have two
moms. There is a book out there, Heather Has Two Mommies. This is
2015. This is the 21st century. I didn't create all this stuff, but it's out there.
And I have an obligation to view these statutes and apply the facts to the
statutes."
Significantly, in finding detriment under section 7612, subdivision (c), the court
found no existing bond between David and DJ, stating: "I'm going to note that [David]
does not have a strong relationship with this child." (Italics added.) The court granted
visitation to David, finding he had "done everything [he was] supposed to do," but
ordered DJ's initial visits with David to be supervised while DJ and David developed a
relationship: "At least maybe the first two, you want to see how the exchange goes. . . .
I'm not concerned that he's a danger to the child but because he has to develop a
relationship, and there is some testimony about the child's reactions, I wanted to just
cover that." (Italics added.) The court granted the Agency discretion to allow
unsupervised and overnight visits with 48 hours' notice to counsel, "as the child warms up
and feels comfortable."
Turning to the dispositional findings, the court found there was clear and
convincing evidence of a substantial risk to DJ's "physical health, safety, protection or
8
physical or emotional well being" if he were returned to Shannon's custody. The court
placed DJ with Donovan and ordered services and visitation for Donovan, Shannon, and
David. Shannon and Donovan each filed a timely notice of appeal.
II.
DISCUSSION
Shannon and Donovan raise four main arguments on appeal. They contend:
(1) David is estopped from claiming presumed father status in this action because he
withdrew his request for presumed father status in the 2012 action; (2) the juvenile court
erred in declaring David a presumed father under section 7611, subdivision (d); (3) the
juvenile court erred in finding detriment under section 7612, subdivision (c) and
concluding DJ had three parents; and (4) the juvenile court erred in granting services to
David. DJ joins in Shannon's and Donovan's briefs and argues section 7612,
subdivision (c) did not apply because he lacked an emotional bond with David.
As we will explain, David is not barred under equitable principles from seeking
presumed father status. However, this is not "an appropriate action" to recognize three
parents under section 7612, subdivision (c). Because the juvenile court determined DJ
did not have an existing relationship with David, there is no substantial evidence to
support a finding that "recognizing only two parents would be detrimental to the child"
within the meaning of section 7612, subdivision (c).
A. Estoppel
Shannon and Donovan argue David is barred under principles of collateral
estoppel and equitable estoppel from seeking presumed father status because in the 2012
9
dependency proceeding, David failed to rebut Donovan's section 7540 marital
presumption, withdrew his request for presumed father status, and agreed to biological
father status. As we will explain, neither collateral estoppel nor equitable estoppel
applies.
Collateral estoppel, or issue preclusion, "prohibits the relitigation of issues argued
and decided in a previous case, even if the second suit raises different causes of action.
[Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue
actually litigated and determined in the first action." (DKN Holdings LLC v. Faerber
(2015) 61 Cal. 4th 813, 824 (DKN Holdings).) "[I]ssue preclusion applies: (1) after final
adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the
first suit and (4) asserted against one who was a party in the first suit or one in privity
with that party." (Id. at p. 825.) Collateral estoppel is "grounded on the premise that
'once an issue has been resolved in a prior proceeding, there is no further factfinding
function to be performed.' " (Murray v. Alaska Airlines, Inc. (2010) 50 Cal. 4th 860, 864,
citing Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 336, fn. 23.) "[T]he public
policies underlying collateral estoppel — preservation of the integrity of the judicial
system, promotion of judicial economy, and protection of litigants from harassment by
vexatious litigation — strongly influence whether its application in a particular
circumstance would be fair to the parties and constitute sound judicial policy." (Lucido v.
Superior Court (1990) 51 Cal. 3d 335, 343 (Lucido).)
We reject the Agency's argument that collateral estoppel does not apply in the
juvenile dependency context because "cases are, by their nature, fluid" and rulings can be
10
modified under Welfare and Institutions Code section 388. (See In re Joshua J. (1995)
39 Cal. App. 4th 984, 993-994 [collateral estoppel barred relitigation of an issue decided in
an earlier dependency proceeding]; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment,
§ 429, p. 1080 [listing dependency proceedings among "[o]ther proceedings applying the
doctrine of collateral estoppel"].)6
Nevertheless, Shannon and Donovan have not met their burden to establish that
David's presumed parentage was "actually litigated and necessarily decided" in the 2012
action, as required for collateral estoppel. (DKN Holdings, supra, 61 Cal.4th at p. 825;
Lucido, supra, 51 Cal.3d at p. 341.) In the 2012 action, the parties did not actually
litigate whether David was a presumed father because David withdrew his request and
reached an agreement with Shannon and Donovan to seek biological father status. "If the
parties expressly exclude a particular issue from consideration, . . . no collateral estoppel
results." (7 Witkin, Cal. Procedure, supra, Judgment, § 430, p. 1081; see Hurst v. Hurst
(1964) 227 Cal. App. 2d 859, 865 [prior action that resulted in settlement without a
6 The Agency cites Sheila S. v. Superior Court (2000) 84 Cal. App. 4th 872, but that
case and others like it merely hold that collateral estoppel does not bar relitigation of
sexual molestation in dependency proceedings where there is new evidence to support a
petition for modification under Welfare and Institutions Code section 388. (Sheila S., at
p. 879; Blanca P. v. Superior Court (1996) 45 Cal. App. 4th 1738, 1757-1758 [new
evidence supported accused parents' denial of molestation]; In re Jessica C. (2001) 93
Cal. App. 4th 1027, 1039 [collateral estoppel should be narrowly applied in dependency
cases involving sexual abuse because child molestation victims may not initially make
complete disclosures].)
11
determination of paternity had no preclusive effect on the paternity issue in a later
divorce proceeding].)7
Shannon and Donovan's equitable estoppel argument fares no better. " '[T]he
doctrine of equitable estoppel is a rule of fundamental fairness whereby a party is
precluded from benefiting from his inconsistent conduct which has induced reliance to
the detriment of another [citations]. Under well settled California law four elements must
be present in order to apply the doctrine of equitable estoppel: (1) the party to be
estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted
upon or must so act that the party asserting the estoppel had a right to believe it was so
intended; (3) the other party must be ignorant of the true state of facts; and (4) he must
rely upon the conduct to his injury. . . .' " (In re Marriage of Turkanis & Price (2013)
213 Cal. App. 4th 332, 352.)
Here, all parties knew David was DJ's biological father. There were no facts
David knew that Shannon and Donovan did not know. This alone precludes application
of equitable estoppel. (In re A.O. (2004) 120 Cal. App. 4th 1054, 1059 [estoppel did not
apply because the party seeking its application "was not ignorant of the facts"].)
Furthermore, equitable estoppel does not apply because there are no facts suggesting
Shannon or Donovan detrimentally relied on David's decision to "settle" for biological
7 Similarly, res judicata, or claim preclusion, does not apply because the 2012
dependency action ended in a voluntary agreement, not "a final judgment on the merits."
(DKN Holdings, supra, 61 Cal.4th at p. 824; see 7 Witkin, Cal. Procedure, supra,
Judgment, § 370, p. 995 [judgment is "on the merits" only "if the substance of the claim
is tried and determined"].)
12
fatherhood in the 2012 action. (Steinhart v. County of Los Angeles (2010) 47 Cal. 4th
1298, 1317 [ignorance of the facts and detrimental reliance are "two of the essential
elements of equitable estoppel"]; In re Lisa R. (1975) 13 Cal. 3d 636, 645 [no estoppel
where party "suffered no injury or detriment"].)
B. Section 7611, Subdivision (d)
Shannon and Donovan argue the juvenile court erred in finding David to be DJ's
presumed father under section 7611, subdivision (d). Under section 7611,
subdivision (d), a person is presumed a parent if he or she "receives the child into his or
her home and openly holds out the child as his or her natural child." The court heard
testimony that DJ lived with David for two weeks in August 2012 and that, beginning in
2012, David told friends and family that DJ was his son.8 We will assume, without
deciding, that there is substantial evidence to support the juvenile court's ruling that
David qualifies as a presumed parent under section 7611, subdivision (d).9
8 The court also heard testimony that DJ had weekly visits with David from August
to November 2012 and periodic visits thereafter; spent two Easters and one Christmas
Eve with David and his family; received Christmas and birthday gifts from David;
received diapers, toys, and clothing from David; and had a birthday party scheduled with
David's family (that did not ultimately occur).
9 Shannon and Donovan attempt to reargue evidence considered and rejected by the
juvenile court, such as evidence that DJ called David a "mean man" and experienced
behavioral changes after beginning to visit him. However, on review for substantial
evidence, " ' "[w]e do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the trial court." ' "
(In re I.J. (2013) 56 Cal. 4th 766, 773.)
13
C. Parentage Presumptions
Donovan argues that, as a conclusively presumed father under section 7540, his
parentage claim defeats any claim to parentage that David may assert under section 7611,
subdivision (d). Because DJ is more than two years old, Donovan's conclusive marital
presumption may no longer be rebutted. (§ 7541, subd. (b); Miller v. Miller (1998) 64
Cal. App. 4th 111, 119; Craig L. v. Sandy S., supra, 125 Cal.App.4th at p. 46.) The
Agency does not dispute that Donovan is DJ's conclusively presumed father, but it
contends parentage law changed in 2014 so as to allow David to assert a parallel
parentage claim under section 7612.10
As a general rule, " 'there can be only one presumed father.' " (In re Jesusa V.
(2004) 32 Cal. 4th 588, 603.) Unless section 7612, subdivision (c) applies, which we
address below, Donovan's conclusive marital presumption under section 7540 defeats any
parentage claim in David. (Rodney F. v. Karen M. (1998) 61 Cal. App. 4th 233, 239-240;
Michelle W. v. Ronald W. (1985) 39 Cal. 3d 354, 362.)
D. Section 7612, Subdivision (c)
Central to this appeal is the application of section 7612, subdivision (c). In 2013,
the Legislature enacted section 7612, subdivision (c) to allow courts to recognize that a
child has more than two parents in certain limited contexts:
"In an appropriate action, a court may find that more than two persons with
a claim to parentage under this division are parents if the court finds that
10 David and Shannon do not address the effect of Donovan's conclusive
presumption but join in the Agency's and Donovan's arguments, respectively.
14
recognizing only two parents would be detrimental to the child. In
determining detriment to the child, the court shall consider all relevant
factors, including, but not limited to, the harm of removing the child from a
stable placement with a parent who has fulfilled the child's physical needs
and the child's psychological needs for care and affection, and who has
assumed that role for a substantial period of time. A finding of detriment to
the child does not require a finding of unfitness of any of the parents or
persons with a claim to parentage."
(Stats. 2013, ch. 564, § 6.5, italics added.) The statute went into effect on January 1,
2014. The parties agree that section 7612, subdivision (c) allows a court to recognize
three parents only in "rare cases" where a child truly has more than two parents, but they
disagree as to whether this is such a case.
The juvenile court determined DJ would face detriment under section 7612,
subdivision (c) if the court were to find he had only two parents and therefore ruled
David was to be DJ's third parent under the statute. Shannon and Donovan contest this
ruling. Specifically, Shannon and Donovan challenge the court's finding of detriment
under the statute, arguing there is no evidence DJ was missing anything from his life that
David could provide. DJ joins in their arguments, contending there is no evidence he
ever formed any real emotional attachment with David to support a finding of detriment
under section 7612, subdivision (c). In response, the Agency suggests David and DJ
shared a close bond between July 2012 and December 2014, such that "DJ would suffer
great harm if his relationship with David ended." The Agency nevertheless concedes
"David is not the poster boy for application of the statute."
As we explain, this is not "an appropriate action" for application of section 7612,
subdivision (c). Because the juvenile court determined David and DJ lacked an existing
15
parent-child relationship, there is no substantial evidence to support a finding that
"recognizing only two parents would be detrimental to the child" within the meaning of
the statute. (§ 7612, subd. (c).)
1. Legal Principles
The parties disagree as to the applicable standard of review for the juvenile court's
application of section 7612, subdivision (c) to this case. Shannon, Donovan, and DJ
argue a juvenile court's ruling under the statute must be reviewed for substantial
evidence. By contrast, the Agency and David argue abuse of discretion is the
appropriate standard, based on the statute's language that a court "may find" more than
two parents. (§ 7612, subd. (c).)
We will interpret the statute de novo, as we must. (In re J.P. (2014) 229
Cal. App. 4th 108, 122; In re Alanna A. (2005) 135 Cal. App. 4th 555, 563.) Then, in
applying the statute to this case, we will determine whether the juvenile court's findings
under section 7612, subdivision (c) are supported by substantial evidence. This analysis
is the same under either the substantial evidence or abuse of discretion standard of
review. (See In re C.B. (2010) 190 Cal. App. 4th 102, 123 [on abuse of discretion review,
"the substantial evidence test applies to pure findings of fact"].) Because we will
conclude substantial evidence is lacking to support a finding of detriment within the
meaning of section 7612, subdivision (c), we need not decide the standard of review for
all rulings in which the juvenile court finds that a child has more than two parents under
section 7612, subdivision (c).
16
As with any statute, " '[w]e begin with the fundamental rule that our primary task
is to determine the lawmakers' intent.' " (In re B.A. (2006) 141 Cal. App. 4th 1411, 1418.)
"Where the language of the statute is clear and unambiguous, we follow the plain
meaning of the statute and need not examine other indicia of legislative intent."
(In re J.P., supra, 229 Cal.App.4th at p. 123.) Section 7612, subdivision (c) is
ambiguous as to what constitutes "an appropriate action" so as to allow a court to find a
child has more than two parents. Therefore, on our own motion, we take judicial notice
of the legislative history of Senate Bill No. 274 (2013-2014 Reg. Sess.) to resolve the
ambiguity. (Evid. Code, §§ 452, 459; In re J.W. (2002) 29 Cal. 4th 200, 210.)11
2. Legislative History
Section 7612, subdivision (c) directs that a court "may find that more than two
persons with a claim to parentage under this division are parents if the court finds that
recognizing only two parents would be detrimental to the child." In determining
detriment in this context, courts must "consider all relevant factors, including, but not
11 We may take judicial notice of different versions of the same bill; the Legislative
Counsel's Digest; reports by the Senate and Assembly Judiciary Committees; reports by
the Senate and Assembly Appropriations Committees; and reports by the Office of Senate
Floor Analyses. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.
(2005) 133 Cal. App. 4th 26, 31-37 [collecting cases]; see Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal. 4th 260, 279, fn. 9.) As a general rule, "legislative history
must shed light on the collegial view of the Legislature as a whole." (Kaufman, at p. 30.)
Some of the reports we consider include statements by the author of Senate Bill No. 274.
Because these "statements appear to be part of the debate on the legislation and were
communicated to other legislators, we can regard them as evidence of legislative intent."
(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal. 4th 914, 928 (Carter); cf.
Kaufman, at pp. 37, 39 [statements by bill's author that were not communicated to the
Legislature as a whole are not deemed legislative history].)
17
limited to, the harm of removing the child from a stable placement with a parent who has
fulfilled the child's physical needs and the child's psychological needs for care and
affection, and who has assumed that role for a substantial period of time." (§ 7612,
subd. (c).)12
The Legislature borrowed the "detriment to the child" standard from section 3041,
which governs custody awards to a nonparent over the objection of a parent.13 (Sen.
Com. on Judiciary, Rep. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended Apr. 1,
2013, p. 6.) Detriment under section 3041 considers "the prospect that a successful,
established custodial arrangement would be disrupted" (Guardianship of Ann S. (2009)
45 Cal. 4th 1110, 1123, italics added) or the harm in "removing a child from what has
been a stable, continuous, and successful placement is detrimental to the child"
(Guardianship of L.V. (2006) 136 Cal. App. 4th 481, 491, italics added). Although courts
have concluded detriment under section 3041 may include the loss of an existing
relationship with a nonparent (Guardianship of Olivia J. (2000) 84 Cal. App. 4th 1146,
12 An earlier version of the bill, which the Governor vetoed, was based on the "best
interest of the child" standard. (Sen. Bill No. 1476 (2011-2012 Reg. Sess.) § 5 ["In an
appropriate action, a court may find that a child has more than two natural or adoptive
parents if required to serve the best interest of the child."]; Governor's veto message to
Sen. on Sen. Bill No. 1476 (Sept. 30, 2012) (2011-2012 Reg. Sess.).) Redrafting the
legislation in 2013, the Legislature incorporated the "detriment to the child" standard.
13 Section 3041, subdivision (c) provides that " 'detriment to the child' includes the
harm of removal from a stable placement of a child with a person who has assumed, on a
day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs
and the child's psychological needs for care and affection, and who has assumed that role
for a substantial period of time. A finding of detriment does not require any finding of
unfitness of the parents."
18
1159), the parties have not pointed us to, nor have we found, any case applying
section 3041 to protect a parental relationship that has not yet developed.
Indeed, legislative reports indicate that section 7612, subdivision (c) seeks to
"protect[] children from harm by preserving the bonds between children and their
parents" and avoid the "disastrous emotional, psychological, and financial consequences
for a child, who may be separated from one or both of the parents he or she has always
known." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill
No. 274 (2013-2014 Reg. Sess.) May 21, 2014, p. 7, italics added; Assembly Com. on
Judiciary, com. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended May 14, 2013,
pp. 4-5, italics added.) These authorities suggest that "an appropriate action" for
application of section 7612, subdivision (c) is one in which a court finds an existing,
rather than potential, relationship between a child and a putative third parent, such that
"recognizing only two parents would be detrimental to the child." (§ 7612, subd. (c).)14
We find considerable support for our statutory interpretation in an uncodified
section of the legislation.15 Section 1 to Senate Bill No. 274 states in relevant part:
14 The legislative history does not disclose consideration of the situation presented
here, where a biological father may satisfy section 7611 but does not have an existing
parent-child relationship. (Assembly Com. on Judiciary, com. on Sen. Bill No. 274
(2013-2014 Reg. Sess.) as amended May 14, 2013, p. 10.)
15 Statements in an uncodified section of the same bill " 'may properly be utilized as
an aid in construing a statute.' " (Carter, supra, 38 Cal.4th at p. 925; id. at p. 930
[determining legislative intent by reference to uncodified section]; see Yeager v. Blue
Cross of California (2009) 175 Cal. App. 4th 1098, 1103 ["statements of purpose in a
statute's preamble can be illuminating if a statute is ambiguous"].)
19
"(a) Most children have two parents, but in rare cases, children have more
than two people who are that child's parent in every way. Separating a
child from a parent has a devastating psychological and emotional impact
on the child, and courts must have the power to protect children from this
harm.
"(b) The purpose of this bill is to abrogate In re M.C. (2011) 195
Cal. App. 4th 197 insofar as it held that where there are more than two
people who have a claim to parentage under the Uniform Parentage Act,
courts are prohibited from recognizing more than two of these people as the
parents of a child, regardless of the circumstances.
"(c) This bill does not change any of the requirements for establishing a
claim to parentage under the Uniform Parentage Act. It only clarifies that
where more than two people have claims to parentage, the court may, if it
would otherwise be detrimental to the child, recognize that the child has
more than two parents.
"(d) It is the intent of the Legislature that this bill will only apply in the rare
case where a child truly has more than two parents, and a finding that a
child has more than two parents is necessary to protect the child from the
detriment of being separated from one of his or her parents."
(Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1, italics added.) Senate Bill No. 274,
section 1, indicates that the Legislature intended amendments to section 7612 to be
narrow in scope and to apply only in "rare cases" in which a child "truly has more than
two parents" who are parents "in every way." (Sen. Bill No. 274 (2013-2014 Reg. Sess.)
§ 1.) In those rare cases, the Legislature sought to protect the child from the "devastating
psychological and emotional impact" that would result from "[s]eparating [the] child
from a parent." (Ibid.) Accordingly, "an appropriate action" for application of
section 7612, subdivision (c) is one in which there is an existing parent-child relationship
between the child and the putative third parent, such that "recognizing only two parents
would be detrimental to the child." (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.)
20
3. Harmonizing Section 7612 Within the Uniform Parentage Act
As our Supreme Court has explained, " 'every statute should be construed with
reference to the whole system of law of which it is a part so that all may be harmonized
and have effect.' " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th
1106, 1118-1119; see People v. Verduzco (2012) 210 Cal. App. 4th 1406, 1414 [courts
must "consider the consequences that will flow from a particular statutory
interpretation"].) Our interpretation of what constitutes "an appropriate action" under
section 7612, subdivision (c) harmonizes the statute within the broader statutory
framework under the Uniform Parentage Act (UPA).
In making parentage determinations under the UPA, courts seek to protect existing
relationships rather than foster potential relationships. (See Rodney F. v. Karen M.,
supra, 61 Cal.App.4th at p. 239 ["There is an obvious distinction between a biological
father who has actually established a parent and child relationship, and a man who has
not established such a relationship but would like to do so."]; In re D.M. (2012) 210
Cal. App. 4th 541, 555 [juvenile court erred in focusing on the "possibility that [the
mother's boyfriend] would develop a parental relationship with the child, not that the
relationship already existed"]; In re A.A. (2003) 114 Cal. App. 4th 771, 788 ["[T]he state's
interest in these matters includes preserving developed parent-child relationships whether
or not the father figure has biological ties to the child."].)
Over the past three decades, courts increasingly have looked to the nature of the
parent-child relationship to resolve paternity disputes. (Brian C. v. Ginger K. (2000) 77
Cal. App. 4th 1198, 1210-1216 [collecting cases].) "The courts have repeatedly held, in
21
applying paternity presumptions, that the extant father-child relationship is to be
preserved at the cost of biological ties." (In re Nicholas H. (2002) 28 Cal. 4th 56, 65.)
The " ' "social relationship" ' " between a putative father and child " ' "is much more
important, to the child at least, than a biological relationship of actual paternity." ' " (In
re Marriage of Freeman (1996) 45 Cal. App. 4th 1437, 1445.) Thus, although our
Supreme Court has rejected the notion that an unwed biological father has a protected
liberty interest in establishing a relationship with his child, the court has recognized a
biological father's liberty interest "in maintaining and preserving an existing parent-child
relationship." (Dawn D. v. Superior Court (1998) 17 Cal. 4th 932, 942, italics added; see
Lisa I. v. Superior Court (2005) 133 Cal. App. 4th 605, 616 [a biological father does not
have a liberty interest "in the opportunity to develop a relationship with" the child].)16
Biological paternity may be afforded greater weight when the child is an infant; however,
as the child gets older, courts seek to preserve the stronger social bond over biological
ties. (In re Kiana A. (2001) 93 Cal. App. 4th 1109, 1120.)
Together, these authorities support our statutory interpretation as applied here to
four-year-old DJ: "an appropriate action" for application of section 7612, subdivision (c)
requires a court to find an existing, rather than potential, relationship between a putative
16 An exception to this general principle can be found in Kelsey S., supra, 1 Cal.4th
at pages 848-849, which recognized a liberty interest where a biological father is
precluded from establishing a relationship with his child. Here, however, the juvenile
court did not make a ruling under Kelsey S., and the issue of whether David might qualify
as a Kelsey S. father is not before us on appeal. The policy motivations underlying
Kelsey S. therefore do not apply.
22
third parent and the child, such that "recognizing only two parents would be detrimental
to the child." (§ 7612, subd. (c).) This interpretation harmonizes section 7612,
subdivision (c) within the broader statutory framework under the UPA.17
4. Application
The juvenile court found that David "does not have a strong relationship" with DJ
and ordered visits to be supervised "because [David] has to develop a relationship."
Despite these findings, the court applied section 7612, subdivision (c), relying on David's
biological ties to DJ and the potential harm to DJ from possibly not finding out about his
roots until later in his life. This was error.
There is no indication the Legislature intended section 7612, subdivision (c) to
apply to a person like David, who, at the time of the contested disposition hearing on
parentage, lacked an existing relationship with the child. A person who lacks an existing
parent-child relationship is not a child's "parent in every way." (Sen. Bill No. 274 (2013-
2014 Reg. Sess.) § 1, subd. (a).) Nor would separation from such a person cause
17 In his reply brief, Donovan references Welfare and Institutions Code, section
366.26, subdivision (c)(1)(B)(i), arguing David was merely a " 'friendly visitor' " to DJ
rather than a parental figure. Although the termination of parental rights is not at issue
here, mere friendly visits between a biological father and child would not support a
finding that termination would be "detrimental to the child" under that statute. (In re S.B.
(2008) 164 Cal. App. 4th 289, 296-297; In re Angel B. (2002) 97 Cal. App. 4th 454, 468.)
Here, too, DJ's "nice visits" and happy photographs with David are not substantial
evidence to support a finding "that recognizing only two parents would be detrimental to
the child." (§ 7612, subd. (c).)
23
"devastating psychological and emotional impact on the child." (Ibid.)18 The court's
speculation as to potential harm from DJ discovering his biological father later in life is
not substantial evidence supporting a finding of detriment within the meaning of
section 7612, subdivision (c). (See In re Steve W. (1990) 217 Cal. App. 3d 10, 22
[juvenile court's conclusion "supported by little more than speculation" not based on
substantial evidence].)
Application of section 7612, subdivision (c) to the facts presented here would
open the floodgates to virtually all biological fathers who may qualify as a presumed
parent under section 7611 and seek to form a relationship with the child. Such an
interpretation would apply far beyond the "rare case" envisioned by the Legislature.
(Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) Indeed, application of the statute here
would call into question the continued viability of section 7612, subdivision (b). If the
possible loss of a potential relationship were sufficient to find detriment and recognize
three parents under section 7612, subdivision (c), we question when, if ever, a court
would weigh competing parentage presumptions under section 7612, subdivision (b).
18 David compares the facts of this case with those in In re M.C., supra, 195
Cal. App. 4th 197, to argue that because section 7612, subdivision (c) abrogates that
ruling, the juvenile court properly found DJ had three legal parents under the statute.
However, the Legislature sought to abrogate M.C. only "insofar as it held that . . . courts
are prohibited from recognizing more than two . . . people as the parents of a child,
regardless of the circumstances." (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) In
other words, the Legislature sought to abrogate M.C.'s per se bar to recognizing a child
has more than two parents; it did not specify whether, on the facts of M.C., a court should
now find the child has three parents.
24
Such a result would be untenable, given the express legislative intent to leave
subdivision (b)'s weighing test intact:
"[E]xisting law anticipates the situation where two or more presumptions of
paternity conflict under the Family Code, and provides the following
guidance: the presumption which on the facts is founded on the weightier
considerations of policy and logic controls. Courts therefore, under current
law, apply a critical analysis to situations where more than two
presumptions exist. This bill does not limit that analysis. . . ."
(Assembly Com. on Judiciary, com. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as
amended May 14, 2013, p. 7, italics added; see id. at p. 5 [explaining the legislation gives
courts "flexibility": where there are more than two presumed parents, a "court can, but is
not required to, recognize more than two people as parents of the child if it would
otherwise be detrimental to the child" (italics added)].)
For these reasons, we conclude "an appropriate action" for application of
section 7612, subdivision (c) is one in which there is an existing parent-child relationship
between the child and the putative third parent, such that "recognizing only two parents
would be detrimental to the child." (§ 7612, subd. (c).) Because the juvenile court
determined David did not have an existing parent-child relationship with DJ, there is no
substantial evidence to support a finding of detriment under the statute. This is not the
"rare case" in which section 7612, subdivision (c) allows a court to find that a child has
more than two parents. (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) Consequently,
section 7612, subdivision (c) does not apply, and Donovan's conclusive marital
presumption under section 7540 defeats David's parentage claim under section 7611,
25
subdivision (d). (Michelle W. v. Ronald W., supra, 39 Cal.3d at p. 362; Rodney F. v.
Karen M., supra, 61 Cal.App.4th at p. 240.)
E. Services
The juvenile court granted David supervised visitation with DJ and "enhancement
services." On appeal, the parties agree there is no statutory basis for "enhancement
services" in the Welfare and Institutions Code, but disagree as to whether David is
nevertheless entitled to services and visitation. The Agency contends the juvenile court
properly awarded David "maintenance services"; David joins in the Agency's argument.
Donovan and Shannon argue the juvenile court erroneously granted services to a mere
biological father when a conclusively presumed father exists.
The Agency's argument for "maintenance services" is premised on David being a
member of DJ's "family" as a third parent under section 7612, subdivision (c). The
Welfare and Institutions Code permits maintenance services for "parents or guardians" or
"families." (Welf. & Inst. Code, §§ 362, subd. (c), 364, subd. (b), 16506.) David is none
of these. Providing David with services does not serve the goals of maintaining DJ in
Donovan's home by "eliminating the conditions or factors requiring court supervision."
(Id., § 364, subd. (b); see id., § 16501, subd. (g) ["family maintenance services are
activities designed to provide in-home protective services to prevent or remedy neglect,
abuse, or exploitation, for the purposes of preventing separation of children from their
families" (italics added)]; In re Aurora P. (2015) 241 Cal. App. 4th 1142, 1154 ["family
maintenance services . . . ameliorate the conditions that made the child subject to the
court's jurisdiction"].) Because he is not a parent, David is not entitled to services or
26
visitation. (In re Elijah V. (2005) 127 Cal. App. 4th 576, 589 [courts may not order
services or visitation for a biological father when a conclusively presumed father exists].)
DISPOSITION
The juvenile court's June 12, 2015 disposition order is reversed insofar as it
determines David is DJ's presumed father under Family Code section 7612,
subdivision (c) and orders services (including the preparation of a case plan) and
visitation for David. In all other respects, the disposition order is affirmed.
IRION, J.
WE CONCUR:
MCDONALD, Acting P. J.
O'ROURKE, J.
27