In re Z.F.V. CA2/5 ( 2023 )

Filed 7/31/23 In re Z.F.V. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re Z.F.V., a Person Coming B319442
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 21CCJP05613A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.T. et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Charles Q. Clay III, Judge. Conditionally
reversed and remanded.
Pamela Rae Tripp, under appointment by the Court of
Appeal, for Defendant and Appellant, father S.T.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Respondent, mother M.V.R.
Marsha F. Levine, under appointment by the Court of
Appeal, for Respondent minor Z.F.V.
No appearance by Respondent Department of Children &
Family Services.
__________________________
Presumed father S.T. appeals from the juvenile court’s
jurisdiction and dispositional orders, arguing the court erred
when it denied his request to file a motion to vacate the court’s
parentage finding.
On January 25, 2023, the Department of Children and
Family Services (DCFS) submitted a letter to the court stating it
would not be filing a brief and that mother was the proper
respondent. Respondents mother and daughter filed briefs,
asking us to affirm the trial court’s order. They argue that there
were no exceptional circumstances to justify a continuance, and
regardless of the negative paternity test, father received
daughter into his home and held her out as his child in
satisfaction of the parentage presumption in Family Code, section
7611, subdivision (d).1
We conclude the court erred by refusing to allow father an
opportunity to brief his motion to vacate. In doing so, we express
no opinion on the merits of the motion. We conditionally reverse
the jurisdictional findings and dispositional order to the extent
they were based on father’s presumed father status. We remand
to allow father the opportunity to brief a motion to vacate the
parentage order.2
1 All subsequent statutory references are to the Family Code,
unless indicated otherwise.
2 Section 7646 allows a presumed parent to move to set aside
or vacate a parentage judgment if genetic testing shows the
presumed parent is not the genetic father. Section 7647 sets out
the requirements for the motion. Section 7648 allows a court,
after it has considered enumerated factors, to deny the motion if
it “determines that denial of the motion is in the best interest of
the child.”
2
FACTUAL AND PROCEDURAL BACKGROUND
At the inception of dependency proceedings, mother and
father were in a four-year relationship and had lived together for
three years; they have never married. Mother’s infidelity and
father’s domestic violence (first occurring in 2020) punctuated
their relationship. In August 2019, mother gave birth to
daughter. Evidence suggests that father was present for the
birth. He is named as the father on daughter’s birth certificate.
Father allegedly told family and friends that she was his
daughter and provided for her financially. According to the social
worker, father said he had spent significant time with daughter
“because mother was out of the home for extended periods of
time.”
1. Section 300 Petition and Detention Hearing
On December 9, 2021, DCFS filed a petition pursuant to
section 300, subdivisions (a), and (b), alleging father had
committed domestic violence against mother and physically
abused two-year-old daughter, whom mother failed to protect.
At the detention hearing on December 14, 2021, father
neither appeared nor was represented; mother made a telephonic
appearance and was represented by counsel. That day, mother
had filed a parentage questionnaire indicating she believed
father was daughter’s father. She checked the boxes stating that
father was present for daughter’s birth, signed daughter’s birth
certificate, lived with her at the time of daughter’s conception
and birth, jointly raised daughter, and held himself out as
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daughter’s parent.3 In father’s absence, the court reviewed
mother’s questionnaire and asked whether the parties had
requested a parentage finding. Mother’s counsel responded: “the
father was present and I believed signed the birth certificate.
And so I believe, under [section] 7611(d), he qualifies for
presumed status.”4 Not hearing an objection from the absent
father, the juvenile court found father to be the presumed father.
The minute order stated: “The court inquires as to the paternity
of the minor. The court finds [S.T.] to be the presumed father of
the minor child.”
2. Father’s First Appearance
On January 25, 2022, father appeared in court for the first
time. His attorney filed a JV-505 form (Statement Regarding
3 The birth certificate is part of the record on appeal.
Father's signature does not appear on the certificate, but he is
identified as "father" on it.
4 The parties agree there was no evidence before the court
that father had filed a voluntary declaration of parentage (VDOP)
even though his name was on the birth certificate. (See § 7573
[“a completed voluntary declaration of parentage that complies
with this chapter and that has been filed with the Department of
Child Support Services is equivalent to a judgment of parentage
of the child and confers on the declarant all rights and duties of a
parent”].) Because the court’s parentage finding does not appear
to be based on the existence of a VDOP and the parties agree a
VDOP was not in evidence below, we consider the significance of
the birth certificate in that context. (See Health & Saf. Code,
§ 102425, subd. (a)(4) [hospital to include an unwed father’s name
on a child’s birth certificate only if the father and the mother
“sign a voluntary declaration of paternity at the hospital before
the birth certificate is submitted for registration”].)
4
Parentage) that was signed by the attorney but not by father
personally. The place for father’s signature was left blank. The
form checked boxes stating both that (1) father does not know if
he is the parent and requests a DNA test; and (2) he believes that
he is the parent of the child and requests a presumed father
finding from the court. The form stated that father had told
family and friends he was daughter’s father and had provided her
food, clothing, shelter, and all other necessities.
At the hearing, the court acknowledged father had
requested a DNA test and wanted the court to “hold off on any
paternity findings.” Minor’s counsel responded that father had
already been found to be daughter’s presumed father at the
detention hearing. Father’s attorney stated that father was not
present in court nor represented by counsel when the parentage
finding was made. The court asked counsel if father was
disputing his familial relationship with daughter. Counsel
responded that she had not inquired because father told her he
was unsure he was the father and wanted a DNA test.
The court advised father that because he was the only
father daughter had ever known, he could still be her presumed
father even if they were not biologically related. The court stated
the presumed father finding would remain but also ordered DNA
testing. The court continued the hearing for adjudication and
disposition to March 9, 2022. The hearing was later continued to
March 23, 2022 because the parties had not received the DNA
test results.
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3. Father’s Oral Motion to Vacate the Parentage
Finding and the Court’s Adjudication of the
Dependency Petition
The DNA test was dated March 9, 2022, but father’s
counsel did not receive the results until March 22, 2022, the day
before the scheduled adjudication/disposition hearing. The DNA
test showed father was not genetically related to daughter.
At the March 23, 2022 hearing, father’s counsel informed
the court of the negative paternity test. Counsel stated father
wished to vacate the presumed father finding and requested a
short continuance to brief the issue.
Daughter’s counsel did not oppose the continuance, and
DCFS made no argument. Mother opposed any continuance,
arguing that paternity was not at issue because the DNA results
did not affect the presumed father finding. Mother’s counsel
urged the court to proceed with adjudication and disposition,
stating that the court can make visitation orders for father and
he can disregard those orders if he chooses.
The court denied the request for a continuance, explaining
that “father’s status as a presumed parent is not affected by his
status as a non-biological father of the minor child, and the two
are unrelated in the legal sense that we find ourselves in.”
During oral argument on jurisdiction and disposition,
father’s counsel reiterated his request that the court vacate the
paternity finding. Counsel asserted that under section 7646,
subdivision (a)(1), a previously established parent may bring a
motion to set aside or vacate a judgment establishing parentage
when genetic testing reveals that the established parent is not
the father of the child.
6
The court again denied father’s request to set aside
presumed father status. The court concluded the statute did not
apply “to a finding made by the court in this context” but rather
applied to “a judgment made on the basis of allegations made by
the parties.” The court also stated “this matter is prejudgment,
and 7644 [sic] requires the parties to make a motion to set aside
the judgment. There’s no motion filed, but there’s also no
judgment, and so that section does not apply.” The court opined
the lack of a genetic link to daughter had no impact on its
analysis of whether father was a presumed father under section
7611, subdivision (d). Father’s motion to continue the hearing to
allow briefing a motion to set aside the parentage finding was
denied.
The juvenile court found jurisdiction over daughter and
sustained the allegations that father had committed domestic
violence against mother in daughter’s presence and mother had
failed to protect daughter from father by allowing him to reside
with, and have unlimited access to, daughter. The court granted
mother sole legal and physical custody of daughter, with
monitored visits for father. The court then terminated
jurisdiction.5
DISCUSSION
In their initial briefing on appeal, the parties argued
whether the trial court erred in refusing to vacate presumed
5 The record indicates that mother eventually obtained a
restraining order against father which did allow father to visit
daughter. During the pendency of the case, father had a single
visit with daughter, did not seek reunification services, and,
according to the social worker, “expressed apprehension” about
participating in the case.
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father status and proceeding with adjudication/disposition.
Although father’s opening brief mentioned in passing the court’s
denial of his request for a continuance to brief a motion to set
aside the parentage finding, his appellate brief focused on the
merits of the court’s ruling on the oral motion. His single
captioned argument on appeal was: “The Trial Court’s Denial of
Appellant’s Request to Set Aside Paternity Findings Was Error
Under the Facts of This Case.” (All capital letters omitted.)
By letter, we requested the parties to brief whether the
juvenile court abused its discretion when it denied father’s
request for a continuance to prepare and file a written motion to
set aside presumed father status. (See Gov. Code, § 68081.) In
response, father argued the court’s denial of the request was an
abuse of discretion. Mother asserted the court did not err in
denying the continuance. Daughter’s appellate counsel observed
that, although daughter did not object to a continuance below,
she now was joining in mother’s letter brief.
We start our analysis with a brief review of parentage
findings in dependency cases.
1. Parentage Findings in Dependency Cases
In juvenile dependency cases, there are three types of
fathers: alleged, biological, and presumed. A presumed father
has a familial relationship with the child (alleged and biological
fathers do not) and meets one or more of the specified criteria in
section 7611. (In re P.A. (2011) 198 Cal.App.4th 974, 979–980
(P.A.).) Of the three types, “Presumed father status ranks
highest.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) “This is
because a presumed father, who has lived with a child and treats
the child as a son or daughter, has developed a parent-child
relationship that should not be lightly dissolved. This type of
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familial relationship is much more important, at least to the
child, than a biological relationship of actual paternity.” (P.A., at
p. 980.)
Relevant to this appeal, a presumed parent includes
someone who “receives the child into their home and openly holds
out the child as their natural child.” (§ 7611, subd. (d).) A
biological relationship is not necessary to prove parentage under
this presumption. Section 7611 creates a rebuttable presumption
of paternity, which affects the burden of proof “and may be
rebutted in an appropriate action only by clear and convincing
evidence.” (§ 7612, subd. (a).)
In dependency cases, the juvenile court is tasked with
inquiring with the mother as early as practicable about the
child’s presumed or alleged father, and then notifying the
presumed or alleged fathers of the proceedings. (Welf. & Inst.
Code, § 316.2, subds. (a), (b).) Similarly, California Rules of
Court, rule 5.635(b) provides that at “the initial hearing on a
petition filed under section 300 . . . and at hearings thereafter
until or unless parentage has been established, the court must
inquire of the child’s parents present at the hearing and of any
other appropriate person present as to the identity and address of
any and all presumed or alleged parents of the child.”
After parentage has been established, “a judgment
establishing parentage may be set aside or vacated upon a motion
by a previously established parent . . . if genetic testing indicates
that the previously established father of a child is not the genetic
father of the child.” (§ 7646, subd. (a).) In this statutory scheme,
“Previously established father” is “a person identified as the
father of a child in a judgment that is the subject of a motion” to
set aside or vacate. (§ 7645.) “ ‘Judgment’ means a judgment,
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order, or decree entered in a court of this state that establishes
parentage, including a determination of parentage made
pursuant to a petition filed under Section 300 . . . of the Welfare
and Institutions Code.” (§ 7645.) Section 7647 sets forth the
requirements for the contents of a written motion to vacate the
judgment establishing parentage, and section 7646 provides a
time limit for the motion.6
“The court may deny the motion to set aside or vacate a
judgment establishing parentage if it determines that denial of
the motion is in the best interest of the child.” (§ 7648.) In
assessing the best interest of the child, the court considers factors
listed in section 7648, including: the child’s age; the nature,
duration, and quality of the relationship between the child and
the previously established father; and whether the established
father has impaired the ability to ascertain the identity of, or get
support from, the biological father. (Ibid.) “If the court denies a
motion pursuant to Section 7648, the court shall state on the
record the basis for the denial of that motion and any supporting
facts.” (§ 7648.1.)
As one court has observed, the various statutes seek a
balance between stability for the child and fairness to a non-
biological father: “At the root of the procedures, conditions and
considerations detailed in section 7645 et seq. are concerns of
fairness to a person adjudged a father who in fact is not the
biological father of the child in question. One who questions the
6 Under the facts of this case, father had two years from the
date he knew of the presumed father finding to bring the motion
to vacate. (§ 7646, subd. (a)(1).) As father requested to file a
motion to vacate three months after the parentage finding, time
limitations are not at issue.
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certainty of his paternity as established by a prior judgment now
has an avenue for resolving the matter with a scientific answer
and attendant legal consequences: With the granting of a motion
to set aside and vacate, the previously adjudged father is freed
from parental responsibilities as well as support obligations.”
(San Mateo County Dept. of Child Support Services v. Clark
(2008) 168 Cal.App.4th 834, 841.)
2. The Court’s Discretion to Grant Continuances
Pursuant to Welfare & Institutions Code section 352,
subdivision (a), the juvenile court “may continue any hearing . . .
beyond the time limit within which the hearing is otherwise
required to be held[.]” “Continuances shall be granted only upon
a showing of good cause” and if it is not “contrary to the interest
of the minor.” (Id., subd. a)(1) & (2).) Continuances are
discouraged in dependency cases. (In re Giovanni F. (2010)
184 Cal.App.4th 594, 604.) “In order to obtain a motion for a
continuance of the hearing, written notice shall be filed at least
two court days prior to the date set for hearing, together with
affidavits or declarations detailing specific facts showing that a
continuance is necessary, unless the court for good cause
entertains an oral motion for continuance.” (Welf. & Inst. Code,
§ 352, subd. (a)(3).) “We review the denial of a continuance for
abuse of discretion.” (In re Giovanni F., at p. 605.)
3. The Court Erred In Denying Father a Continuance to
Bring a Written Motion to Vacate the Parentage
Finding
Starting with his first appearance on January 25, 2022,
father questioned daughter’s paternity. At his request, the
juvenile court ordered a DNA test. On March 22, 2022, the day
before the continued jurisdiction/disposition hearing, father’s
11
counsel received the negative test results. Thus, the March 23,
2022 hearing represented father’s first opportunity to challenge
his presumed father status. He asked the court for a continuance
to brief the issue, which was denied. We conclude the court
abused its discretion when it found father had failed to show good
cause for the continuance.7
Two factors weigh heavily in our analysis. First, the court’s
presumed father finding had been made before father’s first
appearance in dependency court. That finding appears to be
based, at least in part, on incorrect information, e.g. father
“signed” the birth certificate and an inference that there was an
operative VDOP. Father acted almost immediately when he
learned of the negative DNA test. The day after receipt of the
DNA test, at the previously scheduled dependency court hearing,
father asked for a continuance so he could brief the effect of the
negative DNA test on his status as presumed father. This
constituted good cause for a continuance.8
7 Mother argues under Welfare and Institutions Code section
352, subdivision (b), the disposition hearing pursuant to Welfare
and Institutions Code section 361 must occur no more than 60
days after detention unless there is a showing of exceptional
circumstances requiring a continuance. Since daughter was
never removed from mother’s custody, Welfare and Institutions
Code section 352, subdivision (b) is not applicable. Father need
only show “good cause” under Welfare and Institutions Code
section 352, subdivision (a).
8 Even at the hearing when father was present, the
evidentiary showing of presumed father status was inconclusive.
The JV-505 form that was before the court had been signed only
by counsel, not by father.
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Second, a short continuance was not contrary to daughter’s
interests under the statute governing continuances in
dependency matters. (See Welf. & Inst. Code, § 352, subd. (a)(1)
[the minor’s interests that the court gives substantial weight to
are the “need for prompt resolution of his or her custody status,
the need [for] stable environments, and [limiting] the damage to
a minor [due to] prolonged temporary placements”].) Daughter’s
counsel did not object to the requested continuance, implying that
minor would not be prejudiced by the brief delay. At the time,
daughter was residing in mother’s home and would continue to be
in that home whether jurisdiction was terminated that day or two
weeks later.
The juvenile court denied the continuance for two reasons.
First, the court concluded this was not the type of judgment
where the established parent could bring a section 7646 motion to
vacate. Second, the juvenile court believed the genetic test had
no role in its parentage determination after it was proven that
father held daughter out as his own and provided for her
financially. Neither rationale holds water.
Section 7646 Applies to Dependency Proceedings. To
the extent the court denied the motion because it was made in
the context of dependency proceedings, its reasoning was
contrary to the statutory scheme. Section 7645 expressly states
that 7646 motions to vacate apply to determinations of parentage
made pursuant to Welfare and Institutions Code section 300
petitions. “ ‘Judgment’ means a judgment, order, or decree
entered in a court of this state that establishes parentage,
including a determination of parentage made pursuant to a
petition filed under Section 300 . . . of the Welfare and
Institutions Code.” (Fam. Code, § 7645.) The court’s denial of the
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continuance on this basis was an abuse of discretion. (See In re
M.W. (2018) 26 Cal.App.5th 921, 931 [a court abuses its
discretion when it misinterprets or misapplies the law].)
The Negative Paternity Test, Along with Other
Factors, May Provide Grounds For a Motion to Vacate. We
also conclude the court abused its discretion in finding the
genetic testing had no role in its parentage decision. We agree
that a finding that a father is not a biological parent does not
automatically negate presumed father status. At the time of the
adjudication hearing, the presumed father finding had already
been made and father was not challenging that section 7611,
subdivision (d) could never apply to him. Rather, father sought
to use the negative paternity test as a basis to vacate the
parentage finding under section 7646. Section 7646 allows a
presumed parent to move to set aside or vacate the “judgment
establishing parentage . . . if genetic testing indicates that the
previously established father of a child is not the genetic father of
the child.” (§ 7646.) Thus, father’s counsel, who only learned of
the negative paternity findings the day before the hearing,
reasonably was entitled to brief the issue.
Mother argues “Inasmuch as the evidence clearly
established that Father had been the only father [daughter] had
known and that he had clearly met the requirements to be
declared a presumed father pursuant to Family Code section
7611, subdivision (d), the fact that paternity testing had revealed
he was not [daughter]’s biological father did not constitute
exceptional circumstances requiring a continuance.” Mother
misses the point and proposes an incorrect legal standard. The
statute only requires “good cause.” The “exceptional
circumstances” standard applies when the child has been
14
removed from parental custody, a fact not present here. (Welf. &
Inst. Code, § 352, subd. (b).)
Father was not given the opportunity to brief, argue, and
present evidence about whether the presumed status finding –
made in his absence – should be vacated. “ ‘If parentage findings
in dependency cases are to be meaningful. . . , all parties must
ensure that the process used by the court to determine parentage
in each case is as thorough as the circumstances of the case
dictate, and as accurate as reasonably possible.’ [Citation.] The
well-intentioned desire to provide a child with two parents does
not trump the need to make sure that the persons we designate
actually are the parents.” (In re D.M. (2012) 210 Cal.App.4th
541, 555.)
Whether father was properly designated a presumed
parent was the issue to be determined by father’s motion. In
determining whether he was the presumed father, the court
would have to consider, among other things, the circumstances
surrounding the birth and the preparation of birth certificate,
whether father signed a binding VDOP, whether father received
daughter into his home and openly held out the child as his own
under section 7611, and the weight to be given to any of the
factors listed in section 7648. (See also § 7612.) Although there
was some evidence on those issues, they were hardly conclusive.
Father, for example, had not signed the JV-505 form.
4. Father Suffered Prejudice Requiring Reversal
“Like most other errors, procedural errors by the juvenile
court require reversal only if they result in a ‘miscarriage of
justice.’ (Cal. Const., art. VI, § 13; see In re Celine R. (2003)
31 Cal.4th 45, 59-60.)” (In re Brianna S. (2021) 60 Cal.App.5th
303, 315.) We may only reverse where we find “it reasonably
15
probable the result would have been more favorable to the
appealing party but for the error.” (In re Celine R., at p. 60.)
We conclude the denial of a short continuance for father to
brief the motion to vacate was prejudicial. There were several
contested factual issues concerning daughter’s birth and early
years. Father was denied the opportunity to address both the
factual and legal issues surrounding paternity.
DISPOSITION
The juvenile court’s jurisdictional finding, insofar as it is
based on father’s conduct as an offending father, and the related
dispositional order, to the extent it addresses father, are
conditionally reversed. The case is remanded to the juvenile
court, which shall provide father an opportunity to brief a motion
to vacate the parentage finding. If after considering father’s
motion, the court denies the motion to vacate, it shall reinstate
the jurisdiction and disposition orders, including the order
terminating jurisdiction. If the court grants the motion to vacate
the parentage finding, the court shall enter a finding of
nonpaternity as to father, and strike father as an offending party
from its March 23, 2022 jurisdictional findings and as a parent in
its dispositional order.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
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