Los Angeles County Department of Children and Family Services v. Irene V.

ROTHSCHILD, Acting P. J., Concurring and Dissenting.

I agree with the majority that Jesus is a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216] (Kelsey S.), and I accordingly concur in part l.c.(ii) of the majority’s Discussion. I dissent from the remainder of the majority’s Discussion, however, because I find it either unnecessary to our decision or incorrect on the merits.

As the majority acknowledges, no party challenges the presumed parent status of either Melissa V. or Irene V. Therefore the issue is not before us. Because we should consequently express no opinion on it, I do not join part l.a. and b.

The majority correctly concludes that Jesus is a presumed father under Kelsey S. As a result, the majority’s further conclusion that Jesus is not a presumed father under Family Code section 7611, subdivision (d), is unnecessary and adds nothing to the opinion, so I do not join part l.c.(i).

Part 2. of the majority’s discussion, in contrast, is necessary, but I disagree with it. At the hearing on February 5, 2010, the trial court could and should have reduced the number of presumed parents from three to two. To do that, the court first could and should have determined whether one of the presumptions was rebutted by clear and convincing evidence under Family Code section 7612, subdivision (a), and then, if three presumed parents still remained, the court could and should have resolved the conflicts among the three presumptions by determining which two are “founded on the weightier considerations of policy and logic” under Family Code section 7612, subdivision (b). Had the court done so, and had the court either found Jesus’s presumption rebutted at the first step or resolved the conflicting presumptions against Jesus at the second, we would have been compelled to reverse, because the record contains no evidence that would support such an outcome. Moreover, we would have directed the trial court on remand to find that Jesus’s presumption was not rebutted and to resolve the conflicts in his favor, we would not have remanded for further proceedings and the taking of additional evidence as to Jesus. There is consequently no reason to remand for further proceedings and the taking of additional evidence as to Jesus in this case—he should not be worse off because the trial court failed to mle at all than he would have been if the court had mled against him. We should therefore direct the trial court to find that Jesus’s presumption was not rebutted¹ and to resolve the conflicts in his favor.

Because of my disagreement with part 2. of the majority’s opinion, I disagree with part 3. as well. At the hearing on February 5, 2010, the trial court should have reduced the number of presumed parents from three to two, and Jesus should have been one of the two. If the trial court had reached that result, or if we were correcting its failure to do so by directing it to reach that result on remand, then there would be no question about whether Jesus will, at the end of the day, “retainf] his status as presumed father.” (Maj. opn., ante, at p. 224.) Accordingly, there should have been no impediment to application of Welfare and Institutions Code section 361.2 at the hearing on February 5, 2010, and there is no impediment to our applying it now. Moreover, as the majority correctly states, the standard for refusing Jesus’s request for placement under that statute “was not met here” (maj. opn., ante, at p. 224)—the record before the trial court at the hearing contained no evidence that placement with Jesus “would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (Welf. & Inst. Code, § 361.2, subd. (a).) (In her respondent’s brief, M.C. agrees that the order denying placement with Jesus under Welf. & Inst. Code, § 361.2 “must be vacated as lacking any basis whatsoever.”) We should therefore direct the trial court to place M.C. with Jesus forthwith.²

To summarize: At the hearing on February 5, 2010, the trial court could and should have reduced the number of presumed parents from three to two. Had the court done so, it would have had no basis for concluding that Jesus was not one of the two. And, had the court concluded that Jesus was one of the two, the court would likewise have had no basis to refuse to place M.C. with Jesus under Welfare and Institutions Code section 361.2. On this appeal, decided in May 2011, we should direct the trial court to do what it should have done on February 5, 2010. M.C. has been separated from Jesus for too long already, and continuing delays do not benefit her. I therefore respectfully dissent.

1 The majority concludes that the trial court has already implicitly determined that no presumptions were rebutted.

2 Such a placement would not prevent the court from continuing to safeguard M.C.’s interests. For example, the court could order that Jesus’s custody of M.C. be subject to the continuing jurisdiction or supervision of the court. (Welf. & Inst. Code, § 361.2, subd. (b)(2), (3).)