Citation85 P.3d 2,32 Cal.4th 588,10 Cal.Rptr.3d 205
Decision Date01 March 2004
Docket NumberNo. S106843.,S106843.
CourtUnited States State Supreme Court (California)
PartiesIn re JESUSA V., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Heriberto C., Defendant and Appellant.

John L. Dodd, Tustin, under appointment by the Supreme Court, and Lisa A. DiGrazia for Defendant and Appellant.

Lloyd W. Pellman, County Counsel, and Lois D. Timnick, Deputy County Counsel, for Plaintiff and Respondent.

Children's Law Center of Los Angeles, Law Offices of Kenneth P. Sherman, Marissa Coffey, Monterey Park, and Kenneth P. Sherman for Minor.

Donna Wickham Furth and Shannan Wilber for Northern California Association of Counsel for Children and Legal Services for Children, San Francisco, as Amici Curiae on behalf of Minor.


Jesusa V. became the subject of this dependency action when her biological father, Heriberto C., was taken into police custody for beating and raping her mother, and her mother, who was pregnant at the time, was hospitalized because of her injuries. At the detention hearing, the juvenile court ordered Jesusa to be placed with Paul B., the mother's husband and the father of her five other children. Paul, who was married to the mother at the time Jesusa was born and who had received the child into his home and had held her out as his own, promptly requested a declaration that he was Jesusa's presumed father. (Fam.Code, § 7611, subds.(a), (d).) Nine days later, Heriberto also filed a request to be declared the presumed father. The juvenile court ordered the Los Angeles County Sheriff to produce Heriberto, who was incarcerated, for the hearing to identify the presumed father and to adjudicate the dependency petition. (See Pen.Code, § 2625.) In the interim, however, Heriberto had been convicted of the rape and moved from the county jail to North Kern State Prison, rendering the court's transfer order ineffective. The hearing went forward in Heriberto's absence but in the presence of his attorney. At that hearing, the juvenile court declared that Paul was Jesusa's presumed father1 under Family Code section 7612 and found that Jesusa was a dependent of the court under Welfare and Institutions Code section 300, subdivisions (a) and (b). With the mother's consent, the court maintained Jesusa's placement with Paul.

This set of facts presents three principal issues: Did the juvenile court err in making a declaration of presumed fatherhood at a hearing conducted in Heriberto's absence but in the presence of his attorney? If not, did the juvenile court err in declaring Paul — instead of Heriberto, the biological father — to be Jesusa's presumed father? And, in any event, did the juvenile court err in adjudicating the dependency petition while Heriberto was absent but his counsel was present? We find that the juvenile court erred only in adjudicating the dependency petition in Heriberto's absence, but that the error was harmless. We therefore affirm in part and reverse in part the judgment of the Court of Appeal.


On April 1, 2001, Jesusa V., who was not yet two years old, was taken into protective custody after her biological father, Heriberto C., raped and beat her mother. The mother, who was seven months pregnant with Heriberto's child, was hospitalized. The Long Beach police officers who arrested Heriberto reported that the motorhome where the three were residing was filthy and unsuitable to live in.

The Los Angeles County Department of Children and Family Services (DCFS) thereafter filed a dependency petition that, as modified, alleged that Heriberto had a long history of violent and aggressive behavior, that Heriberto had raped and beaten Jesusa's mother, that at that time and on other occasions Jesusa had been "exposed to violent confrontations" between her mother and Heriberto, and that her mother had failed to take action to protect the child. Jurisdiction was alleged under subdivisions (a) and (b) of section 300 of the Welfare and Institutions Code.

Heriberto was in jail at the time of the detention hearing on April 4, 2001, and did not appear. Jesusa's mother appeared at the hearing with her husband, Paul B. The couple had been married for nearly 18 years, although they had lived apart for the preceding three years. They had five children together. Paul, who was a sergeant in the United States Air Force in San Diego, promptly requested presumed father status under Family Code section 7611 and asked that Jesusa be placed with him and her five half siblings. The mother supported both requests and declared in writing that Paul, as well as Heriberto, had held himself out as Jesusa's father and had accepted her into his home.

Paul testified that Jesusa had lived with him from time to time when her mother came to San Diego to visit her other children and that her most recent visit had been a month earlier. The juvenile court found a prima facie basis to detain Jesusa and released her to Paul's custody. The court also made a tentative finding, subject to later rebuttal, that Paul was Jesusa's presumed father.

When Heriberto appeared in court about a week later, counsel was appointed to represent him. Heriberto denied the allegations in the petition and announced his intent to seek presumed father status. The juvenile court issued a removal order (Pen.Code, § 2625) for Heriberto to attend a hearing on April 30, 2001, on presumed fatherhood. The court also advised counsel to brief the matter and to consider having Heriberto file a supporting declaration.

On April 30, the juvenile court continued the matter to July 17, 2001, and again issued a removal order for Heriberto.

On May 21, 2001, in a separate criminal proceeding, Heriberto pleaded no contest to one count of raping Jesusa's mother on the night in question and was sentenced to three years in prison with an immigration hold. Because of an intervening transfer to North Kern State Prison, however, the juvenile court's removal order directed to the Los Angeles County Sheriff was ineffective. Heriberto therefore was not present when the parties reconvened on July 17. Counsel objected and asked for another continuance, asserting that proceeding in Heriberto's absence would violate due process. The court, after remarking that it had been under the impression the issue of paternity "would be fully decided on the briefs and argument on the briefs" without taking testimony (and observing that Heriberto had indeed filed such a brief), inquired of counsel what testimony Heriberto could provide. Counsel's response described evidence that encompassed "the extent in which [Heriberto] held out paternity, publicly acknowledged paternity for Jesusa, and formal steps he [took] to identify [her as his daughter to] ... government agencies" as well as the truth or falsity of the allegations of domestic violence in the dependency petition. The court then explained that, to resolve the issue of presumed fatherhood, it would not be making a finding as to the truth of the allegations in the petition and would consider only the mother's statements that she had on occasion sought refuge with her husband, Paul. The court also credited the representations made by counsel — i.e., that Heriberto was Jesusa's biological father, that he had held himself out as her father, and that he had received the child into his home. Accordingly, the court denied the request for a continuance.

After observing that either man — Heriberto or Paul — thus qualified as a presumed father, the juvenile court found the weightier interest favored Paul, who had been married to Jesusa's mother at the time Jesusa was conceived and born; who was still married to Jesusa's mother; who had held himself out as Jesusa's father, had received her into his home, and had treated her as his own; who was the father of Jesusa's five half siblings, all of whom still lived with him and also had developed a bond with Jesusa; and who had lived with Jesusa for a significant period in her young life. "In other words, there is so much more to being a father than merely planting the biological seed. The man who provides the stability, nurturance, family ties, permanence, is more important to a child than the man who has mere biological ties.... [¶] By finding [Paul] is the presumed father, this court is protecting and preserving a family unit, the integrity of a family unit."

The juvenile court then proceeded to adjudicate the dependency petition, again over counsel's objection that Heriberto was absent. Based on several DCFS reports, the arrest report, and the police follow-up report, the court sustained the dependency petition, maintained Jesusa in Paul's custody, permitted the mother to have unmonitored visits with her child and granted her reunification services, and ordered Heriberto to have no contact with the child.

Heriberto appealed. The Court of Appeal affirmed in part and reversed in part in a published opinion. The appellate court affirmed the order identifying Paul as Jesusa's presumed father but reversed the order sustaining the dependency petition, reasoning that the lower court had lacked jurisdiction under Penal Code section 2625, subdivision (d) to adjudicate the petition in Heriberto's absence. Because this construction of section 2625 created a conflict with two other published decisions, In re Rikki D. (1991) 227 Cal.App.3d 1624, 278 Cal.Rptr. 565 (Rikki D.) and In re Axsana S. (2000) 78 Cal.App.4th 262, 92 Cal.Rptr.2d 701 (Axsana S.), and presented other important issues concerning presumed fatherhood, we granted review.


Although Heriberto was represented by counsel at the presumed fatherhood hearing, he claims the trial court violated Penal Code section 2625 and due process by proceeding in his absence. The Court of Appeal, relying on the fact that Heriberto was represented at the hearing by counsel, correctly rejected this claim.


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