San Diego Cnty. Health & Human Servs. Agency v. Shannon L. (In re Donovan L.)

• Decision Date: 11 February 2016
• Docket Number: D068304
• Citation: 244 Cal.App.4th 1075,198 Cal.Rptr.3d 550
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE DONOVAN L., JR., a Person Coming Under the Juvenile Court Law. San Diego County Health and Human Services Agency et al., Plaintiffs and Respondents, v. Shannon L. et al., Defendants and Appellants.

244 Cal.App.4th 1075

198 Cal.Rptr.3d 550

IN RE DONOVAN L., JR., a Person Coming Under the Juvenile Court Law.San Diego County Health and Human Services Agency et al., Plaintiffs and Respondents,

v.Shannon L. et al., Defendants and Appellants.

D068304

Court of Appeal, Fourth District, Division 1, California.

Filed February 11, 2016

Terence M. Chucas, San Diego, 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, San Diego, under appointment by the Court of Appeal, for Plaintiff and Respondent David S.

Andrea R. St. Julian, San Diego, under appointment by the Court of Appeal, for Minor Donovan L., Jr.

IRION, J.

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 Code ¹ 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.

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).

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.

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 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 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, 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

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