In re Elyssa W.

Filed 10/9/07 In re Elyssa W. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of the County of Los Angeles. D. Zeke Zeidler, Judge. Reversed and remanded.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

We reverse a juvenile court order finding a father who physically abused his step daughter to be the presumed father. The juvenile court instead should have awarded that elevated status to the nonoffending biological father. We also reverse the juvenile courts custody order and remand the case to the juvenile court to reconsider the custody order in light of the biological fathers elevated status.

FACTUAL AND PROCEDURAL BACKGROUND

Elyssas mother (Mother) and Geoffrey were married but separated, and Elyssa was living with Geoffrey at the time the Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition. The petition alleged that Geoffrey and his girlfriend engaged in violent confrontations including Geoffreys threat to kill his girlfriend, in front of Elyssa and her half siblings. It also was alleged that Geoffrey physically abused Elyssa. It further was alleged that Geoffrey had a six year history of illegal drug abuse, which rendered him incapable of providing regular care for Elyssa and her siblings and endangered the children and which caused him to be arrested for possession of a controlled substance. It also was alleged that Geoffrey suffered from mental and emotional problems rendering it impossible to care for Elyssa and her half siblings and requiring involuntary hospitalization. DCFS further alleged that Geoffreys criminal history included robbery. All of these allegations were sustained. Elyssa was seven years old when DCFS filed the petition.

The petition did not allege any counts with respect to Michael, Mothers husband prior to Geoffrey, and did not allege any counts with respect to Mother. Mother married Michael in September 1998, after Elyssa was conceived. Michael and Mother were married when Elyssa was born, and it is undisputed that Michael is Elyssas biological father. Michaels name is listed on Elyssas birth certificate. Elyssa lived with Michael until she was four to six months old. Michael had one contact with Elyssa after she was six months old, but contact was difficult for Michael because he was incarcerated.

Elyssa was just over one-year old when Geoffrey started living with Mother and Elyssa. Geoffrey held himself out as the father of Elyssa and cared for her for several years, until she was detained. Geoffrey is the father of Elyssas half siblings, who were the subject of the dependency proceeding but are not the subject of this appeal. At the detention hearing, the court found Geoffrey to be a presumed father under Family Code section 7611, but reserved the right to set the finding aside. [1] Geoffrey was incarcerated at the time. Subsequently, when both Michael and Geoffrey requested presumed father status, the court granted Geoffrey presumed father status and denied Michael presumed father status.

Elyssa was released to Mothers custody. The court terminated jurisdiction and entered a custody order awarding Mother physical and legal custody of Elyssa.[2] The juvenile court indicated the custody order should show that Michael is Elyssas biological father and that Geoffrey is her presumed father. Michael appeals from the order denying him presumed father status and the courts subsequent order denying him custody and limiting his visitation.

DISCUSSION

An order terminating the juvenile courts jurisdiction over a child may render moot an appeal from a prior order in the dependency proceedings. (In re Michelle M. (1992) 8 Cal.App.4th 326, 330.) However, where as here the juvenile court issued continuing orders that affect the appellants rights, the appeal is not moot. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1548; see also In re Joel H. (1993) 19 Cal.App.4th 1185, 1193.) Stated otherwise [a]n issue is not moot if the purported error infects the outcome of subsequent proceedings. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.) The determination of Michaels presumed father status may affect the ongoing custody and visitation orders. Therefore, we consider on the merits Michaels argument that the court erred in denying him presumed father status.

In dependency law there are presumed, alleged, biological, and de facto fathers. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) Presumed father status is the highest and affords that father the most rights. (Ibid.) Michael argues that the court erred in failing to give him presumed father status and, as a result, further erred in failing to award him custody of Elyssa and limiting his visitation.

Section 7540, also known as the conclusive presumption of paternity provides: Except as provided in Section 7541 [concerning blood tests], the child of a wife cohabitating with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. This conclusive presumption has been construed to apply to a husband and wife cohabitating at the time of conception, not of birth. (Brian C. v. Ginger K. (2000) 77 Cal.App.4th 1198, 1203.) Here, Michael and Mother were not husband and wife at the time of Elyssas conception, the relevant time under section 7540. Therefore, the conclusive presumption does not apply.

Section 7611 provides other presumptions, which are rebuttable. Michael qualifies under section 7611, subdivision (a), which provides: He and the childs natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. Geoffrey qualifies under section 7611, subdivision (d) which provides: He receives the child into his home and openly holds out the child as his natural child.

Under section 7612, subdivision (b), [i]f two or more presumptions arise under Section 7611 which conflict with each other, the presumption which on the facts is founded on the weightier considerations of policy and logic controls. The juvenile court reasoned as follows: [T]he question is at what point does a biological father who openly accepted a child in his home lose out to someone else who has stepped forward and raised the child and acted in the parental role, even though that person has allegedly been physically abusive.

A courts determination, after it has weighed conflicting presumptions that arise under section 7611, is reviewed under an abuse of discretion standard. (In re Jesusa V. (2004) 32 Cal.4th 588, 607.) Applying this standard, we conclude the juvenile court abused its discretion in denying Michael presumed father status and awarding that status to Geoffrey. The allegations that Geoffrey abused his girlfriend in front of Elyssa and that Geoffrey physically abused Elyssa were sustained. Such conduct was antithetical to a parents role and was a blatant violation of parental responsibilities. (In re T.R. (2005) 132 Cal.App.4th 1202, 1211.) Both child abuse and domestic violence are detrimental to the child. ( 3020 [The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child].) [S]exual or other serious physical abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations. (In re Kieshia E. (1993) 6 Cal.4th 68, 76-77.) When a parent abuses his or her own child, or permits such abuse to occur in the household, the parent also abandons and contravenes the parental role. (Id. at p. 77.)

If Gregory had been the only parent, different considerations would have applied. (See In re Kiesha E., supra, 6 Cal.4th at p. 77 [A mere finding of parental abuse does not sever the legal and familial bond between parent and child].) However, because Gregory and Michael had competing presumptions for presumed father, Gregorys abuse of Elyssa should have been a substantial consideration. Although Elyssa knew Geoffrey as a father, his conduct was inconsistent with that of a father. In contrast, as Michael argues, he was a nonoffending parent, and it is undisputed that he is Elyssas biological father. Under such circumstances, the juvenile court should have found that the weightier considerations of policy and logic require awarding Michael presumed father status.

In reaching this conclusion, we have assumed that Michael did not file a voluntary declaration of paternity and cause it to be filed with the Department of Child Support Services. Although the court stated that Michael filled out a paternity questionnaire indicating that he signed papers of paternity at the hospital, Michael did not testify that he signed a voluntary declaration, there is no evidence in the record that he signed a voluntary declaration of paternity, it was not argued to the juvenile court and Michael does not argue on appeal that he signed a voluntary declaration of paternity. However, we note that our conclusion would be the same if Michael had signed a voluntary declaration of paternity. Under section 7576 the child of a woman and a man executing a declaration of paternity . . . is conclusively presumed to be the mans child. ( 7576, subd. (a).)

Finally, Michael argues that the juvenile court based its visitation and custody orders on its incorrect conclusion that Michael was an alleged, not a presumed father. The record supports this argument. For example, the juvenile court stated with respect to visitation: I guess it is no contact, any contact with Mr. [W.] is with minors consent. . . . Hes only a biological father, hes not presumed, so I could have just said no contact considering she has a presumed father, but at least giving him monitored with minors consent at least weekly. Therefore, we cannot say that the error in denying Michael presumed father status was harmless. Upon remand, the trial court should consider whether Michaels status as Elyssas presumed father requires any amendment to the courts custody order (which also describes visitation).

DISPOSITION

The juvenile court order awarding Geoffrey presumed father status is reversed. The trial court is directed to award Michael presumed father status and Geoffrey alleged father status. The custody order is reversed and the case is remanded to the juvenile court. The juvenile court shall consider whether Michaels status as a presumed father requires any modification to the custody order.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] Undesignated statutory citations are to the Family Code.

[2] Mother also obtained custody of Elyssas two half siblings.