Opinion
A169909 A170292
10-25-2024
In re L.W., a Person Coming Under the Juvenile Court Law. v. S.R., Defendant and Appellant. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. JD-036423-01)
BURNS, J.
In this juvenile dependency appeal, Seth R. (Seth) challenges the trial court's denial of his motion to be recognized as the presumed father of his stepdaughter, L.W. (L.), whom he raised and supported from infancy. Because the trial court erred, we remand for further proceedings.
Background
A.
In dependency cases, Family Code section 7611 sets forth the criteria for a person seeking legal recognition as a child's parent to be "presumed to be the natural parent of a child." Attaining formal recognition as a presumed parent is critical because it affords the individual greater rights in the dependency process, enabling the individual to pursue family reunification services, custody, and visitation. (See In re J.W.-P. (2020) 54 Cal.App.5th 298, 300-301.)
Undesignated statutory references are to the Family Code.
As relevant here, one circumstance in which a person can establish a presumption of parentage is where "[t]he presumed parent receives the child into their home and openly holds out the child as their natural child." (§ 7611, subd. (d).) A person need not be a biological parent to qualify as a presumed parent under section 7611, subdivision (d). (See In re Jesusa V. (2004) 32 Cal.4th 588, 603-604 (Jesusa V.); In re Nicholas H. (2002) 28 Cal.4th 56, 63-64 (Nicholas H.).) Satisfying the requirements of section 7611 gives rise to a presumption of parentage that may be rebutted only "in an appropriate action" and "by clear and convincing evidence." (See § 7612, subd. (a); Jesusa V., at p. 603.) The parentage presumptions reflect the state's interest in preserving family integrity and protecting existing parent-child relationships. (Nicholas H., at p. 65.)
Multiple individuals can meet the statutory requirements that trigger a rebuttable presumption. (See § 7612, subds. (b)-(c).) When, for example, competing fathers satisfy the statutory criteria such that recognizing both would result in a child having three parents, the court must either determine whether one of the competing presumptions of paternity is entitled to greater weight or, alternatively, whether it is appropriate to recognize that the child has more than two parents. (See § 7612, subds. (b)-(c); C.A. v. C.P. (2018) 29 Cal.App.5th 27, 38.) The court may recognize more than two parents if it "finds that recognizing only two parents would be detrimental to the child." (§ 7612, subd. (c); see In re L.L. (2017) 13 Cal.App.5th 1302, 1316; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1092.) In making that determination, "the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." (§ 7612, subd. (c).) Further, "[a] finding of detriment to the child does not require a finding of unfitness of any of the parents or persons with a claim to parentage." (Ibid.)
Unless the court finds it would be detrimental not to recognize more than two parents, "a presumption under Section 7611 is rebutted by a judgment establishing parentage of the child by another person." (§ 7612, subd. (d); see also Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 388 (Martinez); In re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1376.)
B.
L. resided with Seth and mother from 2015 until a week before she was taken into protective custody in June 2023. L., who was eight years old at the time, was removed from mother's care after mother was hospitalized due to a mental health crisis.
Seth has known L. since she was about 11 months old. Seth and mother married in 2016 and had a daughter together, L.'s younger sister, Q.R. (Q.), in 2018. L. spoke her first words to Seth, saying" 'I want juice, Daddy.'" L. continues to call Seth" 'Dad'" or" 'Daddy.'" Seth raised L., provided for her, and is a father figure to her. He participated in L.'s education, took her to school and doctor's appointments, and brought her on trips. Seth bought L. gifts and gave her a phone so she could maintain contact with her biological father. Seth considers L. his daughter, and his family and friends know her as his daughter. Mother similarly regarded Seth as "the only man [L.] know[s] as Dad." L. reported that Seth "is like a father to her because he buys her whatever she wants."
About two decades before he met mother, in 1998, Seth was convicted of sexual battery. (Pen. Code, § 243.4, subd. (a).) He is a registered sex offender as a result. He was paroled successfully over 20 years ago.
C.
Until about a week before L. was taken into custody, L. had been living with mother, Seth, her maternal grandmother (grandmother), and her four siblings. Her younger sister, Q., was five years old at the time. L. also had three teenaged siblings: her brother, J.W. (Jamal) who was 17 at the time, her oldest sister, Jz. W. (Jz.) who was 16 at the time, and her other sister, Jm. W. (Jm.), who was 14 at the time.
In the several months before L. was removed, L.'s older siblings and grandmother had moved from Texas to California to join the rest of the family. Grandmother had legal custody of L.'s older siblings. After the family was told they had too many people for their two-bedroom home, mother identified a larger residence. The new housing fell through, but to avoid an eviction the family decided nonetheless to move out of their existing residence while they searched for housing. Mother, L., grandmother, and L.'s two older sisters went to a homeless shelter, where they had been residing for a week before mother's crisis. Seth, Jamal, and Q. moved to Seth's brother's apartment. The entire family could not reside at Seth's brother's apartment because having so many people living there would create problems for his brother.
Grandmother adopted L.'s three older siblings in Texas in 2010 after mother, who was struggling with substance abuse at the time, relinquished her parental rights.
Shortly before L. was removed, mother, grandmother, L., Jz., and Jm. went to visit the rest of their family at Seth's brother's home. Mother left to get food and did not return; no one in the family knew where she was. Believing they were required to arrive at the shelter before curfew, grandmother, L., Jz., and Jm. returned to the shelter without mother. Because L. had no legal guardian at the shelter, the police took her into protective custody. Grandmother was at the shelter when L. was taken into custody.
When the police contacted Seth and informed him that mother had not returned to the shelter, Seth went to the shelter to retrieve L. However, the authorities declined to release L. to him because he was not her biological parent and did not have his marriage certificate with him.
D.
L.'s biological father, D.R. (D.), resides in Mississippi. He was living with mother during her pregnancy and when L. was born. Because D. was a long-haul truck driver, he was away from home for weeks at a time. Although he was not present at L.'s birth, D. was at home with L. for about 10 or 11 days over her first two months and helped support her by paying for diapers, milk, and bills. When L. was about two months old, mother took L. with her when she moved to Texas and then California, and she did not provide D. with her contact information.
In the years since, after getting in touch with grandmother, D. has been able to visit with L. on a few occasions and otherwise maintained a relationship with her through telephone calls, video calls, and text messages. L. calls D. "daddy." The two have a "good," "close" relationship and L. relies on D. for emotional support. D. considers L. to be his daughter.
After D.'s paternity was confirmed with DNA testing, in 2019 a Mississippi court declared D. to be L.'s father and ordered him to pay child support. During the child support proceedings, D. asked about getting visits or custody of L., but he was told that he had to go to court in California to do so. D. did not initiate California court proceedings because he did not know how.
D. learned about the dependency proceedings when a case worker contacted him. D. reported that he would like L. released to him in Mississippi, that he has stable housing and family support, and that he owns his own trucking company.
E.
The Alameda County Social Services Agency (Agency) filed a dependency petition alleging that L. has suffered, or is at substantial risk of suffering, serious physical harm or illness because her parent or legal guardian failed or was unable to supervise or protect her adequately; was unable to provide regular care for L. due to mental illness, developmental disability, or substance abuse; and was unable to arrange for care for L. at a time when the parent could not be located. Specifically, the petition alleged that mother left L. "alone" at a shelter due to mental illness and her history of substance abuse. The petition also alleged that Seth "did not ensure that the minor was with a safe caregiver nor did he provide immediate supervision and care for the minor."
The court ordered supervised visitation between Seth and L., stating: "I think we're all in agreement that contact with [Seth] on an ongoing basis is . . . in the best interest of the child." The court also allowed L. to visit D. in Mississippi. L. reported no concerns about spending time with her mother, stepfather, or biological father. When asked about her preferences, L. reportedly "stated that she wants to be with her [biological] father," D. L. said that "she misses her [biological] dad a lot and wants to be with him." She "declined being released to [Seth]."
F.
Both Seth and D. sought to be elevated to presumed father status. Counsel for both the Agency and L. urged the court to grant D.'s request and deny Seth's request; mother supported Seth's request. The court granted D.'s motion, finding that he is L.'s biological father, was recognized as L.'s father by another state court, and met the criteria for presumed parent status. The court recognized that he has been a "prominent" part of L.'s life "for a considerable length of time," lived with her and was present with her on a daily basis, and has supported her, provided for her financially, and assisted with her education. But the court reasoned that Seth's "relationship with the child has been . . . collateral to the relationship with Mother. [¶] His support was almost a secondary obligation, . . . derived from his relationship with Mother and not proof of a father-daughter relationships . . . [T]his strikes the Court as a stepfatherstepdaughter relationship. Not [a] father-daughter relationship." The court found that Seth "acted inconsistent with the parental role in very significant ways." The court deemed not credible Seth's testimony that their housing problems were not due to financial difficulties. The court was particularly troubled by Seth's decision to "let[ his] wife and child stay in a shelter when [he has] the means to provide housing," stating, "I think that speaks for itself." The court found that Seth regards his biological daughter differently than L. The court also considered "to a lesser extent" Seth's "lack of attentiveness during visits," the grooming concerns raised by grandmother, and his "lack of concern with leaving . . . the child with Mother during a potential mental health crisis for the mother." The court noted that although Seth is a registered sex offender, his conviction was "remote in time" and therefore was not deserving of "too much weight." After denying Seth's motion, the court ordered that visitation between Seth and L. would be "at [the] Agency's discretion."
G.
The trial court subsequently found the allegations in the petition against mother to be true. The court concluded that mother had suffered from a pattern of mental health or substance abuse episodes and had not engaged in services sufficiently to resolve those issues. The court declared L. a dependent of the court and granted physical custody of L. to D. After granting joint legal custody to mother and D. and visitation rights to mother, the court terminated its jurisdiction.
After the court denied Seth's motion for presumed father status, the Agency amended the petition to drop the allegation against him.
In these consolidated appeals, Seth appeals from both the paternity decision and the jurisdiction/disposition order.
Discussion
On appeal, Seth does not take issue with D.'s status as presumed father, but he argues that the trial court erred in denying his own motion to be elevated to presumed father status. Seth contends that, because he received L. into his home from a young age and held her out as his natural child under section 7611, subdivision (d), he qualified as L.'s presumed father.
We review the trial court's findings under the substantial evidence standard. (E.C. v. J. V. (2012) 202 Cal.App.4th 1076, 1084 (E.C.).) We resolve all evidentiary conflicts in favor of the trial court's order, and we give it the benefit of all reasonable inferences from the evidence. (Ibid.) However, we interpret the relevant statutes de novo. (In re R.T. (2017) 3 Cal.5th 622, 627.) If the trial court's order is based on improper criteria or incorrect legal assumptions, it may be reversed even if it is supported by substantial evidence. (E.C., at p. 1084; see also Feehan v. Superior Court (2024) 105 Cal.App.5th 38, 50.)
We agree with Seth that the trial court applied improper criteria when determining whether he is a presumed parent under section 7611, subdivision (d).
A.
We begin with the statute. As explained, section 7611, subdivision (d), has two elements: (1) the presumed parent receives the child into their home, and (2) openly holds out the child as their natural child. The purpose of the statute is to preserve and protect developed parent-child relationships, recognizing that such relationships give children strength and stability. (County of Orange v. Cole (2017) 14 Cal.App.5th 504, 509 (County of Orange).) The statute also serves the goal of distinguishing between those individuals who have a familial relationship with the child and those who do not. (Id. at p. 512.)
In determining whether a person qualifies as a presumed parent under section 7611, subdivision (d), courts consider a variety of factors, including the extent or unequivocal nature of their acknowledgement of the child, whether they have provided the child with physical or financial support, and whether they have made efforts to seek legal custody. (County of Orange, supra, 14 Cal.App.5th at p. 509.) To receive a child into one's home, extended cohabitation-though not required-may strengthen a parent's claim. (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 145 (W.S.).) Regardless of whether the parent resided with the child, we consider whether the parent has" 'demonstrate[d] a parental relationship, however imperfect.'" (Ibid.) As to whether a parent has held a child out as their natural child, we consider whether their conduct has demonstrated commitment to the child and the child's well-being. (E.C., supra, 202 Cal.App.4th at p. 1087.) Here, the trial court did not explain whether Seth failed to satisfy one or both of the elements. We therefore discuss both.
There really isn't any question that Seth took L. into his home. Mother first introduced Seth to L. in 2015, when L. was 11 months old. That year, Seth, mother, and L. moved in together. Seth married mother in 2016, and, two years later, they had a daughter, Q. Until L. was removed, when she was 8 years old, they lived together as a family the entire time-about seven years-with only brief interruptions. The trial court aptly observed that, even with the interruptions, "this represents a significant period of time that [Seth has] factored into the life of this child. There's just no two ways about that." The evidence- entirely uncontroverted-comfortably establishes that Seth received L. into his home. (See E.C., supra, 202 Cal.App.4th at p. 1086 [presumed parent took child into her home when she moved in with her former partner and her partner's 3-month-old child].)
As for the second prong, the evidence also appears lopsided. Seth raised L., provided for her, and is a father figure to her. Family and friends know L. as his daughter. L. spoke her first words to Seth, saying" 'I want juice, Daddy.'" He participated in L.'s education, teaching her the alphabet, enrolling her in preschool and elementary school, helping with her homework, and taking her to school. He took her to medical appointments. He brought her on vacations, including trips to Texas. Seth bought L. gifts and gave her a phone so that she could maintain contact with her biological father, which he encouraged. Seth and L. are "very, very close." Mother regarded Seth as "the only man [L.] know[s] as Dad." L. reported that Seth "is like a father to her because he buys her whatever she wants." L. calls Seth" 'Dad'" or" 'Daddy.'" L.'s older sister Jz. confirmed that Seth is L.'s "dad," that "she . . . look[s] up to him as such," and the two are "close." Jz. corroborated that Seth does "[e]verything" for L., including taking her to school, helping her with homework, going to school events, taking her to doctor and dental appointments, and buying her clothes and necessities. Grandmother similarly testified that Seth is L.'s "father figure," he has provided for her, and L. calls him"' Dad.' "
Here, the court found that Seth's "self-image" as a "father figure" was "a bit overstated" and "felt exaggerated," but it did not point to a deficiency in any particular parental duty. Indeed, the court affirmed "there's no denying that he's been a prominent adult figure in the child's life, providing support, financial support, school support." The Agency likewise recognized that there is "no question that [Seth] has been a caring, consistent adult in [L.'s] life since very early" and that L. "may . . . have turned to him for support and the necessities that she has in life as a young child." And as L.'s counsel similarly recognized, "there's no doubt that [Seth] and [L.] have a close relationship."
Fathers have met the statute with less evidence. In In re A.A. (2003) 114 Cal.App.4th 771 (A.A.), for example, the court reversed the trial court's determination that the ex-boyfriend of the child's mother failed to satisfy section 7611, subdivision (d), where the ex-boyfriend had never resided with the child, was incarcerated for a year of the child's life, and did not give the mother money for the child. (Id. at pp. 783-784.) The exboyfriend had nonetheless known the child since birth; visited with her every other weekend, on birthdays, and on holidays; and bought the child clothes and other necessities. (Ibid.) He held himself out as the child's father, his biological son was bonded with her, and the child asked to be placed with him. (Id. at p. 784.) On these facts, the court concluded "[a]s a matter of law" that the ex-boyfriend met the section 7611, subdivision (d), criteria. (Ibid.)
Similarly, in County of Orange, the court found sufficient evidence that the father was a presumed parent based on his part-time involvement with the child for two and one-half years, even though he separately maintained a secret family, had cut off all contact with the child several years previously, and disclaimed financial responsibility for the child. (County of Orange, supra, 14 Cal.App.5th at pp. 508-509, 510-511; see also, e.g., In re L.L., supra, 13 Cal.App.5th at pp. 1314-1315; Comino v. Kelley (1994) 25 Cal.App.4th 678, 681-682, 685 (Comino).)
This is not a case in which there is insufficient evidence to demonstrate a commitment to parenting the child, such as when a father visits the child in other people's homes to avoid assuming ongoing parental tasks. (See A.A., supra, 114 Cal.App.4th at pp. 786-787.) Nor is this a case in which father only resided with the child because he was acting out of convenience or was dependent upon the child's mother for housing or financial support. (See, e.g., In re Spencer W. (1996) 48 Cal.App.4th 1647, 1653; see also In re M.Z. (2016) 5 Cal.App.5th 53, 67.)
In short, there is uncontroverted evidence that Seth established a parental relationship with L. based on his conduct over the course of seven years.
B.
The trial court's conclusion that Seth does not meet one or the other prong turns on improper criteria in two respects.
First, the court concluded that Seth "acted inconsistent[ly] with the parental role." It is true that, even when a person arguably has a parental relationship with a child under the statutory test, the person's good acts can be outweighed by bad acts that are completely inconsistent with the role of a parent. (In re T.R. (2005) 132 Cal.App.4th 1202, 1211-1212 (T.R.).) In T.R., for example, despite substantial evidence that the man acknowledged a child as his daughter, provided financial support, and received her into his home, he was a convicted child molester who was found to have molested the child, too. (Ibid.) He was disqualified from being a presumed parent by "repugnant conduct that is detrimental to the child." (Id. at p. 1212; see also id. at p. 1211 [describing disqualifying conduct as conduct that is "antithetical to a parent's role and . . . a blatant violation of parental responsibilities"].)
While there is no bright-line test, the conduct must be truly repugnant to disqualify an otherwise meritorious claim. (In re Alexander P. (2016) 4 Cal.App.5th 475, 495-496 (Alexander P.).) This is because section 7611, subdivision (d), does not require Seth to show that he has been "a perfect parent." (See Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1023; see also W.S., supra, 20 Cal.App.5th at p. 145.) As our Supreme Court put it, the section 7611, subdivision (d), presumption "does not depend on the presumed father's being a paragon. What is dispositive is the presumed father's relationship with, and responsibility for, the child." (Nicholas H., supra, 28 Cal.4th at p. 60, fn. 2.)
In Alexander P., the court of appeal refused to disqualify a man who had committed domestic violence against the mother in the presence of the child. (Alexander P., supra, 4 Cal.App.5th at p. 496.) The court distinguished T.R. (Ibid.) Noting the violence was not committed against the minor, the court held it was not so antithetical to a parent's role that it negated, as a matter of law, the evidence favoring presumed parent status. (Ibid.; see also In re J.O. (2009) 178 Cal.App.4th 139, 151 [reversing denial of presumed parent status because, where father had received the children into his home and openly held them out as his own, his failure to keep in contact with or support the children after their mother's remarriage did not disqualify him], abrogated on other grounds by In re R.T., supra, 3 Cal.5th 622.)
The trial court improperly invoked the rule here. The court faulted Seth for "letting [his] wife and child stay in a shelter when [he had] the means to provide housing," although the court doubted that Seth in fact had money for housing. The court questioned why Seth did not join them in the shelter and why he stayed at his brother's apartment with his stepson and Q., his biological daughter, but not L. It found his explanations inconsistent and that Seth favored Q. over L. and mother's other children by taking Q. with him to his brother's house. It thus concluded that he acted "inconsistent with the parental role in very significant ways." We do not fault the court for finding this incident perplexing and poorly explained. Notably, however, it appears undisputed that the idea to go to the shelter was mother's plan, not Seth's, and that his brother's apartment could not accommodate all eight members of the family. In any case, the court's decision is based on an incorrect legal standard. (See E.C., supra, 202 Cal.App.4th at p. 1084.)
In concluding that Seth had acted in ways inconsistent with a parental role, the court did not rely on the grandmother's grooming concern or the 20-year-old sexual battery conviction. The court noted both matters generally but accorded them little weight.
Making a decision to temporarily reside separately from a child, even if ill-conceived, is not antithetical to the role of a parent. A family's living situation does not determine whether an individual is a presumed parent; instead, the key question is whether the individual has established a parent-child relationship through their demonstrated commitment to the child. (In re M.Z., supra, 5 Cal.App.5th at p. 63; Martinez, supra, 246 Cal.App.4th at p. 384.) A parent need not reside with a child to provide the support necessary for a true parental relationship. (See Martinez, at p. 384; A.A., supra, 114 Cal.App.4th at p. 784; E.C., supra, 202 Cal.App.4th at p. 1089.) Indeed, the trial court here recognized D. as L.'s presumed parent although he resided in another state and had visited with L. only a handful of times before the dependency proceedings. Nor is there a requirement that a person own or rent a home to be a presumed parent. (See Alexander P., supra, 4 Cal.App.5th at p. 495.) Poverty, the end of the parents' relationship, non-traditional family structures, or other circumstances may result in a variety of familial living arrangements. Parents have been recognized as presumed parents even when they were residing separately from or had never resided with the child. (See, e.g., County of Orange, supra, 14 Cal.App.5th at pp. 507-508, 509-511 [man was presumed father where he spent one or two nights a week with child at mother's home for two years before cutting off all contact with the child for several years]; R.M. v. T.A. (2015) 233 Cal.App.4th 760, 781 (R.M.) [man was presumed father despite residing in a different state]; A.A., at p. 784 [mother's ex-boyfriend who never resided with child was presumed father]; Comino, supra, 25 Cal.App.4th at pp. 681-682, 685 [father who had resided with and supported the child for two and one-half years was presumed father although mother had subsequently moved out with the child].)
Here, the decision to allow L. to reside at a shelter temporarily with her mother, grandmother, and older sisters while the family searched for housing does not come close to the level of repugnant behavior at issue in T.R., or even in Alexander P. Nor is it inconsistent with the parental role. However ill-advised, this is not the sort of egregious behavior that can negate seven years of parenting a child consistently with the requirements of section 7611, subdivision (d). The Agency does not defend this point.
Nor is it antithetical to the parental role for a father to favor one child over another, a circumstance that, for better or worse, is not uncommon. (C.f. Mackall v. Mackall (1890) 135 U.S. 167, 172 [describing a parent's "partiality towards . . . one" child as "not only natural, but . . . reasonable"]; see also, e.g., In re Estate of Higgins (1909) 156 Cal. 257, 261-262 [upholding father's decision to bequeath the largest share of the residue of his estate to his favorite son, with smaller shares for his other children]; Moffatt v. Lewis (1932) 123 Cal.App. 307, 313 [upholding mother's conveyance of property to her favorite child rather than to her other children]; Walker v. Smith (1922) 58 Cal.App. 145, 153 [same].) Assuming there was some favoritism here, it does not negate a familial bond between Seth and L., nor does it negate Seth's commitment to L., manifested by years of parenting.
Second, the court found that Seth did not have a "fatherdaughter relationship" but instead a "stepfather-stepdaughter relationship" with L., which was "almost a secondary obligation . . . derived from his relationship with [m]other." This, too, was error. It is not the source of Seth's obligation that matters, but whether he has demonstrated his full commitment to parenting L. A presumed parent need not be biologically related to the child. (See, e.g., Jesusa V., supra, 32 Cal.4th at pp. 603-604.) A parenting commitment may arise from many sources-whether a biological relationship with the child, a surrogacy, a romantic relationship with the child's parent, or even a sibling relationship with the child's parent or the child. (See, e.g., Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 118 [parents who conceived with the help of a surrogate]; Martinez, supra, 246 Cal.App.4th at pp. 378379, 382 [child's uncle]; R.M., supra, 233 Cal.App.4th at pp. 765, 780-781 [mother's long-distance ex-boyfriend]; In re Salvador M. (2003) 111 Cal.App.4th 1353, 1355, 1357-1359 [child's halfsister].) A stepfather who, like Seth, has served as a child's live-in father and demonstrated a years-long commitment to the daily responsibilities of parenting can be a presumed parent even if not a biological one. (See Alexander P., supra, 4 Cal.App.5th at p. 493.)
C.
The Agency contends that any error in failing to recognize that Seth qualified as a presumed father under section 7611, subdivision (d), was harmless because the trial court held there was no detriment to L. if Seth were not recognized as a third parent under section 7612, subdivision (c). We disagree.
Before assessing whether it would be detrimental to the child to have only two legally recognized parents, the court must first determine whether the person seeking to be declared a third parent otherwise qualifies as a presumed parent. (See In re M.Z., supra, 5 Cal.App.5th at pp. 64-66.) Where a person lacks an existing parental relationship with the child, the third-parent exception under section 7612, subdivision (c), is inapplicable. (Id. at 67.) Put another way, if Seth lacks a parental relationship with L., then as a matter of law there can be no detriment under section 7612, subdivision (c) because that provision concerns the harm to the child from severing a parental relationship. (See In re Donovan L., supra, 244 Cal.App.4th at p. 1094.) As explained, the trial court's determination that Seth failed to qualify as a presumed parent under section 7611, subdivision (d), was based on improper legal criteria. The court's further determination that there was no detriment to L. from failing to recognize Seth as a third parent under section 7612, subdivision (c), necessarily rested on those legal errors. (See ibid.)
Section 7612, subdivision (c), requires the court to "consider all relevant factors," including "the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." The question under the statute is whether "a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents." (Sen. Bill No. 274 (2013-2014 Reg. Sess.), Stats. 2013, ch. 564, § 1(d); see also In re Donovan L., supra, 244 Cal.App.4th at pp. 1089-1091; In re L.L., supra, 13 Cal.App.5th at p. 1316.) As our Legislature explained in enacting the third-parent exception, "[s]eparating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm." (Sen. Bill No. 274 (2013-2014 Reg. Sess.), Stats. 2013, ch. 564, § 1(a); see also In re Donovan L., at p. 1090.) An inquiry into detriment must consider not only the potential harm from such a separation, but must also realistically assess the three parents' respective roles in caring for and supporting the child. (Martinez, supra, 246 Cal.App.4th at pp. 387-388). The detriment inquiry thus must include determining whether recognizing only two parents will confer the benefits typically associated with having two parents, or instead whether one of the parents is unable or unwilling to fulfill the parental role. (See ibid.)
In light of the trial court's conclusion that Seth did not qualify as a presumed parent, however, the court never addressed "the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time." (§ 7612, subd. (c).)
Here, L. stated a preference for being released to D. in July 2023, which may indicate that she herself does not perceive a harm from being separated from Seth. Without limiting in any way the scope of the inquiry on remand, we note that the Agency's reports contain evidence that L. has suffered trauma, confusion, and distress from being separated from her biological and fictive family in California and would suffer harm if those bonds are severed. An assessment by a children's clinic concluded that after her detention, L. experienced trauma due to separation from her siblings, cried in her sleep, and had night terrors. L. was "distraught" and "confused about who are the important people/adults in her life" and about "their exact role." In light of these reports, L.'s counsel requested individual and family therapy for L. The Agency's reports also opined that L. "has lived with her mother her entire life and is bonded to her and her siblings.... [L.] would like to return to her mother's care; if reunification services are not offered, she may experience the severing of her connection to her entire biological family and fictive kin." The Agency expressed worry about "the amount of trauma that [L.] has experienced." In addition, Jz. testified that since L. was placed in protective custody, she has been sad and "cried a few times" when she has had to leave Seth and the rest of the family at the end of their visits. And both Jz. and Seth testified that he and L. have a "close" relationship. The trial court understandably did not discuss this evidence or make findings as to how L. would be impacted by a separation from Seth-a significant parental figure with whom she has resided for seven years. Without the benefit of such findings, we cannot assume the errors here would be harmless.
At other points, however, L. has asked to reside with her mother or Seth. In July 2023, L.'s counsel reported to the court: "When I talked to my client, she did identify her sister's father, her sister [Q.'s] father, as [a] potential placement." In addition, the Agency's July and November 2023 reports indicated that L. asked to be returned to her mother.
Perhaps because the Agency took the position that Seth did not qualify as a presumed parent, its reports do not expressly address the question of detriment to L. if she is separated from Seth.
In support of its harmless error argument, the Agency argues that the trial court's analysis "clearly conveyed" that D. had a weightier claim to presumed parenthood under section 7612, subdivision (b). But such a finding does not preclude Seth from being recognized as a third parent based on the detriment to L. that would otherwise result. (See § 7612, subd. (c).)
The Agency also contends that the fact that a state court has adjudged D. the father of L. "would definitively rebut [Seth's] claim." Setting aside the fact that the Mississippi judgment is not in the record before us, a court judgment of paternity only rebuts another person's presumed parentage in the absence of a finding of detriment. (See § 7612, subd. (d).)
In sum, the trial court's determination that Seth did not qualify for presumed parent status under section 7611, subdivision (d) rested on legal error, and we are unable to conclude that that error was harmless. In light of the court's legal error, ordinarily we would remand for the court to reconsider whether Seth met the criteria under section 7611, subdivision (d). Remand here is unwarranted, however, given the uncontroverted evidence supporting Seth's status as a presumed father. (See § 7611, subd. (d); A.A., supra, 114 Cal.App.4th at pp. 784, 788.) As a result, we remand for the trial court to reconsider the issue of detriment under section 7612, subdivision (c).
Disposition
The order terminating jurisdiction over this action is vacated. The matter is remanded for a hearing to reconsider the question of detriment under section 7612, subdivision (c), consistent with this opinion. If the court determines that there would be no detriment to L. if she is separated from Seth, then the order denying Seth's motion to be declared a presumed parent is affirmed. If the court instead makes a finding of detriment such that Seth should be recognized as L.'s third parent, then the order denying Seth's motion to be declared a presumed parent is reversed.
WE CONCUR: JACKSON, P. J., CHOU, J.