The opinion
Filed 11/9/23 In re Aliyah G. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ALIYAH G., a Person Coming B319133
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 21CCJP05691A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
ANNA G.,
Defendant;
ALIYAH G., a Minor, etc.,
Appellant;
CHRISTIAN H. et al.,
Interveners and Respondents.
APPEAL from findings and orders of the Superior Court of
Los Angeles County, Nichelle Blackwell, Juvenile Court Referee.
Reversed and remanded with directions.
Pamela Rae Tripp, under appointment by the Court of
Appeal, for Minor and Appellant.
John L. Dodd, under appointment by the Court of Appeal,
for Intervener and Respondent Christian H.
Jesse McGowan, under appointment by the Court of
Appeal, for Intervener and Respondent Levi C.
______________________________________
INTRODUCTION
Appellant minor Aliyah G. (Aliyah) challenges the juvenile
court’s March 14, 2022 paternity findings and orders denying her
request for a continuance and placing her in the care of her out-
of-state biological father Levi C., whom she has never met in
person. She contends Christian H., the man who has been her
caregiver since birth, should be declared her presumed father,
and not Levi C., whom she has met via “a handful of FaceTime
calls.” Respondents on appeal are Aliyah’s biological father Levi
C. and alleged father Christian H.
We find the juvenile court erred when it placed Aliyah with
Levi C. and denied Aliyah’s reasonable request for a continuance.
We also reverse the juvenile court’s paternity findings and
remand with instructions.
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FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Filing of Petition
On October 28, 2021, the family came to the attention of
the Los Angeles County Department of Children and Family
Services (DCFS) when a caller stated that seven-year-old Aliyah
and five-year-old Peyton are “victims of general neglect” by Anna
G. (Mother). The caller discussed Mother’s “continued alcohol use
for the last 4 years” and that law enforcement had been
previously called because Mother had “show[ed] up drunk a few
times.” Mother was charged with driving under the influence in
2019. The caller stated “Father went to get emergency custody”
and the court “mandated [M]other not to drink around the
children.” The children “miss 1–3 days of school a week” because
Mother is “sick/throwing up” or sleeps instead of taking them to
school; Mother had also forgotten to pick them up from school on
prior occasions. The caller also expressed concern that Mother
has a history of substance abuse, including methamphetamine,
cocaine, and marijuana.
DCFS attempted to investigate by making six unannounced
visits throughout November and December, but no one answered
the door. DCFS finally made contact on December 2, 2021.
Mother appeared “visibly groggy.” The children’s social worker
(CSW) “immediately detected the strong smell of marijuana
emitting from the residence” despite the CSW wearing “a surgical
grade N95 mask and a 2nd layered protective mask.” When
asked about the marijuana odor, Mother stated, “Oh really? I
can’t tell. Well, maybe it’s my roommate . . . who smokes.” When
asked to submit to a same-day on-demand drug screen, Mother
declined.
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The CSW observed the home to be dirty and in disarray,
with large amounts of clutter throughout, including “dried up
leftover food, piled dirty dishes, and a large mattress laid across
the living room floor.” Mother’s bedroom was similarly “cluttered
and disorderly,” and contained a large bed and a “stained
mattress” on the floor; Mother indicated she sleeps on the bed
and the children sleep on the mattress. The home had working
utilities and an adequate supply of food.
Mother is a bartender and confirmed she “often drinks 2–3
beers before returning home from her work shift.” She does not
drive home from work because her license was suspended as a
result of a DUI case in 2019. While at work, her children are
cared for by her roommate’s 14-year-old son.
Mother was upset over DCFS involvement. She stated that
she is in a long-standing custody dispute with father Christian
H., who she believed “is attempting to take her children away
from her.” She stated Christian H. is Peyton’s legal father and
she declined to provide the CSW with the name of Aliyah’s
biological father, who is “uninvolved.”
A safety plan was implemented and signed by Mother. The
safety plan called for Mother to submit to a drug screen on
December 3, 2021, clean up her residence, not smoke marijuana
near or in the children’s presence, and not allow any minor child
to supervise her children. Mother called Christian H. in the
CSW’s presence and informed him of the safety plan. Mother
arranged for the children to remain in the temporary care of
Christian H., who “readily agreed to pick up” the children.
The CSW went to the children’s school and interviewed
Aliyah. She denied she is a victim of any physical, sexual, or
emotional abuse. However, she confirmed she and Peyton are
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often absent from school because Mother “sleeps a lot” and is
“very tired.” She stated Mother “drinks beers everyday” and
smokes “something stinky” inside the home. She confirmed a
teenage boy cares for her and Peyton when Mother is at work.
Aliyah stated she enjoys visiting with her “stepfather” Christian
H. whom she “affectionately refers to as ‘dad.’ ” She enjoys
spending time with her stepfather and his wife, who treat her
well and take her and Peyton to “a lot of fun places.” She denied
witnessing any drinking or smoking at Christian H.’s residence.
The CSW interviewed the school’s front office secretary,
who raised concern about the children’s absences, tardies, and
unkempt appearance. The school secretary stated she can
differentiate when the children are with Mother as opposed to the
father because the children are “often forgotten” or picked-up late
from school “on [Mother’s] days.” One teacher commented, “Oh,
you can definitely tell when [Aliyah’s] been cared for by her
father and stepmother. Everything about her changes. She
comes to school looking happy, neatly dressed and her hair is
nicely combed too. She just seems better cared for in every way.
Her homework has been completed too.” The teachers expressed
relief over DCFS involvement, and noted Mother often appeared
with disheveled clothing and the previous night’s smudged
makeup.
On December 3, 2021, the CSW arrived at the home of
Christian H., who identified himself as “the children’s father.”
He shares his home with wife Elizabeth H., and readily invited
the CSW to complete a home assessment. The CSW observed the
home to be clean, with working utilities, and a well-stocked
refrigerator and pantry. The children’s bedroom was well-
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furnished and “very child friendly” with separate sleeping
quarters and many toys.
Christian H. stated he ended his relationship with Mother
several years ago due to Mother’s infidelity. While he is Peyton’s
biological father, he “considers himself to be the father to both
child[ren]” as he is “the only dad Aliyah knows. I’ve always
treated her like . . . one of my children. We love the girls and
we’ll do whatever it takes to make sure they’re safe and have
everything they need.” He stated he “fear[s] losing a relationship
with [Aliyah] because he is not her biological father, and [M]other
often uses such circumstance as leverage against him as she
repeatedly threatens to end their contact when confronted about
her shortcomings as a parent.”
He raised “long-standing concerns” about Mother, who he
believes has “unresolved substance abuse issues related to
alcohol and drug use.” He previously called the police in 2020
because he refused to release the children to Mother, who
attempted to pick them up while intoxicated. He raised these
issues in Family Law Court. He has received phone calls from
the children’s school, requesting assistance from him because
Mother forgets to pick them up. The children frequently tell him
that Mother drinks and smokes with her male friends at her
home.
On December 8, 2021, Mother informed the CSW she was
no longer in agreement with the implemented safety plan and
was unwilling to allow Christian H. to care for Aliyah because he
is “attempting to take full custody.” She stated she would no
longer communicate with the CSW and would only speak to the
CSW’s supervisor.
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The CSW contacted Elizabeth H., who explained that
Mother was served with family law paperwork notifying her that
Christian H. requested an emergency court hearing.
On December 8, 2021, the CSW arrived at Mother’s home
at 9:00 a.m. and encountered Mother and three adult males who
appeared to be “drinking alcohol in the early hours of the
morning” and were holding open beer cans. Mother refused to
identify the males. The home remained disorderly with piled
dirty dishes and gnats. The CSW interviewed the upstairs
neighbor who confirmed drinking parties held at Mother’s
residence and often overheard Mother “yelling/cursing at her
children telling them to ‘go to fucken bed’ at 10am.”
On December 13, 2021, the CSW made an unannounced
visit at Mother’s home and found Aliyah home alone with two
other children; Peyton was at Christian H.’s home. The CSW
assisted Aliyah in getting prepared to be picked up by Christian
H. Aliyah appeared “happy” to see him. She was removed from
Mother’s care and placed in Christian H.’s temporary care.
B. Petition and Detention
On December 15, 2021, DCFS filed a Welfare and
Institutions Code1 section 300 petition on behalf of seven-year-old
Aliyah and her five-year-old sister Peyton. The petition alleged
the following:
Count b-1: Mother has “a history of substance abuse” and
is “a current abuser of alcohol,” rendering her incapable of
providing regular care of her children. On prior occasions,
Mother was under the influence of alcohol while the children
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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were in her care and supervision. Mother’s substance abuse
“interferes with providing regular care and supervision” of the
children who are “of such a young age requiring constant care
and supervision.” Mother’s substance abuse “endangers the
children’s physical health and safety” and places them at risk of
serious physical harm, damage, and danger.
The petition identified Christian H. as Aliyah’s “NREFM”
(nonrelated extended family member) and as Peyton’s “alleged”
father. The petition also identified Levi C. as Aliyah’s “alleged”
father.
Mother filed her completed Parentage Questionnaire,
stating a “paternity test [was] done” and results showed Levi C.
is Aliyah’s biological father. She stated he resides in Omaha,
Nebraska.
Christian H. filed a “Statement Regarding Parentage” form
JV-505, stating he believes he is Aliyah’s parent and requested
the juvenile court find that he is Aliyah’s presumed father. He
further provided that Aliyah has lived with him since her birth
and he has held out the child as his own to family, friends, and
coworkers. He has participated in Aliyah’s childcare, doctor’s
visits, schooling, and has taken her on vacations and spent the
holidays with her. He pays for her food and clothes. Christian H.
“was the first to hold the child after she was born” and “is the
only father the child has known.” She refers to him as her
“father.” While he is “not the bio[logical] father, [he] has stood in
the shoes of her father her whole life.”
At the detention hearing on December 20, 2021, Mother
and Christian H. appeared. The juvenile court inquired as to
paternity and found Levi C. to be Aliyah’s biological father and
not her presumed father. The juvenile court found Christian H.
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to be Peyton’s presumed father. The court told Christian H.,
“You filed the JV-505. That’s not good enough. [Aliyah] is seven
years old, and Mom also is already saying someone else is [the
biological father].” The court continued, “If [Christian H.] has
some reason to believe that he should be named presumed as to
. . . Aliyah, he’s going to have to file something.” Christian H.
argued form JV-505 has stated enough to show he is the
presumed father. The court reconsidered and stated, “At this
point the children are with him. Both children are with him
which is good news. Apparently he is a responsible adult for
these kids and [Mother] is comfortable with them being there as
well.” The court decided to “defer[] any paternity findings. We
can have two presumed fathers if it comes to that, and then the
court will have to make a distinction as to which one will go
forward.”
The court found Aliyah is a person described by section 300.
It found removal appropriate as there is “a substantial danger to
[Aliyah’s] physical and emotional health.” The court gave DCFS
discretion to place Aliyah with an appropriate relative or
nonrelative extended family member. The court ordered
monitored phone visits and in-person visits with the children.
The court further ordered Mother to participate in a drug and
alcohol treatment program and submit to regular testing; the
court cautioned Mother, “You’re going to get clean and sober or
[Christian H.] is going to raise your kids.”
C. DCFS Investigation
DCFS verified Mother’s criminal history. On December 21,
2019, Mother was arrested on charges of Vehicle Code section
23152, subdivisions (A) and (B) for driving under the influence of
alcohol/drugs. On August 16, 2021, Mother failed to appear
9
without sufficient excuse and a bench warrant was ordered in the
amount of $15,000.
According to Department of Child Support Services (DCSS)
records, a judgment regarding parental obligations was entered
on June 3, 2016. Per the judgment, Mother and Levi C. are
identified as Aliyah’s parents, and Levi C. was ordered to pay
monthly child support in the amount of $293. In addition, a
stipulated judgment was filed on March 28, 2019, wherein
Christian H. stipulated to pay guideline child support in the
amount of $350 per month for Peyton.
On January 24, 2022, Mother’s drug screening test came
back positive for amphetamines, methamphetamines, and
cocaine.
On February 11, 2022, Levi C. was located in Omaha,
Nebraska. He is currently 25 years old and works at a cable
company. He told the CSW that he has had “a handful of
FaceTime calls” with Aliyah “over the years” but did not have
regular calls because Mother did not make her available. “She
kept my daughter from me.” He stated he did not sign papers
establishing paternity at the hospital because Mother “ran off to
California while she was pregnant.” When asked if he offered to
pay child support, he stated, “I told [Mother] to file for child
support.” He “bought toys on Christmas, gifts on birthday. I’ve
always tried.” He stated a paternity test has not been done, but
he believes the child is his because she “bears a resemblance” to
him and has his curly hair. He never sought a declaration of
paternity from any court. He thinks it is “messed up” that Aliyah
thinks of Christian H. as her daddy and calls him “dad.”
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The dependency investigator (DI) interviewed Aliyah about
her relationship with Levi C. She confirmed having FaceTime
calls with him, at which time she showed him her toys. She had
“two dads – her daddy Christian, who was her ‘step-dad’ and her
daddy Levi.” When asked whether she felt safe with Levi C., she
replied, “I don’t know” because she had “never lived with him.”
However, she said she would live with Levi C.; when asked why,
she replied, “Because.” The DI commented “[g]iven the child’s
young age, it is unclear if the child understands that he lives out
of state and that her contact with her sister, mother, and
[Christian H.] would become limited due to the far distance.”
The DI interviewed Mother, who reported Levi C. was not
listed on Aliyah’s birth certificate as he was in Nebraska during
the birth in California. She said Levi C. denied being Aliyah’s
father for the first three years of her life. When she filed for child
support, he refused to pay unless a paternity test was done; a
DNA test confirmed he was Aliyah’s father. Levi C. has been
paying child support “on and off.” He has “never met the child in
person” but they have had FaceTime calls. She said Aliyah has
“two dads” and Aliyah refers to Levi C. as her “dad Levi.” When
asked if she had any concerns about Aliyah possibly living with
Levi C., she replied, “Over my dead body is my child going over
there.”
The DI interviewed Christian H., who stated he has neither
met nor spoken with Levi C. He discovered Mother had
introduced Aliyah to Levi C. “a few years ago” and stated he was
“okay with that. He is her biological dad. But I’ve also raised her
for the last seven to eight years.”
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Levi C. filed a form JV-505 stating he believes he is
Aliyah’s father. He has told “[a]ll of [his] friends and family” that
he is her father. He has had “video visits and phone calls with
[Aliyah]” and has paid court-ordered child support “for over
6 years” in the amount of $85 per week. He was 18 years old
when pregnant Mother “ran off to California.”
D. Amended Petition
On March 2, 2022, DCFS filed an amended petition on
behalf of the children. In addition to the allegations already
pleaded, it included added allegations: Mother is a current abuser
of “alcohol, methamphetamines, and cocaine” which renders her
incapable of providing regular care. On February 8, 2022,
Mother had “a positive toxicology for cocaine” and on January 24,
2022, she had “a positive toxicology for methamphetamines and
cocaine.” Her substance abuse endangers the children’s health
and safety and places them at risk of serious harm.
E. Jurisdiction and Disposition
In anticipation of adjudication, DCFS submitted an
Addendum Report and a Last Minute Information (LMI) advising
the juvenile court of the following. Mother had missed
approximately half of her visits with the children and had arrived
late to or left an hour early from the visits she did attend. DCFS
recommended that a home assessment and background check on
Levi C.’s household take place. Nebraska’s Child Protective
Services indicated they require an ICPC (Interstate Compact of
the Placement of Children) request in order to initiate a home
assessment and complete criminal background checks. DCFS
recommended that an ICPC be initiated for Levi C. and his
household. “If the ICPC is approved for [Levi C.], DCFS
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respectfully recommends that DCFS continue to supervise the
case for 3–6 months to ensure the child’s transition into her
father’s home.” In the past four years, Levi C. had spoken with
Aliyah approximately 10 times. DCFS set up weekly FaceTime
calls between Aliyah and Levi C. to establish regular contact
between them and facilitate bonding.
On March 14, 2022, the jurisdictional and dispositional
hearing took place. Levi C. “appear[ed] for the first time.”
Aliyah’s counsel “renew[ed] [her] request for a continuance”
of the disposition based on a “couple of things. One, I would like
her therapist to testify and I’ve just started trying to reach her
today and I have not been successful in reaching her. [¶]
Secondly, I would . . . like my office to . . . arrange for a bonding
study between the siblings. [¶] I would also like for the social
worker to be able to interview Aliyah in a neutral location. This
is a very traumatic upsetting situation. I would like for her to be
able to be interviewed in more detail with respect to her sibling
relationship, [and] for that interview to be disclosed or contained
in an [LMI]. [¶] You know, we didn’t find out until just a few days
ago that [Levi C.] was requesting custody. [Aliyah] didn’t find
out. I didn’t find out. This is all new information and it is a big
deal to send her out of state so I want to have as much
information before the court as possible to determine, you know,
whether or not there’s detriment. I mean, I’m arguing that there
is.”
Mother joined in Aliyah’s counsel’s request for a
continuance. DCFS stated it had no objection to a continuance
and was “in favor” of a continuance to allow DCFS time “to visit
the state of Nebraska and assess the [Levi C.’s] home in person
and assess the other individuals in the household.”
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The juvenile court denied the request and found “there’s no
basis to further delay. [Levi C.] is not named in the allegations
and there's clear case law that . . . dictates the requirements of
what a court must do when there is a parent who is capable,
ready, willing and able to take custody of their child, although a
noncustodial parent, what the court must do in that situation. [¶]
So I’m not going to grant the continuance. This need not be
delayed any further.”
The court proceeded to adjudication. The court sustained
the amended petition and found count b-1 true by a
preponderance of the evidence. It found Aliyah and Peyton are
“children described by . . . section 300.”
The court took testimony from Elizabeth H., Christian H.,
and Aliyah.
Elizabeth H. She has known Aliyah since 2017 when
Aliyah was two and a half. Aliyah has lived with her and
Christian H. full-time since December 2021. Prior to that, Aliyah
stayed with them “half the time” and with Mother “half the time.”
It was “three and a half days each” per week minimum, but
because of Mother’s work schedule and going out, Aliyah would
spend at least five days a week with them, “sometimes the whole
week.” They spend time with Aliyah and Peyton together as a
family; they had “park days, . . . beach day[s] . . . food
adventures.” Aliyah and Peyton are “always together. . . .
They’ve never been separated.” They play volleyball together and
play pretend restaurant or hair salon together at the house.
They have “princess day[s]” together where they dress-up. They
share a room together where Aliyah sleeps on the top bunk bed
and Peyton the bottom. They are “best friends” and “do
everything together.” Ever since Aliyah learned she may have to
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live with Levi C. in Nebraska, she cries a lot (at least once a day),
has become “more frustrated” and has been “latching on to toys
even more.” She grabs onto Christian H. and Elizabeth H. and
“doesn’t want to let go.” She tells them she “doesn’t want to go.”
Christian H. He initiated family law proceedings for both
children. He tried to establish paternal rights for Aliyah, whom
he views as his daughter “since birth.” He “was the first person
to hold her. I was helping the mother pick out names. And the
name that she has is one that I picked.” He has “supported her
financially, emotionally. I’ve raised her. I’ve been helping her
learn to read. Before that, walk, talk, eat, all the child
developments.” He provided Mother with financial assistance for
rent, food, clothes for Aliyah. He helps Aliyah with homework.
He described the relationship between Aliyah and Peyton as
“inseparable.”
Aliyah G. She currently lives with her “dad” and “sister”
and “mom” (and pointed to Christian H., Elizabeth H., and
Peyton sitting in the courtroom) because DCFS “took [her] away
from Mommy’s house.” She plays with her sister a lot and shares
a room with her. She would feel “sad” if she couldn’t live with or
see Peyton anymore. She does not want to move to and live in
Nebraska with her dad Levi C. She feels “scared” to live with
Levi C. because she has not met him in person. She does not
want the court to order her to go to Nebraska. She talked to Levi
C. only once when she was in the first grade.
Aliyah’s counsel argued Christian H. has met the
requirements to be considered a presumed father for Aliyah.
Mother requested that Christian H. be declared legally presumed
father of Aliyah; if the court “is inclined to find [Levi C.] a
presumed father, [Mother] request[ed] that the court find that it
15
would be detrimental to [Aliyah] for the court not to find two
presumed fathers.” Christian H. argued that Levi C. did not
meet his burden to be deemed Aliyah’s presumed father and the
evidence supports a finding of Christian H. being declared her
presumed father. Levi C. argued that he should be the presumed
father and Aliyah should be placed in his custody. DCFS argued
the court should address the issue of presumed father later, so
that DCFS could “further investigate and also provide a
recommendation with respect to that issue.”
The juvenile court found DCFS made reasonable efforts to
prevent removal but found it reasonable and necessary to remove
Aliyah from Mother’s care and custody.
“As it concerns the fathers, the court will apply the strict
provisions of . . . [section] 361.2 and find that there are two
parents that are ready, willing and able to have custody of their
children.” The court denied the request to declare Christian H. a
presumed father under Family Code section 7612, subdivision (c).
“That is not an appropriate thing to do and I think that is not fair
to [Levi C.]. It’s almost creating a Kelsey S.[2] situation where he
doesn’t even have the opportunity to see and have custody of his
child.” “I have no evidence here today to tell me that this child
Aliyah would be psychologically and emotionally harmed if I were
to not declare [Christian H.] as her presumed father.” “There’s
no evidence to indicate that this child is going to go into a
psychological tailspin, even though she may cry because she will
miss Peyton and [Christian H.] and his wife, which is a common
natural emotion when you’re not seeing someone regularly, you
miss them.” “[T]here’s no evidence here today to say that this
2 Adoption of Kelsey S. (1992) 1 Cal.4th 816, 829–830, 849
(Kelsey S.)
16
child is going to have a severe mental breakdown or that it’s
going to be a psychologically traumatic event if [Christian H.] is
not declared the presumed father.”
The juvenile court found Levi C. the “presumed father” of
Aliyah and found “there’s no detriment in this court’s eyes to
declaring him a presumed father and ordering this child
released” to him. “Although the court has the authority to issue
the ICPC, there is no basis to do so. [DCFS] has been able to
speak with [Levi C., who] has been forthright.” “Over DCFS’[s]
objection, [Aliyah was] placed in Home of Father [Levi C.] under
supervision of DCFS.” DCFS was ordered to secure a one-way
airline ticket for Aliyah to go to Levi C. in Nebraska on March 21,
2022.
The next day, minor Aliyah filed a notice of appeal.
DISCUSSION3
Appellant minor Aliyah G. contends the juvenile court
violated her due process rights by “denying her reasonable
request for a continuance after a showing of good cause.” She
further argues the juvenile court erred by failing to find
Christian H. a presumed father under Family Code section 7611.
She also argues the court erred by finding Levi C. to be her
presumed father, as there is a lack of substantial evidence in
support.
3 On March 18, 2022, Aliyah’s counsel filed a Petition for
Writ of Supersedeas, seeking a stay of the juvenile court’s March
14, 2022 order that Aliyah be moved to Nebraska to live with
Levi C. We issued a temporary stay of the juvenile court’s order
and, following oral argument, issued a permanent stay on June
30, 2022 pending resolution of this appeal.
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A. The Juvenile Court Abused its Discretion When It
Denied Minor’s Request for a Continuance.
1. Applicable Law and Standard of Review
Section 352 governs continuances of dependency hearings.
(See In re M.F. (2022) 74 Cal.App.5th 86, 102.) Section 352,
subdivision (a)(1) provides that upon the request of counsel for
the minor, the court “may continue any hearing . . . beyond the
time limit within which the hearing is otherwise required to be
held, provided that a continuance shall not be granted that is
contrary to the interest of the minor. In considering the minor’s
interests, the court shall give substantial weight to a minor’s
need for prompt resolution of his or her custody status, the need
to provide children with stable environments, and the damage to
a minor of prolonged temporary placements.” (§ 352, subd.
(a)(1).) Section 352, subdivision (a)(2) provides that continuances
“shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence
presented at the hearing on the motion for the continuance.”
Id., subd. (b).)
We review an order denying or granting a continuance for
abuse of discretion. (In re Emily D. (2015) 234 Cal.App.4th 438,
448; In re B.C. (2011) 192 Cal.App.4th 129, 143–144.) To show
abuse of discretion, appellant must demonstrate the juvenile
court exercised its discretion in an arbitrary, capricious, or
patently absurd manner, resulting in a miscarriage of justice.
(In re Emily D., at p. 448.)
2. Analysis
Aliyah argues good cause supported her request for a
continuance and the trial court’s denial of her request resulted in
an abuse of discretion and violated her due process rights.
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We agree.
We preliminarily note that Christian H. joins in Aliyah’s
argument on appeal. Levi C. also concedes on appeal that the
juvenile court erred in failing to continue the dispositional
hearing as to Aliyah.
Aliyah has adequately shown that the denial of a
continuance was contrary to her best interests. The record
reveals Aliyah and her counsel discovered only “a few days” prior
to the March 14, 2022 hearing that Levi C. intended to request
custody of Aliyah. Minor’s counsel explained to the court that she
reached out to Aliyah’s therapist, was unsuccessful in contacting
her, and wanted to arrange for a bonding study between siblings
and to determine whether the move to Nebraska would be
detrimental to Aliyah. Minor’s counsel should have been given
the opportunity to adequately prepare and confer with the
therapist and propound discovery regarding Levi C., who may or
may not be suitable for placement. No home assessment was
conducted; no background check on Levi C. or his household
members was completed.
When denying the continuance request, the juvenile court
repeated twice that it found “no basis to further delay.” However,
there had been no delay to begin with. This case was initiated in
December 2021 and only three months had passed until the
March 14, 2022 adjudication hearing; this was not a matter
where years of hearings had taken place. Thus, a continuance
was warranted to provide Aliyah and her counsel sufficient time
to obtain relevant information as to whether placement of Aliyah
with her out-of-state parent, whom she had never met in person,
would be to her detriment. A continuance would not have
otherwise delayed a prompt resolution of the matter.
19
The juvenile court also explained that “there’s clear case
law that . . . dictates the requirements of what a court must do
when there is a parent who is capable, ready, willing and able to
take custody of their child, although a noncustodial parent, what
the court must do in that situation.” However, the juvenile court
was incorrect in its interpretation of the law. Section 361.2,
subdivision (a) provides that when a court orders removal of a
child, it “shall first determine whether there is a parent of the
child, with whom the child was not residing at the time . . . , who
desires to assume custody of the child. If that parent requests
custody, the court shall place the child with the parent unless it
finds that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the child.”
(§ 361.2, subd. (a), italics added.)
Here, the continuance request was specifically to ascertain
and/or obtain evidence relevant to section 361.2, that is, whether
placing Aliyah with Levi C. would be detrimental to her safety,
protection, or emotional/physical well-being. As the record
provides, no home assessment was conducted and no background
check on Levi C. or his household members were completed.
DCFS had also recommended a continuance so that an ICPC of
Levi’s home could be conducted. As Aliyah and her counsel had
only learned of Levi C.’s request for custody a mere few days
prior, the juvenile court’s denial of a continuance precluded them
from obtaining relevant evidence to show whether the move
would be to Aliyah’s detriment. This was an abuse of discretion.
Aliyah has also adequately shown she was prejudiced by
the court’s decision to deny the continuance request.
A “fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated,
20
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present
their objections.” (Mullane v. Central Hanover Bank & Trust Co.
(1950) 339 U.S. 306, 314.) The notice must be of such nature to
“afford a reasonable time” for those interested to adequately
make their appearance and raise their concerns. (Ibid.)
The juvenile court relied on the absence of evidence in
making its findings and placement order. The court stated on the
record: “I have no evidence here today to tell me that this child
Aliyah would be psychologically and emotionally harmed if I were
to not declare [Christian H.] as her presumed father.” “There’s
no evidence to indicate that this child is going to go into a
psychological tailspin, even though she may cry because she will
miss Peyton and [Christian H.] and his wife.” Essentially, the
juvenile court denied Aliyah’s continuance request to obtain
relevant evidence, and then relied on the absence of evidence as
the basis for its findings and orders.
We reverse the juvenile court’s denial of Aliyah’s request
for a continuance.
B. Paternity Findings
We will first recite the applicable law as to paternity
determinations and presumed father declarations, before
addressing the arguments about the juvenile court’s findings as
to Levi C. and Christian H.
1. Applicable Law and Standard of Review
The Uniform Parentage Act (UPA) (Fam. Code, § 7600 et
seq.) “provides the framework by which California courts make
paternity determinations. ([Fam. Code,] § 7610, subd. (b).)”
(Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 937.) Section
21
7611 sets forth various rebuttable presumptions for determining
a child’s natural parent. (Dawn D., at p. 937.) A presumption
under Family Code section 7611 generally “is a rebuttable
presumption affecting the burden of proof and may be rebutted
. . . only by clear and convincing evidence.” (Fam. Code, § 7612,
subd. (a).) “A person who claims entitlement to presumed parent
status has the burden of establishing by a preponderance of the
evidence the facts supporting the entitlement.” (R.M. v. T.A.
(2015) 233 Cal.App.4th 760, 774 (R.M.).)
Under Family Code section 7611, subdivision (d), a person
may qualify as a presumed parent if he or she “receives the child
into [his or her] home and openly holds out the child as [his or
her] natural child.” (Fam. Code, § 7611, subd. (d).) R.M. stated:
“When determining whether the person has met the statutory
requirements of receiving the child into his or her home and
openly holding the child out as his or her own, the court may
consider a wide variety of factors, including the person’s provision
of physical and/or financial support for the child, efforts to place
the person’s name on the birth certificate, efforts to seek legal
custody, and the breadth and unequivocal nature of the person’s
acknowledgement of the child as his or her own. [Citation.] No
single factor is determinative; rather, the court may consider all
the circumstances when deciding whether the person
demonstrated a parental relationship by holding out the child as
his or her own and assuming responsibility for the child by
receiving the child into his or her home.” (R.M., supra,
233 Cal.App.4th at p. 774.) Furthermore, “[b]iological fatherhood
does not, in and of itself, qualify a man for presumed father
status under section 7611.” (In re J.L. (2008) 159 Cal.App.4th
1010, 1018, superseded by statute on other grounds as stated in
22
In re Alexander P. (2016) 4 Cal.App.5th 475, 486.) “[T]he core
issues are the person’s established relationship with and
demonstrated commitment to the child.” (In re M.R. (2017)
7 Cal.App.5th 886, 898.) “Presumed parent status is afforded
only to a person with a fully developed parental relationship with
the child.” (R.M., at p. 776, italics omitted.) The presumed
father’s commitment to the child is a key consideration. (In re
Sarah C. (1992) 8 Cal.App.4th 964, 972.)
Although more than one individual may fulfill the criteria
that give rise to a presumption of paternity, as a general rule,
there can be only one presumed father. (In re Kiana A. (2001)
93 Cal.App.4th 1109, 1115.) Where the evidence shows that more
than one man qualifies as a presumptive father, Family Code
section 7612, subdivision (b) directs the trial court to weigh the
competing presumptions. It states: “If two or more presumptions
arise under [Family Code] [s]ection 7611 that conflict with each
other . . . the presumption that on the facts is founded on the
weightier considerations of policy and logic controls.” (Fam.
Code, § 7612, subd. (b).)
Effective January 1, 2014, Family Code section 7612 was
amended to add new subdivision (c), which allows for the
designation of a third parent for a child in an appropriate case.
Family Code section 7612, subdivision (c) provides: “[A] court
may find that more than two persons with a claim to parentage
under this division are parents if the court finds that recognizing
only two parents would be detrimental to the child. In
determining detriment to the child, 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
23
psychological needs for care and affection, and who has assumed
that role for a substantial period of time. 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.” (Fam. Code,
§ 7612, subd. (c).) In enacting Family Code section 7612,
subdivision (c), the Legislature expressed its intent that it “only
apply in the rare case where a child truly has more than two
parents, and 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.” (Stats. 2013, ch. 564,
§ 1.)
Finally, there is a biological father. “A biological or natural
father is one whose biological paternity has been established, but
who has not achieved presumed father status . . . . A man who
may be the father of a child, but whose biological paternity has
not been established, or, in the alternative, has not achieved
presumed father status, is an ‘alleged’ father.” (In re Zacharia D.
(1993) 6 Cal.4th 435, 449, fn. 15.) “[O]nly a presumed, not a mere
biological, father is a ‘parent’ entitled to receive reunification
services.” (Id. at p. 451; In re Sarah C., supra, 8 Cal.App.4th at
pp. 974–975.)
On appeal, we independently interpret statutes and apply
the substantial evidence standard in reviewing a juvenile court’s
finding whether a person is a presumed parent. (In re L.L. (2017)
13 Cal.App.5th 1302, 1310.)
2. Analysis as to Levi C.
Aliyah argues the juvenile court erred in finding Levi C. a
presumed father under Family Code section 7611. She argues
the record in this case indicates Levi C. made minimal to no
efforts to find or support Aliyah after Mother became pregnant.
24
She argues that Levi C. “did not support [M]other before the
move and did not make active efforts to locate or initially support
Aliyah afterwards. Because he was able to have phone visits
with Aliyah, it is clear he knew exactly where she was.” He
“never tried to seek court intervention in Nebraska or in
California [for] seven long years.”
Christian H. argues Levi C. cannot be Aliyah’s presumed
father because Levi C. failed to make a full and prompt
commitment to his parental responsibilities. (Kelsey S., supra,
1 Cal.4th at pp. 829–830, 849; In re Spencer W. (1996)
48 Cal.App.4th 1647, 1654–1655; In re Sarah C., supra,
8 Cal.App.4th at pp. 972–973.) Christian H. asserts that merely
purchasing gifts on birthdays and holidays and paying $85 per
week in child support are insufficient to give rise to a
presumption of paternity. Christian H. also argues Levi C. failed
to take formal legal action to claim paternity and only began to
pay child support after Mother initiated a child support action
and procured a paternity test.
Levi C. argues substantial evidence supported a finding
that he qualified for presumed father status under Kelsey S. In
Kelsey S., the child’s biological father—not married to Mother—
could not qualify as a presumptive father under Family Code
section 7611, subdivision (d), because he was prevented by the
Mother from receiving the child into his home and establishing a
relationship with the child; nonetheless, he had parental rights
worthy of protection where he had taken significant steps in the
earliest stages of the child’s life to fulfill a parental role and
objected to Mother’s decision to place the child for adoption.
(Kelsey S., supra, 1 Cal.4th at pp. 821, 849–851.) Thus, the child
25
could not be placed for adoption until the biological father had
consented or been found unfit. (Id. at pp. 849–851.)
However, that case differs from the facts before us. The
father in Kelsey S. filed an action in superior court two days after
the child’s birth, to establish his parental relationship with the
child and obtain custody of the child; he objected to Mother’s
decision to put their child up for adoption “because he wanted to
rear the child.” (Kelsey S., supra, 1 Cal.4th at pp. 821–822.) In
contrast, here, Levi C. did not attempt for the seven years of
Aliyah’s life (until this instant dependency matter) to obtain
custody of Aliyah. Nor did he attempt to meet Aliyah in person
or avail himself of a flight to California to be introduced to his
biological daughter. He had seven years to try and cement a
relationship with Aliyah. He did not provide child support for
her until Mother initiated child support proceedings and a
support judgment was entered against him. In addition, contrary
to Levi C.’s claim that he was deemed Aliyah’s father via the
DCSS judgment entered June 3, 2016, that was not a judgment of
paternity and was, in fact, a child support judgment. Plus,
despite Levi’s C. knowledge of Aliyah’s whereabouts at least as of
2016 when child support proceedings took place, there is nothing
in the record that demonstrates he sought or initiated any court
action to gain any custody of Aliyah or visitation rights to
establish a parental relationship with her.
In reviewing the factors relevant to determining whether
Levi C. has met the statutory requirements for presumed father
status, we do not find substantial evidence supporting his
“physical . . . support for the child, efforts to place the person’s
name on the birth certificate, efforts to seek legal custody, and
the breadth and unequivocal nature of the person’s
26
acknowledgement of the child as his or her own.” (R.M., supra,
233 Cal.App.4th at p. 774.) Because presumed parent status is
afforded “only to a person with a fully developed parental
relationship with the child” (id., at p. 776), we find there is no
substantial evidence in support of the juvenile court’s finding
that Levi C. qualifies as Aliyah’s presumed father, even under
Kelsey S.
In making its finding that Levi C. is a presumed father, the
juvenile court further found “there’s no detriment in this court’s
eyes to declaring him a presumed father” and ordered Aliyah
released to him. As mentioned above, the court erred when it did
not allow a continuance for Aliyah’s counsel to obtain evidence as
to whether the child’s placement with Levi C. would be to her
detriment per section 361.2. We reverse and remand to the
juvenile court to revisit this issue after Aliyah’s counsel is given a
continuance to obtain the necessary, relevant information. A
remand is further warranted to allow the juvenile court to take
evidence of what has occurred in Aliyah’s life since our June 30,
2022 issuance of a permanent stay of the court’s March 14, 2022
order.
3. Analysis as to Christian H.
Both Aliyah and Christian H. contend on appeal that the
juvenile court erred in denying Christian H. presumed father
status.
Levi C. does not contend on appeal that Christian H. fails
to qualify as a presumed father under Family Code section 7611.
Instead, he argues Christian H. failed to show below that he
qualified as a “third parent” per Family Code section 7612,
subdivision (c), and recites the juvenile court’s finding on the
issue, where it found: “I have no evidence here today to tell me
27
that this child Aliyah would be psychologically and emotionally
harmed if I were to not declare [Christian H.] as her presumed
father.” However, as set out above, we have now concluded that
the juvenile court’s denial of the continuance request is the
reason there is no evidence on this very issue—i.e., whether it is
to Aliyah’s detriment—which resulted in prejudicial error.
The record is replete with evidence that demonstrates a
rebuttable presumption that Christian H. is Aliyah’s presumed
father under Family Code section 7611, subdivision (d).
Christian H. was present at Aliyah’s birth, chose her name, took
her into his home, held her out as his child, provided necessities
of life and acted toward her as a parent, helping with her
homework, spending at least half of the week, if not more, with
her, and spending holidays and vacations with her. Christian H.
attempted to establish paternity of Aliyah by initiating a family
law case. This is unequivocal evidence showing he openly
acknowledged the child and provided financial support for the
child since her birth. (See Neil S. v. Mary L. (2011)
199 Cal.App.4th 240, 248–249 [“ ‘[I]ncreasingly, over the last
three decades, our courts have resolved paternity disputes by
looking to the existence and nature of the social relationship
between the putative father and the child.’ [Citation.] We have
given ‘great weight’ to these social relationships, holding the
relationship of a man who has lived with a child and treated the
child as his son or daughter ‘ “ ‘ “is much more important, to the
child at least, than a biological relationship of actual
paternity.” ’ ” ’ ”].)
28
Thus, the juvenile court’s finding that Christian H. is not a
presumed father is not supported by substantial evidence.
Moreover, a presumed father presumption under Family
Code section 7611, subdivision (d) arises if there is a
preponderance of evidence in support of it. The evidence recited
above qualifies as more than a preponderance of evidence. It may
thus be rebutted only upon a showing of clear and convincing
evidence. We find no clear and convincing evidence to the
contrary, and Levi C. points to none on appeal.
DISPOSITION
We reverse the juvenile court’s dispositional order placing
Aliyah with Levi C. and its order denying the continuance
request. We remand with directions to allow a continuance for
Aliyah’s counsel to obtain relevant evidence/information from
Aliyah’s therapist as to whether the move to Nebraska is to
Aliyah’s detriment; prepare a sibling bond study as to Aliyah and
Peyton (see In re Luke M. (2003) 107 Cal.App.4th 1412, 1425
[recognizing that “[s]ibling relationships are clearly a relevant
consideration in evaluating a child’s emotional well-being”]); and
obtain a home assessment and background check as to Levi C.
and his household.
We reverse the juvenile court’s paternity findings that
1) Levi C. qualified as a Kelsey S. presumed father, and
2) Christian H. did not qualify as a presumed father. A remand
is warranted to allow the juvenile court to hold further
evidentiary proceedings as to paternity and to take evidence of
what has occurred in Aliyah’s life since our June 30, 2022
issuance of a permanent stay of the juvenile court’s March 14,
2022 order. Further, given the foregoing and because the
juvenile court had not undertaken the weighing process to resolve
29
competing paternity claims under Family Code section 7612,
subdivision (b), it is necessary to remand the matter to the court
to conduct a further evidentiary hearing and make related
factual findings. We also direct the juvenile court to visit the
question of whether the third-parent exception applies under
Family Code section 7612, subdivision (c). (See In re L.L., supra,
13 Cal.App.5th at p. 1318.)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
GRIMES, J.
WILEY, J.
30