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Name: In re D.S.
Case #: H039774
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 10/27/2014

The juvenile court erred in giving presumed father status to a father who was precluded from carrying out parental responsibilities by his own behavior. In February or March of 2010, Mother discovered she was pregnant with the child of A.V., who was incarcerated. In March, Mother moved in with her new boyfriend, B.E. In August, the minor, D.S., was born. Mother married B.E. two months later and had another child. In 2012, both minors were removed due to mother’s substance abuse problem. The juvenile court found that B.E. was D.S.’s presumed father under Family Code section 7611, subdivision (d). It also found that A.V. was the biological father and entitled to presumed father status under Kelsey S. (Adoption of Kelsey S. (1992) 1 Cal.4th 816.) The juvenile court resolved the competing paternity interests in favor of A.V. On appeal, mother argued that A.V. did not qualify as a Kelsey S. father. The appellate court agreed and reversed the orders. Although A.V. promptly took legal action to establish paternity and attempted to have a relationship with D.S., his efforts failed due to his own substance abuse, criminality, and incarceration. Since his own behavior precluded him from carrying out his parental responsibilities, he did not reach the Kelsey S. standard for presumed father status.