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Name: In re Jesusa V.
Case #: B151885
Court: CA Court of Appeal
District 2 DCA
Division: 7
Opinion Date: 04/16/2002
Subsequent History: Rev. GRANTED 8/14/02: S106843

Editor’s note: Review has been GRANTED on this case. Jesusa came to the attention of authorities when her father so abused her mother that her mother was hospitalized. The trial court awarded presumed father status under Family Code section 7611 to her stepfather, the mother’s husband, and declared the minor a dependent child under Welfare and Institutions Code section 300, subdivisions (a) and (b) based on the mother’s failure to protect her from violent episodes and appellant’s inability to care for her because of his alcoholism. Both appellant and the minor child’s mother’s husband, Paul B., qualified as presumed fathers under Family Code section 7611. Paul B. qualified because he was married to the mother when the minor was born. Appellant qualified because he received the minor in his home and held her out as his natural child. Appellant was in the county jail when proceedings began and in the state prison when the presumed father motion was heard. Although the trial court found that appellant was the biological father of the minor, it awarded presumed father status to Paul B., proceeded with the jurisdictional hearing in appellant’s absence and placed the child with Paul B. Appellant alleged error in the trial court refusal to grant a continuance to allow him to present live testimony in the presumed father status hearing, in its declaring Paul B. the presumed father of the minor, and in holding the jurisdictional hearing without him. The Court of Appeal affirmed the trial court order that Paul B. was the presumed father, holding that evidence that someone else is the biological father does not rebut presumed father status in a dependency context. The term “presumed father” refers to familial bonds, not a biological connection. The court also held that the trial court did not abuse its discretion when it refused to continue a hearing on presumed father status to allow appellant to appear because appellant was represented by counsel and the trial court said it would not allow live testimony and would not rely on the minor child’s mother’s statement that appellant did not qualify as a presumed father at the hearing. The Court of Appeal, however, held that under Penal Code section 2625 the trial court acted in excess of its jurisdiction when it adjudicated the dependency petition in appellant’s absence, reversed the order making the minor a dependent child and remanded for further proceedings.