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Name: In re L.L.
Case #: D071661
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 08/03/2017
Summary

Juvenile court erred when it found that biological father was a third parent under Family Code section 7612, subdivision (c) without conducting the requisite weighing process between his and the other presumed father’s claims. The minor lived with her mother and T.L., a presumed father, at the time of the dependency action. B.S. was her biological father, but did not see her very often due to his incarceration. When mother was arrested, a petition was filed and a contested hearing held. The juvenile court found that B.S. was a third parent under section 7612, subdivision (c). On appeal, mother and T.L. argued there was insufficient evidence to support the court’s finding that B.S. was a presumed father under section 7611, subdivision (d); that the court erred in finding him a third parent under section 7612, subdivision (c), and also by not conducting the weighing process between the claims of the two presumed fathers required under 7612, subdivision (b). The appellate court held there was substantial evidence to support the finding that B.S. was a presumed father of the minor. In 2007, B.S. filed an action in family court and obtained an order finding that he established a parental relationship with the minor, and awarding him joint legal custody and visitation. The minor was listed as a dependent when he worked at a grocery store. He bought her supplies when he was not incarcerated. He was not required to live with her in order for him to receive her into his home within the meaning of section 7611, subdivision (d). However, the juvenile court misinterpreted and misapplied section 7612, subdivision (c) when it did not consider whether recognizing only two parents would be detrimental to the minor, but instead found that it would not be detrimental if B.S. was added as a third parent. Further, there was no evidence in the record showing that B.S. had an existing relationship with the minor. Therefore, the juvenile court erred by finding that B.S. was a third parent under section 7612, subdivision (c). Also, the court erred by not conducting the weighing process to resolve the competing claims of T.L. and B.S. required under section 7612, subdivision (b). The court remanded with directions to conduct an evidentiary hearing and make factual findings after weighing the competing presumed father claims.