Filed 6/20/13 A.H. v. Super. Ct. CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


A.H.,
         Petitioner,
v.
THE SUPERIOR COURT OF MARIN                                          A138389
COUNTY,
                                                                     (Marin County
         Respondent;                                                 Super. Ct. No. JV25733A)
MARIN COUNTY HEALTH & HUMAN
SERVICES et al.,
         Real Parties in Interest.

         By way of this writ proceeding, A.H. challenges the dependency court’s
jurisdiction and disposition orders, and its order setting a selection and implementation
hearing pursuant to Welfare and Institutions Code section 366.26.1 Specifically, A.H.
challenges the court’s ruling he is the “biological,” not the “presumed”, father of M.H.
and contends the conclusive presumption of paternity set forth in Family Code
section 7540 applies. The County of Marin does not dispute A.H. made the requisite
showing to trigger the presumption—that is, that when M.H. was born, her mother and
A.H. were married and cohabitating, and A.H. was not then impotent or sterile. (Fam.
Code, § 7540.) The county maintains, however, the court properly found, as a matter of
public policy, the presumption should not apply in this case.

         1
        All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

                                                             1
       While we agree with the county the record in this case raises grave concerns about
the safety of M.H. if custody is awarded to A.H., and we have serious doubts
reunification services would be utilized by A.H. and, even if they were, they would repair
what appears to be a non-existent familial relationship between A.H. and his daughter,
these concerns should have been addressed in the context of determining custody and the
provision of reunification services, not through the expediency of disregarding the
conclusive presumption set forth in Family Code section 7540. We therefore grant the
writ petition in part, order the court’s disposition order and order declaring A.H. to be
only a “biological” father vacated, and remand for further proceedings.
                        PROCEDURAL AND FACTUAL BACKGROUND
       Because this writ proceeding turns on a single question, whether the conclusive
presumption set forth in Family Code section 7540 applies, we need not and do not
discuss the facts of the underlying dependency proceeding at length.
       M.H. was born in Marin County in January 1997. Soon thereafter, her parents
took her to Bahrain. Her mother died when she was four months old. A.H. asked his
parents to care for M.H. They agreed to do so, and returned with M.H. to Marin County
and acted as her parents. A.H. did not return, and during M.H.’s childhood had contact
with her only rarely. As of the time of the detention hearing, M.H. was 16 years old and
had not seen A.H. for seven years. A.H. never expressed any interest in knowing M.H.,
did not telephone her or send her birthday cards, and did not contribute financially to her
support.
       As M.H. grew older, there was significant conflict between her and her
grandparents. This ultimately resulted in her half brother being appointed her guardian.
Conflict continued in her brother’s household, leading to his refusal to continue the
guardianship and triggering the underlying dependency proceedings.
       On February 13, 2013,2 the county filed a section 300 dependency petition
alleging, inter alia, failure or inability of a parent or guardian to supervise or protect M.H.


       2
           All further date references are to the year 2013.


                                               2
          Because the guardianship had not yet been terminated, the legal guardian, and not
A.H., addressed the allegations of the petition at the detention hearing on February 14,
waived rights and did not dispute that a prima facie showing had been made for detention
and placement outside the home of the guardian. The court ordered M.H. detained and
placed under the care of the county child and family services agency. Counsel for A.H.
also appeared at the hearing and claimed presumed father status under Family Code
section 7540. The court took the issue under submission.
          Five days later, on February 19, the court issued an order denying A.H.’s request
to be deemed the presumed father. Citing both Family Code sections 7540 and 7611,
subdivision (a), it recounted the lack of A.H.’s interest in and contact with M.H. It also
referenced the report of the social worker that in a telephone conversation A.H. stated
that he was very upset with M.H., that she needed to be sent to Bahrain, that the United
States should have no further involvement with her, that he would get her to behave and,
if she failed to do so, he had the right to disown her. The court concluded that while A.H.
may be the biological father, he “has not yet made much of a commitment to his parental
responsibilities for the minor” and therefore had “not met the requisite burden of proof
that he is the presumed father.
          On March 7, A.H. moved for reconsideration of his status, asserting the trial court
had erred in refusing to heed the conclusive presumption set forth in Family Code
section 7540. He attached a copy of M.H.’s birth certificate, showing him to be the
father.
          The legal guardian appeared at the jurisdiction hearing on March 11, again waived
rights and submitted to the jurisdiction of the court. On the basis of the jurisdiction
report filed by the county, the court sustained the “g-1” allegation of the petition.3 The
report included a history of 10 prior referrals regarding the family. These included two


          3
          Because the legal guardianship was still in place and the guardian responded to
the jurisdictional allegations and submitted to the jurisdiction of the court, A.H. has no
standing to challenge this order, and we deny his writ petition to the extent it purports to
do so.


                                               3
reports (as to which an “inconclusive” determination was made) of severe abuse of
M.H.’s younger half brother by A.H. while in Bahrain and Saudi Arabia, one report
(“substantiated”) of abuse of her older half brother by A.H., one report (“inconclusive”)
of emotional abuse and neglect of the younger half brother by the paternal grandmother
that noted the brother was repatriated to the United States after severe abuse by A.H. in
Bahrain, and one report (“inconclusive”) of emotional abuse of M.H. by the paternal
grandparents, and several reports (“inconclusive,” “substantiated,” and “evaluated out”)
of general neglect of M.H. by her older half brother during the guardianship. M.H.’s
older half brother and then legal guardian also told the social worker that for seven years
he did not speak to his father and had not wanted anything to do with him. He reported
abuse, including being made to “sign a contract” he would “not touch his father or
anything in his father’s home and was then made to live in a guest house where he had
very little to eat.” He also reported severe abuse of his younger brother. He contacted
his father to advise him of the guardianship and refused to send M.H. to him in Bahrain
“ ‘because of what happened to me.’ ” As for A.H.’s motion for reconsideration of the
court’s ruling on his fatherhood status, the court found proper notice had not been given,
and continued the matter to the next hearing.
       Two weeks later, on March 29, A.H. filed a “supplemental motion” for a
determination of paternity under Family Code section 7540.
       On April 2, the county filed a disposition report, again reciting the prior child
welfare history, including that the U.S. Embassy had become involved with the abuse of
M.H.’s younger half brother and A.H. had shown “ ‘little or no remorse for the beatings
and admitted that such beatings have occurred on multiple occasions.’ ” M.H.’s older
half brother also sought help from the embassy, stating he had been “put out” of the
family home two weeks earlier and had not eaten or slept in three days. A.H. told
embassy personnel the son was no longer welcome in his home and he considered him to
be the embassy’s responsibility. The report also recounted A.H.’s conversation with the
social worker that M.H. is a “ ‘disturbed person and a trouble maker,’ ” that she should be
sent to Bahrain, and “ ‘we can write her off and let her go to hell’ ” if she continues to


                                              4
misbehave. If M.H. “ ‘doesn’t want to listen we have full right to disown her so she does
not ruin the [family] name.’ ” The report summarized: “[A.H.] has an extensive history
of severe physical abuse and neglect of [M.H.’s] older siblings. He has not shown any
interest in raising any of his children long-term and has not made any effort to have a
relationship with [M.H.]” The report therefore concluded, “it is not in [M.H.’s] best
interest to be sent to live with her father.”
       By the time of the disposition hearing, on April 3, the guardianship had been
terminated. Accordingly, the court first considered A.H.’s pending motions regarding his
fatherhood status. The court heard argument, including by counsel representing M.H.,
who vigorously opposed A.H. attaining presumed father status. The court took the issue
under submission and continued the hearing.
       At the continued hearing on April 8, the court affirmed its prior decision that A.H.
was only the “biological” father and was not entitled to “presumed” father status. Stating
it had reviewed the history of the family relationship as set forth in the reports, the court
“[did] not find it in the best interests of the minor that he be determined to be the
presumed father with custody of [M.H.]” It found, “her safety and well-being will be
jeopardized by such a Court order.”
       The court then proceeded with the disposition hearing, approved nonparent
placement and set the matter for a selection and implementation hearing on July 29.
                                         DISCUSSION
       This dependency proceeding illustrates the potential tension between the goals and
objectives of the juvenile dependency scheme and those of the paternity statutes. “ ‘The
objective of the dependency scheme is to protect abused or neglected children and those
at substantial risk thereof and to provide permanent, stable homes if those children cannot
be returned home within a prescribed period of time.’ [Citation.] The underlying
purpose of dependency law is to protect the welfare and best interests of the child.”
(Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 597.) The paternity statutes,
in turn, reflect the historic view the family unit is vital to societal health, and children
born during a marriage should be presumed legitimate offspring of the union. (In re


                                                5
Kiana A. (2001) 93 Cal.App.4th 1109, 1114 (Kiana A.); see also Dawn D. v. Superior
Court (1998) 17 Cal.4th 932, 945–946 (J. Kennard, concurring); In re Lisa R. (1975)
13 Cal.3d 636, 649–650 (In re Lisa R.).)
       As we have discussed, the record here indicates significant risk to M.H.’s health
and wellbeing if the conclusive presumption of paternity set forth in Family Code
section 7540 is recognized and that were to lead to custody by A.H. It further reflects the
family unit disintegrated years ago, so the family-preservation policy the paternity
presumption seeks to advance is non-existent.
       The county is correct that courts have, in some cases, refused to apply the
conclusive presumption set forth in Family Code section 7540. These cases, however,
are grounded on the theory the presumption must give way to paramount constitutional
due process rights, generally the right of a “biological” father to parent his child. (See,
e.g., Lisa R., supra, 13 Cal.3d at p. 640 [holding “that under the due process clause of the
Fourteenth Amendment . . . appellant does have standing to offer evidence that he is the
natural father of the minor child”]; Kiana A., supra, 93 Cal.App.4th at pp. 1114–1115
[“Where the [paternity statute] unduly impinges a biological father’s constitutional right
to parent a child, we apply traditional substantive due process principles and balance the
biological father’s interest against those of the state. [Citations.] Thus, a court may
refuse to apply the conclusive presumption when its underlying policies are not
furthered.”]; Comino v. Kelley (1994) 25 Cal.App.4th 678 [conclusive presumption not
applied to bar biological father, who had extensive relationship with child in early years
before mother restricted access, from seeking custody rights].)
       Even then, the courts have not readily disregarded the presumption. “[W]hen
there is no existing relationship between the claimed biological father and the child,
courts must defer to legislative choices reflected in paternity statutes.” (Lisa I. v.
Superior Court (2005) 133 Cal.App.4th 605, 620 (Lisa I.).)
       In County of Orange v. Leslie B. (1993) 14 Cal.App.4th 976, which the county
cites several times, the district attorney filed a complaint against two men to determine
paternity for child support purposes. While neither gentleman was seeking to assume


                                               6
parental obligations, and thus there was no contest between them as to parental status, the
case nevertheless involved the resolution of parental status as between a former husband
subject to the statutory presumption and the biological father. The Court of Appeal
concluded failure to apply the presumption did not impair the biological father’s due
process rights, and affirmed the trial court’s refusal to allow the biological father to avoid
support obligations to his child by raising the statutory presumption. (Id. at pp. 979–
982.)
        The county has not cited any case in which there was no competing claim of
entitlement to parental status and the conclusive statutory presumption was nevertheless
disregarded. While we appreciate that the historic underpinnings of the presumption of
paternity set forth in Family Code section 7540 may not coincide with the state of the
modern family, it is clear the courts have carefully limited the circumstances in which
this “conclusive” presumption can be disregarded by the courts. Moreover, were that not
the case and the courts could freely determine on a case by case basis that “public policy”
weighed against application of the presumption, the declared conclusiveness of the statute
would be severely undermined. That goes beyond the proper role of the courts. (Cf. Lisa
I., supra, 133 Cal.App.4th at p. 620 [where no cognizable due process interest, courts
“must defer to legislative choices reflected in paternity statutes”].)
        We therefore conclude the dependency court erred in disregarding the conclusive
presumption set forth in Family Code section 7540 and denying A.H. presumed father
status and deeming him, on ostensible public policy grounds, only a biological father.
        This does not mean, however, that A.H. is entitled to custody, in Bahrain, of M.H.
A.H. is a “noncustodial” parent, and the court must consider whether placement with him
“would be detrimental to the safety, protection, or physical or emotional well-being of the
child.” (§ 361.2, subd. (a).) At the continued jurisdiction hearing, the court made such a
finding on the record.4 And certainly the record before the court (the county jurisdiction


        4
         Any finding made under section 361.2, subdivision (a), must be “either in
writing or on the record” and state “the basis for” the court’s determination. (§ 361.2,

                                              7
and disposition reports) supported such a finding on the basis of clear and convincing
evidence. However, at that point, the court had ruled (a second time) that A.H. was only
a biological father. Consequently, he did not have an opportunity to participate
substantively in the proceedings and attempt to rebut the county reports that appear to
make very clear his custody of M.H. in Bahrain would be perilous to her safety,
protection, or physical or emotional wellbeing. We therefore have no choice but to
reverse and remand the matter for a hearing under section 361.2, subdivision (a).
       We note that section 361.2 is not a “removal” statute. “[R]ather it is one of the
statutes that guides the court and the Agency in determining the child’s placement after
removal from the custodial parent pursuant to section 361. Under section 361, the court
removes children from the physical custodial parent. (See In re Terry H. (1994)
27 Cal.App.4th 1847, 1856 . . . .)[5] Because [appellant] was a noncustodial parent, the
court did not and was not required to remove the children from him under any statute.
Once removal from the custodial parent under section 361 has occurred, section 361.2
requires the court to evaluate placement with the noncustodial parent based on
detriment.” (Luke M., supra, 107 Cal.App.4th at pp. 1422–1423.) Moreover, “[a]
detriment evaluation requires that the court weigh all relevant factors to determine if the
child will suffer net harm.” (Id. at p. 1425.) Thus, while “a jurisdictional finding is
predicated on parental conduct, a detriment finding for purposes of deciding placement
with a noncustodial, nonoffending parent need not be.” (Ibid.) The court must also keep
in mind “the fundamental premise that the underlying purpose of dependency law is to
protect the welfare and best interests of the dependent child” and “the purpose of any
dependency hearing is to determine and protect the child’s best interests.” (Id. at
pp. 1424–1425.)



subd. (c).) Any such finding must also be made on the basis of clear and convincing
evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 (Luke M.).)
       5
         Superseded by statute on another ground as stated in In re Nolan W. (2009)
45 Cal.4th 1217, 1233–1234, footnote 7.


                                              8
       As for reunification services, the record before us does not indicate whether M.H.
is even seeking such services, let alone what the court may determine in this regard.
(§§ 361.2, subd. (b)(3), 361.5, subd. (b); see In re Adrianna P.(2008) 166 Cal.App.4th
44, 55–59 [applying section 361.5, subdivision (b), to noncustodial parent who sought,
but was denied, custody].)
                                       DISPOSITION
       We deny A.H.’s writ petition to the extent it challenges the court’s jurisdictional
order. We otherwise grant the petition, order the court’s disposition order and order
deeming A.H. only a biological father vacated, and remand for a hearing under
section 361.2 and new disposition hearing.



                                                 _________________________
                                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Sepulveda, J.




       
         Retired Associate Justice of the Court of Appeal, First Appellate District,
Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.


                                             9
