Filed 12/31/14 In re Arianna M. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re ARIANNA M., a Person Coming
Under the Juvenile Court Law.
                                                                 D066178
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. NJ014780)
         Plaintiff and Respondent,

         v.

ARIANNA M.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Kimberlee A.

Lagotta, Judge. Affirmed.

         Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel, for Plaintiff and Respondent.
       Michele Anne Cella, under appointment by the Court of Appeal, for Defendant

and Respondent, Breanna K.

       Julie E. Braden, under appointment by the Court of Appeal, for Defendant and

Respondent, A.M.

       Arianna M. appeals the juvenile court's order setting aside its prior judgment of

paternity. We affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Arianna M. was detained at the hospital at her birth by the San Diego County

Health and Human Services Agency (Agency) as a result of her mother's admitted

methamphetamine use. Arianna's mother, Breanna K., and her boyfriend, Alex M., were

homeless at the time and had no supplies to care for a newborn. Breanna admitted to a

20-year history of drug abuse. She also had a long history of involvement with child

protective services, and as a result, Breanna's two older children (ages one and 10 at the

time Arianna was detained) were in a guardianship with Breanna's mother. Arianna and

her one year-old brother share the same biological father, Scott S. Alex, who claimed to

be Arianna's father when she was detained, also admitted to a long history of drug abuse

and had tens of criminal convictions.

       When interviewed by the Agency's social worker shortly after Arianna's birth,

Breanna stated she was not sure whether Alex or Scott was Arianna's biological father.

However, Breanna and Alex considered Alex to be Arianna's father. Breanna told the

social worker that Scott knew she was pregnant but he wanted nothing to do with the

child. Alex knew he might not be Arianna's biological father, but considered himself her

                                             2
father and wanted to support Breanna and Arianna. Alex completed a voluntary

declaration of paternity at the hospital. In the initial interview, the Agency's social

worker observed that Breanna seemed to rely on Alex to make decisions for her and that

she called Alex "daddy." As a result, the social worker was concerned about possible

domestic violence in their relationship.

          Breanna, Alex and Scott all appeared at the detention hearing and the court

appointed counsel for each. The court found detention of Arianna was necessary because

of the substantial danger and risk of harm presented by custody with her parents. The

court removed Arianna from her parents' custody and ordered reunification services for

Breanna, Scott and Alex. At the hearing, Scott requested paternity testing and Alex

requested presumed father status. Since the state Department of Child Support Services

(DCSS) had not yet acknowledged Alex's paternity declaration, the court deferred the

issue of paternity to the jurisdictional hearing.

          By the time of the initial jurisdictional hearing, Breanna and Alex had obtained

housing and were visiting Arianna two or three times each week. At the hearing Scott

denied paternity and indicated he did not want to participate in the dependency

proceeding. At the conclusion of the hearing, the court granted Scott's request, relieved

his counsel and provisionally found Alex to be Arianna's presumed father. Thereafter,

the court struck Scott from the Agency's petition. At Breanna and Alex's request, the

juvenile court set a further contested hearing on the jurisdictional and dispositional

issues.



                                               3
       Prior to the contested jurisdiction and disposition hearing, Alex was arrested for

several drug related offenses. At the hearing, the court received the DCSS's

acknowledgement of Alex's voluntary declaration of paternity and found Alex to be

Arianna's presumed father. The court also determined jurisdiction was warranted,

removed Arianna from her parents' care, placed Arianna in a licensed foster home and

ordered continued reunification services as well as increased visitation for Breanna and

Alex.1 The juvenile court also set a six month review hearing.

       Before the review hearing, Breanna and Alex ended their relationship and stopped

living together. Both parents, however, actively participated in reunification services and

visited regularly with Arianna. At the review hearing, Breanna and Alex contested the

matter and the juvenile court set a later hearing. Before that hearing, Breanna filed a

motion to set aside the court's prior judgment of paternity for Alex and requested

paternity testing. In a letter accompanying her motion, Breanna stated she feared Alex

was toxic to Arianna's well-being and at the time she allowed Alex to be listed as

Arianna's father on her birth certificate she was suffering from battered women's

syndrome.

       At the six-month review hearing, the court denied Breanna's motion without

prejudice, finding it was filed under the wrong statutory provision. The court also

ordered continued reunification services and visitation for both parents, and set the 12-

month review hearing. The Agency's report in advance of the 12-month hearing noted


1      Breanna unsuccessfully appealed the jurisdictional and dispositional order.

                                             4
both parents were holding jobs, progressing in their recovery and had regular, appropriate

and loving visits with Arianna. Because Breanna and Alex had not found adequate

housing, however, the Agency recommended that the family continue to receive

reunification services for an additional six months.

       The same day as the 12-month review hearing Breanna filed a second motion to

set aside Alex's presumed father status and again requested genetic testing. Breanna's

supporting declaration stated that Alex was not Arianna's biological father and that she

signed Alex's voluntary declaration of paternity because she was under his control and

"was dependent on [Alex] for support and felt [she] had no option but to place him on the

birth certificate." Breanna also stated her concern that Alex would engage in controlling

behavior with Arianna and that he viewed Arianna as "his last bit of control over

[Breanna] and that his reason to continue his involvement with Arianna is control and not

her best interests." At the review hearing the court ordered genetic testing for Alex and

also set a contested hearing on the Agency's recommendation to continue services.

       At the contested 12-month review hearing, the Agency recommended that

Arianna, now 14-months old, be placed with Breanna. The Agency also submitted the

results of the genetic testing, which confirmed Alex was not Arianna's biological father.

The court followed the Agency's recommendation and placed Arianna with Breanna. The

court continued Breanna's motion to set aside the prior paternity finding to give Alex's

counsel time to address the results of the genetic test with him. At the continued hearing,

Alex joined in Breanna's request to set aside the juvenile court's prior paternity finding.

Arianna's counsel objected to setting aside the prior paternity finding on the grounds it

                                              5
would leave Arianna without a father and requested that Scott be notified of the paternity

developments. The juvenile court set an evidentiary hearing for the following month on

the issue of paternity.

       At the evidentiary hearing the court heard the testimony of the Agency's social

worker and received into evidence Breanna's declaration, the Agency's reports and

visitation logs, Breanna's paternity inquiry forms for Alex and Scott and the results of

Alex's genetic testing. The Agency's social worker, Todd Clark, testified Alex was

engaged in reunification services and had positive interactions with Arianna throughout

the dependency. Clark testified that when he gave Alex the results of the genetic test,

Alex needed time to process the information. Clark then waited for Alex to contact him

to arrange further visitation with Arianna but Alex did not contact him again. Clark also

testified that Alex's relationship with Breanna was strained and he believed Breanna had

a restraining order in place against Alex.

       Following closing arguments by counsel, the juvenile court issued its ruling. The

court recognized the difficulty of the decision before it and noted the decision was

complicated by the fact that there had been no objection to the earlier judgment of non-

paternity with respect to Scott. The court found that although it was not generally in the

interest of a child to leave her fatherless, in this case it was in Arianna's best interest not

to force a co-parenting relationship between Breanna and Alex and granted Breanna's

motion to set aside Alex's voluntary declaration of paternity.




                                               6
                                        DISCUSSION

       Arianna argues the juvenile court's order setting aside Alex's voluntary declaration

of paternity should be reversed because it was not in her best interests. The Agency, Alex

and Breanna each filed a brief asking this court to affirm the order.

                                               I

       The execution of a voluntary declaration of paternity is one way an alleged father

can assert his status as a presumed father entitled to custody and reunification services in

a dependency proceeding. (Fam. Code § 7571.2) After the declaration is signed and

filed with the DCSS it has the effect of a judgment and is a conclusive presumption of

paternity until it is set aside. (§§ 7573, 7611, 7612, subd. (a).) A voluntary declaration

of paternity filed with the DCSS is generally sufficient to entitle the male declarant to

presumed father status in dependency proceedings. (In re Liam L. (2000) 84 Cal.App.4th

739, 747.)

       When a man who has signed a voluntary declaration of paternity is determined by

genetic testing not to be the biological father of the child, section 7575, subdivision (b)(1)

authorizes a court to "set aside a voluntary declaration of paternity unless the court

determines that denial of the action to set aside the voluntary declaration of paternity is in

the best interest of the child, after consideration of" a set of factors, including "[t]he age

of the child," "[t]he length of time since the execution of the voluntary declaration of

paternity," "[t]he nature, duration, and quality of any relationship between the man who



2      All statutory references are to the Family Code.
                                               7
signed the voluntary declaration and the child, including the duration and frequency of

any time periods during which the child and the man . . . resided in the same household or

enjoyed a parent-child relationship," "[t]he request of the man who signed the voluntary

declaration that the parent-child relationship continue," "[n]otice by the biological father

of the child that he does not oppose preservation of the relationship between the man who

signed the voluntary declaration and the child," "[t]he benefit or detriment to the child in

establishing the biological parentage of the child," and "[a]dditional factors deemed by

the court to be relevant to its determination of the best interest of the child."

(§7575, subd. (b)(1).)3

        An order setting aside a voluntary declaration of paternity is reviewed by this

court for abuse of discretion. (Gabriel P. v. Suedi D. (2006) 141 Cal.App.4th 850, 862-

63; In re William K. (2008) 161 Cal.App.4th 1, 10.) The order will not be disturbed on

appeal unless the court has exceeded the limits of legal discretion by making an arbitrary,

capricious or patently absurd determination. When two or more inferences reasonably can

be deduced from the facts, we have no authority to reweigh the evidence or substitute our

decision for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-

319.)




3      Section 7646, subdivision (a)(2) also authorizes a judgment establishing paternity
based on the execution of a voluntary declaration of paternity to be set aside if genetic
testing indicates the man is not the biological father of the child. (§ 7646, subd. (a)(2).)
Breanna's motion was brought under both sections 7646 and 7575.
                                               8
                                               II

       We agree with Alex, Breanna and the Agency that the juvenile court did not abuse

its discretion by setting aside Alex's voluntary declaration of paternity. The juvenile

court conducted an evidentiary hearing and considered the applicable law and relevant

factors before finding that setting aside the declaration was in Arianna's best interests.

The court acknowledged its order would leave Arianna without a legal father and did not

take this fact lightly in concluding that the practical realities in this unusual situation

favored setting aside Alex's paternity judgment.

       The court found there was no point in denying Breanna and Alex's request if, as

the present circumstances indicated, Alex would be a "parent in name only" and would

not contribute to Arianna's life or well-being. The court noted that Alex's reunification

efforts were to be commended and that it was possible he would take an interest in

Arianna's life down the road if the paternity judgment were upheld. However, the court

found this uncertain possibility did not outweigh the benefits to Arianna of severing the

legal tie to Alex, allowing Breanna to strengthen and develop her relationship with

Arianna unimpeded by a relationship with Alex that Breanna viewed as unhealthy. This

finding was supported by the facts before the juvenile court and did not constitute an

abuse of discretion.




                                               9
                              DISPOSITION

     The order is affirmed.



                                            MCCONNELL, P. J.

WE CONCUR:



O'ROURKE, J.



AARON, J.
