Filed 2/11/16

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



In re DONOVAN L., JR., a Person Coming
Under the Juvenile Court Law.
                                               D068304
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY et al.,
                                               (Super. Ct. No. J518488A)
        Plaintiffs and Respondents,

        v.

SHANNON L. et al.,

        Defendants and Appellants.


        APPEALS from an order of the Superior Court of San Diego County, Gary M.

Bubis, Judge. Reversed in part and affirmed in part.



        Terence M. Chucas, under appointment by the Court of Appeal, for Defendant and

Appellant Shannon L.

        Patti Dikes, under appointment by the Court of Appeal, for Defendant and

Appellant Donovan L., Sr.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Paula C. Roach, Senior Deputy County Counsel, for Plaintiff and

Respondent San Diego County Health and Human Services Agency.

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

Respondent David S.

       Andrea R. St. Julian, under appointment by the Court of Appeal, for Minor

Donovan L., Jr.

       Shannon L., the biological mother of minor Donovan L., Jr. (DJ), and her husband

Donovan L., Sr. (Donovan) appeal from the juvenile court's June 2015 disposition order.

The juvenile court ruled that although Donovan was DJ's conclusively presumed father

under Family Code1 section 7540, David S. was DJ's presumed father under

section 7611, subdivision (d), and DJ had three parents under recently enacted

section 7612, subdivision (c). Section 7612, subdivision (c) provides that in an

appropriate action, "if the court finds that recognizing only two parents would be

detrimental to the child," a court may find a child has more than two parents. We

conclude the juvenile court erred in applying section 7612, subdivision (c) in this case,

given its determination that David and DJ lacked an existing parent-child relationship.

Accordingly, we reverse the disposition order insofar as it determines David is DJ's

presumed father under Family Code section 7612, subdivision (c) and orders services and

visitation for David.


1      All further statutory references are to the Family Code, unless otherwise indicated.

                                             2
                                            I.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In March 2015, the San Diego County Health and Human Services Agency

(Agency) filed a juvenile dependency petition under Welfare and Institutions Code,

section 300, subdivision (b), alleging risk of harm to DJ due to Shannon's substance

abuse. The 2015 case is the third dependency proceeding involving four-year-old DJ; as

described below, the Agency previously filed petitions in 2012 and 2014.

       Shannon was married to Donovan at the time of DJ's conception in 2010 and birth

in 2011. In 2010, Shannon had an affair with David and informed him she was pregnant.

David did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw

Shannon and one-year-old DJ at a shopping center parking lot in July 2012. Seeing a

resemblance, David took a paternity test on his own initiative and determined he was DJ's

biological father. He told friends and family he was DJ's father and asked Shannon for

visits with DJ. She facilitated a few visits between DJ and David, unbeknownst to

Donovan.

       Shannon and DJ stayed at David's apartment for two weeks in August 2012, when

she and Donovan were having marital problems. During that time, Shannon called the

police because David locked her out after they fought over child custody. When officers

arrived, they found David and DJ " 'passed out' " on the bed with approximately 50

marijuana plants growing in the apartment. Following this incident, the Agency filed the

2012 dependency petition under Welfare and Institutions Code, section 300,

subdivision (b).

                                            3
       At the detention hearing in the 2012 case, the juvenile court found Donovan to be

DJ's conclusively presumed father under section 7540 and authorized the Agency to

release DJ to Donovan.2 David initially sought presumed father status, but he later

withdrew that request and asked to be named DJ's biological father. In October 2012, the

court conferred biological father status to David, "[b]ased on the agreement of all parties

and the LabCorp paternity test results." In November 2012, the court terminated

jurisdiction in the 2012 case, after the parties voluntarily agreed to facilitate visitation

between David and DJ.

       In 2014, Shannon tested positive for methadone when giving birth to her second

child. Shannon and Donovan agreed to a voluntary case and services to address

Shannon's addiction issues.

       The Agency became involved with DJ for a third time in March 2015, after

Shannon tested positive for hydromorphone when giving birth to her third child. The

2015 dependency petition underlies the present appeal. At the detention hearing on

March 24, 2015, the juvenile court noted Donovan was DJ's conclusively presumed

father under section 7540 and allowed DJ to live with him, provided that Shannon move

out of their home.




2      Section 7540 provides: "Except as provided in Section 7541, the child of a wife
cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to
be a child of the marriage." Section 7541 provides an exception to the conclusive
presumption based on blood tests performed before the child's second birthday. (§ 7541,
subd. (b); Craig L. v. Sandy S. (2004) 125 Cal.App.4th 36, 46.)

                                               4
       In April 2015, David appeared at the disposition hearing and requested presumed

father status under section 7611, subdivision (d).3 The court noted that Donovan had

already been named a conclusively presumed father and continued the disposition hearing

to May 2015. At the continued hearing, the court made a true finding on the Agency's

petition and ordered supervised visitation for David. The court deferred the paternity

issue, explaining:

       "First of all, there's a question of fact whether or not [David] is presumed.
       That's going to require an evidentiary hearing. Secondly, if he is found to
       be a presumed father, he is not entitled to a weighing process because a
       [section ]7540 father [Donovan] is a conclusively presumed father.
       Thirdly, there's a question of fact whether or not the court, under
       [section 7612, subdivision (c),4] the new statute, should recognize him as a
       father and give [DJ] two fathers."

       At the contested disposition hearing on June 12, 2015, the court heard testimony

from the social worker, David, David's mother, Shannon, Donovan, and Donovan's

father. DJ's position, expressed during closing arguments, was that David did not qualify

as a third parent under section 7612, subdivision (c). The court took judicial notice of

3      Pursuant to section 7611, subdivision (d), a person is a presumed parent if he or
she "receives the child into his or her home and openly holds out the child as his or her
natural child."

4      Section 7612, subdivision (c) provides: "In an appropriate action, a court may find
that more than two persons with a claim to parentage under this division are parents if the
court finds that recognizing only two parents would be detrimental to the child. In
determining detriment to the child, the court shall consider all relevant factors, including,
but not limited to, the harm of removing the child from a stable placement with a parent
who has fulfilled the child's physical needs and the child's psychological needs for care
and affection, and who has assumed that role for a substantial period of time. A finding
of detriment to the child does not require a finding of unfitness of any of the parents or
persons with a claim to parentage."

                                             5
orders from the 2012 dependency case and received into evidence the Agency's reports

and the parties' paternity questionnaires. On the basis of this evidence, the court declared

David to be DJ's presumed father under section 7611, subdivision (d), and applying

section 7612, subdivision (c), held DJ would suffer detriment were the court to rule he

had only two parents.

       In pronouncing its ruling, the court expressed "no doubt" that Donovan had been

"a great father" and a "superlative dad," stating it could make that finding "beyond a

reasonable doubt, conclusively." The court believed Shannon sought out David in 2012

because she wanted options while facing marital problems with Donovan. The court did

not rule David was a Kelsey S.5 father, but suggested that to the extent Shannon initially

sought out David and later changed her mind, the case supported a Kelsey S. argument to

some degree. The court believed Donovan and Shannon would likely prevent DJ from

learning David was his biological father and that Donovan sought to move the family to

Arizona to "get as far away as possible" from David.

       The court credited David's testimony that although he did not get involved with DJ

initially, he decided to seek visitation and parental status after seeing DJ in 2012.

Although David withdrew his request for presumed father status in the 2012 case, the



5      In Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849 (Kelsey S.), the Supreme Court
recognized a "child's well-being is presumptively best served by continuation of the
[biological] father's parental relationship" where "an unwed [biological] father promptly
comes forward and demonstrates a full commitment to his parental responsibilities —
emotional, financial, and otherwise —" but is precluded from establishing a meaningful
relationship with the child as a result of actions unilaterally taken by a third party.

                                              6
court concluded he did so because of an agreement between the parties that "made the

whole case go away." The court relied on the social worker's testimony and photographs

to conclude that DJ had "nice visits" with David and "seem[ed] pretty happy at these

various events." The court rejected "very similar and consistent" testimony from

Shannon, Donovan, and Donovan's father that DJ referred to David as a "mean man" and

exhibited behavioral problems after supervised visits began in May 2015, instead

attributing those behavioral problems to Shannon's departure from the home.

       Finding David to be a presumed parent under section 7611, the court turned to

section 7612, subdivision (c) and determined DJ would suffer detriment if the court found

he had only two parents. In reaching this decision, the juvenile court relied heavily on

David's biological ties to DJ:

       "With regard to [section ]7612[, subdivision ](c), I would find that it would
       be detrimental for this child to only have two parents.

       "Now, I want to be clear. [The statute] says 'in determining detriment to
       the child, the court shall consider all rel[evant] factors.' And that's what I'm
       considering. In particular, I am considering the fact that this child has a
       cultural heritage; that this child has DNA running through his veins; that
       this child has another family that was introduced to him at a younger [stage
       of his] life who seemed to want to be involved with him; that this child will,
       in fact, have to do those family trees; that this child will, if he finds out at
       age 21 that he had a different bio father that was hidden from him, will
       have an effect on him. It will affect him — because I've been doing this a
       long time and I've seen those type of effects. It's just one of those things.
       It's not fair to lie to these kids about this type of situation, it just isn't.

       "Under certain circumstances they may not [find] out. But under this
       circumstance, lying is not going to do any good. And I don't believe for a
       second that either [Donovan or Shannon] have any real intention of
       introducing [David], this father, in the near future. Because I don't know
       when the good time would be . . . . They want their own family together.
       If this marriage falls apart, and [Donovan] for some reason gets custody,

                                              7
       he's not going to warm up to [David], considering [David] slept with his
       wife. Those are all the types of problems that can arise in this very
       complex situation, which is all fueled by drugs. So I will make that
       detriment finding, because I think that the evidence supports it.

       "Now, I understand that it says that I have to consider the harm of removing
       the child from a stable placement with a parent who has fulfilled the child's
       physical needs. [Donovan] defines that exactly. I'm not removing the child
       from [Donovan]. I don't know if it will ever happen. But the fact of the
       matter is, I envision more visitation happening, that [DJ] learns about this
       'mean man,' [David], and that he warms up to him and that he will learn to
       have two fathers like a lot of kids learn. Like kids learn that they have two
       moms. There is a book out there, Heather Has Two Mommies. This is
       2015. This is the 21st century. I didn't create all this stuff, but it's out there.
       And I have an obligation to view these statutes and apply the facts to the
       statutes."

       Significantly, in finding detriment under section 7612, subdivision (c), the court

found no existing bond between David and DJ, stating: "I'm going to note that [David]

does not have a strong relationship with this child." (Italics added.) The court granted

visitation to David, finding he had "done everything [he was] supposed to do," but

ordered DJ's initial visits with David to be supervised while DJ and David developed a

relationship: "At least maybe the first two, you want to see how the exchange goes. . . .

I'm not concerned that he's a danger to the child but because he has to develop a

relationship, and there is some testimony about the child's reactions, I wanted to just

cover that." (Italics added.) The court granted the Agency discretion to allow

unsupervised and overnight visits with 48 hours' notice to counsel, "as the child warms up

and feels comfortable."

       Turning to the dispositional findings, the court found there was clear and

convincing evidence of a substantial risk to DJ's "physical health, safety, protection or


                                               8
physical or emotional well being" if he were returned to Shannon's custody. The court

placed DJ with Donovan and ordered services and visitation for Donovan, Shannon, and

David. Shannon and Donovan each filed a timely notice of appeal.

                                            II.

                                      DISCUSSION

       Shannon and Donovan raise four main arguments on appeal. They contend:

(1) David is estopped from claiming presumed father status in this action because he

withdrew his request for presumed father status in the 2012 action; (2) the juvenile court

erred in declaring David a presumed father under section 7611, subdivision (d); (3) the

juvenile court erred in finding detriment under section 7612, subdivision (c) and

concluding DJ had three parents; and (4) the juvenile court erred in granting services to

David. DJ joins in Shannon's and Donovan's briefs and argues section 7612,

subdivision (c) did not apply because he lacked an emotional bond with David.

       As we will explain, David is not barred under equitable principles from seeking

presumed father status. However, this is not "an appropriate action" to recognize three

parents under section 7612, subdivision (c). Because the juvenile court determined DJ

did not have an existing relationship with David, there is no substantial evidence to

support a finding that "recognizing only two parents would be detrimental to the child"

within the meaning of section 7612, subdivision (c).

A.     Estoppel

       Shannon and Donovan argue David is barred under principles of collateral

estoppel and equitable estoppel from seeking presumed father status because in the 2012

                                             9
dependency proceeding, David failed to rebut Donovan's section 7540 marital

presumption, withdrew his request for presumed father status, and agreed to biological

father status. As we will explain, neither collateral estoppel nor equitable estoppel

applies.

       Collateral estoppel, or issue preclusion, "prohibits the relitigation of issues argued

and decided in a previous case, even if the second suit raises different causes of action.

[Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue

actually litigated and determined in the first action." (DKN Holdings LLC v. Faerber

(2015) 61 Cal.4th 813, 824 (DKN Holdings).) "[I]ssue preclusion applies: (1) after final

adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the

first suit and (4) asserted against one who was a party in the first suit or one in privity

with that party." (Id. at p. 825.) Collateral estoppel is "grounded on the premise that

'once an issue has been resolved in a prior proceeding, there is no further factfinding

function to be performed.' " (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 864,

citing Parklane Hosiery Co. v. Shore (1979) 439 U.S. 322, 336, fn. 23.) "[T]he public

policies underlying collateral estoppel — preservation of the integrity of the judicial

system, promotion of judicial economy, and protection of litigants from harassment by

vexatious litigation — strongly influence whether its application in a particular

circumstance would be fair to the parties and constitute sound judicial policy." (Lucido v.

Superior Court (1990) 51 Cal.3d 335, 343 (Lucido).)

       We reject the Agency's argument that collateral estoppel does not apply in the

juvenile dependency context because "cases are, by their nature, fluid" and rulings can be

                                              10
modified under Welfare and Institutions Code section 388. (See In re Joshua J. (1995)

39 Cal.App.4th 984, 993-994 [collateral estoppel barred relitigation of an issue decided in

an earlier dependency proceeding]; 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment,

§ 429, p. 1080 [listing dependency proceedings among "[o]ther proceedings applying the

doctrine of collateral estoppel"].)6

       Nevertheless, Shannon and Donovan have not met their burden to establish that

David's presumed parentage was "actually litigated and necessarily decided" in the 2012

action, as required for collateral estoppel. (DKN Holdings, supra, 61 Cal.4th at p. 825;

Lucido, supra, 51 Cal.3d at p. 341.) In the 2012 action, the parties did not actually

litigate whether David was a presumed father because David withdrew his request and

reached an agreement with Shannon and Donovan to seek biological father status. "If the

parties expressly exclude a particular issue from consideration, . . . no collateral estoppel

results." (7 Witkin, Cal. Procedure, supra, Judgment, § 430, p. 1081; see Hurst v. Hurst

(1964) 227 Cal.App.2d 859, 865 [prior action that resulted in settlement without a




6      The Agency cites Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, but that
case and others like it merely hold that collateral estoppel does not bar relitigation of
sexual molestation in dependency proceedings where there is new evidence to support a
petition for modification under Welfare and Institutions Code section 388. (Sheila S., at
p. 879; Blanca P. v. Superior Court (1996) 45 Cal.App.4th 1738, 1757-1758 [new
evidence supported accused parents' denial of molestation]; In re Jessica C. (2001) 93
Cal.App.4th 1027, 1039 [collateral estoppel should be narrowly applied in dependency
cases involving sexual abuse because child molestation victims may not initially make
complete disclosures].)

                                             11
determination of paternity had no preclusive effect on the paternity issue in a later

divorce proceeding].)7

       Shannon and Donovan's equitable estoppel argument fares no better. " '[T]he

doctrine of equitable estoppel is a rule of fundamental fairness whereby a party is

precluded from benefiting from his inconsistent conduct which has induced reliance to

the detriment of another [citations]. Under well settled California law four elements must

be present in order to apply the doctrine of equitable estoppel: (1) the party to be

estopped must be apprised of the facts; (2) he must intend that his conduct shall be acted

upon or must so act that the party asserting the estoppel had a right to believe it was so

intended; (3) the other party must be ignorant of the true state of facts; and (4) he must

rely upon the conduct to his injury. . . .' " (In re Marriage of Turkanis & Price (2013)

213 Cal.App.4th 332, 352.)

       Here, all parties knew David was DJ's biological father. There were no facts

David knew that Shannon and Donovan did not know. This alone precludes application

of equitable estoppel. (In re A.O. (2004) 120 Cal.App.4th 1054, 1059 [estoppel did not

apply because the party seeking its application "was not ignorant of the facts"].)

Furthermore, equitable estoppel does not apply because there are no facts suggesting

Shannon or Donovan detrimentally relied on David's decision to "settle" for biological


7       Similarly, res judicata, or claim preclusion, does not apply because the 2012
dependency action ended in a voluntary agreement, not "a final judgment on the merits."
(DKN Holdings, supra, 61 Cal.4th at p. 824; see 7 Witkin, Cal. Procedure, supra,
Judgment, § 370, p. 995 [judgment is "on the merits" only "if the substance of the claim
is tried and determined"].)

                                             12
fatherhood in the 2012 action. (Steinhart v. County of Los Angeles (2010) 47 Cal.4th

1298, 1317 [ignorance of the facts and detrimental reliance are "two of the essential

elements of equitable estoppel"]; In re Lisa R. (1975) 13 Cal.3d 636, 645 [no estoppel

where party "suffered no injury or detriment"].)

B.     Section 7611, Subdivision (d)

       Shannon and Donovan argue the juvenile court erred in finding David to be DJ's

presumed father under section 7611, subdivision (d). Under section 7611,

subdivision (d), a person is presumed a parent if he or she "receives the child into his or

her home and openly holds out the child as his or her natural child." The court heard

testimony that DJ lived with David for two weeks in August 2012 and that, beginning in

2012, David told friends and family that DJ was his son.8 We will assume, without

deciding, that there is substantial evidence to support the juvenile court's ruling that

David qualifies as a presumed parent under section 7611, subdivision (d).9




8      The court also heard testimony that DJ had weekly visits with David from August
to November 2012 and periodic visits thereafter; spent two Easters and one Christmas
Eve with David and his family; received Christmas and birthday gifts from David;
received diapers, toys, and clothing from David; and had a birthday party scheduled with
David's family (that did not ultimately occur).

9       Shannon and Donovan attempt to reargue evidence considered and rejected by the
juvenile court, such as evidence that DJ called David a "mean man" and experienced
behavioral changes after beginning to visit him. However, on review for substantial
evidence, " ' "[w]e do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the trial court." ' "
(In re I.J. (2013) 56 Cal.4th 766, 773.)

                                              13
C.     Parentage Presumptions

       Donovan argues that, as a conclusively presumed father under section 7540, his

parentage claim defeats any claim to parentage that David may assert under section 7611,

subdivision (d). Because DJ is more than two years old, Donovan's conclusive marital

presumption may no longer be rebutted. (§ 7541, subd. (b); Miller v. Miller (1998) 64

Cal.App.4th 111, 119; Craig L. v. Sandy S., supra, 125 Cal.App.4th at p. 46.) The

Agency does not dispute that Donovan is DJ's conclusively presumed father, but it

contends parentage law changed in 2014 so as to allow David to assert a parallel

parentage claim under section 7612.10

       As a general rule, " 'there can be only one presumed father.' " (In re Jesusa V.

(2004) 32 Cal.4th 588, 603.) Unless section 7612, subdivision (c) applies, which we

address below, Donovan's conclusive marital presumption under section 7540 defeats any

parentage claim in David. (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 239-240;

Michelle W. v. Ronald W. (1985) 39 Cal.3d 354, 362.)

D.     Section 7612, Subdivision (c)

       Central to this appeal is the application of section 7612, subdivision (c). In 2013,

the Legislature enacted section 7612, subdivision (c) to allow courts to recognize that a

child has more than two parents in certain limited contexts:

       "In an appropriate action, a court may find that more than two persons with
       a claim to parentage under this division are parents if the court finds that


10    David and Shannon do not address the effect of Donovan's conclusive
presumption but join in the Agency's and Donovan's arguments, respectively.

                                            14
       recognizing only two parents would be detrimental to the child. In
       determining detriment to the child, the court shall consider all relevant
       factors, including, but not limited to, the harm of removing the child from a
       stable placement with a parent who has fulfilled the child's physical needs
       and the child's psychological needs for care and affection, and who has
       assumed that role for a substantial period of time. A finding of detriment to
       the child does not require a finding of unfitness of any of the parents or
       persons with a claim to parentage."

(Stats. 2013, ch. 564, § 6.5, italics added.) The statute went into effect on January 1,

2014. The parties agree that section 7612, subdivision (c) allows a court to recognize

three parents only in "rare cases" where a child truly has more than two parents, but they

disagree as to whether this is such a case.

       The juvenile court determined DJ would face detriment under section 7612,

subdivision (c) if the court were to find he had only two parents and therefore ruled

David was to be DJ's third parent under the statute. Shannon and Donovan contest this

ruling. Specifically, Shannon and Donovan challenge the court's finding of detriment

under the statute, arguing there is no evidence DJ was missing anything from his life that

David could provide. DJ joins in their arguments, contending there is no evidence he

ever formed any real emotional attachment with David to support a finding of detriment

under section 7612, subdivision (c). In response, the Agency suggests David and DJ

shared a close bond between July 2012 and December 2014, such that "DJ would suffer

great harm if his relationship with David ended." The Agency nevertheless concedes

"David is not the poster boy for application of the statute."

       As we explain, this is not "an appropriate action" for application of section 7612,

subdivision (c). Because the juvenile court determined David and DJ lacked an existing


                                              15
parent-child relationship, there is no substantial evidence to support a finding that

"recognizing only two parents would be detrimental to the child" within the meaning of

the statute. (§ 7612, subd. (c).)

       1.     Legal Principles

       The parties disagree as to the applicable standard of review for the juvenile court's

application of section 7612, subdivision (c) to this case. Shannon, Donovan, and DJ

argue a juvenile court's ruling under the statute must be reviewed for substantial

evidence. By contrast, the Agency and David argue abuse of discretion is the

appropriate standard, based on the statute's language that a court "may find" more than

two parents. (§ 7612, subd. (c).)

       We will interpret the statute de novo, as we must. (In re J.P. (2014) 229

Cal.App.4th 108, 122; In re Alanna A. (2005) 135 Cal.App.4th 555, 563.) Then, in

applying the statute to this case, we will determine whether the juvenile court's findings

under section 7612, subdivision (c) are supported by substantial evidence. This analysis

is the same under either the substantial evidence or abuse of discretion standard of

review. (See In re C.B. (2010) 190 Cal.App.4th 102, 123 [on abuse of discretion review,

"the substantial evidence test applies to pure findings of fact"].) Because we will

conclude substantial evidence is lacking to support a finding of detriment within the

meaning of section 7612, subdivision (c), we need not decide the standard of review for

all rulings in which the juvenile court finds that a child has more than two parents under

section 7612, subdivision (c).



                                             16
       As with any statute, " '[w]e begin with the fundamental rule that our primary task

is to determine the lawmakers' intent.' " (In re B.A. (2006) 141 Cal.App.4th 1411, 1418.)

"Where the language of the statute is clear and unambiguous, we follow the plain

meaning of the statute and need not examine other indicia of legislative intent."

(In re J.P., supra, 229 Cal.App.4th at p. 123.) Section 7612, subdivision (c) is

ambiguous as to what constitutes "an appropriate action" so as to allow a court to find a

child has more than two parents. Therefore, on our own motion, we take judicial notice

of the legislative history of Senate Bill No. 274 (2013-2014 Reg. Sess.) to resolve the

ambiguity. (Evid. Code, §§ 452, 459; In re J.W. (2002) 29 Cal.4th 200, 210.)11

       2.     Legislative History

       Section 7612, subdivision (c) directs that a court "may find that more than two

persons with a claim to parentage under this division are parents if the court finds that

recognizing only two parents would be detrimental to the child." In determining

detriment in this context, courts must "consider all relevant factors, including, but not


11     We may take judicial notice of different versions of the same bill; the Legislative
Counsel's Digest; reports by the Senate and Assembly Judiciary Committees; reports by
the Senate and Assembly Appropriations Committees; and reports by the Office of Senate
Floor Analyses. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc.
(2005) 133 Cal.App.4th 26, 31-37 [collecting cases]; see Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 279, fn. 9.) As a general rule, "legislative history
must shed light on the collegial view of the Legislature as a whole." (Kaufman, at p. 30.)
Some of the reports we consider include statements by the author of Senate Bill No. 274.
Because these "statements appear to be part of the debate on the legislation and were
communicated to other legislators, we can regard them as evidence of legislative intent."
(Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 928 (Carter); cf.
Kaufman, at pp. 37, 39 [statements by bill's author that were not communicated to the
Legislature as a whole are not deemed legislative history].)

                                             17
limited to, the harm of removing the child from a stable placement with a parent who has

fulfilled the child's physical needs and the child's psychological needs for care and

affection, and who has assumed that role for a substantial period of time." (§ 7612,

subd. (c).)12

       The Legislature borrowed the "detriment to the child" standard from section 3041,

which governs custody awards to a nonparent over the objection of a parent.13 (Sen.

Com. on Judiciary, Rep. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended Apr. 1,

2013, p. 6.) Detriment under section 3041 considers "the prospect that a successful,

established custodial arrangement would be disrupted" (Guardianship of Ann S. (2009)

45 Cal.4th 1110, 1123, italics added) or the harm in "removing a child from what has

been a stable, continuous, and successful placement is detrimental to the child"

(Guardianship of L.V. (2006) 136 Cal.App.4th 481, 491, italics added). Although courts

have concluded detriment under section 3041 may include the loss of an existing

relationship with a nonparent (Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146,

12      An earlier version of the bill, which the Governor vetoed, was based on the "best
interest of the child" standard. (Sen. Bill No. 1476 (2011-2012 Reg. Sess.) § 5 ["In an
appropriate action, a court may find that a child has more than two natural or adoptive
parents if required to serve the best interest of the child."]; Governor's veto message to
Sen. on Sen. Bill No. 1476 (Sept. 30, 2012) (2011-2012 Reg. Sess.).) Redrafting the
legislation in 2013, the Legislature incorporated the "detriment to the child" standard.

13      Section 3041, subdivision (c) provides that " 'detriment to the child' includes the
harm of removal from a stable placement of a child with a person who has assumed, on a
day-to-day basis, the role of his or her parent, fulfilling both the child's physical needs
and the child's psychological needs for care and affection, and who has assumed that role
for a substantial period of time. A finding of detriment does not require any finding of
unfitness of the parents."

                                             18
1159), the parties have not pointed us to, nor have we found, any case applying

section 3041 to protect a parental relationship that has not yet developed.

       Indeed, legislative reports indicate that section 7612, subdivision (c) seeks to

"protect[] children from harm by preserving the bonds between children and their

parents" and avoid the "disastrous emotional, psychological, and financial consequences

for a child, who may be separated from one or both of the parents he or she has always

known." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill

No. 274 (2013-2014 Reg. Sess.) May 21, 2014, p. 7, italics added; Assembly Com. on

Judiciary, com. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as amended May 14, 2013,

pp. 4-5, italics added.) These authorities suggest that "an appropriate action" for

application of section 7612, subdivision (c) is one in which a court finds an existing,

rather than potential, relationship between a child and a putative third parent, such that

"recognizing only two parents would be detrimental to the child." (§ 7612, subd. (c).)14

       We find considerable support for our statutory interpretation in an uncodified

section of the legislation.15 Section 1 to Senate Bill No. 274 states in relevant part:



14     The legislative history does not disclose consideration of the situation presented
here, where a biological father may satisfy section 7611 but does not have an existing
parent-child relationship. (Assembly Com. on Judiciary, com. on Sen. Bill No. 274
(2013-2014 Reg. Sess.) as amended May 14, 2013, p. 10.)

15      Statements in an uncodified section of the same bill " 'may properly be utilized as
an aid in construing a statute.' " (Carter, supra, 38 Cal.4th at p. 925; id. at p. 930
[determining legislative intent by reference to uncodified section]; see Yeager v. Blue
Cross of California (2009) 175 Cal.App.4th 1098, 1103 ["statements of purpose in a
statute's preamble can be illuminating if a statute is ambiguous"].)

                                             19
       "(a) Most children have two parents, but in rare cases, children have more
       than two people who are that child's parent in every way. Separating a
       child from a parent has a devastating psychological and emotional impact
       on the child, and courts must have the power to protect children from this
       harm.

       "(b) The purpose of this bill is to abrogate In re M.C. (2011) 195
       Cal.App.4th 197 insofar as it held that where there are more than two
       people who have a claim to parentage under the Uniform Parentage Act,
       courts are prohibited from recognizing more than two of these people as the
       parents of a child, regardless of the circumstances.

       "(c) This bill does not change any of the requirements for establishing a
       claim to parentage under the Uniform Parentage Act. It only clarifies that
       where more than two people have claims to parentage, the court may, if it
       would otherwise be detrimental to the child, recognize that the child has
       more than two parents.

       "(d) It is the intent of the Legislature that this bill will only apply in the rare
       case where a child truly has more than two parents, and a finding that a
       child has more than two parents is necessary to protect the child from the
       detriment of being separated from one of his or her parents."

(Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1, italics added.) Senate Bill No. 274,

section 1, indicates that the Legislature intended amendments to section 7612 to be

narrow in scope and to apply only in "rare cases" in which a child "truly has more than

two parents" who are parents "in every way." (Sen. Bill No. 274 (2013-2014 Reg. Sess.)

§ 1.) In those rare cases, the Legislature sought to protect the child from the "devastating

psychological and emotional impact" that would result from "[s]eparating [the] child

from a parent." (Ibid.) Accordingly, "an appropriate action" for application of

section 7612, subdivision (c) is one in which there is an existing parent-child relationship

between the child and the putative third parent, such that "recognizing only two parents

would be detrimental to the child." (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.)


                                               20
       3.      Harmonizing Section 7612 Within the Uniform Parentage Act

       As our Supreme Court has explained, " 'every statute should be construed with

reference to the whole system of law of which it is a part so that all may be harmonized

and have effect.' " (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th

1106, 1118-1119; see People v. Verduzco (2012) 210 Cal.App.4th 1406, 1414 [courts

must "consider the consequences that will flow from a particular statutory

interpretation"].) Our interpretation of what constitutes "an appropriate action" under

section 7612, subdivision (c) harmonizes the statute within the broader statutory

framework under the Uniform Parentage Act (UPA).

       In making parentage determinations under the UPA, courts seek to protect existing

relationships rather than foster potential relationships. (See Rodney F. v. Karen M.,

supra, 61 Cal.App.4th at p. 239 ["There is an obvious distinction between a biological

father who has actually established a parent and child relationship, and a man who has

not established such a relationship but would like to do so."]; In re D.M. (2012) 210

Cal.App.4th 541, 555 [juvenile court erred in focusing on the "possibility that [the

mother's boyfriend] would develop a parental relationship with the child, not that the

relationship already existed"]; In re A.A. (2003) 114 Cal.App.4th 771, 788 ["[T]he state's

interest in these matters includes preserving developed parent-child relationships whether

or not the father figure has biological ties to the child."].)

       Over the past three decades, courts increasingly have looked to the nature of the

parent-child relationship to resolve paternity disputes. (Brian C. v. Ginger K. (2000) 77

Cal.App.4th 1198, 1210-1216 [collecting cases].) "The courts have repeatedly held, in

                                               21
applying paternity presumptions, that the extant father-child relationship is to be

preserved at the cost of biological ties." (In re Nicholas H. (2002) 28 Cal.4th 56, 65.)

The " ' "social relationship" ' " between a putative father and child " ' "is much more

important, to the child at least, than a biological relationship of actual paternity." ' " (In

re Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1445.) Thus, although our

Supreme Court has rejected the notion that an unwed biological father has a protected

liberty interest in establishing a relationship with his child, the court has recognized a

biological father's liberty interest "in maintaining and preserving an existing parent-child

relationship." (Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 942, italics added; see

Lisa I. v. Superior Court (2005) 133 Cal.App.4th 605, 616 [a biological father does not

have a liberty interest "in the opportunity to develop a relationship with" the child].)16

Biological paternity may be afforded greater weight when the child is an infant; however,

as the child gets older, courts seek to preserve the stronger social bond over biological

ties. (In re Kiana A. (2001) 93 Cal.App.4th 1109, 1120.)

       Together, these authorities support our statutory interpretation as applied here to

four-year-old DJ: "an appropriate action" for application of section 7612, subdivision (c)

requires a court to find an existing, rather than potential, relationship between a putative



16     An exception to this general principle can be found in Kelsey S., supra, 1 Cal.4th
at pages 848-849, which recognized a liberty interest where a biological father is
precluded from establishing a relationship with his child. Here, however, the juvenile
court did not make a ruling under Kelsey S., and the issue of whether David might qualify
as a Kelsey S. father is not before us on appeal. The policy motivations underlying
Kelsey S. therefore do not apply.

                                              22
third parent and the child, such that "recognizing only two parents would be detrimental

to the child." (§ 7612, subd. (c).) This interpretation harmonizes section 7612,

subdivision (c) within the broader statutory framework under the UPA.17

       4.      Application

       The juvenile court found that David "does not have a strong relationship" with DJ

and ordered visits to be supervised "because [David] has to develop a relationship."

Despite these findings, the court applied section 7612, subdivision (c), relying on David's

biological ties to DJ and the potential harm to DJ from possibly not finding out about his

roots until later in his life. This was error.

       There is no indication the Legislature intended section 7612, subdivision (c) to

apply to a person like David, who, at the time of the contested disposition hearing on

parentage, lacked an existing relationship with the child. A person who lacks an existing

parent-child relationship is not a child's "parent in every way." (Sen. Bill No. 274 (2013-

2014 Reg. Sess.) § 1, subd. (a).) Nor would separation from such a person cause




17      In his reply brief, Donovan references Welfare and Institutions Code, section
366.26, subdivision (c)(1)(B)(i), arguing David was merely a " 'friendly visitor' " to DJ
rather than a parental figure. Although the termination of parental rights is not at issue
here, mere friendly visits between a biological father and child would not support a
finding that termination would be "detrimental to the child" under that statute. (In re S.B.
(2008) 164 Cal.App.4th 289, 296-297; In re Angel B. (2002) 97 Cal.App.4th 454, 468.)
Here, too, DJ's "nice visits" and happy photographs with David are not substantial
evidence to support a finding "that recognizing only two parents would be detrimental to
the child." (§ 7612, subd. (c).)

                                                 23
"devastating psychological and emotional impact on the child." (Ibid.)18 The court's

speculation as to potential harm from DJ discovering his biological father later in life is

not substantial evidence supporting a finding of detriment within the meaning of

section 7612, subdivision (c). (See In re Steve W. (1990) 217 Cal.App.3d 10, 22

[juvenile court's conclusion "supported by little more than speculation" not based on

substantial evidence].)

       Application of section 7612, subdivision (c) to the facts presented here would

open the floodgates to virtually all biological fathers who may qualify as a presumed

parent under section 7611 and seek to form a relationship with the child. Such an

interpretation would apply far beyond the "rare case" envisioned by the Legislature.

(Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) Indeed, application of the statute here

would call into question the continued viability of section 7612, subdivision (b). If the

possible loss of a potential relationship were sufficient to find detriment and recognize

three parents under section 7612, subdivision (c), we question when, if ever, a court

would weigh competing parentage presumptions under section 7612, subdivision (b).




18      David compares the facts of this case with those in In re M.C., supra, 195
Cal.App.4th 197, to argue that because section 7612, subdivision (c) abrogates that
ruling, the juvenile court properly found DJ had three legal parents under the statute.
However, the Legislature sought to abrogate M.C. only "insofar as it held that . . . courts
are prohibited from recognizing more than two . . . people as the parents of a child,
regardless of the circumstances." (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) In
other words, the Legislature sought to abrogate M.C.'s per se bar to recognizing a child
has more than two parents; it did not specify whether, on the facts of M.C., a court should
now find the child has three parents.
                                             24
Such a result would be untenable, given the express legislative intent to leave

subdivision (b)'s weighing test intact:

       "[E]xisting law anticipates the situation where two or more presumptions of
       paternity conflict under the Family Code, and provides the following
       guidance: the presumption which on the facts is founded on the weightier
       considerations of policy and logic controls. Courts therefore, under current
       law, apply a critical analysis to situations where more than two
       presumptions exist. This bill does not limit that analysis. . . ."

(Assembly Com. on Judiciary, com. on Sen. Bill No. 274 (2013-2014 Reg. Sess.) as

amended May 14, 2013, p. 7, italics added; see id. at p. 5 [explaining the legislation gives

courts "flexibility": where there are more than two presumed parents, a "court can, but is

not required to, recognize more than two people as parents of the child if it would

otherwise be detrimental to the child" (italics added)].)

       For these reasons, we conclude "an appropriate action" for application of

section 7612, subdivision (c) is one in which there is an existing parent-child relationship

between the child and the putative third parent, such that "recognizing only two parents

would be detrimental to the child." (§ 7612, subd. (c).) Because the juvenile court

determined David did not have an existing parent-child relationship with DJ, there is no

substantial evidence to support a finding of detriment under the statute. This is not the

"rare case" in which section 7612, subdivision (c) allows a court to find that a child has

more than two parents. (Sen. Bill No. 274 (2013-2014 Reg. Sess.) § 1.) Consequently,

section 7612, subdivision (c) does not apply, and Donovan's conclusive marital

presumption under section 7540 defeats David's parentage claim under section 7611,




                                             25
subdivision (d). (Michelle W. v. Ronald W., supra, 39 Cal.3d at p. 362; Rodney F. v.

Karen M., supra, 61 Cal.App.4th at p. 240.)

E.     Services

       The juvenile court granted David supervised visitation with DJ and "enhancement

services." On appeal, the parties agree there is no statutory basis for "enhancement

services" in the Welfare and Institutions Code, but disagree as to whether David is

nevertheless entitled to services and visitation. The Agency contends the juvenile court

properly awarded David "maintenance services"; David joins in the Agency's argument.

Donovan and Shannon argue the juvenile court erroneously granted services to a mere

biological father when a conclusively presumed father exists.

       The Agency's argument for "maintenance services" is premised on David being a

member of DJ's "family" as a third parent under section 7612, subdivision (c). The

Welfare and Institutions Code permits maintenance services for "parents or guardians" or

"families." (Welf. & Inst. Code, §§ 362, subd. (c), 364, subd. (b), 16506.) David is none

of these. Providing David with services does not serve the goals of maintaining DJ in

Donovan's home by "eliminating the conditions or factors requiring court supervision."

(Id., § 364, subd. (b); see id., § 16501, subd. (g) ["family maintenance services are

activities designed to provide in-home protective services to prevent or remedy neglect,

abuse, or exploitation, for the purposes of preventing separation of children from their

families" (italics added)]; In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154 ["family

maintenance services . . . ameliorate the conditions that made the child subject to the

court's jurisdiction"].) Because he is not a parent, David is not entitled to services or

                                             26
visitation. (In re Elijah V. (2005) 127 Cal.App.4th 576, 589 [courts may not order

services or visitation for a biological father when a conclusively presumed father exists].)

                                       DISPOSITION

       The juvenile court's June 12, 2015 disposition order is reversed insofar as it

determines David is DJ's presumed father under Family Code section 7612,

subdivision (c) and orders services (including the preparation of a case plan) and

visitation for David. In all other respects, the disposition order is affirmed.



                                                                                  IRION, J.

WE CONCUR:



MCDONALD, Acting P. J.



O'ROURKE, J.




                                              27
