Los Angeles County Department of Children & Family Services v. Heriberto C.

Jesusa V. became the subject of this dependency action when her biological father, Heriberto C., was taken into police custody for beating and raping her mother, and her mother, who was pregnant at the time, was hospitalized because of her injuries. At the detention hearing, the juvenile court ordered Jesusa to be placed with Paul B., the mother’s husband and the father of her five other children.

Paul, who was married to the mother at the time Jesusa was bom and who had received the child into his home and had held her out as his own, promptly requested a declaration that he was Jesusa’s presumed father. (Fam. *596 Code, § 7611, subds. (a), (d).) Nine days later, Heriberto also filed a request to be declared the presumed father. The juvenile court ordered the Los Angeles County Sheriff to produce Heriberto, who was incarcerated, for the hearing to identify the presumed father and to adjudicate the dependency petition. (See Pen. Code, § 2625.) In the interim, however, Heriberto had been convicted of the rape and moved from the county jail to North Kern State Prison, rendering the court’s transfer order ineffective. The hearing went forward in Heriberto’s absence but in…

In this case, a county agency petitioned the juvenile court to have a minor child declared a dependent of the court. Two men met the statutory definition of being the child’s presumed father. One of the men, who was in jail at the time, was the child’s undisputed biological father; the other was married to the child’s mother when the child was born. After scheduling a paternity hearing, the court ordered the incarcerated biological father transported to court for the hearing. When that did not occur, the court nevertheless proceeded with the hearing, ruling that the mother’s husband was the child’s legal father and declaring the child a dependent of the court. The majority holds that the biological father had no right to be at the paternity hearing, and that legally he is not the child’s father. I disagree on both points.

*627 I

Jesusa V. was bom in 1999. Her mother, also named Jesusa, was married to Paul B. and had five other children by him, but they had separated before Jesusa’s birth and Heriberto O. was Jesusa’s biological father. An unusual living arrangement evolved after Jesusa’s birth: Jesusa and her mother both lived with Heriberto during the week and with Paul and…