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

*947 Opinion

Vincent M. was surrendered by his mother at the hospital at birth in February 2006, placed with Dan and Tina B. (the B.’s) for adoption, and declared a dependent of the court. Mother refused to identify the father. The case went directly to permanency planning. Jorge C., Vincent’s biological father and a stranger to Vincent, appeared in the proceeding eight months later and filed a petition under Welfare and Institutions Code section 388, 1 asking for presumed father status and family reunification services. The dependency court granted the request, finding that Jorge was a nonstatutory presumed father entitled to reunification services without consideration of Vincent’s best interest. The B.’s appeal this ruling.

Relying on In re Zacharia D. (1993) 6 Cal.4th 435 [ 24 Cal.Rptr.2d 751 , 862 P.2d 751 ] (Zacharia D.), we hold that Jorge is not a presumed father because he does not fall within the definition of presumed father under Family Code section 7611. We further hold that a biological father seeking reunification with a child, who does not come forward in the dependency proceeding until after the reunification period has ended, must establish under section 388…

I respectfully dissent. The Supreme Court in In re Zacharia D. (1993) 6 Cal.4th 435 [ 24 Cal.Rptr.2d 751 , 862 P.2d 751 ] noted that Adoption of Kelsey S. (1992) 1 Cal.4th 816 [ 4 Cal.Rptr.2d 615 , 823 P.2d 1216 ] (Kelsey S.) did not apply to the facts of that case, because Zacharia’s father did not claim that he was prevented from becoming a statutory presumed father on account of the actions of the mother or any third party. The court suggested, however, that the same constitutional considerations at play in Kelsey S. “would arise . . . under facts not presented here, whether file statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a ‘parent’ in, or end the need for, the dependency proceedings.” (Zacharia D., supra, at p. 451 .) Unlike Zacharia D., this is just such a case.

As appellants Dan B.…