Los Angeles County Department of Children and Family Services v. Irene V.

I agree with the majority that Jesus is a presumed father under Adoption of Kelsey S. (1992) 1 Cal.4th 816 [ 4 Cal.Rptr.2d 615 , 823 P.2d 1216 ] (Kelsey S.), and I accordingly concur in part l.c.(ii) of the majority’s Discussion. I dissent from the remainder of the majority’s Discussion, however, because I find it either unnecessary to our decision or incorrect on the merits.

As the majority acknowledges, no party challenges the presumed parent status of either Melissa V. or Irene V. Therefore the issue is not before us. Because we should consequently express no opinion on it, I do not join part l.a. and b.

The majority correctly concludes that Jesus is a presumed father under Kelsey S. As a result, the majority’s further conclusion that Jesus is not a presumed father under Family Code section 7611, subdivision (d), is unnecessary and adds nothing to the opinion, so I do not join part l.c.(i).

Part 2. of the majority’s discussion, in contrast, is necessary, but I disagree with it. At the hearing on February 5, 2010, the trial court could and should have reduced the number of presumed parents from three to two. To do that, the court first could and should have determined whether…

SUMMARY

This dependency action involves the question of whether a child, bom during the marriage of two women but conceived as the result of a premarital relationship between one of the women and a man, may have three presumed parents, one of whom is the child’s biological mother, one of whom is the child’s presumed mother because she and the child’s biological mother were married when the child was bom, and one of whom is the child’s presumed father because he promptly came forward and demonstrated his commitment to his parental responsibilities, to the extent the biological mother and circumstances allowed. The juvenile court found the child has three presumed parents. The biological and presumptive mothers appeal, arguing the juvenile court erred when it found the father to be a presumed father. We conclude *203 substantial evidence supports the parentage findings, but the juvenile court’s work is incomplete. The matter must be remanded for the juvenile court to resolve the conflicting presumptions of parentage.

The presumed father argues the trial court also erred when it refused to place the child in his custody, pursuant to Welfare and Institutions Code section…