Filed 5/30/18 In re J.R. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re J.R., a Person Coming Under the Juvenile Court Law. H045127
(Santa Clara County
Super. Ct. No. 17JD024486)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES,

Plaintiff and Respondent,

v.

G.R.,

Defendant and Appellant.

In 2017, a petition under Welfare and Institutions Code section 300 was filed alleging that minor (J.R., born 2006) came within the juvenile court’s jurisdiction because her caretaker, G.R. (hereafter Gregory), used a four-foot wooden paddle to hit her on her buttocks and thighs. Gregory, a family friend, is not minor’s biological father, but minor lived with Gregory for several years after her parents became homeless. After the dependency petition was filed and minor was removed from his care, Gregory filed a motion requesting to be designated minor’s third presumed parent under Family Code sections 7611, subdivision (d) and 7612, subdivision (c). Minor and both of her biological parents supported Gregory’s motion. Following a contested hearing, the juvenile court denied Gregory’s motion after finding he failed to hold minor out as his own child. On appeal, Gregory argues substantial evidence does not support the juvenile court’s decision because it considered inappropriate factors when making its determination.
As we explain, we find the juvenile court misinterpreted and narrowly construed section 7611, subdivision (d). Thus, remand is necessary so the court may reconsider Gregory’s request for presumed parent status.
BACKGROUND
1. The Dependency Petition and Initial Reports
On May 11, 2017, a petition was filed under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), and (c) alleging that minor came within the juvenile court’s jurisdiction. According to the petition, Gregory, a family friend that minor had been living with for the past four years, had used a four-foot wooden paddle to hit her after she purchased a toy with her own money. Minor began living with Gregory after her biological parents, father (A.M.) and mother (P.R.), became homeless. Minor, who still saw her biological parents, had previously expressed to them that Gregory physically disciplined her, but her parents did not intervene.
The Department of Family and Children’s Services (Department) prepared an initial hearing report, which contained summaries of interviews conducted by the Department’s social worker with minor, father, and Gregory. The report detailed that Gregory was not biologically related to minor; he was the ex-boyfriend of minor’s maternal aunt. Gregory, however, supported minor financially, and minor shared a bedroom with Gregory’s adult daughter. The incident giving rise to the petition occurred when Gregory struck minor with a wooden paddle after she used $20 of her own money to purchase a fidget spinner, a type of toy. It was not the first time Gregory had used physical discipline on minor.
Minor expressed she was experiencing nightmares after being hit by Gregory. She said Gregory used derogatory terms to describe her, including “stupid” or “idiot.” Gregory called her names when she misbehaved at school or did not do something correctly at home. Gregory had not taken minor to the dentist even though she had told him that she had tooth pain. He had taken her to a doctor only once two years previously, when she suffered from pink eye.
Father told the social worker he knew Gregory sometimes physically disciplined minor. However, he was not aware that Gregory used a wooden paddle to hit her. Father explained he had only been able to provide minimal financial assistance to Gregory for minor’s care on an intermittent basis. In February 2017, father had spoken with Gregory about appointing him as minor’s legal guardian, but they had not yet initiated the court process to establish a guardianship.
The social worker also interviewed Gregory. Gregory stated that he had spoken with father, and father had agreed to assign minor’s educational rights over to him. He confirmed that father had spoken to him about going to court to be appointed minor’s legal guardian. He acknowledged he disciplined minor by hitting her with a wooden paddle and explained he did so partly because minor had been previously disciplined at school for stealing toys and other classmates’ lunch money. Gregory insisted he used physical methods of discipline as a last resort. Gregory said after he hit minor with the paddle that day, she took a bath, ate dinner, and watched television. Gregory said minor’s mother and father had not provided him with financial assistance to care for minor. He denied that he ignored minor’s complaint that she suffered from tooth pain. Following his interview, Gregory voluntary submitted to a drug test, which appeared to test presumptively positive for methamphetamine.
The Department’s report also summarized Gregory’s prior contacts with police. Gregory had previously reported to police that minor’s maternal aunt had abducted her. At that time, Gregory told officers he was minor’s legal guardian and had provided documentation showing he held minor’s educational rights. He also told officers that minor’s parents had given him permission to care for minor.
After considering the Department’s report, the juvenile court found a prima facie showing had been made that minor came within its jurisdiction and ordered her detained. The juvenile court found father to be minor’s presumed father based on a voluntary declaration of paternity.
2. Gregory’s Request for Presumed Father Status
On June 27, 2017, Gregory filed a statement regarding parentage form. On the form, Gregory indicated he believed he was minor’s parent and requested the court enter a judgment of parentage. Gregory asserted that minor lived with him from August 2012 to May 2017, he had told teachers, friends, acquaintances that minor was his child, and he had participated in activities with minor including school, dance, plays, basketball, and choir. He had also given minor instruments, bikes, clothing, and school supplies. She spent all holidays and family birthdays with Gregory.
Also on June 27, 2017, Gregory filed a request to change court order under Welfare and Institutions Code section 388 asking the court to return minor to his care. In his request, Gregory characterized himself as minor’s legal guardian.
On July 13, 2017, the juvenile court denied Gregory’s request under Welfare and Institutions Code section 388. The court further appointed Gregory counsel and determined that a formal motion to determine parentage would be due July 18, 2017.
On July 18, 2017, Gregory’s counsel filed a formal motion to establish parenthood pursuant to sections 7611, subdivision (d) and 7612, subdivision (c). In the motion, Gregory’s counsel requested he be recognized as minor’s third presumed parent and argued that failing to recognize Gregory as a presumed parent would be detrimental to minor as set forth under section 7612, subdivision (c). Father, mother, and minor submitted briefs and memoranda supporting Gregory’s motion.
The Department opposed Gregory’s motion. It argued Gregory did not qualify as a presumed father under section 7611, subdivision (d), because he did not have a parent and child bond with minor. Furthermore, the Department argued against recognizing Gregory as a third presumed parent under section 7612, subdivision (c), because it believed it would not be detrimental to minor if the court recognized only two parents due to Gregory’s physical abuse.
3. The Jurisdiction/Disposition and Addendum Reports
On August 25, 2017, the Department filed a jurisdiction/disposition report. The report recommended the juvenile court sustain the Welfare and Institutions Code section 300 petition and continue disposition. By the time the report was prepared, minor had been placed in a concurrent foster home in Santa Clara County. The report indicated that a prior referral had been made in 2016 alleging Gregory used inappropriate physical discipline with minor. The referral had been made after minor reported the use of discipline to her aunt. This referral had been investigated and found to be inconclusive. At that time, minor had been returned to father’s care, who then returned her to Gregory’s care.
The report also summarized the police investigation into the alleged abuse giving rise to the present dependency petition. During the investigation, officers interviewed Gregory and took photographs of the wooden paddle he used to hit minor. Gregory acknowledged to officers that he had used the wooden paddle three times on minor, and he admitted he commonly employed this type of discipline. Gregory told officers that father had “full custody” of minor, but father approved of minor living with Gregory. Officers also interviewed minor, who described being scared when she was hit with the wooden paddle. Gregory’s adult daughter was at home at the time, but minor did not know if she was aware of the abuse. Minor told officers that it was not the first time Gregory had used the wooden paddle on her, and he had previously used the wooden paddle on a neighbor’s child. Officers described Gregory’s residence as dirty; the carpet was soiled, there were piles of clothing, garbage, and other items on the floor, and the kitchen floor and counter tops were full of garbage and dirt.
According to the report, Gregory had tested positive for amphetamines, methamphetamines, and alcohol following a voluntary drug test conducted on May 10, 2017. Gregory said he did not know how he tested positive for drugs but admitted he drank several beers on a daily basis. Subsequently, on May 23, 2017, Gregory tested positive for marijuana after a voluntary drug test. Gregory explained he had a medical marijuana card for back and shoulder pain and for stress relief.
When interviewed by the social worker, minor referred to Gregory as “Greg.” Initially, minor refused to return to Gregory’s care. Minor had also expressed a desire to be placed with her maternal aunt if her parents were unable to take her back into their custody. However, following a supervised visit with Gregory, minor changed her mind and stated she wanted to be placed with Gregory. Minor said she would like her parents to be assessed for placement, but her first choice would be to return to Gregory’s care.
Also on August 25, 2017, the Department filed an addendum report that was dated June 27, 2017. The addendum report recommended the juvenile court sustain the dependency petition and offer reunification services to mother and father.
According to the addendum report, the social worker had visited minor at her current placement in a foster home. At that time, minor requested to have unsupervised visits with Gregory. However, the social worker informed her that unsupervised visits would not be approved. The foster parents stated that minor was active in church activities, and Gregory participated in many of the same activities. Minor sat next to Gregory during church activities, and Gregory would sometimes discuss inappropriate topics with her, like if she would return to Gregory’s care. Following her interactions with Gregory at church, minor had told her foster parents that she wished to return to Gregory’s care. The foster parents believed minor no longer saw Gregory a threat and had difficulty understanding why she was not allowed to interact with him as much as some of the other children who attended the same church.
The foster parents also provided the social worker with a letter they helped minor complete. In the letter, minor stated that she wanted to return to Gregory’s care, she knew Gregory loves her, and she believed Gregory did not mean to get upset with her. The foster parents told the social worker that minor had dreamed that she ran away from them and went to Gregory’s house.
The social worker opined that minor’s desire to return to Gregory’s care stemmed from Gregory’s conversations with minor and minor’s guilt over reporting the abuse. The social worker determined that placement with Gregory was not appropriate, and if Gregory continued to have inappropriate discussions with minor, visitation between Gregory and minor may need to be reassessed.
The Department filed another addendum report dated August 4, 2017. Minor was still placed in a concurrent foster home. The social worker had spoken to minor, who had seen Gregory at church. Minor described Gregory as “family,” and called him “Uncle Greg.” Minor also told the social worker that “Greg doesn’t like [the Department] and he’s mad.” Minor said she loved Gregory like family.
The foster parents provided the Department with updates about minor’s interactions with Gregory at church, including a church visit with Gregory that soured after Gregory insisted minor have her hair done by a friend. Minor cried all the way home after the visit. Additionally, the foster parents were no longer willing to supervise minor or take her to church, because Gregory continued to discuss the case with minor, spoke negatively about the involved parties, and was confrontational and aggressive in his interactions with the foster parents. The foster parents’ concerns over minor’s interactions with Gregory at church were raised at a child and family team meeting. The team agreed that church visits with Gregory may trigger unhealthy or difficult emotions for minor. After the meeting, the social worker spoke to minor reassessing church visits. Minor cried and told the social worker she needed to go to church or “Greg will be mad.” Minor said “Greg” was the only one who could care for her, and reiterated that he was like family.
The social worker spoke with Gregory about the negative impacts the church visits had on minor, and informed Gregory that if minor was to attend church again Gregory should not be present. Gregory initially resisted but later agreed not to be present when minor attended church.
Later, in July 2017, the social worker spoke with minor again. This time, minor said she would be okay if she did not return to Gregory’s care. When asked why she changed her mind, minor said, “[S]ometimes I think it will get better, then it doesn’t, then I think it will again.” Minor said Gregory is “like a dad” and does “dad” stuff but admitted he was not related to her. Minor, however, again reiterated she believed Gregory was like family. According to her foster parents, minor referred to Gregory as her “uncle.” Minor also said Gregory continued to blame her maternal aunt for the first referral that was made involving allegations of abuse against Gregory.
The social worker also spoke with Gregory about his pending motion to establish presumed parenthood. Gregory told the social worker he believed he had “legal custody” of minor, which he shared with father. Gregory explained he had not filed for guardianship earlier, because he had initially believed minor’s living arrangement with him was temporary. In the beginning, Gregory had planned on assisting minor’s parents only until they could find a place to live. Minor and both of her parents used to live with Gregory. However, minor’s parents moved while trying to find employment, leaving minor in Gregory’s care.
Gregory maintained to the social worker that he did not believe he did anything wrong. He explained that hitting minor with the wooden paddle was a punishment of last resort, and insisted he did not believe he had to change any of his behaviors or beliefs regarding parenting or caring for a child. Gregory believed he was minor’s father and father figure.
According to a family friend, minor referred to Gregory as “Uncle Greg,” and Gregory referred to minor as “my baby.” The family friend was under the impression that Gregory was minor’s uncle and legal guardian. Gregory registered minor for school, attended the school’s parent night, signed minor’s permission slips, and attended parent-teacher conferences. Minor sought permission from Gregory before participating in activities.
4. The Contested Hearing on Gregory’s Motion to Establish Presumed Parenthood
The juvenile court conducted a contested hearing on Gregory’s motion to establish presumed parenthood on August 4, 2017 and August 14, 2017.
a. Steve Goetze’s Testimony
Steve Goetze, a social worker, testified as an expert in the assessment of children and families in the child welfare system. Goetze explained he had been asked to make an assessment for minor’s case to determine if she looked to Gregory as a father figure and whether it would be detrimental for her to lose Gregory as a figure in her life. In making his assessment, Goetze looked to the court records, interviewed minor, visited Gregory, and spoke with the supervising social worker assigned to minor’s case.
In Goetze’s opinion, Gregory filled the role of a father in minor’s life. Minor relied on Gregory to put her to bed, feed her, clothe her, and provide her with education and community support through church. Minor indicated to Goetze that Gregory was her “first father,” because he was primarily performing the role of a father in her life and had been doing so for the past four years. However, Goetze acknowledged that minor called Gregory “Uncle Greg” and did not refer to him as “father” or “dad.” Goetze opined that children should have the right to refer to their parents however they choose.
Goetze explained the inconsistencies with minor’s statements to the social worker about her wants and needs was not unusual due to her age, because children often tell different adults different accounts based on what they believe the adult wants to hear. Goetze opined that minor had a traumatic life “to some degree” and had been in the care of multiple caretakers, which resulted in her desire to obtain love and connection with everyone she speaks with. Thus, Goetze believed that changing attachment figures or parental figures would be very difficult for minor.
After Goetze visited Gregory’s home, he believed he gained an understanding that Gregory’s home was also minor’s home and was a place where minor had “successful bedtimes.” Goetze opined that a finding that Gregory is not minor’s father would be detrimental to her. The finding would prevent minor from reconnecting with Gregory. Goetze noted that the allegations against Gregory in the dependency petition rendered it uncertain whether Gregory could be considered a possible placement for minor in the future. Goetze believed minor’s relationship with Gregory was important to her, “for better or for worse.”
Goetze acknowledged that there were allegations that Gregory had used inappropriate physical discipline with minor. However, Goetze explained the allegations of abuse were not relevant to his assessment, which was focused on minor’s connection to Gregory as a parent. Goetze would not recommend returning minor to Gregory’s care immediately. However, he would recommend that the juvenile court allow additional time to assess the situation for minor’s benefit.
b. Gregory’s Testimony
Gregory testified on his own behalf. He explained he had been friends with minor’s father for about 15 to 20 years. After father and mother became homeless, Gregory became concerned about minor and her schooling. Initially, he suggested to minor’s parents that they use his address to send minor to school. Minor used to spend the night at Gregory’s house with her parents. However, she was arriving late to school. Minor began living with Gregory full time when she was around five years old.
Gregory took care of minor when she lived with him. He did homework with her on a regular basis and ensured she was able to visit with her parents. He loved minor, felt responsible for her, and supported her financially. Father occasionally contributed roughly $30 or $40 per month for minor’s care.
Gregory considered minor to be his child and claimed she was his child in the community. He referred to minor as his “baby,” which is the same term he uses to describe his older biological daughter. Gregory helped braid minor’s hair. He also took minor to church, and she was heavily involved in church activities. Members of the church knew minor was not Gregory’s biological child, but over time they began referring to her as Gregory’s child. Initially, Gregory told church members that he was minor’s uncle. Gregory believed minor was his older daughter’s little sister, and he did not see any difference between the two except one was older than the other.
Minor had gotten into trouble at school in the past. Minor had previously taken things that were not hers and did not always tell the truth. Minor’s school contacted Gregory whenever she had problems, and Gregory would visit the school and help formulate a solution with school staff.
Minor usually called Gregory “Greg,” but occasionally referred to Gregory as “dad.” Gregory believed he had taken steps to gain legal custody of minor and had previously gone to a self-help center where he filled out some forms. However, Gregory was not sure if his actions were successful.
c. Gregory’s Older Daughter’s Testimony
Gregory’s older daughter testified on her father’s behalf. She referred to minor as her little sister. Her father called minor his “baby” or “his girl.” However, she admitted that minor referred to her as a cousin.
d. Rita Cole’s Testimony
Rita Cole, minor’s third grade teacher, testified that Gregory never missed a parent meeting. She sometimes had to contact Gregory when minor was involved in incidents in school, and Gregory was always available and willing to speak to her about minor. Cole remembered that Gregory had a loving relationship with minor. He always made sure to provide for her, and he participated in many activities with her. Minor was loving toward Gregory and would get excited when she saw him. She referred to him as “uncle” at school. Cole initially believed that Gregory was minor’s biological uncle.
e. Tracy Burris’s Testimony
Tracy Burris, minor’s first grade teacher, was also minor’s intervention specialist. She knew minor’s parents were homeless and that minor had started school after moving in with Gregory. Minor progressed well through her first year at the elementary school, and by the end of first grade she was reading at a first-grade level. Gregory was always involved in her education. Burris did not meet with Gregory, but she knew Gregory brought her to school in the morning. Burris believed Gregory acted like minor was his biological child. Burris had also met Gregory’s older daughter, who referred to minor as her sister.
f. Vicki O’Hare
Vicki O’Hare, a member of Gregory and minor’s church, knew both Gregory and minor. Gregory had been a member of the church for five years, and minor had been a member for four years. When minor first started coming to church, O’Hare and other church members were aware that she was not Gregory’s biological daughter. However, as the years went on, O’Hare began to consider Gregory to be minor’s father. Based on her observations, O’Hare believed minor considered Gregory to be her father. Minor looked to Gregory for comfort when she was hurt, and she was happy to see him whenever they had been apart for some time. O’Hare had seen Gregory and minor laugh together and hug each other. Gregory called minor “my baby.” O’Hare explained that in their community, “my baby” is a term often used to refer to children. O’Hare explained that she called her own 26-year-old son “my baby.”
5. The Decision on Gregory’s Parentage Motion
On August 14, 2017, the juvenile court found Gregory not to be minor’s presumed parent under section 7611, subdivision (d). First, the juvenile court stated it had considered several factors when making its determination. The court noted that in its review of the governing case law, it had found section 7611, subdivision (d) to be typically applicable only in situations where there is some dispute as to who the father or mother of the child is, and when the individual seeking parenthood had been involved early on in the child’s life. In contrast, minor’s case did not involve a paternity dispute; the identity of minor’s parents was clear to minor and to the court. Furthermore, Gregory came into minor’s life at a relatively late stage at the request of the parents to act as minor’s caretaker, and his request to be found as minor’s presumed parent was aimed at qualifying him for reunification services.
Next, the juvenile court found the elements of presumed parenthood under section 7611, subdivision (d) had not been met. Although Gregory accepted minor into his home, the juvenile court determined he did not fully hold her out as his own child. The juvenile court expressed it did not believe that Gregory needed to lie and affirmatively claim he is minor’s biological father, but it was clear that there were “plenty” of people who knew Gregory was minor’s caretaker and not her father. The court commented it was not determinative what minor called Gregory or Gregory’s older daughter but found it probative that minor referred to Gregory as her uncle and his older daughter as her cousin. The juvenile court surmised that Gregory was a “caregiver who has performed parental tasks.” The court also made clear it did not consider the fact that Gregory and minor were not biologically related and the fact that Gregory allegedly abused minor, since the abuse allegations had yet been adjudicated.
Thus, finding that Gregory was not a presumed parent as set forth under section 7611, subdivision (d), the court did not reach the analysis of whether it should find Gregory to be minor’s third parent as set forth under section 7612, subdivision (c).
6. The Jurisdiction/Disposition Order
On August 25, 2017, the juvenile court held a jurisdiction and disposition hearing. Father was present and submitted on an amended petition, which alleged minor came within the juvenile court’s jurisdiction under Welfare and Institutions Code section 300, subdivisions (b)(1) and (c). The amended petition alleged Gregory used “excessive and inappropriate physical discipline” on minor. Thereafter, the court found there was clear and convincing evidence to support removing minor from Gregory’s care. It further found there was clear and convincing evidence that minor should not be placed with either of her parents. Reunification services were ordered for both parents. Gregory appealed, challenging the juvenile court’s determination regarding parenthood. Minor has filed a brief supporting Gregory’s claims.
DISCUSSION
On appeal, Gregory challenges the juvenile court’s finding that he failed to hold minor out as his own child within the meaning of section 7611, subdivision (d). He argues substantial evidence does not support the juvenile court’s determination, and the court erred when it considered several facts when making its determination of parenthood: he had not been involved in minor’s life from the beginning, people knew that he was not minor’s biological father, and minor did not specifically refer to him as her father. As we explain in detail below, we agree with Gregory that the juvenile court narrowly construed section 7611, subdivision (d) and considered inappropriate factors when making its determination. Thus, we reverse and remand the matter so it may reconsider Gregory’s request.
1. Standard of Review
On appeal, we review the juvenile court’s determination of presumed parenthood for substantial evidence. (In re L.L. (2017) 13 Cal.App.5th 1302, 1310.) “In so doing, we consider the evidence and all reasonable inferences therefrom in favor of the court’s finding and do not reweigh the evidence or credibility of witnesses.” (Ibid.) We review the juvenile court’s interpretation of section 7611 de novo, because it is a matter of law. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699.) “A discretionary order that is based on the application of improper criteria or incorrect legal assumptions is not an exercise of informed discretion, and is subject to reversal even though there may be substantial evidence to support that order.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.)
2. The Uniform Parentage Act and Section 7611
“In dependency proceedings, fathers are divided into four categories: de facto fathers, alleged fathers, natural fathers and presumed fathers. A man, such as a stepfather, who has assumed the role of parent, is a ‘de facto father.’ A man who may be the father of the dependent child but has not been established to be the natural or presumed father is an ‘alleged father.’ A man who has been established to be the biological father is a ‘natural father.’ A man who has held the child out as his own and received the child into his home is a ‘presumed father.’ ” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801, fns. omitted.) “Presumed father status ranks highest. Only a ‘statutorily presumed father’ is entitled to reunification services under Welfare and Institutions Code section 361.5, subdivision (a) and custody of his child under Welfare and Institutions Code section 361.2.” (Ibid., fn. omitted.)
Section 7611 is a part of the Uniform Parentage Act (§ 7600 et seq., hereafter UPA). The UPA sets forth the framework from which a parent and child relationship may be established. (§ 7610.) Section 7610 states that “[b]etween a child and the natural parent, it may be established by proof of having given birth to the child, or under [the UPA].” (Id., subd. (a).) “Natural parent” is defined under the UPA as “a nonadoptive parent established under this part, whether biologically related to the child or not.” (§ 7601, subd. (a).)
Section 7611, subdivision (d) creates a rebuttable presumption of presumed parenthood if “[t]he presumed parent receives the child into his or her home and openly holds out the child as his or her natural child.” “When determining whether the person has met the statutory requirements of receiving the child into his or her home and openly holding the child out as his or her own, the court may consider a wide variety of factors, including the person’s provision of physical and/or financial support for the child, efforts to place the person’s name on the birth certificate, efforts to seek legal custody, and the breadth and unequivocal nature of the person’s acknowledgment of the child as his or her own. [Citation.] No single factor is determinative; rather, the court may consider all the circumstances when deciding whether the person demonstrated a parental relationship by holding out the child as his or her own and assuming responsibility for the child by receiving the child into his or her home.” (R.M. v. T.A. (2015) 233 Cal.App.4th 760, 774.)
“One who claims he [or she] is entitled to presumed [parent] status has the burden of establishing, by a preponderance of the evidence, the facts supporting that entitlement. [Citation.] A presumption arising under section 7611 is a ‘rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence.’ ” (In re T.R. (2005) 132 Cal.App.4th 1202, 1211 (T.R.).)
“The purpose of the presumption of parenthood in section 7611[, subdivision] (d) is rooted in the ‘ “ ‘strong social policy in favor of preserving [an] ongoing [parent] and child relationship.’ ” [Citation.] The presumption is based on the state’s interest in “ ‘preserving the integrity of the family and the legitimate concern for the welfare of the child. The state has an “ ‘interest in preserving and protecting developed parent-child . . . relationships which give young children social and emotional strength and stability.’ ” ’ ” (County of Orange v. Cole (2017) 14 Cal.App.5th 504, 509.) “ ‘[T]he premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child’s welfare—regardless of whether he is biologically the father—is entitled to the elevated status of presumed fatherhood.’ ” (S.Y. v. S.B. (2011) 201 Cal.App.4th 1023, 1036.) The presumptions created by section 7611 were meant to “distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.” (In re Sabrina H. (1990) 217 Cal.App.3d 702, 708.)
3. The Juvenile Court Considered Inappropriate Factors in its Determination of Presumed Parenthood
On appeal, Gregory claims the court erred when it concluded he was not a presumed parent as set forth under section 7611, subdivision (d). He argues the court erroneously considered that he was not involved in minor’s life from the start, that others knew minor was not his biological child, and that minor referred to him as an “uncle” and not as a “father.” Minor has filed a brief in agreement with Gregory’s positions. As we explain below, we agree with Gregory and minor that remand is required, because the trial court considered several inappropriate factors when making its determination of presumed parenthood.
Following the contested hearing, the juvenile court expressly stated its reasons for denying Gregory’s motion for presumed parenthood. It first stated it had considered two factors that tended to show the presumed parenthood presumption set forth under section 7611, subdivision (d) was inapplicable: there was no dispute over minor’s biological parentage, and, unlike in most successful section 7611, subdivision (d) cases, Gregory was not present in minor’s life from the start. The juvenile court then went through the two elements set forth under section 7611, subdivision (d), asserting that it had found that Gregory had received minor into his home, but also that Gregory had not sufficiently held minor out to be his own natural child. With respect to the second element, the juvenile court noted that plenty of people knew Gregory was not minor’s biological father and found probative the fact that minor referred to Gregory as an uncle and not a father.
Preliminarily, we note that Gregory frames his argument as an argument that substantial evidence does not support the trial court’s determination. However, his contentions are not solely limited to attacking the sufficiency of the evidence—in fact, his opening brief acknowledges substantial evidence supports the juvenile court’s factual determinations, such as its conclusion that minor referred to him as an “uncle.” Rather, Gregory’s argument is more accurately characterized as a claim that the trial court erroneously interpreted and applied section 7611, subdivision (d) when it considered certain factors against him.
First, Gregory insists the court erroneously considered the fact that he did not enter minor’s life until well after she was born. We agree. In general, courts have routinely held an alleged parent’s involvement in the child’s birth and early upbringing as a factor to be considered when determining whether he or she has held the child out as his or her own natural child. (See E.C. v. J.V. (2012) 202 Cal.App.4th 1076, 1087; T.R., supra, 132 Cal.App.4th at p. 1211.) This may be why the juvenile court cited to this fact and considered it when making its determination. However, the criteria to be considered when determining whether the presumption of parenthood under section 7611, subdivision (d) has been met varies depending on the circumstances of each particular case. (S.Y. v. S.B., supra, 201 Cal.App.4th at p. 1034, fn. 10.)
Here, Gregory came into minor’s life after her parents became homeless. He began developing a relationship with minor when she began living with him at his home. In this particular context, Gregory’s failure to be involved in minor’s upbringing when she was an infant does not reflect a lack of commitment to her. Thus, we agree with Gregory that the juvenile court should not have considered this factor against him when making its ruling. We acknowledge that unlike in typical presumed parent proceedings, Gregory is neither minor’s biological father nor did he have a relationship with her until well after her birth. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816.) However, there is nothing in the statutory scheme that suggests it is “ ‘necessary for the person seeking presumed parent status to have entered into the familial relationship from the time of conception or birth.’ ” (Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1019.) Section 7611, subdivision (d) does not require that a presumed parent receive or hold a child out as his own child from birth or early infancy.
Second, we agree with Gregory that the juvenile court should not have considered the fact that he was open about his lack of a biological relationship with minor against him. As we previously stated, section 7611, subdivision (d) specifically states that an alleged parent must hold the child in question out to be his or her “natural child.” Although this requirement appears clear on its face, cases have interpreted this not to be a requirement that an alleged parent pretend to have about a biological connection in order to retain or obtain presumed parent status. Here, the juvenile court acknowledged this limitation, stating that it did not expect Gregory “to commit fraud and to say he is [minor’s] biological father when everybody knows he’s not.” However, the court went on to conclude there were “plenty of people who knew him as a caretaker and not as [minor’s] father,” which it believed showed he did not sufficiently hold minor out to be his own child.
The fact that community members were aware that Gregory was not minor’s biological father did not mean he failed to hold her out as his own child. In In re Alexander P. (2016) 4 Cal.App.5th 475, 493 (Alexander P.), the court held that section 7611, subdivision (d) “does not require proof that the presumed parent claims the child as his or her biological child” and the statute “does not require a presumed parent who is not a biological parent to pretend otherwise.” (Alexander P., supra, at p. 493.) The appellant in Alexander P. acted as the child’s live-in father and lived with both the mother and the child until he was removed from the house. (Id. at pp. 492-493.) However, the appellant did not claim biological parentage and admitted in a declaration that he, the mother, and the child all acknowledged that the child had a different biological father. (Id. at p. 493.) Subsequently, the court reiterated that what is required is that “the presumed parent treat the child as though the child was his or her own by developing a parental relationship and taking on ‘ “ ‘ “parental responsibilities—emotional, financial, and otherwise.” ’ ” ’ ” (Ibid.)
In fact, courts have routinely found presumed parent status even when the parent in question has admitted to others that he or she is not the biological parent. In Nicholas H., the Supreme Court upheld the designation of presumed parenthood status to a man who admitted he was not the child’s biological father. (In re Nicholas H. (2002) 28 Cal.4th 56, 62-63 (Nicholas H.).) Likewise, in In re Salvador M. (2003) 111 Cal.App.4th 1353 (Salvador M.), the appellate court concluded sufficient evidence supported the designation of the half-sister of the child as the child’s presumed mother, even though the half-sister had told family, school officials, police officers, and social workers that she was the child’s half-sister. (Id. at p. 1358.) The Salvador M. court specifically rejected the argument that the half-sister had failed to openly hold the child out as her own son, finding it compelling that the child himself believed the half-sister to be his mother. (Ibid.)
Gregory acknowledges that in contrast to cases like Alexander P., Nicholas H., and Salvador M., other cases have suggested that an assertion of biological parentage is required for an individual to hold a child out as “his or her natural child” as specified under section 7611, subdivision (d). In In re Bryan D. (2011) 199 Cal.App.4th 127, the maternal grandmother of a child moved to be deemed the child’s presumed mother or, in the alternative, a de facto parent. (Id. at p. 131.) The child had been living with the grandmother since he was an infant. (Ibid.) The child had grown up thinking the grandmother was his mother until he was nine years old, when he was told that the grandmother was actually his grandmother and not his mother. (Id. at p. 140.) However, there was no evidence that grandmother openly held herself out to the community as the child’s mother. (Id. at p. 141.) Thus, the appellate court concluded the trial court did not err in denying the grandmother presumed mother status. (Ibid.)
The Bryan D. court relied in part on In re Jose C. (2010) 188 Cal.App.4th 147, which the Department claims is applicable. In Jose C., the grandfather of the child moved to be deemed the child’s presumed father. The appellate court held he failed to offer evidence establishing that he openly and publicly acknowledged paternity. The court noted that “[t]hroughout their briefs, [child] and grandfather repeatedly assert that, for the first six years of [child’s] life, grandfather acted as the functional equivalent of [child’s] father. And no doubt he did, but that alone does not satisfy the test for presumed father status. Many people may perform the function of a parent at various points in a child’s life, including grandparents, stepparents, foster parents, extended family members, and so on. Doing so does not make any of them a presumed parent. That status is defined by statute, and it includes openly holding out the child as one’s natural child. (Fam. Code, § 7611, subd. (d).) Grandfather has never done so. [¶] . . . [¶] . . . Here, [child] (and everyone else) knows he is not grandfather’s son, and grandfather has never suggested to anyone that he is [child’s] father.” (Id. at pp. 162-163.)
We conclude the fact that others knew minor was not Gregory’s biological child does not necessarily prevent him from being designated a presumed parent. As cases like Alexander P. and Salvador M. demonstrate, acknowledging the lack of a biological parent-child relationship does not automatically negate the presumption of parenthood. We disagree with Jose C. and Bryan D. to the extent they hold otherwise. Furthermore, to the extent these cases are applicable, Gregory’s case is factually distinguishable. Although Gregory was open to community members about his relationship with minor, there was, unlike in Jose C. and Bryan D., evidence in the record that he referred to her as his child and as his “baby,” a term used in his community to refer to one’s children. In fact, community members testified at the hearing that although they were aware that Gregory was not minor’s biological father, they believed he acted as minor’s father and the two had a parent-child relationship.
The UPA and the paternity presumptions it created were “ ‘driven by state interest in preserving the integrity of the family and legitimate concern for the welfare of the child. The state has an “ ‘interest in preserving and protecting the developed parent-child . . . relationships which give young children social and emotional strength and stability.’ ” ’ ” (Nicholas H., supra, 28 Cal.4th at p. 65.) Severing a developed parent-child bond based solely on the fact that the alleged parent did not continually perpetrate a lie that the child is his or her biological child would not further the purpose of the UPA.
We, however, disagree with Gregory’s claim that the juvenile court is completely precluded from considering the fact that members of the community knew minor was not his biological child. Whether others knew that minor was not Gregory’s biological child may bear on whether he sufficiently held her out to be his own “natural child.” Hypothetically, it would be logical to consider such evidence if it could be shown that Gregory constantly proclaimed to community members he was not related to minor and always referred to her as merely a ward. Such actions, if they existed, would tend to show he did not hold her out as his own child.
Lastly, Gregory and minor argue the court erred when it considered the fact that minor referred to Gregory as an “uncle.” We disagree. As noted in Salvador M., the child’s own perception of the relationship between him or her and the alleged parent can be informative as to whether the alleged parent held the child out as his or her own child. (Salvador M., supra, 111 Cal.App.4th at p. 1358.) It was not unreasonable for the juvenile court to conclude minor’s reference to Gregory as an “uncle” and not as a “father” reflected that even though she perceived Gregory to be family, she did not believe him to be like a parent. Minor’s sentiment about Gregory’s relationship to her is probative as to whether Gregory held her out to be his own child, and it was not improper for the court to consider it.
4. The Juvenile Court Should Reconsider Gregory’s Request on Remand
In sum, the juvenile court erred when it considered several factors when making its determination of presumed parenthood: the fact that Gregory had not been involved in minor’s life from the beginning and the fact that community members were aware that Gregory was not minor’s biological father. Although it did not err in considering the fact that minor called Gregory her uncle—and substantial evidence in the record supports this factual determination—its conclusion that Gregory failed to meet his burden to establish the presumption of parenthood set forth under section 7611, subdivision (d) appears to have rested in part on an erroneous understanding of the applicable legal criteria. Thus, remand is necessary so that the juvenile court may determine whether Gregory is entitled to presumed parenthood status under the correct standards as set forth in this opinion. (See, e.g., Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 386-387.)
We stress that our reversal does not in any way indicate we believe that Gregory met his burden to demonstrate that he held minor out as his own child. It is entirely possible the juvenile court may weigh all the evidence and again conclude that Gregory was merely a caretaker that performed parental tasks. That determination, however, is one the juvenile court must make after evaluating the circumstances of the case.
Lastly, we address several points raised in the Department’s respondent’s brief. First, the Department notes the Welfare and Institutions Code section 300 petition was sustained after the court ruled on Gregory’s request for presumed parent status. Thus, the Department argues that Gregory cannot qualify as a presumed father because of his actions, which brought minor within the juvenile court’s jurisdiction.
We agree that an alleged parent’s misconduct can rebut a finding of presumed parenthood. (§ 7612, subd. (a).) A determination of presumed parenthood under section 7611 is a rebuttable presumption, which may be rebutted by clear and convincing evidence in appropriate cases. (§ 7612, subd. (a).) For example, in T.R., supra, 132 Cal.App.4th 1202, the appellate court determined that a stepfather’s request for presumed parent status had been rebutted after a Welfare and Institutions Code section 300 petition was sustained alleging the minor was at risk of being sexually abused by the stepfather. (T.R., supra, at p. 1208.) The T.R. court determined the stepfather’s conduct was “antithetical to a parent’s role and was a blatant violation of parental responsibilities.” (Id. at p. 1211.)
T.R., however, also held that it is up to the trial court to determine whether a presumption should be rebutted “in light of the circumstances of the case.” (T.R., supra, 132 Cal.App.4th at p. 1212.) T.R. expressly declined to establish a bright-line test automatically disqualifying individuals from obtaining presumed parent status if he or she had committed “sexual or serious physical abuse on a child leading to the institution of the dependency proceeding.” (Id. at p. 1210, fn. 5.)
Here, the sustained Welfare and Institutions Code section 300 petition found that Gregory used “excessive and inappropriate physical discipline” with minor. Although we do not mean to diminish or minimize the significance of Gregory’s use of a wooden paddle to spank minor, we hesitate to find that such an action disqualified him as a matter of law from acquiring presumed parent status. The abuse, however, is a factor the court may consider when deciding whether he has achieved presumed parent status and whether that status has been rebutted by clear and convincing evidence. Whether the presumption has been rebutted is a discretionary determination to be made by the juvenile court. (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 122.)
Second, the Department argues that recognizing Gregory as a presumed parent under the circumstances presented in this case would create a dangerous precedent and would permit parents to lose legal and physical custody of their child to a caretaker who is elevated by a court to presumed parent status. The Department argues that under Troxel v. Granville (2000) 530 U.S. 57, such a determination would infringe on a parent’s constitutional rights. In Troxel, the United States Supreme Court affirmed the judgment of the Washington Supreme Court finding a state statute that permitted any person to petition for visitation rights to a child at any time and allowed courts to order visitation whenever it served the best interest of the child unconstitutionally infringed on a parent’s interest in the care, custody, and control of his or her children. (Id. at pp. 73-74.) The Department’s concern, however, is inapplicable here. Both mother and father supported Gregory’s petition for presumed parent.
DISPOSITION
The juvenile court’s order finding G.R. not to be a presumed parent is reversed. On remand, the juvenile court is directed to render a decision on G.R.’s motion for presumed parent status as set forth under Family Code section 7611, subdivision (d) in a manner consistent with this opinion. If G.R. is determined to be a presumed parent, the juvenile court shall consider whether the presumption is rebutted by clear and convincing evidence. If the court finds the presumption is not rebutted, it shall then determine whether denying G.R. presumed parent status as minor’s third parent would be detrimental to minor as set forth under Family Code section 7612, subdivision (c).






Premo, Acting P.J.





WE CONCUR:






Elia, J.








Grover, J.












In re J.R.
H045127