A.H. v. Super. Ct.
By way of this writ proceeding, A.H. challenges the dependency court’s jurisdiction and disposition orders, and its order setting a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.[1] Specifically, A.H. challenges the court’s ruling he is the “biological,†not the “presumedâ€, father of M.H. and contends the conclusive presumption of paternity set forth in Family Code section 7540 applies. The County of Marin does not dispute A.H. made the requisite showing to trigger the presumption—that is, that when M.H. was born, her mother and A.H. were married and cohabitating, and A.H. was not then impotent or sterile. (Fam. Code, § 7540.) The county maintains, however, the court properly found, as a matter of public policy, the presumption should not apply in this case.
While we agree with the county the record in this case raises grave concerns about the safety of M.H. if custody is awarded to A.H., and we have serious doubts reunification services would be utilized by A.H. and, even if they were, they would repair what appears to be a non-existent familial relationship between A.H. and his daughter, these concerns should have been addressed in the context of determining custody and the provision of reunification services, not through the expediency of disregarding the conclusive presumption set forth in Family Code section 7540. We therefore grant the writ petition in part, order the court’s disposition order and order declaring A.H. to be only a “biological†father vacated, and remand for further proceedings.
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