Filed 9/29/15

                           CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                    DIVISION ONE

                               STATE OF CALIFORNIA



In re EMMA B., a Person Coming Under
the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND                   D067634
HUMAN SERVICES AGENCY,

        Plaintiff and Respondent,             (Super. Ct. No. NJ14996)

        v.

MICHAEL B.,

        Defendant and Appellant.


        APPEAL from an order of the Superior Court of San Diego County, Michael J.

Imhoff, Commissioner. Affirmed.

        Michele Anne Cella, under appointment by the Court of Appeal, for Defendant

and Appellant.

        Thomas E. Montgomery, County Counsel, John E. Phillips, Chief Deputy County

Counsel, and Paula J. Roach, Deputy County Counsel for Plaintiff and Respondent.

        Terence M. Chucas, upon appointment by the Court of Appeal, for Minor.

        In this dependency proceeding concerning the infant Emma B. (Emma),

Michael B. (Michael), a presumed father, appeals a juvenile court order denying his
motion for paternity testing. He contends the court had an obligation to order such a test

because biological paternity is a relevant fact and in denying his motion, the court

prevented him from rebutting his presumed father status under Family Code1 section

7611, subdivision (a). We disagree that a biological paternity determination is an

essential or relevant issue in the current proceeding and affirm the order.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Michael and J.B. (Mother) married in 2011 and continuously lived together until

Michael's military deployment to the Persian Gulf in August 2013. Michael returned

home in April 2014 and found Mother was seven months pregnant, as she "had relations"

with another man while Michael was gone. Michael lived with Mother throughout the

remainder of her pregnancy. He was at the hospital when Emma was born in July 2014

and signed the birth certificate as Emma's "father." For a few months, he financially

supported Emma and listed her as a military dependent for insurance purposes. Michael

knew that he was not Emma's biological father and it is not disputed that Michael is not

Emma's biological father. Nevertheless, until November 2014, Michael continued to live

with Emma and Mother because he "wanted to give her (Mother) one more chance."

       The San Diego County Health and Human Services Agency (Agency) first became

involved in this case after receiving a report that Mother tested positive for opiates upon

Emma's birth. In the next three months, the Agency received reports of two incidents, in

August and October 2014, when Mother was found under the influence of drugs and

unconscious while Emma was in her care. In November 2014, the Agency filed a


1      All further statutory references are to the Family Code unless otherwise indicated.
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dependency petition on three-month-old Emma's behalf and the court issued a protective

custody warrant placing Emma in foster care. (Welf. & Inst. Code, § 300, subd. (b)(1)

[child at risk of harm due to parental drug use].)

       On the Agency's parentage questionnaire, Mother indicated that a man named

Steven was Emma's biological father. The Agency contacted the alleged biological

father, Steven, and he denied paternity and said he wanted to be "left alone."

       Michael also responded to the parentage questionnaire and told the Agency he had

plans to divorce Mother and did not want to be involved in Emma's life because she is not

his biological child. Michael indicated that he was unwilling to care for Emma and that

he would be moving out of the state in December 2014 due to a military transfer.

       At the November detention hearing, Michael requested paternity testing in order to

rebut the marital presumptions of sections 7611 and 7540. The court deferred Michael's

request. Michael then filed a formal motion requesting the court order a blood test to

rebut his presumed father status pursuant to sections 7611, subdivision (a), 7540, and

7551. The motion also requested the court to set aside the presumed paternity finding

and strike Michael's name from the dependency petition.

       Following Michael's motion, the court held a hearing on paternity issues together

with the contested adjudication and disposition hearing. The court received Michael's

motion for a genetic test into evidence but ultimately denied both his requests for

paternity testing and to rebut his presumed father status. The court found that Michael

was Emma's presumed father by the fact of marriage, and his behavior in receiving her

into his home upon birth. (§ 7611, subd. (a).)


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           The court then sustained the dependency petition, determined Emma to be a

dependent of the court, placed her in the Agency's custody, and ordered reunification

services for Mother and Michael. Michael appeals the denial of his motion for paternity

testing.

                                       DISCUSSION

                                              I

                                      INTRODUCTION

       This case arises in the context of dependency proceedings in which paternity

issues are relevant in a specific statutory context. Michael contends the court erred by

denying his motion for genetic testing, because he became unable to rebut the presumed

father status otherwise established under section 7611, subdivision (a). He does not

challenge the trial court's factual finding that he is Emma's presumed father. His

contentions mainly present questions of law on the applicability of paternity statutes in a

given factual context. We resolve such legal issues on a de novo basis. (Gabriel P. v.

Suedi D. (2006) 141 Cal.App.4th 850, 856.)

                                              II

                                UNIFORM PARENTAGE ACT

       The Uniform Parentage Act, codified in section 7600 et. seq. (the Act), provides

the framework by which California courts make paternity determinations. (§ 7610.)

Under section 7611, subdivision (a), of the Act, a man is presumed the natural father of a

child born during marriage, or within 300 days after the termination of his marriage to the




                                              4
child's mother. He also attains the status of presumed father if he receives the child into

his home and openly holds out the child as his natural child. (§ 7611, subd. (d).)

       The presumptions arising under section 7611 are rebuttable presumptions affecting

the burden of proof and may be rebutted in an appropriate action by clear and convincing

evidence. (§ 7612, subd. (a).) However, a presumption arising under section 7611 is not,

under section 7612, subdivision (a), necessarily rebutted by clear and convincing

evidence that the presumed father is not the biological father of the child. " 'Rather, the

statute seeks to protect presumptions of paternity, once they have arisen, from being set

aside except upon clear and convincing evidence and only in an appropriate case.' " (In

re Jesusa V. (2004) 32 Cal.4th 588, 605 (Jesusa V.), quoting In re Kiana A. (2001) 93

Cal.App.4th 1109, 1118-1119; see Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108,

1116-1117.)

                                             III

                                DEPENDENCY CONTEXT

       " 'An "alleged father'' is "[a] man who may be the father of a child, but whose

biological paternity has not been established, or, in the alternative, has not achieved

presumed father status . . . ." ' " (In Re Nicholas H. (2002) 28 Cal.4th 56, 69 (Nicholas

H.), citing In re Zacharia D. (1993) 6 Cal.4th 435, 449, fn. 15; see In re Shereece B.

(1991) 231 Cal.App.3d 613, 622.) Statutory presumed fatherhood is based not on a

biological connection but rather on a man's relationship with the child or the child's

mother, and therefore, genetic testing has limited applicability in determining presumed

father status. (§ 7611, subd. (a); Nicholas H., supra, at p. 69 [disallowing genetic testing


                                              5
to rebut presumed father status]; In re Joshua R. (2002) 104 Cal.App.4th 1020, 1026-

1027.)

         Because a presumed father status may, in many cases, be unrelated to natural

father status (In re Jerry P. (2002) 95 Cal.App.4th 793, 804-805), a "man does not lose

his status as a presumed father" by an admission or proof that he is "not the biological

father." (Nicholas H., supra, 28 Cal.4th at p. 63.) Further, courts are not required to

examine biological evidence in determining such presumed paternity status. (In re

Raphael P. (2002) 97 Cal.App.4th 716, 733.)

         Accordingly, a man may be a child's presumed father even if he is not the child's

biological father. (In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1490.) Presumed

father status, for purposes of dependency proceedings, is not necessarily negated by

evidence that the presumed father is not the biological father. (Nicholas H., supra, 28

Cal.4th at p. 67.)

                                              IV

                                          ANALYSIS

         Section 7551 of the Family Code governs genetic testing and provides in pertinent

part: "In a civil action or proceeding in which paternity is a relevant fact, the court may

upon its own initiative . . . and shall upon motion of any party to the action or proceeding

. . . order the mother, child, and alleged father to submit to genetic tests." In this instance,

Michael claims that he is entitled to a genetic test to rebut his status as Emma's presumed

father. However, genetic testing is authorized for alleged fathers, not presumed fathers,




                                               6
and only in civil actions or proceedings "in which paternity is a relevant fact." (§ 7551;

Nicholas H., supra, 28 Cal.4th at p. 69.)

       Contrary to Michael's claims, the court did not err by denying his motion for a

genetic test because he is not an alleged father and biological paternity is not a relevant

fact at this stage of this particular dependency proceeding.2 Here, Michael requested

genetic testing under section 7551, but he could not show entitlement to it due to his

status as presumed father, and biological paternity was, as yet, irrelevant. Michael's

nonbiological connection to Emma had already been established. Michael argues that a

genetic test showing he is not Emma's biological father would rebut his presumed father

status, however, lack of a biological connection does not necessarily negate a presumed

father status in a dependency action. (Nicholas H., supra, 28 Cal.4th at p. 63.)

       A court confronted with the contention that biological paternity "necessarily rebuts

another man's presumption of paternity under section 7612, subdivision (a) . . . must

instead consider whether rebuttal of the presumption would be appropriate in the

circumstances of the case." (Jesusa V., supra, 32 Cal.4th at p. 606.) In making this

determination, the court is obligated to weigh all pertinent factors, including biological

paternity. (Gabriel P., supra, 141 Cal.App.4th at p. 864; Nicholas H., supra, 28 Cal.4th

at p. 64.)

       In determining Michael's status, the court acknowledged the nonexistence of

biological paternity but found Michael to be a presumed father based on his marital status

2      All parties agree that section 7540 et. seq., the conclusive presumption of paternity
based on cohabitation with the child's mother during conception, is inapplicable here.
(Jesusa V., supra, 32 Cal.4th at p. 606.) The court did not rely on section 7540 in
reaching its determination that Michael is Emma's presumed father.
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and conduct, in spite of his lack of biological connection to Emma. Michael was married

to Mother at the time of Emma's birth, signed Emma's birth certificate, financially

supported her, put her on his military insurance, and for a limited period, accepted her

into his home.

       On appeal, Michael does not argue that his conduct did not support a finding of

presumed father status. He only challenges the trial court's denial of his motion for

genetic testing. In the context of a dependency hearing to determine presumed parentage

of a child, where the court has identified a presumed father based on marital status and

conduct, the issue of biology is not a relevant fact and the presumed father is not entitled

to a genetic test. We emphasize that this opinion is limited to the factual situation

presented and we do not comment on Michael's future status in other proceedings (e.g.

support).

                                      DISPOSITION

       The order is affirmed.


                                                                   HUFFMAN, Acting P. J.

WE CONCUR:


                        NARES, J.


                  McDONALD, J.




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