In Re Nicholas H.

28 Cal.4th 56, 46 P.3d 932 (Ca. 2002)

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Nature of the Case

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Facts

Social Services filed a juvenile dependency petition alleging that Nicholas H. was taken into custody because his parents had failed to adequately supervise and protect him. Thomas (D) obtained temporary custody of Nicholas after filing a petition to establish a parental relationship with Nicholas. Thomas lived with Kimberly (D2) from 1995 until 1997 and again in 1999. D and D1 are the parents of Nicholas who was born on August 10, 1995. D1 cannot keep a job, is often homeless, and has been in trouble with the law. Since their separation, D1 has prevented D from having contact with his son. D1 even attacked and bit D. D1 was arrested for felony assault. While D1 was still in jail, D returned to his home in Alameda County and brought Nicholas with him. Another dispute erupted after D1 got out of jail. D1 told police that D was not the biological father of Nicholas. The two met when D1 was pregnant, and both had wanted D to be Nicholas's father. D was named as the father on Nicholas's birth certificate. D and D1 had a volatile relationship. D was arrested for battering D1, and a restraining order was issued. The couple tried living together again despite the restraining order, but they could not get along and often fought about how to raise Nicholas. Then recently D1 bit D and then D1 was arrested. D was then arrested on the outstanding warrant. D refused to give permission to release Nicholas to D1. The police, therefore, placed Nicholas in the custody of the Agency. D has been the constant in Nicholas's life. D has lived with Nicholas for long periods of time, he has provided Nicholas with significant financial support over the years, and he has consistently referred to and treated Nicholas as his son. Investigation revealed that D1 was unstable, lacked gainful employment and was violent towards others. She has no means of housing or support for the child. Nicholas has continually stated he does not wish to reside with his mother because she is mean to him; she hits and slaps him, and she smokes weed. Jason S. the alleged biological father has not come forward to assert any parental rights and the Agency has been unable to obtain enough information from D1 to locate Jason so his paternity could be established. The juvenile court found that the presumption under section 7611(d) that D was Nicholas's natural father had not been rebutted. The Court of Appeal concluded that D qualified as Nicholas's presumed father under section 7611(d), but that, under section 7612(a), his admission that he is not Nicholas's biological father necessarily rebutted that presumption.