Filed 7/31/23 In re Z.F.V. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re Z.F.V., a Person Coming 

Under Juvenile Court Law.

_______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.T. et al.,

Defendants and Appellants.

 B319442

 (Los Angeles County Super.

Ct. No. 21CCJP05613A)

APPEAL from an order of the Superior Court of Los 

Angeles County, Charles Q. Clay III, Judge. Conditionally 

reversed and remanded.

Pamela Rae Tripp, under appointment by the Court of 

Appeal, for Defendant and Appellant, father S.T.

Leslie A. Barry, under appointment by the Court of Appeal, 

for Defendant and Respondent, mother M.V.R.

Marsha F. Levine, under appointment by the Court of 

Appeal, for Respondent minor Z.F.V.

No appearance by Respondent Department of Children & 

Family Services.

__________________________
2

Presumed father S.T. appeals from the juvenile court’s

jurisdiction and dispositional orders, arguing the court erred 

when it denied his request to file a motion to vacate the court’s

parentage finding. 

On January 25, 2023, the Department of Children and 

Family Services (DCFS) submitted a letter to the court stating it 

would not be filing a brief and that mother was the proper 

respondent. Respondents mother and daughter filed briefs, 

asking us to affirm the trial court’s order. They argue that there 

were no exceptional circumstances to justify a continuance, and

regardless of the negative paternity test, father received 

daughter into his home and held her out as his child in 

satisfaction of the parentage presumption in Family Code, section

7611, subdivision (d).

1

We conclude the court erred by refusing to allow father an 

opportunity to brief his motion to vacate. In doing so, we express 

no opinion on the merits of the motion. We conditionally reverse

the jurisdictional findings and dispositional order to the extent 

they were based on father’s presumed father status. We remand 

to allow father the opportunity to brief a motion to vacate the 

parentage order.

2 

1 All subsequent statutory references are to the Family Code, 

unless indicated otherwise. 

2 Section 7646 allows a presumed parent to move to set aside 

or vacate a parentage judgment if genetic testing shows the 

presumed parent is not the genetic father. Section 7647 sets out 

the requirements for the motion. Section 7648 allows a court,

after it has considered enumerated factors, to deny the motion if 

it “determines that denial of the motion is in the best interest of 

the child.” 
3

FACTUAL AND PROCEDURAL BACKGROUND

At the inception of dependency proceedings, mother and 

father were in a four-year relationship and had lived together for 

three years; they have never married. Mother’s infidelity and 

father’s domestic violence (first occurring in 2020) punctuated 

their relationship. In August 2019, mother gave birth to 

daughter. Evidence suggests that father was present for the 

birth. He is named as the father on daughter’s birth certificate. 

Father allegedly told family and friends that she was his 

daughter and provided for her financially. According to the social 

worker, father said he had spent significant time with daughter

“because mother was out of the home for extended periods of 

time.”

1. Section 300 Petition and Detention Hearing

On December 9, 2021, DCFS filed a petition pursuant to 

section 300, subdivisions (a), and (b), alleging father had 

committed domestic violence against mother and physically 

abused two-year-old daughter, whom mother failed to protect.

At the detention hearing on December 14, 2021, father

neither appeared nor was represented; mother made a telephonic 

appearance and was represented by counsel. That day, mother 

had filed a parentage questionnaire indicating she believed 

father was daughter’s father. She checked the boxes stating that

father was present for daughter’s birth, signed daughter’s birth 

certificate, lived with her at the time of daughter’s conception 

and birth, jointly raised daughter, and held himself out as 
4

daughter’s parent.3 In father’s absence, the court reviewed

mother’s questionnaire and asked whether the parties had 

requested a parentage finding. Mother’s counsel responded: “the 

father was present and I believed signed the birth certificate. 

And so I believe, under [section] 7611(d), he qualifies for 

presumed status.”4 Not hearing an objection from the absent 

father, the juvenile court found father to be the presumed father. 

The minute order stated: “The court inquires as to the paternity 

of the minor. The court finds [S.T.] to be the presumed father of 

the minor child.”

2. Father’s First Appearance

On January 25, 2022, father appeared in court for the first 

time. His attorney filed a JV-505 form (Statement Regarding 

3 The birth certificate is part of the record on appeal. 

Father's signature does not appear on the certificate, but he is 

identified as "father" on it. 

4 The parties agree there was no evidence before the court 

that father had filed a voluntary declaration of parentage (VDOP) 

even though his name was on the birth certificate. (See § 7573 

[“a completed voluntary declaration of parentage that complies 

with this chapter and that has been filed with the Department of 

Child Support Services is equivalent to a judgment of parentage 

of the child and confers on the declarant all rights and duties of a 

parent”].) Because the court’s parentage finding does not appear 

to be based on the existence of a VDOP and the parties agree a 

VDOP was not in evidence below, we consider the significance of 

the birth certificate in that context. (See Health & Saf. Code, 

§ 102425, subd. (a)(4) [hospital to include an unwed father’s name 

on a child’s birth certificate only if the father and the mother 

“sign a voluntary declaration of paternity at the hospital before 

the birth certificate is submitted for registration”].) 
5

Parentage) that was signed by the attorney but not by father 

personally. The place for father’s signature was left blank. The 

form checked boxes stating both that (1) father does not know if 

he is the parent and requests a DNA test; and (2) he believes that 

he is the parent of the child and requests a presumed father 

finding from the court. The form stated that father had told 

family and friends he was daughter’s father and had provided her 

food, clothing, shelter, and all other necessities.

At the hearing, the court acknowledged father had 

requested a DNA test and wanted the court to “hold off on any 

paternity findings.” Minor’s counsel responded that father had 

already been found to be daughter’s presumed father at the 

detention hearing. Father’s attorney stated that father was not 

present in court nor represented by counsel when the parentage

finding was made. The court asked counsel if father was 

disputing his familial relationship with daughter. Counsel 

responded that she had not inquired because father told her he

was unsure he was the father and wanted a DNA test.

The court advised father that because he was the only 

father daughter had ever known, he could still be her presumed 

father even if they were not biologically related. The court stated 

the presumed father finding would remain but also ordered DNA 

testing. The court continued the hearing for adjudication and 

disposition to March 9, 2022. The hearing was later continued to 

March 23, 2022 because the parties had not received the DNA 

test results.
6

3. Father’s Oral Motion to Vacate the Parentage 

Finding and the Court’s Adjudication of the 

Dependency Petition

The DNA test was dated March 9, 2022, but father’s 

counsel did not receive the results until March 22, 2022, the day 

before the scheduled adjudication/disposition hearing. The DNA 

test showed father was not genetically related to daughter. 

At the March 23, 2022 hearing, father’s counsel informed 

the court of the negative paternity test. Counsel stated father

wished to vacate the presumed father finding and requested a 

short continuance to brief the issue.

Daughter’s counsel did not oppose the continuance, and 

DCFS made no argument. Mother opposed any continuance, 

arguing that paternity was not at issue because the DNA results 

did not affect the presumed father finding. Mother’s counsel 

urged the court to proceed with adjudication and disposition, 

stating that the court can make visitation orders for father and 

he can disregard those orders if he chooses.

The court denied the request for a continuance, explaining 

that “father’s status as a presumed parent is not affected by his 

status as a non-biological father of the minor child, and the two 

are unrelated in the legal sense that we find ourselves in.”

During oral argument on jurisdiction and disposition,

father’s counsel reiterated his request that the court vacate the 

paternity finding. Counsel asserted that under section 7646, 

subdivision (a)(1), a previously established parent may bring a 

motion to set aside or vacate a judgment establishing parentage 

when genetic testing reveals that the established parent is not 

the father of the child.
7

The court again denied father’s request to set aside 

presumed father status. The court concluded the statute did not 

apply “to a finding made by the court in this context” but rather 

applied to “a judgment made on the basis of allegations made by 

the parties.” The court also stated “this matter is prejudgment, 

and 7644 [sic] requires the parties to make a motion to set aside 

the judgment. There’s no motion filed, but there’s also no 

judgment, and so that section does not apply.” The court opined

the lack of a genetic link to daughter had no impact on its 

analysis of whether father was a presumed father under section 

7611, subdivision (d). Father’s motion to continue the hearing to 

allow briefing a motion to set aside the parentage finding was 

denied. 

The juvenile court found jurisdiction over daughter and 

sustained the allegations that father had committed domestic 

violence against mother in daughter’s presence and mother had 

failed to protect daughter from father by allowing him to reside 

with, and have unlimited access to, daughter. The court granted 

mother sole legal and physical custody of daughter, with 

monitored visits for father. The court then terminated 

jurisdiction.5

DISCUSSION

In their initial briefing on appeal, the parties argued 

whether the trial court erred in refusing to vacate presumed 

5 The record indicates that mother eventually obtained a 

restraining order against father which did allow father to visit 

daughter. During the pendency of the case, father had a single 

visit with daughter, did not seek reunification services, and, 

according to the social worker, “expressed apprehension” about 

participating in the case.
8

father status and proceeding with adjudication/disposition.

Although father’s opening brief mentioned in passing the court’s 

denial of his request for a continuance to brief a motion to set 

aside the parentage finding, his appellate brief focused on the 

merits of the court’s ruling on the oral motion. His single 

captioned argument on appeal was: “The Trial Court’s Denial of 

Appellant’s Request to Set Aside Paternity Findings Was Error 

Under the Facts of This Case.” (All capital letters omitted.) 

By letter, we requested the parties to brief whether the 

juvenile court abused its discretion when it denied father’s 

request for a continuance to prepare and file a written motion to 

set aside presumed father status. (See Gov. Code, § 68081.) In 

response, father argued the court’s denial of the request was an 

abuse of discretion. Mother asserted the court did not err in 

denying the continuance. Daughter’s appellate counsel observed 

that, although daughter did not object to a continuance below, 

she now was joining in mother’s letter brief.

We start our analysis with a brief review of parentage 

findings in dependency cases.

1. Parentage Findings in Dependency Cases

In juvenile dependency cases, there are three types of 

fathers: alleged, biological, and presumed. A presumed father 

has a familial relationship with the child (alleged and biological 

fathers do not) and meets one or more of the specified criteria in 

section 7611. (In re P.A. (2011) 198 Cal.App.4th 974, 979–980

(P.A.).) Of the three types, “Presumed father status ranks 

highest.” (In re Jerry P. (2002) 95 Cal.App.4th 793, 801.) “This is 

because a presumed father, who has lived with a child and treats 

the child as a son or daughter, has developed a parent-child 

relationship that should not be lightly dissolved. This type of 
9

familial relationship is much more important, at least to the 

child, than a biological relationship of actual paternity.” (P.A., at 

p. 980.)

Relevant to this appeal, a presumed parent includes 

someone who “receives the child into their home and openly holds 

out the child as their natural child.” (§ 7611, subd. (d).) A 

biological relationship is not necessary to prove parentage under 

this presumption. Section 7611 creates a rebuttable presumption 

of paternity, which affects the burden of proof “and may be 

rebutted in an appropriate action only by clear and convincing 

evidence.” (§ 7612, subd. (a).) 

In dependency cases, the juvenile court is tasked with 

inquiring with the mother as early as practicable about the 

child’s presumed or alleged father, and then notifying the

presumed or alleged fathers of the proceedings. (Welf. & Inst.

Code, § 316.2, subds. (a), (b).) Similarly, California Rules of 

Court, rule 5.635(b) provides that at “the initial hearing on a 

petition filed under section 300 . . . and at hearings thereafter 

until or unless parentage has been established, the court must 

inquire of the child’s parents present at the hearing and of any 

other appropriate person present as to the identity and address of 

any and all presumed or alleged parents of the child.”

After parentage has been established, “a judgment 

establishing parentage may be set aside or vacated upon a motion 

by a previously established parent . . . if genetic testing indicates 

that the previously established father of a child is not the genetic 

father of the child.” (§ 7646, subd. (a).) In this statutory scheme, 

“Previously established father” is “a person identified as the 

father of a child in a judgment that is the subject of a motion” to 

set aside or vacate. (§ 7645.) “ ‘Judgment’ means a judgment, 
10

order, or decree entered in a court of this state that establishes 

parentage, including a determination of parentage made 

pursuant to a petition filed under Section 300 . . . of the Welfare 

and Institutions Code.” (§ 7645.) Section 7647 sets forth the 

requirements for the contents of a written motion to vacate the

judgment establishing parentage, and section 7646 provides a 

time limit for the motion.6

“The court may deny the motion to set aside or vacate a 

judgment establishing parentage if it determines that denial of 

the motion is in the best interest of the child.” (§ 7648.) In 

assessing the best interest of the child, the court considers factors 

listed in section 7648, including: the child’s age; the nature, 

duration, and quality of the relationship between the child and 

the previously established father; and whether the established 

father has impaired the ability to ascertain the identity of, or get 

support from, the biological father. (Ibid.) “If the court denies a 

motion pursuant to Section 7648, the court shall state on the 

record the basis for the denial of that motion and any supporting 

facts.” (§ 7648.1.) 

As one court has observed, the various statutes seek a 

balance between stability for the child and fairness to a nonbiological father: “At the root of the procedures, conditions and 

considerations detailed in section 7645 et seq. are concerns of 

fairness to a person adjudged a father who in fact is not the 

biological father of the child in question. One who questions the 

6 Under the facts of this case, father had two years from the 

date he knew of the presumed father finding to bring the motion 

to vacate. (§ 7646, subd. (a)(1).) As father requested to file a 

motion to vacate three months after the parentage finding, time 

limitations are not at issue.
11

certainty of his paternity as established by a prior judgment now 

has an avenue for resolving the matter with a scientific answer 

and attendant legal consequences: With the granting of a motion 

to set aside and vacate, the previously adjudged father is freed 

from parental responsibilities as well as support obligations.” 

(San Mateo County Dept. of Child Support Services v. Clark

(2008) 168 Cal.App.4th 834, 841.)

2. The Court’s Discretion to Grant Continuances

Pursuant to Welfare & Institutions Code section 352, 

subdivision (a), the juvenile court “may continue any hearing . . . 

beyond the time limit within which the hearing is otherwise 

required to be held[.]” “Continuances shall be granted only upon 

a showing of good cause” and if it is not “contrary to the interest 

of the minor.” (Id., subd. a)(1) & (2).) Continuances are 

discouraged in dependency cases. (In re Giovanni F. (2010) 

184 Cal.App.4th 594, 604.) “In order to obtain a motion for a 

continuance of the hearing, written notice shall be filed at least 

two court days prior to the date set for hearing, together with 

affidavits or declarations detailing specific facts showing that a 

continuance is necessary, unless the court for good cause 

entertains an oral motion for continuance.” (Welf. & Inst. Code, 

§ 352, subd. (a)(3).) “We review the denial of a continuance for 

abuse of discretion.” (In re Giovanni F., at p. 605.) 

3. The Court Erred In Denying Father a Continuance to 

Bring a Written Motion to Vacate the Parentage 

Finding

Starting with his first appearance on January 25, 2022, 

father questioned daughter’s paternity. At his request, the 

juvenile court ordered a DNA test. On March 22, 2022, the day 

before the continued jurisdiction/disposition hearing, father’s 
12

counsel received the negative test results. Thus, the March 23, 

2022 hearing represented father’s first opportunity to challenge 

his presumed father status. He asked the court for a continuance 

to brief the issue, which was denied. We conclude the court 

abused its discretion when it found father had failed to show good 

cause for the continuance.7 

Two factors weigh heavily in our analysis. First, the court’s 

presumed father finding had been made before father’s first 

appearance in dependency court. That finding appears to be 

based, at least in part, on incorrect information, e.g. father 

“signed” the birth certificate and an inference that there was an 

operative VDOP. Father acted almost immediately when he 

learned of the negative DNA test. The day after receipt of the 

DNA test, at the previously scheduled dependency court hearing, 

father asked for a continuance so he could brief the effect of the 

negative DNA test on his status as presumed father. This 

constituted good cause for a continuance.

8

7 Mother argues under Welfare and Institutions Code section 

352, subdivision (b), the disposition hearing pursuant to Welfare 

and Institutions Code section 361 must occur no more than 60 

days after detention unless there is a showing of exceptional 

circumstances requiring a continuance. Since daughter was 

never removed from mother’s custody, Welfare and Institutions 

Code section 352, subdivision (b) is not applicable. Father need 

only show “good cause” under Welfare and Institutions Code 

section 352, subdivision (a). 

8 Even at the hearing when father was present, the 

evidentiary showing of presumed father status was inconclusive. 

The JV-505 form that was before the court had been signed only 

by counsel, not by father.
13

Second, a short continuance was not contrary to daughter’s 

interests under the statute governing continuances in 

dependency matters. (See Welf. & Inst. Code, § 352, subd. (a)(1) 

[the minor’s interests that the court gives substantial weight to 

are the “need for prompt resolution of his or her custody status, 

the need [for] stable environments, and [limiting] the damage to 

a minor [due to] prolonged temporary placements”].) Daughter’s 

counsel did not object to the requested continuance, implying that 

minor would not be prejudiced by the brief delay. At the time, 

daughter was residing in mother’s home and would continue to be 

in that home whether jurisdiction was terminated that day or two 

weeks later. 

The juvenile court denied the continuance for two reasons. 

First, the court concluded this was not the type of judgment 

where the established parent could bring a section 7646 motion to 

vacate. Second, the juvenile court believed the genetic test had 

no role in its parentage determination after it was proven that 

father held daughter out as his own and provided for her 

financially. Neither rationale holds water.

Section 7646 Applies to Dependency Proceedings. To 

the extent the court denied the motion because it was made in 

the context of dependency proceedings, its reasoning was 

contrary to the statutory scheme. Section 7645 expressly states 

that 7646 motions to vacate apply to determinations of parentage 

made pursuant to Welfare and Institutions Code section 300 

petitions. “ ‘Judgment’ means a judgment, order, or decree 

entered in a court of this state that establishes parentage, 

including a determination of parentage made pursuant to a 

petition filed under Section 300 . . . of the Welfare and 

Institutions Code.” (Fam. Code, § 7645.) The court’s denial of the 
14

continuance on this basis was an abuse of discretion. (See In re 

M.W. (2018) 26 Cal.App.5th 921, 931 [a court abuses its 

discretion when it misinterprets or misapplies the law].)

The Negative Paternity Test, Along with Other 

Factors, May Provide Grounds For a Motion to Vacate. We 

also conclude the court abused its discretion in finding the 

genetic testing had no role in its parentage decision. We agree 

that a finding that a father is not a biological parent does not 

automatically negate presumed father status. At the time of the 

adjudication hearing, the presumed father finding had already 

been made and father was not challenging that section 7611, 

subdivision (d) could never apply to him. Rather, father sought 

to use the negative paternity test as a basis to vacate the 

parentage finding under section 7646. Section 7646 allows a

presumed parent to move to set aside or vacate the “judgment 

establishing parentage . . . if genetic testing indicates that the 

previously established father of a child is not the genetic father of 

the child.” (§ 7646.) Thus, father’s counsel, who only learned of 

the negative paternity findings the day before the hearing,

reasonably was entitled to brief the issue.

Mother argues “Inasmuch as the evidence clearly 

established that Father had been the only father [daughter] had 

known and that he had clearly met the requirements to be 

declared a presumed father pursuant to Family Code section 

7611, subdivision (d), the fact that paternity testing had revealed 

he was not [daughter]’s biological father did not constitute 

exceptional circumstances requiring a continuance.” Mother

misses the point and proposes an incorrect legal standard. The 

statute only requires “good cause.” The “exceptional 

circumstances” standard applies when the child has been 
15

removed from parental custody, a fact not present here. (Welf. & 

Inst. Code, § 352, subd. (b).) 

Father was not given the opportunity to brief, argue, and 

present evidence about whether the presumed status finding –

made in his absence – should be vacated. “ ‘If parentage findings 

in dependency cases are to be meaningful. . . , all parties must 

ensure that the process used by the court to determine parentage 

in each case is as thorough as the circumstances of the case 

dictate, and as accurate as reasonably possible.’ [Citation.] The 

well-intentioned desire to provide a child with two parents does 

not trump the need to make sure that the persons we designate 

actually are the parents.” (In re D.M. (2012) 210 Cal.App.4th 

541, 555.) 

Whether father was properly designated a presumed 

parent was the issue to be determined by father’s motion. In 

determining whether he was the presumed father, the court 

would have to consider, among other things, the circumstances 

surrounding the birth and the preparation of birth certificate, 

whether father signed a binding VDOP, whether father received 

daughter into his home and openly held out the child as his own 

under section 7611, and the weight to be given to any of the 

factors listed in section 7648. (See also § 7612.) Although there 

was some evidence on those issues, they were hardly conclusive. 

Father, for example, had not signed the JV-505 form.

4. Father Suffered Prejudice Requiring Reversal

“Like most other errors, procedural errors by the juvenile 

court require reversal only if they result in a ‘miscarriage of 

justice.’ (Cal. Const., art. VI, § 13; see In re Celine R. (2003) 

31 Cal.4th 45, 59-60.)” (In re Brianna S. (2021) 60 Cal.App.5th 

303, 315.) We may only reverse where we find “it reasonably 
16

probable the result would have been more favorable to the 

appealing party but for the error.” (In re Celine R., at p. 60.)

We conclude the denial of a short continuance for father to 

brief the motion to vacate was prejudicial. There were several 

contested factual issues concerning daughter’s birth and early 

years. Father was denied the opportunity to address both the 

factual and legal issues surrounding paternity.

DISPOSITION

The juvenile court’s jurisdictional finding, insofar as it is 

based on father’s conduct as an offending father, and the related 

dispositional order, to the extent it addresses father, are

conditionally reversed. The case is remanded to the juvenile 

court, which shall provide father an opportunity to brief a motion 

to vacate the parentage finding. If after considering father’s 

motion, the court denies the motion to vacate, it shall reinstate 

the jurisdiction and disposition orders, including the order 

terminating jurisdiction. If the court grants the motion to vacate 

the parentage finding, the court shall enter a finding of 

nonpaternity as to father, and strike father as an offending party 

from its March 23, 2022 jurisdictional findings and as a parent in 

its dispositional order. 

RUBIN, P. J.

WE CONCUR:

BAKER, J. KIM, J.