1

Filed 9/27/13 In re B.J. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re B.J., a Person Coming Under the 

Juvenile Court Law.

ALAMEDA COUNTY SOCIAL 

SERVICES AGENCY,

Plaintiff and Respondent,

v.

T.M.,

Defendant and Appellant.

A137904

(Alameda County

 Super. Ct. No. OJ12019488)

T.M. (hereafter mother) appeals from a February 14, 2013 jurisdictional and 

dispositional order, which provided that T.J., as the child‟s presumed father, was entitled 

to family reunification services.1 On appeal mother argues the evidence was insufficient 

to support the court‟s finding that T.J. was the child‟s presumed father based on the 

execution and filing of a voluntary declaration of paternity with the appropriate state 

agency. We affirm.

 

1 Mother‟s appeal from the February 14, 2013, order brings up for review the 

court‟s presumed father finding made in the December 14, 2012, order. (Welf. & Inst. 

Code, § 395, subd. (a); In re Sheila B. (1993) 19 Cal.App.4th 187, 196 [“[t]he 

dispositional order is the adjudication of dependency and is the first appealable order in 

the dependency process”].) Accordingly, we dismiss mother‟s separate appeal from the 

December 14, 2012, order. 
2

FACTUAL AND PROCEDURAL BACKGROUND2

On August 22, 2012, the Alameda County Social Services Agency (hereafter the 

agency) filed a petition seeking an adjudication that mother‟s then four-month-old child 

be declared a dependent of the court based on allegations that mother and the child‟s 

alleged father, T.J., had failed to protect the child. (Welf. & Inst. Code, § 300, subd. (b).) 

In the agency‟s report prepared for the detention hearing, the social worker reported that 

T.J. was present at the birth of the child, he was listed as the father on the child‟s birth 

certificate 3, and he held the child out to the community as his child. However, mother 

believed T.J. might not be the child‟s biological father. 

At the August 23, 2012 detention hearing, T.J. requested elevation of his status 

from alleged father to presumed father, which was opposed by mother. The juvenile 

court found a sufficient basis to detain the child but allowed placement of the child in the 

home of T.J. and T.J.‟s mother, where the child had been living since birth. The court 

also ordered T.J. to submit to a paternity test. On October 11, 2012, the agency social 

worker filed an addendum report in which she indicated the paternity tests showed T.J. 

was not the child‟s biological father. 

In October and November 2012, the court (Hon. Kimberly Briggs) held hearings 

on the issue of T.J.‟s request for presumed father status. The court admitted into 

evidence the agency‟s reports and heard testimony from mother, T.J., and T.J.‟s mother. 

 

2 We recite only those facts as are necessary to give context to the issues raised on 

this appeal.

3

The child‟s certified birth certificate lists T.J. as the father. There is a section 

titled, “Informant and Birth Certification.” The form then provides a space for the 

signature of “parent or other informant” to certify that “I have reviewed the stated 

information and that it is true and correct to the best of my knowledge.” The certificate is 

signed by a medical records clerk as the certifying “informant.” The form also provides a 

space for the signature of an “attendant/certifier” to certify that “the child was born alive 

at the date and place stated.” The certificate is signed by a “supervisor” as the certifier of 

birth. The space for a signature of the local registrar is signed by a physician and the 

document was accepted for registration on April 24, 2012. 
3

At the conclusion of the hearing, the agency argued T.J.‟s presumed father status was 

demonstrated by his name on the child‟s birth certificate, which could not occur unless 

mother and father signed a voluntary declaration of paternity. The agency, however, had 

not been able to secure a copy of the voluntary declaration of paternity, which was 

required to be filed with the state Department of Child Support Services. The court asked 

the social worker to review the child‟s hospital records for any pertinent information 

regarding the voluntary declaration of paternity. 

On December 13, 2012, the agency social worker filed a report in which she 

described her efforts to secure a copy of the voluntary declaration of paternity. The 

social worker had made two requests for a copy of the document from the “California 

Department of Child Support Services.” The inquiries resulted in the same response, “no 

record was found” for the child. The social worker also went to the medical records 

department of the child‟s birth hospital and requested a copy of the “Declaration of 

Paternity” form. The hospital supervisor said there was no copy of the document in the 

hospital file. She explained that at the time of the child‟s birth, it was not the hospital‟s 

protocol to keep a copy of the voluntary declaration of paternity form in the hospital file. 

Instead, the hospital file contained the notation, “paternity sent,” which meant “the 

paternity information (declaration of paternity form) was sent to the State Paternity 

Opportunity Program (POP),” 4and it was the hospital‟s protocol to give the parents a 

carbon copy of the form. The hospital supervisor further stated that “in all cases the 

mother and father must sign the declaration of paternity in order for the father to be listed 

on the birth certificate.” 

 

4

The Paternity Opportunity Program, implemented in 1995 by the state Department 

of Child Support Services, handles the filing of declarations of paternity, also known as 

POP forms. (See <http://www.childsup.ca.gov/Resources/EstablishPaternity.aspx > [as 

of Sept. 19, 2013.) Voluntary declarations of paternity (POP forms) are offered to 

unmarried mothers in the event of a live birth (Fam. Code, § 7571), and the state 

Department of Children Support Services “maintains that the POP [form] should not be 

given to married mothers.” (H.S. v. Superior Court (2010) 183 Cal.App.4th 1502, 1506.) 
4

At the December 14, 2012, hearing, the juvenile court found T.J. was the child‟s 

presumed father “based on the law of the Declaration of Paternity presumably being

filed.” Mother objected on the ground that either the agency social worker or T.J. should 

be required, as part of their burdens of proof, to produce a copy of the signed declaration 

of paternity. However, the court agreed with the agency counsel that there was sufficient 

information in the agency report to allow the court to make the presumed father finding, 

and it was mother‟s burden to show the declaration had not been filed with the state. 

At a February 14, 2013, hearing, the parties appeared before Judge Charles Smiley 

for resolution of the jurisdictional and dispositional issues. The agency recommended 

that the juvenile court declare the child a dependent, and order family reunification 

services for mother and T.J. Mother objected to the court ordering reunification services 

for T.J. Although conceding Judge Briggs had heard evidence and made a finding that 

T.J. was the child‟s presumed father, mother continued to object “on the record for 

purposes of any appeal.” After mother and T.J waived their rights to a contested hearing, 

the court issued its decision based on the agency reports. The court found true allegations 

of failure to protect and provide support for the child as set forth in an amended petition 

filed on December 4, 2012, declared the child a dependent, and determined the child had 

to be removed from the physical custody of both mother and T.J. The agency was 

granted custody of the child for placement in the home of an approved family member 

(the child‟s maternal great aunt). Mother and T.J. were granted family reunification 

services. Mother timely appeals.5

DISCUSSION

In determining that T.J. is the child‟s presumed father, the juvenile court relied on 

the preamble in Family Code section 7611,6 which allows a man to qualify for presumed 

 

5

The appeal is opposed only by T.J. No briefs have been filed on behalf of the 

agency or the child. 

6 All further unspecified statutory references are to the Family Code.
5

father status “if he meets the conditions of section 7570 et. seq.” (In re Levi H. (2011) 

197 Cal.App.4th 1279, 1286 (Levi H.).) Section 7571, subdivision (a), states: “[U]pon 

the event of a live birth, prior to an unmarried woman leaving any hospital, the person 

responsible for registering live births under Section 102405 of the Health and Safety 

Code shall provide to the natural mother and shall attempt to provide, at the place of 

birth, to the man identified by the natural mother as the natural father, a voluntary 

declaration of paternity together with the written materials described in Section 7572. 

Staff in the hospital shall witness the signatures of parents signing a voluntary declaration 

of paternity and shall forward the signed declaration to the Department of Child Support 

Services within 20 days of the date the declaration was signed. A copy of the declaration 

shall be made available to each of the attesting parents.” “ „Except as provided in 

Sections 7575 [rescission or motion to set aside declaration], 7576 [effect of declaration 

made on or before December 31, 1996], and 7577 [effect of minor‟s declaration], a 

completed voluntary declaration of paternity, as described in Section 7574 [form 

requirements], that has been filed with the Department of Child Support Services shall 

establish the paternity of a child and shall have the same force and effect as a judgment 

for paternity issued by a court of competent jurisdiction. The voluntary declaration of 

paternity shall be recognized as a basis for the establishment of an order for child 

custody, visitation, or child support.‟ (§ 7573.)” (In re Raphael P. (2002) 97 

Cal.App.4th 716, 737 (Raphael P.).) 

Because Health and Safety Code section 102425 prohibits listing an unmarried 

father on a child‟s birth certificate absent a signed voluntary declaration of paternity7, 

T.J.‟s name on the child‟s birth certificate was “prima facie proof that he signed a 

 

7 Health and Safety Code section 102425, which sets forth the information to be 

included in a birth certificate, provides, “If the parents are not married to each other, the 

father‟s name shall not be listed on the birth certificate unless the father and mother sign 

a voluntary declaration of paternity at the hospital before the birth certificate is prepared.” 

(Id., subd. (a)(4).)
6

voluntary declaration of paternity.” (Raphael P., supra, 97 Cal.App.4th at p. 738.) 

Additionally, relying on the hospital supervisor‟s reported statements and Evidence Code 

section 664, 8the juvenile court could reasonably find that the hospital staff had 

performed their “official” duties of having mother and T.J. sign a voluntary declaration of 

paternity before preparing the birth certificate, and that the original voluntary declaration 

of paternity had been sent for filing to the appropriate state agency. (In re Raphael P., 

supra, at p. 738.) We see no merit to mother‟s argument that the nonexistence of a 

voluntary declaration of paternity is demonstrated by the circumstance that neither T.J. 

nor the agency submitted a copy of the document in court. The juvenile court could 

reasonably find that the failure to produce a copy of the document, standing alone, was 

insufficient to rebut the presumption of the existence of a signed and filed voluntary 

declaration of paternity.9 

 

8

“Evidence Code section 664 provides: „It is presumed that official duty has been 

regularly performed.‟ „ “This presumption „affect[s] the burden of proof‟ (Evid. Code, 

§ 660), meaning that the party against whom it operates . . . has „the burden of proof as to 

the nonexistence of the presumed fact.[‟] (Evid. Code, § 606 . . .).” ‟ ” (Levi H., supra,

197 Cal.App.4th at p. 1288, fn. 5.) 

9 We express no opinion on mother‟s further contentions, raised for the first time on 

appeal, that the nonexistence of a signed and filed voluntary declaration of paternity is 

“suggested” by the circumstances that there is no evidence in the record demonstrating 

that a child support order was issued against T.J., that the hospital staff knew mother and 

T.J. were not married, or that the hospital staff gave copies of the voluntary declaration of 

paternity to mother and T.J. We also reject mother‟s suggestion that in the absence of a 

request to rescind or set aside any voluntary declaration of paternity, the juvenile court 

should have sua sponte granted such relief on the ground that paternity testing 

conclusively established T.J. was not the child‟s biological father. (In re Nicholas H. 

(2002) 28 Cal.4th 56, 63-64 [“for persons who are presumed fathers under section 7611 

by virtue of a voluntary declaration of paternity pursuant to section 7573, the Legislature 

permits but does not require that blood test evidence may be considered to extinguish 

such a person‟s presumed paternity”]; Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 

1119, 1132 [“[e]ven when genetic tests show that a man who signed a declaration of 

paternity is not the child‟s biological father, the court may decide that denying an action 

to set aside the declaration is in the child‟s best interests . . . .”].) 
7

In sum, we conclude mother has failed to demonstrate that the juvenile court erred 

in granting T.J. presumed father status based on the execution and filing of a voluntary 

declaration of paternity with the appropriate state agency. In light of our determination, 

we need not address mother‟s other contentions. 

DISPOSITION

The appeal from the December 14, 2012 order is dismissed. The February 14, 

2013 order is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.