Mother and Z were married and had two children together: Minor 1 (born 2009) and Minor 2 (born 2010). The parents separated and filed for divorce in 2014, but the divorce was never finalized. Z moved to Arizona to kick his drug habit, and Mother began a relationship with R. Mother and R had three children together: Minor 3 (born in 2014) and Minor 4 and Minor 5 (twins born in 2015). The twins were born prematurely, and spent their first three months of life in the hospital. They were subsequently returned to the hospital for other illnesses.
Mother moved in with her Aunt to help take care of the children – especially the twins, but Aunt refused to allow R to live with them too. R had been using heroin and methamphetamine since he was about 14 years old. He had a long history of drug and other felony arrests and convictions, and Aunt did not want him around. And, when Aunt discovered Mother had sneaked R into Aunt’s house, Aunt kicked them all out. From that point on, Mother lived in various hotels, with R joining them on occasion.
On November 25, 2015, four-month-old Minor 5 was found dead in Mother’s filthy, and bug-infested hotel room. Mother told the police she thought he was smothered when Minor 3 rolled over on him while sleeping on the same bed. Autopsy determined the cause of his death was unexplained infant death with methamphetamine exposure as a contributing factor. Mother claimed she did not abuse drugs but R would smoke methamphetamine in the hotel room’s bathroom when he stayed with them. The children remaining children were removed from Mother’s control and placed in foster care.
During subsequent juvenile court child welfare hearings, R asked to be legally recognized as the presumed father of Minor 1 and Minor 2, or be given third-parent status under Family Code Section 7612. The court determined Z to be the presumed father of Minors 1 and 2, and denied third parent status to R. (The court did determine R to be the presumed father of Minor 3 and Minor 4.) The juvenile court denied Anthony R.'s motion for status as a third parent under section 7612, subdivision (c) because there was no ongoing relationship between R. and Minors 1 and 2, and even if there were, there was no proof of detriment if the status were not granted. In fact the evidence showed further involvement with R, could easily be a detriment to Minors 1 and 2.
The Appellate Court agreed with the juvenile court and denied R third parent status.
Family Code Section 7612 (c) states: “In an appropriate action, a court may find that more than two persons with a claim to parentage under sub division 7616 of the Family Code are parents if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time…”