In re Alex F.
Filed 1/11/13 In
re Alex F. CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re ALEX F.,
a Person Coming Under the Juvenile Court Law.
B239640
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRIAN G.,
Defendant and Appellant.
(Los Angeles County
Super. Ct. No. CK76832)
APPEAL
from orders of the
County Superior Court.
Robert Stevenson, Juvenile Court
Referee. Affirmed.
William
Hook, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and Navid
Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
_______________________________
Brian G.
appeals dependency court orders concerning his biological son, Alex F. We affirm the dependency court’s orders.
FACTS
Laura F. is
the mother of three children by three different fathers: Aaron G. born in 2002; Alex born in 2004; and
A.F. born in 2005. Only Alex and his
father, Brian, are involved in the current appeal.
In April
2009, Laura and her mother (the maternal grandmother) lived in a motel with
Laura’s children. Laura was bipolar, but
had stopped taking her medication.
On April 4, 2009, Laura suffered a psychotic episode which ended
when she tried to drown A.F. (and possibly the other children) in the motel’s
Jacuzzi. The maternal grandmother
stopped Laura and called 911. Officers
responded to the scene and arrested Laura for attempted murder and other offenses. The Los Angeles County Department of Children
and Family Services (DCFS) was contacted and dispatched a case social
worker. The social worker interviewed
family members and took the children into protective custody. On April 8, 2009, DCFS filed a petition
pursuant to Welfare and Institutions Code section 300 on behalf of all three
children, and the dependency court ordered the children detained.
Laura
identified Brian as Alex’s father; she identified Aaron’s father as
Israel C.; and she identified A.F.’s father as Moises G. On April 21, 2009, Brian appeared at a
hearing, and submitted a paternity declaration stating that he was Alex’s
biological father. The court found Brian
to be Alex’s alleged father. Brian
agreed to take a DNA test.
On May 18,
2009, DCFS filed a first amended petition (FAP). The FAP included allegations that Brian
failed to provide Alex with the necessities of life, including food, clothing,
shelter and medical care. (§ 300,
subd. (b).)
In May 2009,
DCFS filed a jurisdiction/disposition report.
The report advised the court that Brian’s DNA test results indicated he
was Alex’s biological father. The report
further indicated that Brian had requested custody, but the social worker was
concerned about his ability to care for Alex.
In 2003, Brian had been arrested for child cruelty. It had also been several years since
Brian had contact with Alex and they did not have a relationship. Brian had yet to schedule any visits with
Alex and had not appeared for an interview with the social worker.
On May 18,
2009, the court found Brian to be Alex’s biological father. The court amended the FAP and found the
allegations in the petition to be true as to all parties. As to Brian, this included a finding
that he failed to provide for Alex. The
court declared the children to be dependents of the court and placed them in
foster care. The court ordered family
reunification services for all parties and ordered that Brian have monitored
weekly visits.
In November 2009, the social worker
reported that Brian had not enrolled in parenting classes or individual
counseling, and had not visited Alex.
going to enroll in such programs, Brian had replied with words to the effect,
“[N]ot at this time.â€
Brian did not appear at a review
hearing in November 2009. During
discussions regarding A.F. and her father, Moises, the children’s counsel
informed the court that the social worker had spoken over the telephone to Moises
in his home in Mexico. Moises’s brother
appeared in court and provided a letter from Moises addressed to the
court. The letter asked that Moises’s
mother, A.F.’s paternal grandmother, be allowed to make decisions on behalf of
Moises. The children’s counsel said that
Moises had indicated he would be interested in caring for all three
children. The court appointed counsel to
represent Moises.
In December 2009, DCFS received an
assessment on Moises conducted in Mexico by the National System for Integral
Family Development. The report was
written in Spanish; DCFS filed an ex parte application seeking an order
appointing a translator. The court
directed DCFS to “just go ahead and make the translation.â€
In an interim review report filed in
December 2009, the social worker reported that she had met with Brian. Brian told the social worker he had not been
in contact with DCFS or Alex’s caregiver because he had been going through a
“nasty†divorce. He said that he was now
ready to start visits, he wanted to be in Alex’s life, and he did not want Alex
to grow up in foster care. He also
requested to have Alex released to his care, but he was currently unemployed
and living at his parents’ house.
In February 2010, DCFS filed its
next review report. The social worker
reported on Laura’s progress. As to
Brian, the report indicated that he had not made any attempt to visit
Alex. DCFS filed a request for
modification of the court’s orders regarding Laura’s visits. At a hearing on February 24, 2010, the court
ordered that Laura’s visits were to be monitored. Brian did not appear at the February 24
hearing.
In a report filed in March 2010, the
social worker again stated her concerns about Laura’s progress with her
reunification plan and programs. As to
Brian, the social worker reported that the children’s foster mother had advised
that Brian had not called or visited Alex.
At the children’s 12-month review hearing on April 8, 2010, the court
found that Laura was in compliance with her case plan requirements but the
children could not be returned at that time; the court ordered services to be
continued for another six months. The
court ordered Laura’s visitation to be unmonitored weekend and overnight
visits. Brian did not appear at the
hearing on April 8; his counsel indicated to the court that he had been
receiving “no direction†from Brian.
On April 20, 2010, DCFS filed an ex
parte application requesting the court’s existing orders be modified. In an accompanying report, the social worker
reported that, during an unannounced visit, she discovered that Laura had not
been taking her medications as prescribed.
The social worker filed a request for modification so that Laura’s
visits be monitored due to her noncompliance with medication. On June 7, 2010, the court ordered Laura’s
visitation be monitored until she could be more compliant with
medications.
In July 2010, the social worker
reported that Laura was pregnant and had been taken off her medications due to
her pregnancy. Laura’s psychiatrist
reported that although she had stopped receiving
had maintained full remission while being monitored weekly. The psychiatrist opined that Laura displayed
moderate insight and no symptoms of schizoaffective disorder or paranoid
thinking. The psychiatrist also said
that Laura had been making excellent use of the resources available to
her. The social worker remained
concerned, however, as Laura’s history indicated that when she stopped taking
her medication, she would begin physically abusing the children. The report was silent as to Brian. On July 22, 2010, the court ordered Laura to
submit to a psychiatric evaluation.
In a status review report filed in
October 2010, the social worker reported that the children were doing well in
their placement. The children had a good
relationship with their foster family, were having their basic needs met, and
appeared happy. Laura was in partial
compliance with her reunification program.
The foster mother reported that visits had been positive. Despite Laura’s progress, the social worker
continued to have concerns regarding Laura’s condition and concluded that
placing the children in Laura’s care would put them at risk of future
harm. As to Brian, the social worker
reported that he had not participated in any services and had not visited
Alex.
In a status review report filed in
December 2010, the social worker reported that Laura’s psychiatric evaluation
was complete. The psychiatrist concluded
that Laura had a low motivation for treatment and did not appear to be fully
aware of her mental health condition.
Further, that, while she appeared stable, it was unclear how she would
respond to the stress of having three to four children in her care. The psychiatrist further concluded that
Laura’s present period of relative stability was too short to establish a
prognosis for long-term stability. Laura
needed to demonstrate a better comprehension and appreciation of her mental
health history and of how her condition could deteriorate with the daily
stressors of caring for young children.
It was recommended that Laura continue receiving mental health services
including therapy and consultation for psychotropic medication for a more
extended period of time and cautioned that any future attempts at reunification
should be very gradual and with close supervision. As to Brian, the December 2010 report was
silent except for one reference indicating that Brian still had not visited
Alex.
In March 2011, A.F.’s father,
Moises, filed a section 388 petition in which he requested presumed father
status as to all three children, and to have them placed with him in
Mexico. Moises’s petition asserted that
he provided support to Laura and the three children for a lengthy period of
time, spending nights and days in the home with Laura and the boys before A.F.
was conceived, and supporting the family through the pregnancy and then until
May 2006. He provided funds, food, and
clothing for all three children and had overnight weekend visits through late
2008. He stated he loved all three
children and was ready, willing, and able to support them at his home in
Mexico.
On April 12, 2011, the court ordered
that Moises be evaluated for placement as to Aaron and Alex. (We understand that he was already under
consideration for placement as to his daughter, A.F.) The court ordered that Moises was to have
unmonitored visits with all three children “as frequently as possible.†The court noted its tentative decision to
grant Moises presumed father status, and continued the matter for a further
evaluation by Mexican authorities. Brian
was not present at the April 12 hearing, but, as for a number of the earlier
hearings, was represented by counsel.
In June 2011, the social worker
filed a report in which she indicated that she had interviewed the children in
May 2011 about Moises. The children
remembered Moises coming to their house when they were younger and said that he
was nice. Moises said he was excited
about the prospect of having the children under his care. He had been calling the Mexican government
regularly in order to get an appointment to conduct a home evaluation. He represented that he lived in a
five-bedroom home, earned more than enough money to meet the children’s needs,
and was prepared to take custody. DCFS
indicated that it was in favor of placing all three children with Moises,
pending receipt of a positive home evaluation.
In July 2011, DCFS filed a report in
which the social worker informed the court that Laura had showed up at the
children’s foster home without authorization, and had tried to enter the
children’s school without permission.
The social worker considered her actions to demonstrate a risk that she
would abscond with the children. The
social worker had the children moved to a new foster home. On July 14, 2011, Mexican authorities
submitted its home evaluation for Moises.
The evaluation stated that Moises’s home was appropriate for all three
children and that Moises was able to provide for their needs. Additionally, the report stated that Mexican
social workers would conduct visits to the home upon placement of the children
and would provide supportive services to assist Moises in his role as a parent
and caregiver to the three children.
At a hearing on August 25, 2011, the
court granted Moises’s section 388 petition.
The court found Moises to be the presumed father of all three children,
and ordered that all three children were to be placed in Moises’s home. The proceedings were continued so as to get
information regarding the children’s legal status in Mexico. Brian did not appear for the August 25
hearing, but he was represented by his appointed counsel.
In a report filed in late December
2011, the social worker reported that she had met with Brian on December 19,
2011, at which time he stated that he opposed Alex being sent to Mexico. He said that he was concerned about the high
level of crime in Mexico and that he wanted custody of Alex. He explained that he had not participated in
his case plan or visited Alex because he had been busy fighting for custody of
another child. He said he was ready to
have custody of Alex.
At a hearing on December 29, 2011,
the court expressed concern that Moises would not have any legal recognized
authority in Mexico to act on behalf of Aaron and Alex, who were not his
children. The record suggests there was
concern that, as between any orders issued by the dependency court on the one
hand, and Laura’s claims on the other hand, Mexican officials would be in a
quandary as to who truly had legal authority over the children. Nonetheless, the court confirmed its prior
decision to grant presumed father status to Moises as to all three children and
terminated further visits between Brian and Alex. At the same time, the court signed a formal
written order prepared by Moises’s counsel; the order directed that Aaron’s
birth certificate be amended to show that Moises was Aaron’s father.
On February 24, 2012, Brian, in pro.
per., filed a notice of appeal from
the court’s orders issued on December 29, 2011.
DISCUSSION
I. Appellate Jurisdiction
As an
initial matter, we address DCFS’s contention that our court does not have
jurisdiction to address Brian’s appeal because he filed his notice of appeal
too late. We find Brian filed a
timely appeal allowing him to challenge the dependency court’s orders issued in
California
Rules of Court, rule 8.406 prescribes the time to appeal in a dependency
proceeding. Rule 8.406 essentially
provides that a notice of appeal must be filed within 60 days after the making
of the order being appealed. To the
extent Brian is appealing the dependency court’s orders issued on December 29,
2011, he filed his notice of appeal on February 24, 2012, which is less than 60
days after the making of the orders being appealed. We find we have jurisdiction to address
Brian’s appeal.
DCFS also
argues that we do not have jurisdiction to address claims of error concerning
the dependency court’s earlier orders issued on August 25, 2011, involving
Moises’s presumed father status. We
agree with DCFS that those orders may not be challenged by way of Brian’s
notice of appeal filed in February 2012, and we will not address any such
challenges. An appeal from the most
recent order in a dependency proceeding does not allow for challenges to prior
orders as to which the statutory time for filing an appeal has passed. (In re
Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) The affect that this framework will have on
Brian’s claims on appeal will be taken up as necessary below.
II. Detention and Placement Error
Brian
contends the dependency court erred at the time of
and at a series of ensuing hearings, by not placing Alex in Brian’s custody
under section 361.2. We find Brian’s
claim of “placement error†is time-barred for appellate review as to any
decision issued prior to December 2011.
We find no error in the dependency court’s orders issued in December
2011.
When a child
is removed from the home of a custodial parent, section 361.2 requires the
dependency court to determine whether the child has a noncustodial parent who
is willing to assume custody. Section
361.2 further provides that, if there is a parent willing to assume custody,
the court shall place the child with that parent unless the court finds that
placement would be detrimental to the child’s well-being. (See generally, In re Zacharia D. (1993) 6 Cal.4th 435, 453.) In summary, in deciding whether to place a
child with a noncustodial parent under section 361.2, the court must still
consider whether the noncustodial parent is a nonoffending parent.
Under
section 361.2, subdivision (b), the court has the authority to (1) grant full
legal and physical custody to the noncustodial parent and terminate the court’s
jurisdiction over the child; or (2) grant tentative custody to the parent under
the jurisdiction of the court, with a review after three months; or (3) grant
provisional custody to the parent under the supervision of the court while
reunification services are provided to one or both parents; or (4) deny custody
pending successful reunification efforts.
Although the provisions of section 361.2 suggest that the statute
applies when the dependency court first takes jurisdiction over a child, its
procedures favoring custody with a child’s noncustodial parent may be invoked
at later points during a dependency proceeding, for example, at ensuing status
review hearings. (Cal. Rules of Court,
rule 5.710(h); see In re Janee W. (2006) 140 Cal.App.4th 1444,
1451.)
We reject
Brian’s claim of error for multiple reasons.
First, any placement decision issued or ordered to remain in effect
prior to late 2011 cannot be addressed on this appeal because, as we have
noted, Brian did not file a notice of appeal challenging any order until
February 2012. Again, an appeal from the
most recent order in a dependency case does not allow for a challenge to prior
orders as to which the statutory time for filing an appeal has passed. (In re
Elizabeth G., supra, 205
Cal.App.3d at p. 1331.) If Brian
had wanted to contest Alex’s initial placements in foster care, or any of the
ensuing orders continuing such placement, then he should have raised the issue
by appropriate request, motion, or petition.
Furthermore,
at the time the court initially detained Alex and placed him in a foster home
in April 2009, and at the time of the court’s ensuing orders continuing
placement in foster care, Brian was not in position to invoke section
361.2. He was a noncustodial
parent. Section 361.2 favors placement
with a noncustodial presumed parent who is a nonoffending parent. In short, until such time that Brian
persuaded the dependency court to grant him presumed father status, and to find
that he had addressed the problems which resulted in his being found an
offending parent, section 361.2 was not implicated.
Turning to
Brian’s contention that the dependency court erred under section 361.2 in
December 2011 by failing to place Alex with Brian, we see no error. On appeal, we review the record in the light
most favorable to the dependency court’s order; we determine whether there is
substantial evidence from which the court could find by clear and convincing
evidence that Alex would suffer such detriment.
(In re John M. (2006) 141
Cal.App.4th 1564, 1569.) The record
supports a conclusion that placing Alex with Brian would have been detrimental
to Alex. Brian was not part of Alex’s
life before the dependency proceedings commenced, and he made no effort to be a
part of Alex’s life afterward. Brian
never attempted to visit with Alex during the time he was in foster care
placement. Moreover, Alex had a sibling
relationship, and the children’s counsel argued against separation, but Brian
only wanted custody of Alex. We are
satisfied that the court weighed all relevant factors, and reasonably
determined that it would be detrimental to place Alex with Brian. This was sufficient to support the court’s
orders. (See In re Luke M. (2003) 107 Cal.App.4th 1412, 1424-1425.)
III. Presumed Father Status Error
At the start
of the case in April 2009, Brian appeared in court, and his counsel told the
court that Brian was “asking to be found [Alex’s] presumed father.†The court found Brian to be Alex’s alleged
father and ordered a DNA test. In May
2009, DNA results showed that Brian was Alex’s biological father. The court changed Brian’s status to
biological father. Family reunification
orders were issued. At the hearing in
December 2011, from which Brian appeals, the court had already ordered that
Moises was the presumed father of all three children. Brian’s counsel argued: “[Brian] would like to have Alex as his son
and custody of his son and opposes him going to Mexico
. . . . [¶]
And he would just be asking that . . . he does not
lose his rights to his son and that the son does not go to Mexico and that the
birth certificate not be amended to show [Moises] as the presumed father.†The court denied Brian’s requests and
affirmed its earlier decision of August 2011 naming Moises the presumed father
of all three children. Brian claims the
December 2011 orders are error. We
disagree.
The
Governing Law
Dependency
law recognizes four types of fathers: de facto, alleged, biological, and
presumed. (In re Zacharia D.,
re Crystal J. (2001) 92 Cal.App.4th 186, 190.) An alleged father is a person who has not
established biological paternity or presumed father status. (In re Zacharia D., supra, at p. 449,
fn. 15.) A biological father is one
whose paternity has been determined, but who has not established presumed
father status. (Ibid.) Under Family Code section 7611, a person is
presumed to be a child’s father where evidence establishes that he meets one or
more specified factors in the section.
The evidence may show that more than one person meets certain factors
under section 7611, giving rise to competing presumed father parentage
status. However, the law generally
contemplates that only one person will ultimately be ruled a child’s presumed
father, after weighing the factors in favor of and against each of the possible
fathers. To this end, section 7612,
subdivision (b), directs the court to evaluate the evidence and weigh the
competing presumptions: “If two or more
presumptions arise under [section] 7611 that conflict with each other, . . . ,
the presumption which on the facts is founded on the weightier considerations
of policy and logic controls.â€
The determination of a father’s
status is significant in dependency proceedings because it frames his rights
and the extent to which he may participate in the proceedings. (In re Christopher M. (2003) 113
Cal.App.4th 155, 159.) “Presumed father
status ranks highest.†(In re Jerry P.
(2002) 95 Cal.App.4th 793, 801.) On
appeal, a dependency court’s determination of presumed father parentage status
is reviewed under the substantial evidence standard. (See In
re D.A. (2012) 204 Cal.App.4th 811, 824 (D.A.), citing In re M.C.
(2011) 195 Cal.App.4th 197, 213.)
We find that substantial evidence
supports the dependency court’s decision in December 2011 to decline granting
presumed father status to Brian.
supra, 204 Cal.App.4th 811 guides our decision.
In D.A., a dependency proceeding was filed after the six-month-old
child was removed from mother. Mother
had sexual relationships with two men, E.A. and C.R., during the years before
the child was born. E.A. had lived with
mother for a short time – a period of weeks – at the time before and after the
child was born. E.A. was on the child’s
birth certificate. After the dependency
proceedings were initiated, C.R., came forward and was determined by paternity
testing to be the child’s biological father.
The dependency court found that E.A. was the presumed father. It found that C.R., the biological father,
was not the presumed father. On C.R.’s
appeal, Division One of our court reversed both findings. Division One ruled that the finding that
E.A. was the presumed father was not supported by substantial evidence, and
ruled that substantial evidence established that C.R. was the presumed
father. Division One found the evidence
showed that E.A. had done little more than be named on the child’s birth
certificate and live with mother when the child was born. On the other hand, C.R. had come forward at
the first opportunity to assert his fatherhood rights.
The evidence in Brian’s current case
establishes a flip-side scenario. Brian,
though the biological father, was not a significant part of Alex’s life at any
time. He demonstrated no commitment to
Alex. Although he came forward in April
2009 and was determined by DNA testing to be a biological father, he did
nothing more until December 2011, when he objected to Alex going with
Moises. Despite given the opportunity,
Brian did not participate in any reunification programs and did not attempt to
visit Alex. To the extent that Brian
wanted Alex, Brian wanted to separate Alex from his siblings.
Brian
misstates the record in arguing that he requested and was denied presumed
father status in December 2011. A fair
reading of the reporter’s transcript of the December 2011 proceedings shows
Brian requested that Moises not be put on Alex’s birth certificate; the more
discernable aspect of Brian’s position was an objection to Alex going with
Moises. The court’s orders naming
Moises, instead of Brian, as Alex’s presumed father were issued in August
2011. Brian did not contest those
orders. We see no effort by Brian to
assert a meaningful request for presumed father status at any time from April
2009, through December 2011. We see
little, if anything, in the record to support Brian’s position on appeal that
he is interested in a father-child relationship with Alex.
Moises met Alex’s mother in 2003,
and lived with her until 2006. He
provided financial support until 2008, two years after he ended his relationship
with mother. He visited the children
after he moved from the mother’s home.
Moises is employed by the federal government in Mexico, and had the
ability to care for the children. He
asked for presumed father status early, filed a section 388 petition for such
status, and agreed to DCFS’s requests and the court’s orders. The evidence strongly supports a finding that
Moises put in far more effort to be a father to the children than did Brian.
We reject Brian’s reliance on
793, In re A.A. (2003) 114
Cal.App.4th 771, and similar cases. All
of the cases in this arena are largely evidence and fact-driven, as is Brian’s
case. For the reasons explained above,
the evidence and facts in Brian’s current case support the dependency court’s
decision to name Moises, not Brian, as Alex’s presumed father.
The record does not support Brian’s
argument that he was involved in Alex’s life.
Over the years-long course of the dependency proceedings as to Alex,
Brian could not even be bothered to have a meaningful visitation relationship
with Alex. Brian never established
himself as Alex’s presumed father.
The juvenile
dependency court’s orders of December 29, 2011, are affirmed.
BIGELOW,
P. J.
We concur:
RUBIN, J.
FLIER, J.
references are to the Welfare and Institutions Code unless otherwise stated.
reports included additional information concerning Laura, the other children,
and the other fathers. For purposes of
the current appeal, we focus on the facts and evidence concerning Brian and
Alex, except as needed for any clarification.
