In re A.S.
Filed 8/27/12 In re A.S. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re A.S. et al., Persons
Coming Under the Juvenile Court Law.
SAN DIEGO
COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
CARSON
M.,
Defendant and Appellant.
D061036
(Super. Ct.
No. NJ14488A)
APPEAL from
orders of the Superior Court
of
County, Blaine K. Bowman, Judge. Affirmed.
Carson
M. appeals a juvenile court order denying his request for presumed father
status as to his minor stepdaughter, A.S. He contends he established he was A.S.'s
presumed father within the meaning of Family Code section 7611, subdivision (d)
he received A.S. into his home and openly held her out as his daughter. Carson
also appeals an order denying his request for unsupervised visits with his
minor son, D.M., contending there was no substantial
evidence to support the court's finding visits should continue to be
supervised. We affirm the orders.
FACTUAL AND
PROCEDURAL BACKGROUND
A.S. was
born to Sara M. and K.B.
name="_ftnref2" title="">[2] in
January 2010, but lived with the maternal grandparents in South
Dakota for the first 14 months of her life. Sara married Carson
in March 2011, and A.S. came to live with them.
D.M. was born in June 2011, and remained in the hospital due to problems
caused by his premature birth.
In July
2011, Sara and Carson brought 18-month-old A.S. to the hospital because she had
blood in her stool, she had a fever and had been vomiting for two weeks, and
she was not eating and had recently lost weight. Sara and Carson were told A.S. had a
potentially life-threatening condition that required intravenous fluids, but
they became hostile and argumentative with medical staff and refused to allow
treatment. Carson
said, several times, that A.S. could "go home and die." He could not control his anger, threatened
and intimidated one of the doctors and said he would "kill CPS" if
anyone came near A.S. Carson
often used profanity directed at A.S. and told her to "[s]hut the fuck
up." The social worker was
frightened by Carson.
A.S.
received a diagnosis of failure to thrive, and Sara admitted having withheld
food from her. Doctors also discovered
A.S. had multiple bruises that appeared to be nonaccidentally inflicted. Sara and Carson could not adequately explain
these injuries, other than to say A.S. is clumsy and falls often.
The
Agency (Agency) filed petitions in the juvenile court on behalf of A.S.
(Welf. & Inst. Code, § 300, subd. (b)) and D.M. (Welf. & Inst.
Code, § 300, subd. (j)). The court
detained A.S. in out-of-home care and ordered D.M. detained in out-of-home care
once he was discharged from the hospital.
Sara named
K.B. as A.S.'s biological father, but said he had never been involved in his
daughter's life. A parent search for
K.B. was pending.
A.S. was
living in a foster home, where she was doing well and gaining weight. D.M. was also living in this foster home
following his discharge from the hospital.
During visits with the children, Carson
was unable to control his temper and continued to have angry outbursts. He admitted having anger problems since he
was a child and claimed people were out to get him. A.S. appeared fearful of Carson. She did not want him to touch her or be near
her. The foster mother reported that
after every visit with Carson and Sara, A.S. appeared despondent, had temper
tantrums, cried, was difficult to console and stored food in her cheeks after
dinner. During diaper changes, A.S. put
her finger in her vagina and said "dada."
At the
jurisdiction hearing, the court sustained the allegations of the petitions as
to both A.S. and D.M. and set a disposition hearing. In the meantime, K.B. contacted Agency and
indicated there was a paternity test confirming he was A.S.'s biological
father. K.B. had never met A.S. and
expressed his regret that he had not been involved in her life. He said he was willing to do whatever was
necessary to get custody of her. K.B.
appeared at the disposition hearing and the court appointed counsel for
him. Carson
filed a parentage inquiry, seeking presumed father status as to A.S. under
section 7611, subdivision (d). He
alleged A.S. had lived with him from February to July 2011, he told everyone he
was her father and he was supporting her financially and emotionally.
K.B. moved
to a larger home, purchased items for A.S. and enrolled in a parenting
education course. His first visit with
A.S. went well. A.S. showed no fear of
him, and they were developing a relationship.
In contrast, A.S. had difficulty during and after visits with Sara and
Carson. Carson
continued to have angry outbursts. Sara,
the paternal grandmother and the social worker were afraid of him. He threatened to harm K.B. and the foster
parents. A.S. was terrified of Carson. The court ordered Carson
to have no contact with either A.S. or K.B.
Paternity
tests confirmed K.B. was A.S.'s biological father. A.S. was excited to see K.B. and their visits
continued to go well. A.S. no longer had
behavior problems when she stopped visiting Carson.
At the
contested paternity hearing, the court declared K.B. to be A.S.'s biological
father. The court then considered
evidence of Carson's paternity status
as to A.S. Sara testified A.S. came to
live with her and Carson around the time they got married. Carson
was then on active duty in the Marine Corps, and added A.S. to his medical and
dental insurance coverage. He helped
A.S. get to her medical appointments. Carson
told Sara he held out A.S. as his daughter to almost everyone he spoke to,
including his entire Marine Corps command.
He referred to himself as A.S.'s dad, and A.S. called him
"dada." Carson contributed to
the rent, and paid for groceries and A.S.'s diapers.
After
considering the evidence and arguments of counsel, the court found Carson had
not met his burden of showing he was A.S.'s presumed father within the meaning
of section 7611, subdivision (d).
Specifically, the court found, by clear and convincing evidence, the
presumption did not apply because Carson's behavior toward A.S. was
antithetical to the role of a parent.
Alternatively, the court found even if Carson qualified as a presumed father,
considerations of policy and logic weighed in favor of K.B.'s paternity.
The court
continued the disposition hearing. Just
before the matter was called, Carson was in a scuffle in the courthouse
hallway, requiring deputy sheriffs to subdue and arrest him.
Sara
reported Carson was presently confined to barracks for a few more weeks because
of his conduct in the courthouse at the last hearing. She planned to remain in a relationship with
Carson even if it interfered with reunification because he provided her with
the emotional support she needed as a result of her posttraumatic stress
disorder. Although Carson was
participating in therapy, it had not been effective in controlling his angry
outbursts. Sara and Carson continued to
minimize and deny that they hurt A.S.
At the
continued hearing, social worker Minnie Balagtas testified K.B. had
consistently visited A.S. twice a week for the past three months. He was having unsupervised and overnight
visits. He inquired about her care, and
moved into a larger home so A.S. could have her own bedroom. Visits between A.S. and K.B. went extremely
well. Based on Balagtas's own
observation of the interaction between A.S. and K.B., as well as input from
A.S.'s therapist and foster parents, Balagtas recommended the court place A.S.
with K.B.
After
considering the evidence and arguments of counsel, the court declared A.S. and
D.M. dependents, removed A.S.'s custody from Sara and removed D.M.'s custody
from Sara and Carson. Finding no
detriment to A.S., the court placed her with K.B. The court placed D.M. in foster care, ordered
reunification services for Sara and Carson and ordered visits to be
supervised. The court gave Agency
discretion to expand visitation to include unsupervised, weekend and overnight
visits with the concurrence of D.M.'s counsel.
DISCUSSION
I
Carson
contends the court erred by denying his request for presumed father status as
to A.S. He asserts he adequately showed
he was deserving of presumed father status within the meaning of section 7611,
subdivision (d) because he received A.S. into his home and openly held her out
as his child.
A
The extent
to which a father may participate in dependency
proceedings, and a father's rights in those proceedings, depend on his
parentage status. (In re T.R. (2005) 132 Cal.App.4th 1202, 1209.) Only presumed fathers are entitled to all the
rights afforded to parents, including the appointment of counsel, reunification
services and custody (absent a finding of detriment). (Welf. & Inst. Code, §§ 317, subd.
(b), 361.2, subd. (a), 361.5, subd. (a); In
re Zacharia D. (1993) 6 Cal.4th 435, 448; In re T.R., at p. 1209.)
A presumed father is defined exclusively under the provisions of the
Uniform Parentage Act of 1973 (§ 7600 et seq.).
Paternity
presumptions are driven not by biology, "but by the state's interest in
the welfare of the child and the integrity of the family." (In re
T.R., supra, 132 Cal.App.4th at
p. 1209; In re Nicholas H. (2002) 28
Cal.4th 56, 65.) In the context of
dependency proceedings, a presumed father is one who promptly comes forward and
shows a full commitment to his parental responsibilities—emotional, financial
and otherwise. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802; see also
816, 849.) "The presumed father's
commitment to the child is a key consideration." (In re
T.R., at p. 1210.)
As relevant
here, a man may achieve presumed father status when he "receives the child
into his home and openly holds out the child as his natural child." (§ 7611, subd. (d).) In determining whether this provision
applies, the court considers factors such as whether the man promptly took
legal action to obtain custody of the child; whether and how long he cared for
the child; whether there is unequivocal evidence he acknowledged the child as
his and to what extent he did so; and whether his care of the child was merely
incidental. (In re T.R., supra, 132
Cal.App.4th at p. 1211.) The criteria
for achieving presumed father status, however, cannot be viewed in a
vacuum. (Ibid.) Thus, even a man who
receives a child into his home and holds the child out as his own will not
necessarily qualify as a presumed father if he has acted in a manner
incompatible with parenthood. (
A man seeking
presumed father status has the burden of establishing the foundational facts by
a preponderance of the evidence. (
1647, 1652.) We review the court's
determination for substantial evidence.
(Id. at pp. 1650, 1653;
646.) In this regard, we do not consider
the credibility of witnesses, attempt to resolve conflicts in the evidence or
weigh the evidence. Instead, we draw all
reasonable inferences in support of the findings, view the record favorably to
the juvenile court's order and affirm the order even if there is substantial
evidence supporting a contrary finding.
(Francisco G. v. Superior Court
(2001) 91 Cal.App.4th 586, 599-600; In re
Spencer W., at p. 1650.) On appeal, the
appellant has the burden of showing there is no evidence of a sufficiently
substantial nature to support the court's finding or order. (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.)
B
Here, the
evidence showed Carson received 14-month-old A.S. into his home after he
married Sara, but he did not take legal action to obtain custody of her until
these dependency proceedings began.
Although Carson financially supported A.S. and held her out as his
daughter, in every other respect he showed a total disregard for A.S.'s
well-being. During the four months A.S.
lived with Carson, she was the victim of physical abuse and neglect. She required hospitalization for a
potentially life-threatening condition, attributable, in part, to inadequate
nutrition at home. Carson refused to
cooperate with medical professionals, opting to have A.S. "go home and
die," an attitude entirely uncharacteristic of a committed or nurturing
parent. Contrary to Carson's argument,
he did not provide A.S. with security or try to ensure her needs were met. Further, A.S.'s multiple bruises were
consistent with inflicted trauma. Given
Carson's inability to control his temper, and A.S.'s abject fear of him, a reasonable
inference could be drawn that Carson had caused these injuries and, thus,
engaged in conduct antithetical to a parent's role.
Moreover,
there was absolutely no evidence of any positive parenting by Carson. Instead, he was emotionally abusive toward
A.S. and treated her with contempt. He
often became angry and frustrated, using profanity and raising his voice, which
caused A.S. to become terrified of him.
Carson's interactions with A.S. were so inappropriate that the court
issued a no-contact order. His conduct
was not simply "[unwise]" and "[unreasonable]," as he claims;
it was a blatant violation of his parental responsibilities.
Because
Carson showed no commitment to A.S.'s welfare, he does not belong to the
preferred class of fathers that the Legislature intended to benefit because
these fathers established a positive familial bond. "If an individual can qualify for
presumed father status based on his good deeds consistent with parental
responsibilities, it follows that under certain circumstances he can be
disqualified by repugnant conduct that is detrimental to the child." (In re
T.R., supra, 132 Cal.App.4th at p. 1212.)
Substantial evidence supports the court's finding Carson's conduct,
which was inimical to A.S.'s welfare, defeated his entitlement to presumed
father status.
title="">[3]
II
Carson
contends the court abused its discretion by ordering supervised visits with
D.M. Carson asserts he had a bond with
D.M., their interactions were positive and appropriate and he was ready for
unsupervised visits.
A
The
juvenile court defines a parent's visitation rights by balancing the parent's
interests in visitation with the child's best interests. (In re
Jennifer G. (1990) 221 Cal.App.3d 752, 757; Welf. & Inst. Code,
§§ 362.1, subd. (a)(1)(A) ["Visitation shall be as frequent as
possible, consistent with the well-being of the
child."], 366.21.)
Restrictions on parental visitation are proper if they are consistent
with the child's best interests under the particular circumstances of the
case. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1009;
988, 999.)
The court
has broad discretion in making visitation orders, which we review for abuse of
discretion. (In re Lee G. (1991) 1 Cal.App.4th 17, 26-27; In re Julie M. (1999) 69 Cal.App.4th 41, 48-51.) In this regard, the juvenile court's order
will not be disturbed on appeal unless the court has exceeded the limits of
legal discretion by making an arbitrary, capricious or patently absurd
determination. When two or more
inferences reasonably can be deduced from the facts, we have no authority to
reweigh the evidence or substitute our judgment for that of the juvenile
court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319;
1218, 1226-1227.)
B
Here, the
evidence showed Carson had a very serious anger management problem. He intimidated and threatened medical
professionals, the social worker, the foster parents, the maternal grandparents
and K.B. A.S. was terrified of Carson,
necessitating a no-contact order. Carson
continued to deny responsibility for A.S.'s injuries. His participation in therapy had not been
effective in controlling his angry outbursts, and he was recently arrested
following a scuffle in the courthouse hallway.
Although Carson's interaction with D.M. during supervised visits had been
generally appropriate, the court found visitation should remain supervised
until Carson progressed with the requirements of his case plan, including
participating in a psychological
evaluation and individual therapy.
Having considered D.M.'s best interests, the court acted well within its
broad discretion by requiring supervised visits between D.M. and Carson. (See In
re Chantal S. (1996) 13 Cal.4th 196, 203; In re Christopher H., supra,
50 Cal.App.4th at p. 1009.)
DISPOSITION
The orders
are affirmed.
O'ROURKE, J.
WE CONCUR:
McINTYRE, Acting P.
J.
IRION, J.
name="_ftn1" title="">[1]
Statutory references are to the
Family Code unless otherwise specified.
name="_ftn2" title="">[2]
Neither Sara nor K.B. is a party
to this appeal.
