In re E.T.
Filed 5/30/13 In re E.T. CA2/8
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 E.T., A Person Coming
Under the Juvenile Court Law.
B243407
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
L.T.,
Defendant and Appellant;
C.M.,
Real Party in Interest.
(Los Angeles
County
Super. Ct.
No. CK92328)
APPEAL from orders of the Superior
Court of
County. D. Zeke
Zeidler, Judge. Reversed.
Liana
Serobian, under appointment by the Court of Appeal, for Defendant and Appellant
L.T.
Darlene
Azevedo Kelly, under appointment by the Court of Appeal, for Real Party in
Interest, C.M.
John F.
Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn
K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent
Department of Children and Family Services.
___________________________________
Mother, L.T., appeals from the juvenile court’s dispositional
order granting custody of minor E.T. to his biological father, C.M. Father admits he never achieved presumed
father status, but nonetheless contends the appeal is moot because the court
subsequently removed E.T. from his custody upon the filing of a supplemental
petition alleging neglect by father.
Mother also contends the court’s visitation order, providing that “[t]he
Department is to create a detailed visitation order for mother[,]†is
prejudicially vague. The
(Department) filed a letter brief “taking no position†on mother’s challenge to
the custody order, and “not oppos[ing] a remand for a proper visitation
order.†We find this appeal is not
rendered moot by the court’s later order removing E.T. from his placement with
C.M. Because C.M. was a mere biological
father, and was not entitled to presumed father status, the order granting him
custody was in error. We also agree that
the visitation order failed to adequately specify the frequency and duration of
mother’s visits, and reverse and remand for further proceedings.
On January 27, 2012, the Department
received a referral alleging that 21-month-old E.T. was neglected by
mother. Mother and E.T. shared a home
with maternal grandmother and an older sibling (over whom maternal grandmother
had a guardianship due to mother’s drug use), and maternal great
grandparents. E.T. had lived in this
home for his entire life. Mother would
often leave E.T. with maternal relatives without making plans for his care, and
without specifying when she would return.
She would leave E.T. for days without calling to check on him. Mother admitted leaving E.T. with maternal
relatives for days at a time while she stayed with friends, and that she does
not always return when she says she will.
She also admitted that she does not contact maternal relatives to let
them know when she is not going to return as planned.
Mother has
a history of illegal drug abuse. She started using marijuana when she was 14
(in 1995), and graduated to methamphetamine when she was 16 (in 1997). Mother completed a drug program in September
2006, and claims she has not used illegal drugs since then.
Mother also has a history of mental
health problems. She was diagnosed as
bipolar in 2007, and was prescribed medication.
She stopped taking her medication once she became pregnant with E.T. She was hospitalized several times in the
last seven years because she attempted suicide.
Her last hospitalization was in 2010.
At the request of the Department,
mother drug tested on February 8, 2012.
The test was positive for amphetamine and methamphetamine. When the social worker went to the family home,
maternal great grandfather reported that mother left the home over the weekend,
and had not returned or contacted them.
E.T. was ill over the weekend, and mother did not return the family’s
calls.
Maternal grandmother reported that
E.T. had a fever and was vomiting. She
did not know where mother was, and left voicemail messages for mother that E.T.
was sick. Mother did not return any of her calls. Maternal grandmother took E.T. to the
emergency room, and had difficulty obtaining treatment for E.T. because she did
not have an authorization to receive medical care for E.T. Eventually, she was able to get him
treated. Maternal grandmother was
concerned that mother was currently using drugs; she was exhibiting many of the
same behaviors that led grandmother to seek guardianship over mother’s older
child.
Mother eventually called the
Department social worker. She said E.T.
was not sick when she left him, and that she did not receive any phone calls
concerning his illness because she had turned off her phone over the weekend. When confronted with the positive drug test,
mother explained that perhaps she was around someone who was using drugs,
causing her to test positive. She did
admit to using drugs on Sunday (over the weekend that E.T. became ill) because
maternal great grandmother had been diagnosed with cancer, and this was
difficult for mother to deal with.
A team decision-making meeting was
held on February 17, 2012. Mother,
maternal grandmother, maternal great grandparents, and maternal aunt
attended. At the meeting, mother claimed
her recent positive drug test must have been a mistake. She only used drugs over the weekend that
E.T. became ill. Nevertheless, all
parties agreed the Department’s supervision was necessary to protect E.T. Mother agreed to leave the family home so
that E.T. could stay there under the care of maternal grandmother.
Mother refused to disclose to the
Department the identity of E.T.’s father, who had not provided for E.T.’s
support.
At the February 29, 2012
ordered E.T. removed from mother and placed with maternal grandmother. The court ordered monitored visitation for
mother, and allowed maternal grandmother to monitor the visits. Mother also submitted a signed declaration of
paternity indicating that father’s identity was “unknown.â€
The Department’s April 11, 2012
jurisdiction/disposition report reflected that the family home was clean and
safe, and that none of the occupants had any criminal or child abuse
histories. Mother had only one visit
with E.T. since his detention and called maternal grandmother only for money
rather than to arrange visits. Mother
did not return calls from the Department.
Because mother refused to identify father, the Department completed a
due diligence search. The due diligence
did not identify or locate E.T.’s father.
No father was identified on E.T.’s birth certificate.
At the April 11, 2012 adjudication
hearing, mother pled no contest to the petition, and the following allegations
were sustained:
“[Under Welfare
and Institutions Code, section 300, subdivision (b)
. . . [M]other . . . has a history of illicit drug abuse,
including marijuana, and is a recent abuser of amphetamine and methamphetamine,
which periodically renders the mother incapable of providing regular care and
supervision of the child. On 02/08/2012,
the mother had a positive toxicology screen for amphetamine and
methamphetamine. On 02/08/2012 and on
prior occasions, the mother was under the influent of illicit drugs, while the
child was in mother’s care and supervision.
The mother’s illicit drug abuse endangers the child[’s] physical health
and safety and places the child at risk of physical harm and damage.
“[Under section 300,
subdivision (b)] . . . On 02/18/2012 and on prior occasions,
. . . mother . . . left the child in the care of maternal
grandmother . . . and maternal relatives without making an
appropriate plan for the child’s ongoing care and supervision. The mother’s whereabouts were unknown to the
maternal grandmother and maternal relatives.
On 02/18/2012, the child suffered from a fever and vomiting and required
medical treatment. The mother failed to
provide the maternal grandmother with medical authorization to obtain medical
care for the child. The mother’s failure
to make an appropriate plan for the child’s care and supervision endangers the
child’s physical health and safety and places the child at risk of physical
harm and damage.â€
Mother finally identified father at
the hearing, and informed the court that he had filed a paternity action at the
Norwalk courthouse. The court continued
the matter to May 14 for a further disposition hearing, and for further due
diligence now that father’s name had been disclosed.
In a May 14, 2012 last minute information
for the court, the Department informed the court that it had obtained
information regarding father’s paternity action from the Norwalk
courthouse. The Department also reported
that father had a child welfare history, consisting of substantiated referrals
for physical abuse in November of 2000, and emotional abuse in April of
2001. Father used “excessive and
inappropriate physical discipline†on his stepchildren. He completed a 26-week domestic violence
program and a parenting class, and jurisdiction was terminated in February
2002.
The Department interviewed
father. He had no contact with mother
since December 2010. Mother refused to
allow him to see E.T., and so he filed for shared custody and visitation. Father admitted to domestic violence problems
with an ex-wife
for three years for domestic violence in 2003.
He denied any other criminal history.
Father ended his relationship with mother while she was pregnant with
E.T. He ensured she received prenatal
care before their relationship ended.
Father only saw E.T. three or four times after he was born.
Father filed an order to show cause
re: child custody and visitation in family court in October 2010. In her responsive declaration, mother did not
consent to custody, and wanted only monitored visitation for father. She declared that father “may or may not be
the father†of E.T. as she had “multiple sexual partners . . . around
the approximate time of conception.†She
further declared she was concerned about E.T.’s safety because of father’s
methamphetamine use. Moreover, father
did not have a stable and permanent residence of his own, and was involved in a
police chase while his sons from another relationship were with him in the
car. At the January 8, 2011 order to
show cause hearing, the family court ordered paternity testing, and ordered
each party to pay for half the cost. Father
failed to appear at the continued order to show cause hearing, and failed to
pay for his share of the paternity testing.
Accordingly, the order to show cause was placed off calendar.
Father appeared at the May 14, 2012
disposition hearing. The court ordered
paternity testing. The court also gave
the Department discretion to release E.T. to father if paternity was
established. Father was also to receive
unmonitored visits upon positive paternity results. The June 5, 2012 paternity results established
that father was E.T.’s biological father.
On June 22, 2012, the trial court found that father was E.T.’s
biological father. The court ordered
unmonitored visitation for father.
On June 28, 2012, the Department
filed a supplemental petition under section 342, which included new allegations
about father. The petition alleged
father “has a history of illicit drug abuse and is a frequent user of
methamphetamine which renders the child’s father incapable of providing regular
care and supervision for the child. The
father’s illicit drug abuse endangers the child’s physical health and safety
and places the child at risk of physical harm and damage.â€
In a June 28, 2012 supplemental
report, the Department described father’s child welfare history. The Department received a referral in
November 2000, alleging that father hit his stepdaughters in the face with a
baseball bat, his fists, and a hanger, causing bruising. The allegations were substantiated, and the
family was under court supervision between November 2000 and April 2002. The Department also received a substantiated
referral in April 2001 for emotional abuse of father’s biological child. Father pulled the child across the yard with
enough force to nearly pull his arm out of the socket. Father also threatened to put a “hit†on the
child’s stepfather.
Father also has an extensive
criminal history. He has a 1991
conviction for assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1));
two 2002 arrests for inflicting corporal injury on a spouse (Pen. Code, §
273.5, subds. (a), (e)(1)); a 2003 conviction for evading a police officer
(Veh. Code, § 2800.2), willful cruelty to a child (Pen. Code, § 273a,
subd. (b)), and corporal injury on a spouse (Pen. Code, § 273.5, subd. (e)(1)),
for which he was sentenced to three years in prison; a 2005 conviction for
possession of a controlled substance for sale (Health & Saf. Code, §
11378); as well as two warrants for parole violations in 2006 and 2007 (Pen.
Code, § 3056).
Moreover, father was living with
people with criminal histories. His
fiancé, V.A., was arrested in 2008 for possession
of a controlled substance. (Pen.
Code, § 4573.6). His future
father-in-law had a driving-under-the-influence conviction from 2009.
In late June 2012, father had a
visit with E.T. in maternal grandmother’s home.
Maternal grandmother reported the visit went well, but she was concerned
E.T. would be traumatized by unmonitored visits with father, because he did not
know father and the two did not have a relationship.
Father denied any current drug use
to the Department social worker, and denied ever being caught with drugs in his
possession. He did admit to completing a
Proposition 36 drug program, but claimed he did so simply to reduce his prison
sentence. However, he was ordered to
participate in a Proposition 36 program for his 2005 drug conviction. When confronted with his drug conviction,
father said that it must be a mistake, and must be for someone else with his
same name. Father claimed to have had no
trouble with drugs or the law since his release from prison. Based on his history, the Department
recommended that father’s contact with E.T. be monitored.
Mother and father testified at the
June 28, 2012 combined disposition hearing for the original section 300
petition, and the detention hearing for the section 342 supplemental
petition. As to the section 342
petition, mother testified that she had used methamphetamine with father “[a]
lot of times†and had last used methamphetamine with father in June of
2009. Their relationship had lasted 10
months, and they used drugs together nearly the entire time. The last time father saw E.T. was when he was
one month old, and then father stopped visiting. Mother never hid E.T. from father.
Father testified that he completed
a Proposition 36 program, and completed a “substance abuse foundation†while in
prison in 2003. He admitted to being
arrested in 2005 on drug charges, and that he completed the Proposition 36
program because of that arrest. Father
denied telling the Department social worker he completed the Proposition 36
program to get less prison time, and denied that he told her the arrest for
drugs was a “mistake.†When asked when
was the last time he used drugs, father claimed, “I never used. I was selling in 2005.â€
The trial court observed that its
ruling on the section 342 petition turned on whether mother or father was a
more credible witness regarding father’s drug use. The court found father to be more credible. “[I]f you . . . go back to the
detention report where [mother] even refused to name who the father was or say
anything . . . it’s one more indication of her lack of being
forthcoming and having some motive to keep the father out of the case or the
child’s life.†The court dismissed the
section 342 petition.
As to the disposition on the
original section 300 petition, mother testified that because she was not sure
who was E.T.’s biological father, mother wanted paternity testing in the family
law proceeding. But, father “never
showed up†to complete the testing. Mother
did not identify father in the dependency proceeding because “if he wants to be
the father let him do it on his own volition.
I didn’t feel like court should be the way to make him want to be a
father.†Father testified that E.T.
should be released to him. Father did
not complete the paternity testing in the family law proceeding because he did
not have the money to pay for his share of the test. He never followed up to establish his
paternity because “I was kind of hurt because [mother] said I wasn’t the
father.†He just “figured†he was not
wanted at mother’s family’s house because he had not established his
paternity.
The court concluded that removal
from mother was necessary, and placed E.T. with father under a family
maintenance plan. The court ordered
father to submit to six random drug tests.
The court ordered family reunification services for mother, and ordered
that “the Department is to create a detailed visitation schedule for the
mother.â€
Mother timely appealed.
Mother appeals the juvenile court’s
dispositional order granting custody of E.T. to father, contending that only
presumed fathers are entitled to custody, and that father never achieved
presumed father status. Father admits he
never achieved presumed father status, but contends that issue is moot because
the court subsequently removed E.T. from his custody. Mother also contends the court’s visitation
order, providing that “[t]he Department is to create a detailed visitation
order for mother[,]†is too vague. We
find that mother’s appeal is not moot, because allowing the order to stand may
have consequences in later proceedings.
We also agree that the visitation order fails to sufficiently establish
the frequency and duration of mother’s visits.
Accordingly, we reverse.
1.
Custody
Order
Mother challenges the order
granting father custody, contending the court did not find that father was
E.T.’s presumed father, and that any implied finding is not supported by
substantial evidence. Father admits the
court never found him to be a presumed father, and that he did not qualify for
presumed father status, but nonetheless contends the court properly exercised
its discretion to place E.T. with him as E.T.’s biological relative under section 361.3.
An appeal may become moot where
subsequent events, including orders by the juvenile court, render it impossible
for the reviewing court to grant effective relief. (In re
Albert G. (2003) 113 Cal.App.4th 132, 134-135; In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1317;
Cal.App.3d 354, 357; In re Pablo D.
(1998) 67 Cal.App.4th 759, 761; In re
Dylan T. (1998) 65 Cal.App.4th 765, 769.) “‘An issue is not moot if the purported error infects the
outcome of subsequent proceedings.’â€
(In re C.C. (2009) 172
Cal.App.4th 1481, 1488.)
Mother urges that the appeal is not
moot because the custody order has “collateral consequences which will continue
to adversely affect mother in the underlying dependency proceedings, and
potentially in future proceedings as well.â€
Specifically, she contends the court’s order resulted in neglect or
abuse of E.T. while he was in father’s care.
Also, mother contends that father’s paternity status is still at issue,
and that he would automatically benefit from presumed father status if the
order is allowed to stand. We agree that
allowing the court’s order to stand may have collateral consequences, such as
the implied finding that father qualifies for presumed father status, and that
mother may be unfairly prejudiced in her efforts to reunify with E.T. due to
the abuse and neglect E.T. suffered while in his father’s care. Therefore, we will reach the merits of the
appeal.
“In dependency proceedings, ‘fathers’ are divided into
four categories—natural [or biological], presumed, alleged, and de facto.†(In re
A.A. (2003) 114 Cal.App.4th 771, 779.)
The distinction is important because only a presumed father is entitled
to custody and reunification services. (
Cal.App.4th 1113, 1120; In re Paul H.
(2003) 111 Cal.App.4th 753, 760; In re
O.S. (2002) 102 Cal.App.4th 1402, 1406-1407.) Specifically, section 361.2 provides that “[w]hen a court orders removal of a child pursuant to
Section 361, the court shall first determine whether there is a parent of the child,
with whom the child was not residing at the time that the events or conditions
arose that brought the child within the provisions of Section 300, who desires
to assume custody of the child. If that
parent requests custody, the court shall place the child with the parent unless
it finds that placement with that parent would be detrimental to the safety,
protection, or physical or emotional well-being of the child.†(§ 361.2, subd. (a).) Only a presumed father is
entitled to custody under section 361.2.
(In re Zacharia D. (1993)
6 Cal.4th 435, 451.)
The statutory methods for
establishing a presumption of paternity are contained in the Family Code. The provision applicable here, Family Code
section 7611, subdivision (d), provides that a man is presumed to be the
natural father of a child if “[h]e receives the child into his home and openly
holds out the child as his natural child.â€
Moreover, there are some circumstances
when a man who has not received the child into his home may be declared a
presumed father, under principles of due process and equal protection, when he
has been prevented by the mother from physically receiving the child into his
home. (See Adoption of Kelsey S.
(1992) 1 Cal.4th 816, 849-850.)
A man who claims entitlement to presumed father status
has the burden of establishing by a preponderance
of the evidence the facts supporting his entitlement. (In re
T.R. (2005) 132 Cal.App.4th 1202, 1210.)
In carrying that burden, a biological father must establish that he “‘promptly [came] forward and demonstrate[d] a full
commitment to his parental responsibilities—emotional, financial, and
otherwise . . . .’â€
(In re Zacharia,
biological father has demonstrated such a commitment, ‘[t]he father’s conduct
both before and after the child’s birth must be considered. Once the father knows or reasonably should
know of the pregnancy, he must promptly attempt to assume his parental
responsibilities as fully as the mother will allow and his circumstances
permit. In particular, the father must
demonstrate “a willingness himself to assume full custody of the
child . . . .â€â€™â€
[Citation.] ‘A court should also
consider the father’s public acknowledgement of paternity, payment of pregnancy
and birth expenses commensurate with his ability to do so, and prompt legal
action to seek custody of the child.’†(
omitted.)
Here, the
only paternity finding appearing in the record is that father is a biological
father. Father never endeavored to
establish his status as a presumed father, and never asked the court to make
such a finding. Father does not dispute
that the court did not find him to be a presumed father, and on appeal, he
agrees that such a finding would not have been supported by the evidence. The facts discussed above plainly establish
that father is not a presumed father.
Father contends, however, that as E.T.’s biological
relative, he was entitled to placement of E.T. under section 361.3. Section 361.3, subdivision (a) provides, “In
any case in which a child is removed from the physical custody of his or her
parents pursuant to Section 361, preferential consideration shall be given to a
request by a relative of the child for placement of the child with the
relative.†“Preferential considerationâ€
means that “the relative seeking placement shall be the first placement to be
considered and investigated.†(§ 361.3,
subd. (c)(1).) For purposes of section
361.3, “‘[r]elative’ means an adult who is related to the child by blood,
adoption, or affinity within the fifth degree of kinship, including
stepparents, stepsiblings, and all relatives whose status is preceded by the
words ‘great,’ ‘great-great,’ or ‘grand,’ or the spouse of any of these persons
even if the marriage was terminated by death or dissolution. However, only the following relatives shall
be given preferential consideration for the placement of the child: an adult who is a grandparent, aunt, uncle,
or sibling.†(§ 361.3, subd.
(c)(2).)
Although a biological father is technically an “adult
who is related to the child by blood, adoption, or affinity within the fifth
degree of kinship†(§ 361.3, subd. (c)(2)), section 361.3 contemplates the
placement of a child with a relative after removal from his “
relatives entitled to preferential placement under section 361.3, and it is
clear that any preference for placement with a relative is subordinate to
placement with a nonoffending parent under section 361.2. Section 361.2 requires a child to be placed
with a nonoffending parent unless such a placement would be detrimental,
whereas section 361.3 only requires preferential consideration of a relative for placement. (See § 361.2,
subd. (a) [“If that parent requests custody, the court shall place the child with the parent unless it finds that
placement with that parent would be detrimental to the safety, protection, or
physical or emotional well-being of the child.â€
(Italics added.)]; § 361.3, subds. (a), (c).) Furthermore, section 361.2
specifically addresses placement with a parent, and therefore makes clear that
section 361.3 was not intended to address parents. Had the Legislature intended section 361.3 to
apply to parents, it would have said so.
(See In re Zacharia D., supra, 6 Cal.4th at p. 451.)
Even if section 361.3 applies, it was a clear abuse of
discretion to place E.T. with father rather than maternal grandmother. Father and E.T. had no relationship, whereas
E.T. had grown up in maternal grandmother’s home, along with his sibling,
E.L. Moreover, maternal grandmother had
no criminal or child welfare history, whereas father had a long history of
child abuse and criminal behavior. (See
v. Superior Court (2004) 116
Cal.App.4th 856, 863-864; § 361.3, subd. (a).)
Therefore, we conclude the trial court erred in
placing E.T. with father, and reverse the court’s dispositional order.
2.
Visitation
Order
Mother contends the trial court’s
June 28, 2012 visitation order failed to ensure that she would receive
reasonable visitation, when the court ordered that the “Department is to create
detailed written visitation schedule for mother.†The Department agrees the court’s visitation
order fails to establish a “minimal framework†for visitation, and therefore
“does not oppose remand for a proper visitation order to be fashioned by the
juvenile court.†Father takes no
position as to mother’s challenge to the visitation order.
The court has the sole power to
determine whether visitation will occur.
(In re M.R. (2005) 132
Cal.App.4th 269, 274; In re S.H.
(2003) 111 Cal.App.4th 310, 319; In re
Julie M. (1999) 69 Cal.App.4th 41, 48-49.) Once visitation is ordered, the court may
delegate responsibility for managing details such as the time, place and manner
of visits, none of which affect a parent’s defined right to see his or her
child. (In re Chantal S. (1996) 13 Cal.4th 196, 213;
Cal.App.4th 1367, 1374; In re T.H.
(2010) 190 Cal.App.4th 1119, 1123.)
However, the visitation order must give some indication of how often
visitation should occur. (See
Cal.App.4th 1001, 1008-1009; In re
Moriah T., at pp. 1375-1376.) A
court may not abdicate its discretion to determine whether visitation will
occur to a third party. (
Cal.App.4th 1310, 1314 [“The time, place, and manner of visitation may be left
to the legal guardian, but leaving the frequency and duration of visits within
the legal guardian’s discretion allows the guardian to decide whether
visitation actually will occur.â€].)
Here, the court’s visitation order
failed to give any indication about the frequency of the visits, effectively
giving the Department discretion to decide whether visitation would actually
occur. Accordingly, we remand the matter
with directions “to specify the frequency and duration†of mother’s
visits. (In re Rebecca S., supra,
181 CalApp.4th at p. 1315.)
DISPOSITION
The June 28, 2012 dispositional order placing E.T. in the
home of father is reversed. The
visitation order is reversed, and the case remanded with directions to specify
the frequency and duration of mother’s visits.
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J.
RUBIN, J.
further undesignated section references are to the Welfare and Institutions
Code.
