In re Peter H.
Filed 3/8/13 In re Peter H. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re PETER H., a Person Coming
Under the Juvenile Court Law.
B240913
(Los Angeles
County
Super. Ct.
No. CK92117)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES et al.,
Plaintiffs and Respondents,
v.
JOAN H.,
Defendant and Appellant.
APPEAL from
orders of the Superior Court
of
County.
Marilyn M. Mordetzky, Juvenile Court Referee. Affirmed.
Andrea R.
St. Julian, under appointment by the Court of Appeal, for Defendant and
Appellant.
No
appearance for Plaintiff and Respondent Los Angeles County Department of
Children and Family Services.
Lori A.
Fields, under appointment by the Court of Appeal, for Minor and Respondent.
_______________
This appeal arises from the
appellant Joan H.'s son, Peter H. The
appeal is from an order vacating a finding that Aaron H. is Peter's presumed
father, and orders denying Joan H.'s request for a re-hearing on the
issue. Peter himself is the respondent,
DCFS having taken no position. We
affirm.
Facts
This family
came to the attention of DCFS in February of 2012, when Peter was 15 years
old. He was living with his mother, his
13-year-old half brother, Eric H., and his mother's husband, Christopher
H. DCFS became involved after Peter's
therapist reported that Peter had spoken of physical violence at the hands of
Christopher H. Peter was detained on
March 12, after another report of a violent incident in the home. During the investigation, Mother
told DCFS that Peter's biological father, Danny L., was deceased, having died
while incarcerated.
Also during
the investigation, DCFS spoke to Aaron H., Eric's father. He had lived with Mother from the time Peter
was two years old until he was about 10 years old, and he and Peter had
frequent weekend and weeknight visits thereafter. DCFS placed Peter with Aaron H., where he has
remained throughout the dependency.
On March
14, DCFS filed a Welfare and Institutions Code section 300
physically abused Peter.
Aaron H.
was present at the March 15 detention hearing.
He asked for presumed father status as to both children, specifying in
the Statement Regarding Parentage the years in which he had lived with Peter,
the people whom he had told that Peter was his child, the support he had
provided for Peter, and similar matters.
The court found "[Peter's] biological father is deceased and [Aaron
H.] has been acting as the father . . . so the court will make the finding that
[Aaron H.] is the presumed father of both Eric and Peter." (See Fam. Code, § 7611 [man presumed to be
child's natural father if, inter alia, he receives the child into his home and
openly holds out the child as his natural child].)
The court
ordered Peter placed with Aaron H. Eric
was not detained, and remained with Mother.
He was later dismissed from the petition.
Mother was
not present at the March 15 detention hearing, but was present at a March 29
arraignment hearing. On that date, she
completed a parentage questionnaire, writing that Danny L. was Peter's parent,
that he was present at Peter's birth and signed the birth certificate or other
paperwork naming him as the father, that he had held himself out as Peter's
father, that he had been dead for 10 years, and that she and Danny L. had never
married.
On March
29, the court vacated the presumed father finding and ordered DCFS to conduct a
due diligence on Danny L. The court
ruled that "Mother indicates, [because] Mother wasn't here at the time
that I made paternity findings, that [Danny L.] may be the father of the oldest
child. Department is to do a due
diligence on [Danny L.], and the court is going to vacate its finding since it
has new information in reference to [Aaron H.] being the presumed father of
[Peter]." Mother objected, stating
"I don't know what new information the court has on the record," and
that while she was "fine with placement," she considered Aaron H.,
Peter's father. In response, the court
indicated that the issue could be addressed again after notice had been sent to
Danny L., or after diligent search had failed to locate him.
On April 4, 2012, Mother filed a request
for rehearing of the ruling vacating the presumed father finding, asserting
that there were no new facts on March 29, that Aaron H. was Peter's presumed
father under the statutory criteria, and that a family law court had made that
finding.
this is not the case.) The request was
denied on April 24.
For an
April 18 hearing, DCFS reported that Mother loved Peter and wanted what was
best for him, was "deeply saddened" by the recent events, and
understood that she could not handle Peter's needs. She told DCFS that the placement with Aaron
H. was a good idea and wanted Aaron H. to have legal guardianship.
Also for
that hearing, DCFS reported on its efforts to find Danny L., reporting that it
had been able to ascertain that he had not died during the incarceration Mother
mentioned, that it had identified five possible addresses, and, apparently
based on information from Peter, a possible Facebook account. DCFS had, however, been unable to locate
Danny L.
The case
was called for adjudication and disposition on June 7. The court began the hearing by saying
"The Department has conducted a due diligence on the father for
Peter. That due diligence did reveal
some addresses for [Peter's father], so before we can proceed to any type of
disposition in this case since paternity is still at issue, the Department is
to complete notices to [Danny L.] pursuant to the due diligence. He is not named in the petition; so the court
is prepared to proceed with the 300 petition in reference to the mother."
Mother
submitted on the social workers' reports, and the petition was sustained under
section 300, subdivision (b).
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Mother then
asked the court to judicially notice a specified family law file, arguing that
it included evidence concerning Aaron H.'s presumed father status, which would
be relevant at a contested disposition hearing.
By this time, Mother had filed a notice of appeal of the March 29 order
vacating the presumed father finding, and the court denied the request, noting,
inter alia, that the issue of Aaron H.'s presumed father status was on appeal,
and thus outside the juvenile court's hands.
Mother's counsel then indicated that she had been asking that the matter
be reconsidered, and objected to the ruling.
The disposition
hearing was held on July 16. Mother's
counsel asked the court to reconsider its ruling vacating the presumed father
finding and objected to the court's refusal to take additional evidence. DCFS and Peter argued against any
reconsideration of the order, and DCFS represented that it was continuing to
make efforts to locate
Danny L. The court
ruled, again, that it could not rule on Aaron H. as presumed father, because
the issue was on appeal. The court also
rejected the representation of Peter's counsel that Peter had found Danny L. on
Facebook, again ruling that the court was not taking evidence on the issue.
The court
proceeded to disposition, ordering reunification services for Mother and visits
for Danny L., if he was located.
A July 30,
2012 DCFS report references a planned meeting between Peter and Danny L. With that report, DCFS submitted a copy of a
signed return receipt, for one of the addresses for Danny L.
On July 30,
Mother filed another notice of appeal,
describing the orders appealed from by writing that "On March 29, 2012,
the court vacated the presumed fatherhood finding for [Aaron H.] . . . . On
July 16, 2012, the court declined to take evidence regarding the presumed
fatherhood of Peter and ordered Peter suitably placed."
Discussion
We begin
with an issue raised by respondent:
standing. Respondent points out
that a parent will have standing to appeal a dependency court ruling only where
the parent's personal rights are affected by a ruling, and
that "To be aggrieved, a party must have a legally cognizable
interest that is injuriously affected by the court's decision." (
(2006) 137 Cal.App.4th 941, 952.)
On first
blush, based on those principles, Mother does not seem to have standing. Her contention is that she is affected by the
ruling in that her parental rights will not be terminated if Peter is living
with a parent, and might be terminated if he is living with a nonrelative. It is not clear that this interest, although
pragmatic, arises to the level of a legally cognizable interest. A parent's interest in dependency
proceedings, once the section 300 petition is sustained, is best legally
expressed as an interest in obtaining orders for visits and
having her efforts at reunification recognized by the court, and in having the
court make findings based on the facts.
(See In re Devin M. (1997) 58 Cal.App.4th 1538, 1540.) We note, too, that while the dependency law
requires that courts inquire about alleged or presumed fathers, it does so to
protect the alleged father's due process rights, not to block adoption in the
event the mother fails to reunify. (
(2006) 137 Cal.App.4th 252, 257; § 316.2.)
However, as
Mother argues, the Family Code provides that a mother may initiate a proceeding
to determine the existence (or non-existence) of a presumed father and child
relationship, and in so doing may assert the presumptions of Family Code
section 7611. (Fam. Code, §§ 7630, 7611,
7575; Gabriel P. v. Suedi D. (2006)
141 Cal.App.4th 850.) A mother may also
appeal from judgments in such a proceeding.
(Gabriel P. v. Suedi D., supra,
141 Cal.App.4th at p. 864.) Further,
once a section 300 petition is filed, the juvenile court has exclusive
jurisdiction to hear such an action. (§
316.2, subd. (e).) It is also true that
"We liberally construe the issue of standing and resolve doubts in favor
of the right to appeal."
(2007) 152 Cal.App.4th 987, 999.) We are
thus persuaded that Mother has standing.
Respondent
has another argument, characterized as one concerning standing, which is that
Mother has no standing because her parentage questionnaire conclusively
determined that Danny L. is Peter's father.
Respondent cites in legal support Family Code section 7573, which
provides, inter alia, that a completed voluntary declaration of paternity which
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
argument is not really about standing, it is about the merits, but it is in any
event unpersuasive, because the record does not include a copy of a voluntary
declaration of paternity. Respondent
acknowledges this, but points out that the birth certificate itself is in our
record, and that it is not signed by Danny L.
From this, respondent reasons that when Mother declared that Danny L.
signed "the birth certificate, or other paperwork naming him the
father," she must have meant that he signed the voluntary declaration.
We think
that respondent finds too much in the few facts which were before the
court. No voluntary declaration was ever
presented to the juvenile court.
Mother's statement, even though it was under penalty of perjury, that
Danny L. signed paperwork, did not compel the court to find that he was, unrebuttably,
Peter's father under Family Code section 7573.
Now, to the
merits of Mother's appeal.
Under
section 385, "Any order made by the court in the case of any person
subject to its jurisdiction may at any time be changed, modified, or set aside,
as the judge deems meet and proper."
"[T]he juvenile court has the authority pursuant to section 385 to
change, modify or set aside its prior orders sua sponte." (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 116.)
We
can see no abuse of discretion in the juvenile court's order setting aside the
finding that Aaron H. was Peter's presumed father. That is because the court had new
information, supplied by Mother, which indicated that Danny L. might be Peter's
father. No effort had yet been made to
find Danny L. The court did not abuse
its discretion by finding that its original order was premature.
Mother
cites Nickolas F., supra, 144
Cal.App.4th 92 for the proposition that a modification may be made only to
prevent a miscarriage of justice. The case holds only that, in addition to the
authority of section 385, "the juvenile court has inherent authority,
pursuant to California Constitution, article VI, section 1, to reconsider its
prior interim orders when necessary to prevent a miscarriage of
justice." (Id. at p. 99.) At any rate,
it is fair to say that when it vacated a potentially erroneous paternity
finding, the court did prevent a miscarriage of justice.
As
Mother argues, a juvenile court acting under section 385, or its inherent
powers, must provide the parties with notice and opportunity to be heard. (Nickolas
F., supra, 144 Cal.App.4th at p. 98.)
Mother did not receive such notice, but we nonetheless see no ground for
reversal, because she was not prejudiced.
Her argument on prejudice is that, with notice, she could have presented
a family law order that Aaron H. was Peter's presumed father. Mother has since learned that there is no
such order.
re-hearing
Here, Mother argues that the
court abused its discretion on April 25, when it denied her written motion for
rehearing of the order vacating the paternity finding, and on June 7, when
Mother made what she deems an oral section 388 motion, seeking a change in the
March 29 order.
Respondent
argues that Mother did not appeal from the June 7 order, noting that in her
notice of appeal, she described only March 29 and July 16 orders. It is true that the notice of appeal is limited,
but, as Mother points out, a notice of appeal must be liberally construed (
272), and when this notice of appeal is construed very liberally indeed, it is
sufficient to bring April 25 and June 7 orders to our attention. (See
801 [orders entered before the dispositional hearing reviewable on appeal from
the dispositional order]; In re Madison W. (2006) 141 Cal.App.4th 1447, 1451 [court will
construe notice of appeal from order terminating parental rights to encompass
denial of section 388 motion].) We do
not, however, find grounds for reversal.
As to the
denial of Mother's April 4 motion to set aside the March 29 order, Mother's
arguments are similar to those she made concerning the March 29 order
itself. She contends that Aaron H. is
Peter's presumed father as a matter of law, and that she did not receive notice
of the March 29 hearing on the order.
The first argument ignores the possibility that Danny L. could be conclusively
presumed to be Peter's father. The
second is unpersuasive for the reasons we have already explained. Mother also makes arguments based on her
contention that on March 29, the matter was decided in an unreported chambers
conference -- a contention we have rejected.
Nor do we
see error in the court's June 7 ruling.
Mother argues that the court made its ruling only because it believed
that it no longer had jurisdiction over the issue, a belief which Mother argues
was erroneous. It is true that in a
dependency proceeding, an appeal does not divest a lower court of all
jurisdiction. (
251, 260.) However, as the court found,
the facts concerning Peter's legal parentage had not yet been determined, so
that a new hearing on Aaron H.'s status would have been, at best, premature.
Finally,
Mother argues that the placement with Aaron H. was in error, not because it was
with Aaron H., but because it should have been with Aaron H. as a father, not
as a nonrelative caretaker. It will by
now be clear that we see no error in the placement decision.
Disposition
The orders
appealed from are affirmed.
ARMSTRONG,
Acting P. J.
We concur:
MOSK,
J.
KRIEGLER,
J.
Welfare and Institutions Code unless otherwise indicated.
vacated so that Aaron H. could obtain public funding for Peter's care, and
attached a declaration of counsel to the effect that prior to the March 29
hearing, counsel for Peter informed her that she would seek to vacate the
presumed father finding for the sole purpose of ensuring that Aaron H. could
get foster care funding and medical benefits for Peter. The declaration also recounted statements
made by Mother's, Peter's and Aaron H.'s lawyers at a chambers conference on
the issue. In her briefs on appeal,
Mother makes arguments based on the contention that Aaron H.'s need for funding
was the "true reason" for the court's March 29 ruling. We do not consider those arguments. The true reason for the court's ruling is the
reason the court stated, on the record.
We would not look beyond that even to consider comments by the court
(see Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1451) and cannot find the "truth" in a hearsay
account of the statements of counsel. We
say the same about respondent's speculation, in his brief, about what might
have happened in a March 29 chambers conference.
