In re T.B.
Filed 6/17/13 In re T.B. CA1/3
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
THREE
In re T.B.
et al., Persons Coming Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL SERVICES
AGENCY,
Plaintiff and Respondent,
v.
T.Y.,
Defendant and Appellant.
A136182
(Alameda County
Super. Ct. No.
OJ12018490)
T.Y.
(Father), father of 14-year-old T.B. and 5-year-old M.Y., appeals from the
juvenile court’s order on reconsideration denying
dispositional order granting services to him; (2) erred by considering,
upon reconsideration, an additional allegation that had not been previously
pled; (3) erred in failing to determine whether it was in M.Y.’s best
interest to award reunification services to Father; and (4) violated his
services to the children’s mother (Mother), but not to him. We reject the contentions and affirm the
order.
Factual and Procedural Background
An
original petition was filed February 29, 2012, alleging Father punched T.B. in
the face and stomach,
pushed him to the ground, and made him eat an onion and garlic as a form of
discipline. Two days later, Father slapped
T.B. across the face, punched him in the stomach, grabbed T.B.’s head and
slammed it into the freezer door, then punched him in the stomach again,
causing T.B. to lose his breath. T.B.
was fearful of returning home to live with Father. There was a substantial risk that T.B.’s
younger brother, M.Y.—who had witnessed some of the abuse—had also been
abused. The children had no provision
for support, as Father was in custody on felony charges of willful harm or injury
to a child and corporal punishment or injury to a child, and Mother, who had
lost physical custody of the children in May 2011, was not capable of
providing full time care for them at the time.
According
to the detention report, the children were placed in their great maternal aunt
and uncle’s home. There was a prior
County filed July 10, 2010, in which it was alleged that Mother grabbed
T.B. by his face and neck, stomped on him, and banged his head against a wall,
causing T.B. to suffer a seizure and be airlifted to a hospital for immediate
medical attention. Mother also kicked
T.B. out of the home in only his boxer shorts and a t-shirt, and cursed at him
that she did not want him. Further,
T.B.’s parents were involved in a domestic violence incident in
August 2009 that resulted in Father being arrested for spousal battery and
false imprisonment. Another dependency
petition filed in Contra Costa County on July 15, 2010 alleged M.Y. was at
risk because of the abuse against T.B. The petitions were sustained on the
abuse and neglect allegations.
name="_ftnref1" title="">[1]
In
an interview with the Alameda County
Social Services Agency (Agency), T.B. provided details of the incidents
that led to the filing of the instant petition.
He added that Father also hits M.Y. and that he and M.Y. are afraid of
Father and often flinch when he makes movements. M.Y. reported that Father hit T.B. and also
“whopped [T.B.] with a belt.†Father
denied the allegations and told police that T.B. is a liar who had also lied
about Mother hitting him. When reminded
that T.B. was hospitalized from being hit by Mother, Father responded that T.B.
had “faked†the seizure. Mother, who
participated in a team decision making meeting, said she wanted to reunify with
the children. She acknowledged she was
unable to do so right away and said she was taking parenting classes, attending
college, and working towards obtaining a stable living environment. The court detained the children, who were
ordered to remain in their relatives’ home.
The
Agency reported in a jurisdiction/disposition report that the children were
doing well. T.B. did not want to live
with Father and wanted to live with Mother, or with an aunt in Stockton if he
could not be with Mother. The district
attorney’s office reported that Father was being charged with felony child
abuse. The police department reported
that a felony count had been added for M.Y. and that “video evidence of [T.B.]
being forced to eat an onion†had been discovered. The Agency recommended that Father receive no
reunification services, stating: “The
father has a significant criminal history that dates back to August 8,
1989 that includes convictions of kidnapping, false imprisonment with violence,
and battery of cohabitating partner in March 3, 2009 in Contra Costa
County . . . Additionally, the severity of the physical and emotional
abuse of the minors by the father in this current situation indicates that he
did not incorporate the domestic violence and/or parent training skills he
should have learned from the previous Family Reunification Services offered
through Contra Costa County.â€
According
to a police report, which was attached to the jurisdiction/disposition report, T.B.
told police that when he returned home from school on February 24, 2012,
Father walked towards him and “socked him dead in the chest.†T.B. could not speak. Father then picked T.B. up and “threw him
across the things†and hit him “more and more†as T.B. backed up. T.B. fell to the floor and Father hit him
with his knuckle in T.B.’s lip, causing it to swell up. That evening, Father told T.B. to eat an
onion and garlic for dinner as punishment for lying about his homework. T.B.’s tongue and throat became swollen from
eating the onion and garlic. Two days
later, Father became mad at T.B. for not cleaning up some food. Father slapped T.B. across the face, causing
T.B. to fall. When T.B. got up, Father
hit him in the stomach, then hit him again.
The hits to the stomach were “straight punches,†and T.B. could not
breathe. Father then opened the freezer
door and slammed T.B.’s head against the freezer door, causing the door to hit
the wall, then close. T.B. tried to get
away but Father punched him in the stomach again. The police officer noted T.B. was “very
consistent†in what he reported.
According
to the police report, Father’s housemates, who had witnessed some of the abuse,
stated they did not want to make a police report but that they would “come
forward†if necessary. One housemate
stated that when she came home, she noticed T.B.’s lip was bleeding. She asked T.B. what happened and he said he
had a toothache. When she returned that
afternoon, she saw T.B. doing his homework.
Father asked if T.B. was done, and when T.B. responded he was not,
Father “smacked him twice in the back of the head. The smacks were loud and almost knocked
[T.B.’s] head to the table.†Father said
if T.B. did not finish his homework, he was going to “take him outside, drag
him up and down the street and beat the shit out of him.†Later that day, the housemate saw Father cut
an onion and give half to T.B. Father
made T.B. eat the onion for dinner while lecturing him about how lucky he was
to not be in foster care. T.B. “was
crying and then threw up on the floor and [Father] made him mop it up.â€
Another
housemate reported that as soon as T.B. came home from school and walked in the
door, Father started “ ‘firing’ †on T.B., who was backed up against
a corner as Father “was just hitting him, punching him with his fists all over
his body.†T.B. “knew how to protect
himself, luckily.†Father punched T.B.
“maybe about 10 times, then went into [a] room and came back out and
started punching him more.†T.B. cried
as Father called him “ ‘bitches,’ †and Father told T.B. that he
(Father) was “only there so the kids don’t have to be in foster care.†T.B. was on the floor and Father “was
standing over him just punching him, calling him bitches.†The housemate left with her child, and when
she returned, she saw T.B. eating an onion.
Father came out and said, “you still eating the onion.†Father “slapped [T.B.] with an open hand†and
told him he would have to eat another onion since he was not done with the
first. As T.B. ate the onion, M.Y. said,
“don’t do that,†to which Father responded by smacking M.Y. in the mouth and
saying, “ ‘Stay the fuck out [of] his business.’ †M.Y. cried out in pain. The housemate then saw T.B. run towards the
bathroom and throw up the onion. Father
said, “what did I tell you if you threw it up,†and T.B. responded, “I need to
lick it up.†Father saw the housemates
looking so he allowed T.B. to mop it up, but when T.B. was “not doing it
[mopping it up] fast enough,†Father “started hitting him again.†Father “punched [T.B.] dead in the chest, and
[T.B.] just crumbled to the floor.†T.B.
was “punched on all over the body again†for not finishing the onion, and it
was as if Father was “fighting a grown man.â€
Father was violent and always blamed the children.
According
to the second housemate, Father had been sexually and physically abused and did
“weird†things. On one occasion, when
the housemate’s son asked Father for an Icee bar, Father put the bar to his
groin and said, “you want some ok come get it.â€
On another occasion, when M.Y. said that Father “moon[ed]†him all the
time, i.e., pulled his pants down at him, Father told M.Y. to be quiet and said,
“I do not do that.†M.Y. responded, “no
you don’t.†The housemate regretted
having left her child with Father on two occasions while she was at work, and
also felt sorry for Father’s children.
Police recovered a five and a half minute video from Father’s cell phone
showing T.B. eating a white onion while Father made references to posting the
video on the internet.
The
Agency filed an addendum report on May 29, 2012, in which it recommended
reunification services to Mother, but not to Father because he had been
“convicted of a violent felony.â€
According to the report, Father had entered a plea to one count of
corporal punishment or injury to a child (Pen. Code, § 273d,
subd. (a)) and had been sentenced to five years felony probation, with a
stay away order against him protecting T.B.
The children were still living with their relatives and had “settled
in.†The great uncle reported one major
incident in which he found M.Y. and the great uncle’s two-year-old grandson,
who was visiting, under M.Y.’s bed, naked.
Everyone was upset and the great uncle, who felt responsible for the
incident, said he was watching M.Y. more closely. Mother was visiting the children regularly
and was outside the great uncle’s house supervising T.B. and other children
when the incident with M.Y. occurred.
When she asked M.Y., “[w]hy did you take off your pants?†M.Y. initially
said he did not want to talk about it, but when she told him he was not in
trouble and that she loved him, M.Y. responded he was “doing nasty stuff with
[the grandson].†Mother was very upset
and said the incident “increased her urgency for wanting to care for her own
children.â€
At
a contested jurisdictional and dispositional hearing on June 13, 2012,
Father testified he was convicted of false imprisonment in 2009 based on a
guilty plea, but was never convicted of kidnapping. He said he physically disciplined T.B. when
T.B. was “a little younger†but stopped doing so after the Agency became
involved in 2006 and told him he could not use physical discipline. On February 24, 2011, Father received a
call from T.B.’s school that T.B. was being sent home early to finish his
homework. When T.B. came home, Father
had T.B. do the dishes and finish his homework.
Father also told T.B. to eat an onion, and T.B. was “tearing up†from
eating it. After he had eaten about
three-quarters of the onion, T.B. ran towards the bathroom and vomited. Father said he did not make T.B. eat any
garlic. He did take apart a garlic to use
in preparing dinner, and T.B. asked, “ ‘You want me to eat the garlic,
too?’ †Father told him,
“ ‘No, man, keep eating the onion.’ â€
Father
testified that T.B. had the option of not eating the onion if he did not want
to. If T.B. had told Father he did not
want to eat the onion, Father would have asked him what T.B. thought would be
an appropriate alternative form of punishment.
Father testified that he in fact had a conversation with T.B. about
eating an onion prior to the day he made him eat it, and they had agreed, “man
to man,†that the next time Father received a call from school, T.B. would eat
an onion as punishment. Father had
previously made T.B. eat an onion as a form of punishment, in 2006. He regretted having done so and did not do it
to hurt T.B.
Father
testified he did not physically discipline T.B. at all on February 24,
2012. He was aware T.B. had reported
that Father punched him in the chest repeatedly, but Father believed T.B. was
lying in order to “sabotage [their] relationship†so that he could go back to living
with Mother. When asked whether he saw
the wound on T.B.’s lip, Father responded, “I walked in the kitchen while he’s
doing the dishes, and he’s poking himself in the lip with a knife.†Father did not take T.B. to see a doctor for
the lip injury.
Father
testified that two days later, on February 26, 2012, he “gave [T.B.] a pop
in the back of the head†after M.Y. came crying to him and said that T.B. had
hit him. Father did not “strike†T.B.
but rather, gave him a “playful pop in the back of the head.†T.B., who was sitting at a table, slammed his
hands on the table and pressed his head towards the table as a “dramatic
gesture.†Father told him, “stop messing
around, dude, you are trying to make it seem like I’m doing something to you.†T.B. suffered no physical injuries. T.B. left the house about an hour after the
incident.
During
a break in Father’s testimony, T.B., who had been present in court observing
the proceedings, stated through his attorney that he wanted to excuse
himself. He was “quite emotional after
[Father’s morning testimony]†and “was ready to go home.†T.B. also asked to give Father a hug before
he left, and the court granted the request.
At
the end of the hearing, the court found Father had inflicted severe physical
harm to T.B. on multiple occasions and that there was a history of abuse that
went back to 2006. The court stated,
“this is one of the most outrageous, severe, cruel, vicious attacks on any
child that I have seen and read about.
The problem I’m having and what I’m struggling with is I cannot make the
finding that it would not benefit [T.B.] to pursue reunification services with
the offending parent, you. I’m
struggling with that. And that’s the way
I’m going to now find that the bypass does not apply to you, not because of you
– because you are vicious, but because I think that your son needs you in his
own way, and that was demonstrated quite touchingly at the end of the last
hearing where he asked to hug you and the deputy did allow that to occur. That’s just one demonstration of it. So with great reluctance, I don’t find a
bypass.†Agency’s counsel argued it
would not be in T.B.’s best interest to visit Father in jail or to have
unsupervised phone calls with Father. Counsel
added, “in terms of reunifying or . . . rebuilding the relationship
between the father and the minor[,] that should be done in view of [T.B.’s]
case plan, not so much in terms of services to the father because he didn’t
present any evidence to support avoiding the bypass.†The court stated it “generally agree[d]†with
counsel’s statements.
Minors’
counsel stated he was “a little uncomfortable with the court’s ruling†because
“[i]f the court finds that [Welfare and Institutions Code
section] 361.5(b)(6) [bypass of reunification services] does apply, the
burden shifts to the father to show that reunification services would be in the
minor’s best interest, and I don’t think that there is much of a case that was
made by the father that reunification services would be in the best
interest.†He added that T.B. did not
want to live with Father and was more focused on reunifying with Mother. Agency’s counsel stated she was concerned
about “the message [to T.B.] in terms of the court not allowing the bypass of
services and yet again [T.B.] having to go through the process of knowing
[that] the goal is [to reunify with Father].â€
She stated, “[T.B.] will hug his father.
He still cares about his father, but he was horribly abused by his
father, and frankly, I think that disqualifies the father [from] the
opportunity to say I will still be here, you need to work with me.†The court stated it had made its ruling and
that it was open to motions for reconsideration. When minors’ counsel reiterated that Father had
not met his burden of showing, by clear and convincing evidence, that reunification
services would be in T.B.’s best interest, the court stated, “I am not
necessarily inviting a motion to reconsider, but if there is a motion to
reconsider it, I will consider the motion to reconsider. That’s all I can say. Unfortunately, we are so strapped with time
around here that decisions have to be made quickly and expeditiously with
in-custody parents [who have] to get on buses, et cetera.â€
On
the issue of amendments to the petition, Father’s counsel indicated he had no
objection to the language originally proposed by the Agency on Welfare and
Institutions Code section 300, subdivisions (a) [father’s conviction
for serious physical harm to T.B] and (g) [no provision for support].
subdivision (i) regarding severe physical harm on the ground that he had
no notice or opportunity to address the issue so that it would be “a little
unfair.†Agency’s counsel responded that
it was an amendment to conform to proof.
The court allowed the amendments relating to subdivisions (a) and
(g) but stated it was not prepared to make a finding under
subdivision (i). The court found
T.B. was a dependent as described by subdivisions (a) and (g) and that
M.Y. was a dependent as described by subdivisions (g) and (j) [abuse or
neglect of sibling], and granted reunification services to both parents.
On
June 22, 2012, the Agency filed a request for reconsideration of the court’s
orders declining to find jurisdiction under subdivision (i) and awarding
reunification services to Father. Father
opposed the motion. The court granted
reconsideration on July 27, 2012, stating there existed a “new
circumstance†in that the court had had “proper opportunity to reflect on the
evidence adduced at the June 13, 2012 hearing without the severe time
constraints and movement between courtrooms (to accommodate the incarcerated
father).†The court sated, “Upon
reconsideration the Court finds that ample evidence was admitted to find the
‘act or acts of cruelty’ set forth in . . . section 300(i); and
the Court further finds that the [Agency] presented sufficient evidence for a
finding of ‘infliction of severe physical harm to the child’ as delineated in
[section] 361.5(b)(6). In fact, the
Court finds that the father’s vicious actions perpetrated against the child
amounted to torture. The Court was
unduly affected and influenced by the hug given by the child to the father at
the conclusion of the June 13, 2012 hearing. Virtually every child loves [his or her]
parents despite the most cruel abuse and neglect.†The court vacated its prior orders denying a
finding under section 300, subdivision (i), and awarding
reunification services to Father. The
court issued a new order finding the section 300, subdivision (i),
allegation to be true and denying reunification services to Father under
section 361.5, subdivision (b)(6) [bypass of services when a parent
causes a child to suffer severe physical harm].
Discussion
Father
contends the court lacked the power to reconsider its dispositional order
granting services to him. We disagree.
Welfare
and Institutions Code
name="_ftnref4" title="">[4] section 385
provides: “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, subject to
such procedural requirements as are imposed by this article.†The court in Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92 (
statute’s relationship to the inherent powers of the juvenile court and held
that a juvenile court has authority under section 385 to modify its prior
orders sua sponte, as long as it provides the parties with notice and an
opportunity to be heard. (
previous order that the court independently recognizes as having been
erroneously, inadvertently or improvidently made is not contingent on a party
seeking a modification pursuant to section 388,†which requires a showing
of new evidence or changed circumstances.
(Nickolas F.,
pp. 98-99; see also § 388.)
In
Nickolas F., the juvenile court
awarded reunification services to the father of two minors even though there
was information in the disposition report that the father was incarcerated for
having abused the minors’ paternal half bother.
(Id. at pp. 99-100.) The Agency was unable to get in touch with
the father, who was in custody, and did not provide services to him. (Id.
at p. 101-102.) Later, the Agency
learned the father’s abuse of the half brother had been far more egregious than
previously believed. (
services be terminated, and the father objected on the ground that no services
had been provided to him despite the dispositional order requiring them. (Id.
at pp. 101-102.) The juvenile
court, realizing the evidence presented at the dispositional hearing, although
minimal, was sufficient to put it on notice that it should not issue a routine
order for reunification services, asked the parties to seek modification under
section 388. (Id. at p. 109.) The
Agency filed a section 388 petition alleging that the “new evidenceâ€
regarding the exact nature of the father’s crime and the length of his
incarceration warranted modification. (
dispositional order to deny reunification services to the father and set a
permanency hearing. (
On
writ review, the Court of Appeal held the juvenile court was not authorized to
modify its prior order under section 388 because the details relating to
the father’s crime was not “new evidence,†but further held the error was
harmless because the result would have been the same had the juvenile court
modified its prior orders under section 385 or the California
Constitution, article VI, section 1.
(Nickolas F.,
pp. 106-110.) In rejecting the
father’s position that a juvenile court lacks authority under section 385
to correct its prior orders sua sponte
without a showing of changed circumstances, the Court of Appeal held: “Under [the father’s] reading, if a juvenile
court realizes that it has misapplied the law, or that the court’s processes
have otherwise been deficient, the court ‘ “ ‘is prohibited from
revisiting its ruling . . . no matter how obvious its error or how
draconian the effects of its misstep.†’ †[Citation.]â€
(Id. at p. 115.) “If section 385 were interpreted to
limit the court’s ability to reconsider its own ruling, it would violate the
separation of powers doctrine embodied in the California Constitution
[citation] and would leave the juvenile court without any statutory authority
by which to correct its own errors on its own motion.†(Ibid.)
The
reasoning of Nickolas F. applies
in the instant case. As in
here was unaware that it had the power to revisit its dispositional order sua
sponte. It therefore invited the parties
to file a motion for reconsideration and, in granting reconsideration, stated
there existed a “new circumstance†in that the court had had “proper
opportunity to reflect on the evidence.â€
Although it is questionable whether a court’s “proper opportunity to
reflect on the evidence†is a “new circumstance†warranting reconsideration,
any error in that regard was harmless because no new evidence or circumstance
was needed for the court to modify its order; the court was empowered by section 385
and its inherent powers under the Constitution to reach the same result. (See Nickolas F.,
supra, 144 Cal.App.4th at
pp. 106-110.) The court’s order
upon reconsideration shows it recognized it had erroneously or improvidently
issued a dispositional order without due consideration and under time
constraints because of its belief that Father had to be transported back to
jail. The court also recognized it was
unduly influenced by—and gave too much weight to—T.B.’s request to hug his
father. The parties had notice and an
opportunity to be heard on the motion for reconsideration, and Father opposed
the motion. Under these circumstances,
the court was authorized to reconsider its initial dispositional order.
Father
contends the court erred by considering, upon reconsideration, an additional
allegation of severe physical harm under section 361.5,
subdivision (i), that the Agency had not previously pled.
470, however, allow amendments to conform to proof where the variance is not
material; and even where the variance is material, the court may still allow
amendment upon such terms as may be just.
Section 348 provides that the statutes “relating to variance and
amendment of pleadings in civil actions shall apply to [juvenile dependency]
petitions and proceedings . . . to the same extent and with the same
effect as if proceedings under this chapter were civil actions.†(See also In re
Jessica C. (2001) 93 Cal.App.4th 1027, 1041.) Amendments to conform to proof “are favored,
and should not be denied unless the pleading as drafted prior to the proposed
amendment would have misled the adversarial party to its prejudice.†(Id.
at p. 1042.)
Here,
the pleading as drafted prior to the proposed amendment described the same
facts that led to the filing of the petition against Father, i.e., his acts of
violence perpetrated against T.B. on or about February 24 and 26,
2012. In fact, the enumeration and
description of Father’s acts under subdivision (i) were exactly the same
as those stated in the allegations under subdivision (a) in the previous
petitions. Father therefore had notice
of the facts underlying all of the allegations, including the new allegation
under subdivision (i), and had the opportunity to defend them. He in fact defended against those allegations
by arguing, for example, that T.B. suffered no physical harm and that any
physical abuse was not egregious. He took
the stand and denied he physically disciplined T.B., testifying that the worst
he did was to give him a “playful pop†in the head, and give him the option of
eating an onion as a form of discipline.
Because there was sufficient notice to Father and no prejudice has been
shown, the court did not err in allowing the Agency to amend the petition to
conform to proof.
Father
contends the juvenile court erred in failing to determine whether it was in
M.Y.’s best interest to award reunification services to Father. He asserts, “Notably, no one at the time of
the adjudication argued, nor did the court consider the reunification issues as
to [M.Y.].†He states, “There was no
finding in the record nor any reason articulated why [M.Y.], who was
differently situated than T.B., should be simultaneously . . .
deprived of a chance to reunify with his father, even if his older brother T.B.
did not or could not.†Once a juvenile
court finds section 361.5, subdivision (b)(6), applies, however, “it may
not offer family reunification services unless it finds, by clear and convincing
evidence, that reunification is in the best interests of the minor. (§ 361.5, subd. (c).)†(Pablo S.
v. Superior Court (2002) 98 Cal.App.4th 292, 301.) This is because when one of the
section 361.5, subdivision (b), exceptions applies, the general rule
favoring reunification is replaced by an assumption that offering services
would be an unwise use of governmental resources. (Renee J.
v. Superior Court (2001) 26 Cal.4th 735, 744.)
Thus,
here, once the Agency proved Father’s acts constituted severe physical harm as
defined by section 361.5, subdivision (b)(6), it was Father’s burden
to show, by clear and convincing evidence, that granting reunification services
was in the children’s best interest.
Father did not present any evidence, nor does he point to any evidence
on appeal, to support his position that it would have been in M.Y.’s best
interest for Father to be awarded reunification services. He does assert that he never hit M.Y., but
T.B. reported that Father hits M.Y., and a housemate reported that she observed
Father hit M.Y., causing him to cry out in pain. Father also states that M.Y. never saw Father
hit T.B., but M.Y. reported that Father hit T.B. and also “whopped [T.B.] with
a belt.†Because there was no clear and
convincing evidence—much less any evidence—presented to show it was in M.Y.’s
best interest for Father to receive reunification services, the juvenile court
did not err in bypassing services to Father as to M.Y.
Father
contends the court violated his equal
protection rights by granting services to Mother, but not to him. He asserts that because he and Mother were
similarly situated as parents who had been convicted of felonies for abusing
T.B., there was “no justification . . . why [M]other was to receive
reunification services but [F]ather was not.â€
Father forfeited the claim by failing to raise it below. In any event, the contention fails on the
merits.
“There
is no constitutional requirement of uniform treatment.†(Estate
of Horman (1971) 5 Cal.3d 62, 75.)
Moreover, “[r]eunification services are a benefit; a parent is not
constitutionally entitled to reunification services.†(In re
Alanna A. (2005) 135 Cal.App.4th 555, 563; see also
parent does not have a constitutionally protected liberty interest in the
state’s providing him with reunification services].) “To succeed on [a] claim under the equal
protection clause, [a party] first must show that the state has adopted a
classification that affects two or more similarly situated groups in an unequal
manner.†(People v. Wilkinson (2004) 33 Cal.4th 821, 836.)
Here,
Father and Mother were not similarly situated.
Father had a significant criminal history that dated back to 1989 and
included felony and misdemeanor convictions for vehicular theft, possession and
sale of cocaine, possession of a firearm, furnishing and selling marijuana,
reckless driving, battery of a former partner, and battery and false
imprisonment of a cohabitant partner. He
committed severe physical abuse of T.B. despite having received extensive
services in Contra Costa County. He
continued to deny he had physically abused the children and accused T.B. of
lying about the physical abuse in order to “sabotage [their]
relationship.†He denied he ever hit
M.Y. despite evidence to the contrary.
In contrast, Mother admitted she physically abused T.B., showed remorse,
served time in jail for her acts, and was working towards reunifying with her
children by visiting them consistently, taking parenting classes, attending
college, and working towards obtaining a stable living environment. There was no evidence she ever physically
abused M.Y., and her primary focus was to reunify with the children. Both children were afraid of Father and T.B.
stated a clear preference for living with Mother. Father has not shown he and
Mother were similarly situated and entitled to the same treatment.
Cal.App.4th 184, 199, on which Father relies, is inapposite. There, a father who had voluntarily
acknowledged paternity in Michigan was denied presumed father status even
though he would have qualified as a presumed father had he signed an identical
form in California. The Court of Appeal
held the father was denied equal protection because “the disparate treatment
. . . is based solely on geography, and location of a father inside
or outside the state bears no more relation to the purposes of the presumed
father statute than differing locations of fathers within California.†(Id.
at p. 200.) The father there was
similarly situated to all fathers who signed the form in California except that
he had signed the document outside the state.
Here, as discussed above, Father was not similarly situated to Mother.
Disposition
The
order is affirmed.
_________________________
McGuiness,
P. J.
We concur:
_________________________
Pollak, J.
_________________________
Siggins, J.
name="_ftn1" title="">[1] Mother was convicted of child cruelty charges
and was restricted from having physical custody of the children. She was sentenced to four years probation and
365 days in jail. She was released
December 9, 2011.
feet tall and 210 pounds at the time of the incident. T.B. was 5 feet 4 inches tall and 110 pounds.
