In re A.A. CA2/3

Filed 5/3/16 In re A.A. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re A.A., a Person Coming Under the B265772
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. DK03550)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
MACK A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County,
Steff Padilla, Juvenile Court Referee. Reversed and remanded with directions.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the County Counsel, Mary C. Wickham, County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Stephen D. Watson, Deputy County
Counsel, for Plaintiff and Respondent.
___________________________________________
INTRODUCTION
Appellant Mack A. (Mack) appeals from the juvenile court’s pre-disposition
orders denying him visitation with A.A. based on his alleged father status and granting
A.A.’s mother, Monique H. (mother), a three-year restraining order against him. Mack
contends the court erred by failing to exercise its discretion when it denied him
visitation with A.A. We reverse and remand with directions for the court to hold a new
hearing to clarify its paternity findings and reconsider Mack’s request for visitation with
A.A. in light of those findings.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initiation of Dependency Proceedings
A.A. was born in 2002. Mack claims he is A.A.’s biological father. A.A. has
two half-siblings: M.A., who was born in 2005, and Marcus B. (Marcus), who was born
in 2013.1 M.A. and Marcus each have different fathers, neither of whom is a party to
this appeal; mother, M.A., and Marcus also are not parties to this appeal.
The family came to the Department of Children and Family Services’
(Department) attention in December 2013, when the Department received a referral
alleging F.B., Marcus’ father, had physically abused A.A. and M.A. and had engaged in
domestic violence with mother. On February 19, 2014, the Department filed
a dependency petition pursuant to Welfare and Institutions Code2 section 300,
subdivisions (a), (b), (d), and (j) (original petition). The original petition alleged:
(1) that F.B. had physically abused A.A. and M.A. and mother had failed to keep F.B.
away from the children (counts a-1, a-2, b-1, b-2, j-1, j-2); (2) F.B. and mother had
engaged in domestic violence in front of the children (counts a-3, b-3); and (3) F.B. has
a criminal history involving sexual offenses (counts b-4, d-1). Only mother and F.B. are
1
We sometimes collectively refer to A.A., M.A., and Marcus as “the children.”
2
All further undesignated statutory references are to the Welfare and Institutions
Code.
2
named as offending parents in the original petition. The court detained the children
from F.B.’s custody and placed them with mother.
As of February 19, 2014, Mack’s whereabouts were unknown. He contacted the
Department on April 8, 2014 to request visitation with, but not custody of, A.A. Mack
told a Department social worker that although he had had no contact with A.A. for at
least two years, he had been in contact with her from the time she was born until she
was eight years old. He claimed that he had not been able to contact A.A. recently
because mother had moved to Lancaster. Mother, however, claimed that Mack had not
been involved in A.A.’s life since she was three months old.
Around early July 2014, the Department discovered that mother had allowed F.B.
to continue to live with her and the children. On July 2, 2014, the Department obtained
an emergency removal order removing the children from mother’s custody and placing
them with Janice C., their maternal great-grandmother.3 On July 8, 2014, the
Department filed an amended petition, adding an allegation under section 300,
subdivision (b) that mother had failed to protect the children by allowing F.B. to remain
in her home (count b-5). At the July 8, 2014 detention hearing on the amended petition,
the court detained the children from mother’s custody and placed them with Janice.
Mack made his first appearance in A.A.’s dependency case on September 15,
2014. At that hearing, he filed a request for the court to find that he is A.A.’s presumed
father. In his request, Mack claimed that he had held himself out as A.A.’s father by
telling members of his family that A.A. is his daughter and by visiting with A.A. when
3
There is confusion in the record as to whether Janice is the children’s maternal
grandmother or maternal great-grandmother. In its July 8, 2014 report, the Department
refers to Janice as the children’s “maternal grandmother”; however, in the court’s
July 8, 2014 minute order, and the Department’s reports filed after July 8, 2014, Janice
is referred to as the children’s “maternal great-grandmother.” To be consistent, we will
refer to Janice as the children’s maternal great-grandmother. There is also confusion as
to the correct spelling of Janice’s name. In its July 8, 2014 report, the Department
spells her name “Janis”; however, in its subsequent reports, the Department spells her
name “Janice.” We use “Janice” throughout this opinion.
3
she was younger, including having overnight visits with her. However, he admitted that
he has never provided financial support for A.A.’s care.
The same day Mack appeared in A.A.’s case, mother filed a request for
a restraining order against him, seeking to protect herself and A.A. In her request,
mother alleged that Mack had physically, mentally, and sexually abused her during
a three-year relationship that began when she was 16 years old and he was 25 years old.
Mother alleged that Mack had threatened to kill her several times during their
relationship, including on one occasion when he put a gun in her mouth. Mother also
alleged that Mack continues to threaten her and often drives by her home unannounced.
The court granted mother a temporary restraining order and scheduled a noticed hearing
on whether to grant a three-year restraining order.
In November 2014, the Department interviewed mother, Mack, Janice, and
mother’s stepfather about Mack’s relationship with A.A and the allegations in mother’s
restraining order request. Mother reported that A.A. did not know the identity of her
father, and that she did not know Mack because he never visited her. Mother told the
Department that although Mack had not threatened her recently, she was still afraid of
him and would suffer from panic attacks when she saw him in public. She reported that
during her three-year relationship with Mack, he had abducted, raped, and threatened to
kill her, once holding her at gunpoint. Janice and mother’s stepfather confirmed that
Mack had abducted mother when she was a teenager, and Janice confirmed that he had
held her at gunpoint and threatened her life. Mack denied that he and mother had
a history of domestic violence. He claimed that A.A. knows who he is because he had
visited her “a few times” until she was eight. However, he has had no contact with
A.A. since then because mother has refused to let him visit her.
2. The Hearing on Mack’s Paternity Request and Mother’s
Request for a Restraining Order
In March and April 2014, before adjudicating the amended petition, the court
conducted a multi-day hearing on Mack’s request to establish paternity and mother’s
request for a restraining order. Both Mack and mother testified at the hearing.
4
In connection with paternity, Mack testified as follows. He is A.A.’s biological
father. He was at the hospital when A.A. was born, but did not sign her birth certificate
because he was married to another woman at the time. Nevertheless, he told his wife
and other members of his family that he was A.A.’s father. Mack admitted that he has
never provided mother any financial support for A.A.’s care.
Mack visited A.A. every year until she was eight years old. He claimed that
when A.A. was between four and eight years old, she spent the night at his house on
four or five occasions. However, he did not know if A.A. recognized him as her father
because she never referred to him as such. Mack has not been able to visit A.A. since
she was eight years old because mother moved and he does not know where she and
A.A. now live. Although he claimed mother would try to prevent him from contacting
A.A., Mack never attempted to establish parental rights over, or obtain legal custody of,
A.A. before appearing in her dependency case.
In connection with mother’s request for a restraining order, Mack testified as
follows. He never put a gun to mother’s mouth or otherwise threatened to kill her. He
also has never threatened to hurt A.A. Mack denied that he has ever driven or walked
by mother’s house in Lancaster.
In turn, mother’s testified she met Mack when she was 16 years old while she
was living in a foster home. Mack started to abuse her several months after they met,
and he would control most aspects of her life, including what she ate and when she
slept. Mother first became pregnant by Mack when she was around 17 years old, but
she had an abortion on her 17th birthday. She became pregnant again, this time with
A.A., while she was still a teenager. She did not dispute that Mack is A.A.’s biological
father, but she claimed that he had forced her to have sex with him around the time A.A.
was conceived.
Mother was able to get away from Mack after A.A. was born, and he has not
physically abused her since A.A. was a toddler. However, he continued to harass her,
most recently in 2012 when he called and threatened “to kill [her] and [her] daughter.”
Mother never reported Mack’s alleged rape, abuse, and threats to the police. Although
5
she tried on at least two prior occasions to obtain a domestic violence restraining order
against Mack, her requests were denied due to her failure to prosecute them.
Mother denied that Mack had ever been involved in A.A.’s life. She claimed that
A.A. had never seen Mack until he appeared in her dependency case, and that A.A. did
not know who Mack was until mother told her at an earlier hearing in 2015 that he was
her father.
3. The Court’s Rulings
On April 22, 2015, the court ruled on mother’s request for a restraining order.
The court issued a three-year restraining order against Mack, which named both mother
and A.A. as protected persons. In granting the restraining order, the court found
mother’s testimony about Mack’s past acts and threats of violence credible. Although
Mack had not acted out violently toward mother in the recent past, his conduct while
they were in a relationship was “so grave” that it warranted issuing a restraining order to
protect mother against future acts or threats of violence.
The court then ruled on Mack’s paternity request, after which it denied Mack’s
request for visitation with A.A. and relieved Mack’s counsel. The court’s paternity
findings are unclear. Although the court found Mack is not A.A.’s presumed father, it
did not clearly state that it found Mack to be A.A.’s alleged or biological father.
Specifically, in explaining its ruling, the court alternated between referring to Mack as
A.A.’s biological father and A.A.’s alleged father. For example, the court stated as
follows: “As to paternity, I’m finding that [Mack] is merely an alleged [father]. He
said it himself, ‘I didn’t push hard enough.’ If you want to go from an alleged father to
a presumed father -- the most recent cases talk about you can’t . . . be a biological father
and be an imperfect father. You have to do everything within your power. And it’s
because you want to be in another relationship, and you want to do all this other stuff,
and you’re not pushing hard enough . . . . [¶] So I’m making a finding he does not rise
to the level of presumed [father]. He is merely an alleged -- he is merely a biological
father. He is not a presumed father at this time.” When Mack’s counsel asked the court
whether it would grant Mack visitation with A.A., the court stated, “[A]s to the
6
child . . . he’s an alleged father. And he’s an alleged father so he’s not entitled to
visits. . . . [¶] I’m not ordering visits at this time until we have -- I would like to have
a trial. So we need to set this matter for trial on the other issues -- on the rest of the
petition.”
The following exchange then occurred between the court, mother’s counsel, and
Mack’s counsel:
Mother’s Counsel: I thought I heard the court say that [Mack] was only
an alleged father. And then the court said, “or a biological [father].”
The Court: He’s a biological father.
Mother’s Counsel: That has not ever been determined through science.
[Mother] has said he’s the biological father.
The Court: And he’s said he’s the biological father. It’s past the
three years.
Mother’s counsel: I just wanted to clarify, you know, what that meant.
***
Mack’s Counsel: Your honor, I’m not sure what I still am to do in this
case.
The Court: You are hereby relieved.
Mack’s Counsel: So he’s an alleged [father] only and not to be given
any visits at all?
The Court: No, not at this point.
The court’s minute order from the April 22, 2015 hearing reflects that the court
found Mack to be A.A.’s biological father. The minute order does not include a ruling
denying Mack visitation with A.A. The three-year restraining order does, however,
state that Mack has no right to visit with A.A. Mack filed a timely notice of appeal
from the court’s April 22, 2015 orders.
7
The jurisdiction and disposition hearing was conducted on June 8, 2015.4 Mack
was not present at that hearing. The court sustained the petition as to mother and F.B
and placed the children in Janice’s home. The court granted mother reunification
services, including unmonitored visitation with the children. The court denied Mack,
M.A., and F.B. reunification services, and made no visitation order as to Mack.
DISCUSSION
1. The April 22, 2015 Restraining Order is Directly Appealable
The Department argues Mack’s appeal should be dismissed because he is not
challenging an appealable order. According to the Department, under section 395,
Mack cannot appeal from the court’s April 22, 2015 orders because they were issued
before the court’s dispositional orders.5 (See In re Cassandra B. (2004)
125 Cal.App.4th 199, 208 (Cassandra B.) [in dependency cases, orders starting
chronologically with the court’s dispositional orders generally are the first appealable
judgments].) Mack responds by advancing two arguments: first, he appealed from the
court’s order issuing a three-year restraining order against him, which is directly
appealable (see id. at p. 208 [“a restraining order issued in a juvenile dependency
proceeding is directly appealable to the same extent as a restraining order granted in
a civil action,” even when the restraining order is issued before the court’s dispositional
orders]; see also Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1502, fn. 9 [a trial
court’s order granting a restraining order is appealable under Code of Civil Procedure
section 904.1, subdivision (a)(6)]); and second, the court relieved his counsel at the
April 22, 2015 hearing, effectively ending his participation in A.A.’s dependency case.
Because Mack appeals from the three-year restraining order issued against him, and
4
On our own motion, we take judicial notice of the juvenile court’s minute order
from the June 8, 2015 jurisdiction and disposition hearing, which is not included in the
record on appeal. Accordingly, we deny as moot Mack’s November 17, 2015 request to
take judicial notice of the minute order from that hearing.
5
Section 395 provides in relevant part: “A judgment in a proceeding under
Section 300 may be appealed in the same manner as any final judgment, and any
subsequent order may be appealed as an order after judgment.” (§ 395, subd. (a)(1).)
8
because that order precludes him from visiting with A.A., we conclude Mack’s
challenge to the court’s denial of his request for visitation with A.A. is reviewable on
direct appeal.6 (See Cassandra B., supra, 125 Cal.App.4th at p. 208; Loeffler, supra,
174 Cal.App.4th at p. 1502, fn. 9.) Accordingly, we turn to the merits of Mack’s
appeal.
2. The Court Erred in Denying Mack Visitation Without
Exercising its Discretion
Mack contends the court erred in denying him visitation with A.A. on the basis
that he is A.A.’s alleged father. He argues that because he is actually A.A.’s biological
father, a finding the court appeared to make when ruling on his paternity request, the
court should have exercised its discretion in determining whether to grant his request for
visitation with A.A. Because the court’s findings as to Mack’s paternity status are
unclear, and because those findings served as the basis for the court’s denial of Mack’s
request for visitation with A.A., we reverse and remand the matter with directions for
the court to conduct a new hearing for the limited purpose of clarifying its findings as to
Mack’s paternity status and enter a ruling concerning visitation in accordance with those
findings.
In the dependency context, there are three statuses a man claiming to be
a minor’s father can achieve: (1) an alleged father; (2) a biological or natural father;
and (3) a presumed father. (See In re Zacharia D. (1993) 6 Cal.4th 435, 448
(Zacharia D.).) “A man who may be the father of a child, but whose biological
6
We requested supplemental briefing from the parties to address whether Mack’s
appeal should be dismissed because he did not appeal from the court’s June 8, 2015
jurisdiction and disposition orders even though the court stated at the April 22, 2015
hearing that it would reconsider the issue of visitation at the jurisdiction and disposition
hearing. We agree with Mack’s counsel that the appeal should not be dismissed. After
the court indicated at the April 22, 2015 hearing that it intended to reconsider the issue
of visitation at a future hearing, it relieved Mack’s counsel. There is nothing in the
record to indicate that Mack was provided notice and an opportunity to appear at the
jurisdiction and disposition hearings to present arguments and evidence as to why he
should be granted visitation with A.A. Therefore, the April 22, 2015 hearing effectively
was the last opportunity for Mack to request visitation with A.A.
9
paternity has not been established, or, in the alternative, has not achieved presumed
father status, is an ‘alleged’ father.” (Id. at p. 449, fn. 15.) “A biological or natural
father is one whose biological paternity has been established, but who has not achieved
presumed father status as defined in Civil Code section 7004.” (Ibid.) Finally,
a presumed father, who does not need to be the minor’s biological father, is generally
one who “ ‘receives the child into his home and openly holds out the child as his natural
child.’ [Citation.]” (Id. at p. 449.) In other words, “presumed father status is based on
the familial relationship between the man and child, rather than any biological
connection.” (In re J.L. (2008) 159 Cal.App.4th 1010, 1018 (J.L.).)
A father’s status is critical in a dependency case because it dictates the extent to
which he can participate in the case and the reunification services to which he is
entitled. (In re Christopher M. (2003) 113 Cal.App.4th 155, 159.) A presumed father is
accorded greater rights than either a biological or an alleged father. (Zacharia D.,
supra, at pp. 448-449; see also J.L., supra, 159 Cal.App.4th at p. 1018.) “[O]nly
a presumed, not a mere biological, father is a ‘parent’ entitled to receive reunification
services under section 361.5.” (Zacharia D., supra, 6 Cal.4th at p. 451.) Accordingly,
to deny reunification services to a presumed father, the court must make specific
findings set forth in section 361.5, subdivision (b). (See Francisco G. v. Superior Court
(2001) 91 Cal.App.4th 586, 597 (Francisco G.).) However, unlike an alleged father, to
whom a dependency court may outright deny reunification services, a biological father
may receive reunification services “if the court determines that the services will benefit
the child.” (§ 361.5, subd. (a); Francisco G., supra, 91 Cal.App.4th at p. 597; see also
In re O.S. (2002) 102 Cal.App.4th 1402, 1410.) Thus, in determining whether to grant
a biological father’s request for reunification services, including visitation, the court
should exercise its discretion to determine whether doing so would be in the child’s best
interest. (See Francisco G., supra, 91 Cal.App.4th at p. 597 [“As to a biological father,
the issue [of whether to grant reunification services] is left to the discretion of the
juvenile court and its determination of the benefit to the child of providing services”].)
10
Here, the court twice stated that it was denying Mack’s request for visitation with
A.A. because he is an alleged father and, as such, he is not entitled to visitation with
A.A. However, as noted, the court also stated that it found Mack to be A.A.’s biological
father.7 Accordingly, if the court did intend to find Mack to be A.A.’s biological father,
it should have exercised its discretion in determining whether to grant his request for
visitation with A.A., rather than denying that request solely because of Mack’s status as
an alleged father. (See Francisco G., supra, 91 Cal.App.4th at p. 597.) There is
nothing in the record to indicate that the court did so.
For similar reasons, we reject the Department’s contention that we can infer that
the court found it would not be in A.A.’s best interest to grant Mack visitation with her
based on the evidence supporting the restraining order and the court’s findings
supporting its issuance of that order. Given that the court was not aware that it could
exercise its discretion to grant Mack visitation with A.A. as her biological father we will
not speculate that it would have determined that any visitation, including monitored
visitation, with A.A. would have been denied based on the restraining order. (See
In re L.A. (2009) 180 Cal.App.4th 413, 428 [“ ‘ “[f]ailure to exercise a discretion
conferred and compelled by law constitutes a denial of a fair hearing and a deprivation
of fundamental procedural rights, and thus requires reversal. [Citation.]”
[Citation.]’ ”].) We also note that the form on which the court issued the restraining
order against Mack includes a provision allowing for the restrained party to visit with
a child who is also protected by the restraining order’s terms. Thus, the fact that the
court found it was appropriate to grant the restraining order protecting both mother and
A.A. does not necessarily establish that the court found it would not be in A.A.’s best
interest to allow Mack some form of visitation with A.A.
7
Although the court’s April 22, 2015 minute order also states that the court found
Mack to be A.A.’s biological father, the court’s oral pronouncement as reflected in the
reporter’s transcript, and not the minute order contained in the clerk’s transcript,
controls. (In re J.P. (2014) 229 Cal.App.4th 108, 118, fn. 4.) Accordingly, we are
unable to conclude based on the April 22, 2015 minute order that the court actually
found Mack to be A.A.’s biological, and not alleged, father.
11
DISPOSITION
The juvenile court’s orders of April 22, 2015 are reversed insofar as the court
denied Mack visitation with A.A. The matter is remanded to the juvenile court with
directions to conduct a new hearing, for which Mack shall be appointed counsel, for the
limited purpose of making appropriate findings as to Mack’s paternity status. Once the
court makes such findings, it shall reconsider Mack’s request for visitation with A.A. in
light of those findings. We express no opinion as to how it should exercise its
discretion in ruling on Mack’s paternity status or request for visitation with A.A. in light
of that status.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
*
HOGUE, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
12