Santa Clara Cnty. Dep't of Family & Children's Servs. v. M.D. (In re J.P.)

55 Cal.App.5th 229

269 Cal.Rptr.3d 395

IN RE J.P., a Person Coming Under the Juvenile Court Law.

Santa Clara County Department of Family and Children's Services, Plaintiff and Respondent,

v.M.D., Defendant and Appellant.

H047586

Court of Appeal, Sixth District, California.

Filed October 1, 2020

Counsel for Plaintiff/Respondent: Santa Clara County Department of Family and Children's Services, James R. Williams, County Counsel, Susan P. Greenberg, Deputy County Counsel

Counsel for Minor: J.P., No appearance for Minor

Counsel for Defendant/Appellant: M.D., Under appointment by the Court of Appeal, Leslie A. Barry, Huntington Beach.

Premo, Acting P.J. M.D. (mother) appeals from the juvenile court's order granting her ex-boyfriend (Albert) presumed parent status for her son, J.P. Mother argues that the juvenile court did not have the authority under Welfare and Institutions Code section 385¹ to reconsider its prior order in which it found that Albert did not qualify as a presumed parent to J.P.

We disagree and conclude that the juvenile court had the authority to revisit its prior ruling. Accordingly, we will affirm the juvenile court's order finding Albert to be a presumed parent.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Events leading to October 2018 visitation order²

"On July 14, 2017, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1) alleging that J.P. (born in 2013) came under the juvenile court's jurisdiction. The petition alleged that mother had been arrested for driving under the influence. J.P. and his younger half brother, A.A., were taken into protective custody.

"Albert's stepmother said that Albert, mother, J.P., and A.A. lived with her from September or October 2016 through February or March 2017. Albert told the social worker that he was not J.P.'s biological father but wanted to legally adopt him. Albert was A.A.'s biological father. J.P.'s biological father, L.P., was not involved in J.P.'s life, but he was ordered to pay child support for J.P.

"At the initial hearing on the dependency petition, the juvenile court found Albert to be A.A.'s presumed father and found L.P. to be J.P.'s presumed father. The juvenile court further found that a prima facie showing had been made that both children came within its jurisdiction and ordered them removed from mother and Albert's custody.

"During interviews, Albert indicated to the Department that he wanted to be designated as J.P.'s presumed parent. Mother and Albert had separated during the dependency proceedings and did not intend to resume their relationship. Albert said that J.P. called him ‘dad,’ and he referred to J.P. as his son even though he was not J.P.'s biological father. Mother claimed that Albert had problems with alcohol, smoked heavily, and scared the children when he got into loud arguments. The Department determined that mother had a ‘long-standing alcohol issue’ and Albert was ‘well-intentioned’ but had a difficult time maintaining boundaries with mother to keep the children safe. The Department further determined that Albert had prior instances where he drank excessively.

"Before the jurisdictional hearing, mother alleged that Albert had committed domestic violence against her. Albert denied the allegations of abuse but conceded that he got into verbal altercations with mother. Mother had requested a restraining order against Albert, and a temporary restraining order was in effect at the time the Department prepared its addendum to the jurisdictional report. Police had responded several times to reports of disturbances between mother and Albert.

"On August 23, 2017, the juvenile court held a jurisdictional hearing and found the allegations in the dependency petition to be true. The court held a dispositional hearing several weeks later and declared both J.P. and A.A. to be dependents of the court. Services were ordered for mother and Albert. For J.P., the juvenile court ordered supervised visits with mother and L.P. For A.A., the juvenile court ordered supervised visits with mother and Albert.

"In November 2017, J.P. and A.A. were moved from their foster home placement to their paternal grandparents' (Albert's parents') home. L.P. had not made his whereabouts known to the Department, and he had not had any visits with J.P.

"In preparation for the six-month review, the Department prepared a status review report that recommended J.P. be returned to mother's care under a plan of family maintenance and services for L.P. be terminated. The Department also recommended A.A. be returned to both mother and Albert and family maintenance be offered for mother and Albert's separate households. According to the report, the domestic violence case initiated by mother against Albert had been dismissed. Both parents had been consistent with visiting both children, and the Department believed the quality of visits was good. The children ‘show[ed] comfort’ in Albert's presence, and Albert appeared to be hands-on with the children when they were with him. Albert ensured that the children were fed, took them to local parks, and appeared to provide for their basic needs such as clothing and food. On March 27, 2018, the juvenile court adopted the Department's recommendations at the six-month review hearing.

"On September 24, 2018, the Department filed a status review report. The report recommended that the juvenile court continue to offer family maintenance services to mother and Albert. During the review period, seven referrals of child abuse had been made concerning J.P. and A.A. The Department found most of the referrals to be unfounded and the remaining referrals to be inconclusive. J.P. had previously visited Albert with A.A., but he had not visited Albert for several months pursuant to mother's request. Albert did not have court-ordered visits with J.P.

"Also on September 24, 2018, Albert asked the juvenile court to recognize him as J.P.'s presumed father. Subsequently, the court held a contested hearing on Albert's request.

"During the presumed parenthood hearing, Albert testified about his relationship with J.P. Albert said that he met J.P. when the child was approximately three years old, sometime in 2016. Albert lived with mother and J.P. for approximately one and a half to two years. During that time, Albert developed a close relationship with J.P. Albert spent weekends with J.P. and mother, and Albert provided financial support for them, with the majority of the money that Albert earned going toward paying the family's bills. J.P. used to call Albert ‘daddy.’ In a recent encounter, Albert saw J.P. and tried to hug him, but mother pulled J.P. away from Albert and told J.P., ‘ "That's not your father, that's just [Albert]." ’ Albert referred to J.P. as his son and openly told others that he considered J.P. to be his son. Albert said that he was willing to financially provide for J.P.

"Mother also testified at the hearing and disputed Albert's testimony. Mother said that Albert lived ‘off and on’ with her and the children, and he would come and go as he pleased. He sometimes stayed overnight but would start arguments and would leave after getting drunk. Mother said that Albert did not provide financial support to A.A. or to mother after A.A. was born.

According to mother, Albert did not spend one-on-one time with J.P. Mother conceded that Albert paid some of her rent for several months after A.A. was born. Mother, however, claimed that she later gave Albert money to pay rent, but he took the money and did not pay rent, forcing mother to be evicted from her apartment. According to mother, J.P. never asked for Albert. Mother also said that J.P. told him that Albert ‘kissed’ him during a prior overnight visit, which left a mark behind J.P.'s ear.

"On October 25, 2018, the juvenile court determined that Albert did not qualify as J.P.'s presumed father under Family Code section 7611, subdivision (d). The juvenile court observed that Albert did not seek presumed parenthood status for more than a year after the dependency proceedings began, he was not J.P.'s primary caregiver, and he did not take consistent financial responsibility for J.P. The juvenile court, however, noted that this case was ‘a little bit of a close call’ and stated that there was ‘no doubt’ that there was a bond between Albert and J.P. The juvenile court further observed that even if Albert qualified as a presumed parent under Family Code section 7611, subdivision (d), he would not qualify as a third parent (L.P. was J.P.'s presumed father) under Family Code section 7612, subdivision (c). Under Family Code section 7612, subdivision (c), a juvenile court may find that a child has a third parent if ‘recognizing only two parents would be detrimental to the child.’ The juvenile court explained that there was insufficient evidence of detriment to J.P. under Family Code section 7612, subdivision (c), but acknowledged that its decision did not imply that J.P. did not suffer from ‘some detrimental [e]ffect’ due to his separation from Albert.

"After the juvenile court made its presumed parenthood determination, Albert requested regular visitation with J.P. Mother opposed the visitation request, arguing that J.P. was doing ‘quite well’ without seeing Albert. She also did not believe that the sibling bond between J.P. and A.A. suffered from J.P. not visiting with Albert. Mother also claimed that J.P. already had other ‘strong, male figures’ in his life aside from Albert. J.P.'s attorney expressed conflicting feelings about visitation between Albert and J.P. J.P.'s attorney stated that she believed visitation would be in J.P.'s best interest in the short term, but if visits were to cease, J.P. would suffer from losing Albert from his life. The Department argued in favor of visitation between Albert and J.P., noting that J.P. and A.A. used to visit Albert together, and J.P. had a bond with Albert. The...