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In Re A. S. , A Person Coming Under the Juvenile Court Law. v. J. M

March 1, 2011

IN RE A. S. , A PERSON COMING UNDER THE JUVENILE COURT LAW. PLACER COUNTY DEPARTMENT OF HEALTH & HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
J. M., DEFENDANT AND APPELLANT.



(Super. Ct. No. 53002665)

The opinion of the court was delivered by: Blease, Acting P. J.

In re A.S.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this case the juvenile court had to decide which of two alleged fathers, J.M. or J.C., was minor A.S.'s presumed father. J.M. appeals from the court's finding in favor of J.C. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On August 6, 2008, respondent Placer County Department of Health and Human Services (the Department) filed a petition under Welfare and Institutions Code section 300, subdivisions (b), (c), and (g)*fn1 as to A.S. (a female born in 2004) and Z.S. (a male born in 1997),*fn2 alleging:

Mother (D.S.) tested positive for methamphetamine three times from July 21, 2008, to August 1, 2008.

Mother had a history of failing to protect Z.S., who suffered from severe developmental delay and was violent. On three occasions he escaped from mother's home and was found outside unsupervised. He was now physically aggressive and out of her control.

Mother had a history of engaging in domestic violence. Appellant J.M., the minors' alleged father, was currently in prison due to alleged incidents of domestic violence in 2002, 2003, and 2006. Mother and her current live-in boyfriend (who is not J.C.) engaged in domestic violence on July 10, 2008, while the minors were in the home; the boyfriend was arrested for parole violation. Mother had been offered domestic violence treatment but had failed to engage in services.

At the detention hearing on August 8, 2008, the juvenile court detained the minors. The court found appellant was the minors' presumed father, having been married to mother when both minors were born. However, because mother and J.C. stated in open court that J.C., not appellant, was A.S.'s father (though J.C. and mother had never married and his name was not on the birth certificate), the court also found that J.C. was an alleged father of A.S., appointed counsel for him, and ordered paternity testing.

On September 23, 2008, the Department filed an amended section 300 petition, alleging that J.C. was A.S.'s "father" but that he abused controlled substances.

In its jurisdiction/disposition report, the Department recommended reunification services for J.C. as to A.S.*fn3 The report requested that the presumption of appellant's paternity as to A.S. be rebutted and that J.C. be named her presumed father. The paternity test had not excluded him. Since he had learned he was her biological father, around one year ago, he had held her out as his child, brought her into his home for overnight visits, and sometimes had her for three or four days at a time. He had provided for all her needs so far as he could.

Mother said she had known J.C. for several years before they started dating; he lived across the street from appellant's mother. Mother and J.C. were together for a year and a half, then broke up, then got back together off and on for a couple of months, then stopped seeing or talking to each other for three years. She finally told him about A.S. last year, when A.S. was three; after that, they arranged for him to get to know her slowly.

J.C. said he and mother met around eight years ago when they lived across the street from each other; she was living with her own mother then, after separating from appellant. J.C. said he and mother began seeing each other two months later; their relationship lasted two and one-half years, including one year in which they lived together off and on. When he learned about A.S., "it changed everything. That's why I went to rehab." He asked if there was any way A.S. could live with him. He had gone into a substance abuse program on August 16, 2008, had tested negative ever since, and attended NA classes twice a week.

A.S. appeared very comfortable with J.C. He was forthright during his interview and properly concerned about his past mistakes, which included a significant criminal and methamphetamine history.

At the initial jurisdiction/disposition hearing on September 24, 2008, appellant was present but was removed from the courtroom after wrestling with the bailiffs and saying "F-- you" to them and to the juvenile court. The court found J.C. was the biological and presumed father of A.S. and set aside the previous finding as to appellant.*fn4

On November 13, 2008, the juvenile court held the final jurisdiction/disposition hearing, which did not address paternity. The court sustained the allegations of the amended section 300 petitions (except for the allegation under subdivision (g), dismissed by the Department). The court ordered the minors placed in the home of their grandparents (appellant's parents, where they were already detained), ordered 12 months of reunification services for mother as to both minors and for J.C. as to A.S., and denied services to appellant.

On March 6, 2009, A.S. was placed with J.C.

On March 11, 2009, appellant filed points and authorities (which the juvenile court apparently deemed a motion for reconsideration) to support his paternity claim as to A.S. The pleading alleged that the presumption favoring J.C. under Family Code section 7611 was rebutted by a paternity judgment filed June 16, 2004, which determined that appellant was A.S.'s father. (Fam. Code, § 7612, subd. (c).)

At a hearing held on the date appellant's points and authorities were filed, the juvenile court said: "[W]ith respect to the court putting this matter on with respect to the paternity judgment findings, two conflicting paternity judgment findings in A[.S.]'s case. I have received here today a memorandum of points and authorities in support of that motion [sic] from [appellant]. Or I should say memorandum in support of [appellant]'s paternity claim, presumed father over A[.S.]" The court and the parties agreed to put the matter over for a contested hearing on paternity at a later date.

On April 22, 2009, appellant filed a copy of the "Judgment Regarding Parental Obligations" entered against him on June 16, 2004, along with a request for judicial notice and a motion in limine seeking to bar any other party from challenging, impeaching, or setting aside the judgment. The judgment names appellant as the father of both minors and obliges him to pay child support for both.

On July 14, 2009, the Department requested that at the pending 12-month review hearing the juvenile court dismiss the dependency as to A.S., with joint physical and legal custody to be awarded to mother and J.C., who should be named the primary care providers. The Department's status review report indicated that ...


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