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In Re C.M., A Person Coming Under the Juvenile Court Law. v. T.M


April 11, 2011


(Super. Ct. No. J5560)

The opinion of the court was delivered by: Butz, J.

In re C.M.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


Mother (T.M.) appeals from the juvenile court's judgment at the dispositional hearing that granted sole physical and legal custody of five-and-a-half-month-old female minor C.M. to father (Ca.M.), the non-custodial parent, and terminated jurisdiction. (Welf. & Inst. Code, § 361.2, subds. (a), (b)(1).)*fn1 Mother contends the court: (1) erred prejudicially by denying her a contested dispositional hearing; (2) erred by granting father sole custody under section 361.2 because he is not a presumed father, but only a biological father; (3) abused its discretion in making its order because father had no previous contact with the minor or experience in caring for an infant; and (4) erred by appointing new counsel for the minor at the dispositional hearing because counsel lacked time to prepare for the case and therefore provided ineffective representation. Respondent Lassen County Department of Health and Social Services (the Department) has not filed a brief. We shall reverse and remand to the juvenile court with directions to hold a contested dispositional hearing.


When this case began, both parents were minors themselves; the infant was the product of a non-marital relationship and father had never seen her. When the juvenile court made its dispositional order, mother had reached legal adulthood, but father was still a minor attending high school and living with his parents.

On December 8, 2009, the Department filed a section 300 petition, alleging that the three-month-old minor was sexually abused while in mother's sole care and custody.

According to the petition (which named Ca.M. as the alleged father), on December 4, 2009, mother stayed the night at the home of her boyfriend, N.S. Mother said that during the day there were two periods when she was not with the minor, between 3:30 and 4:45 p.m. and for a few minutes around 6:45 p.m. During the first period, mother left the minor in the care of N.S.'s sister, but five other adults were present. During the second period, mother left the minor with N.S.; while changing the minor's diaper, he noticed blood and called mother. They took the minor to Banner Lassen Hospital, where a doctor contacted the Lassen County Family and Child Protective Services (CPS) Emergency Response unit with a referral alleging sexual abuse. The minor was transported to University of California, Davis (UCD) Medical Center for a child sexual abuse examination, which revealed "'laceration v. Transection at 4 to 5 o'clock and a blood blister at 10:00 on the hymen, generalized bruising in Fossa and along edge forchette [sic] with submucosal hemorrhage in Fossa at base of hymen.'" Mother acknowledged Ca.M. was the minor's father.

At the detention hearing on December 8, 2009 (Hon. Stephen D. Bradbury, judge presiding), both parents were present, along with the paternal grandparents and L.R., who said she was the maternal stepgrandmother.

Father said he and mother were not married and he had not been adjudicated as the minor's father. He was 16 and lived at home with his parents.

Mother said she lived with her father and "stepmother," L.R., but was staying with her boyfriend, N.S. L.R. explained that mother could not stay at home now because L.R. had custody of the minor.

The social worker confirmed that she had placed the minor with L.R. and the minor's maternal grandfather, who was at work that day. L.R. said the grandfather worked in Reno during the week, but lived with her and mother. The court directed the social worker to visit the home that day, and if there were any concerns, to remove the minor and place her with a foster family.

County counsel requested immediate paternity testing and the appointment of guardians ad litem for the parents, who were both minors. The court ordered paternity testing and named father's and mother's respective fathers as guardians ad litem. The court also appointed counsel for all parties (including the minor), and stated it would appoint a guardian ad litem and a court-appointed special advocate (CASA) for the minor.*fn2

The detention report, filed December 9, 2009, recommended that the minor be placed in foster care pending the next hearing. According to the report, L.R., the minor's alleged maternal stepgrandmother, was actually the girlfriend of the minor's maternal grandfather.

The report gave further information about the minor's detention. After receiving the report of suspected sexual abuse from the hospital, social worker Denise Schrade got approval for mother to accompany her and the minor to the UCD Medical Center, but mother declined to go, saying she did not have any of the minor's things. Schrade thought mother had had more than enough time to get items for the trip.

The examination at UCD Medical Center determined that the minor's injuries were caused by an object penetrating the vagina within the last 24 hours. A copy of the forensic medical report was attached to the detention report.

The alleged father (not yet determined to be the father) held out the minor as his child. He had never had contact with her; he had only seen pictures of her. His parents, with whom he lived, believed he was the father. The minor's paternal grandmother said she was present for mother's pregnancy, threw a baby shower for her, and was at the hospital when the minor was born; but after the birth, mother refused to let the grandparents see the infant and broke off contact with them. Father and his parents said they were ready and able to care for the minor now.

At the jurisdictional hearing on December 14, 2009, the parties submitted on the section 300 petition and stipulated to use the detention report in lieu of a jurisdictional report. The juvenile court made the findings recommended in the detention report.

County counsel stated that paternity testing would occur in a few days, and results normally came back in around six weeks. The court set the dispositional hearing for February 11, 2010.

The court then stated it was disturbed by L.R.'s claim that she was mother's stepmother, since she was not married to the maternal grandfather. L.R. replied: "Oh, well."

Father's counsel requested that the minor be placed with father and the paternal grandparents, asserting that as the nonoffending non-custodial parent, father was statutorily entitled to custody. The social worker said a home study had cleared their home for placement.

Opposing father's request, mother's counsel asserted that paternity was not established. The alleged father and his parents had been extremely hostile to mother and her family. Before the minor was born, the alleged father demanded that mother get an abortion because he did not want to be responsible for supporting a child.

County counsel supported father's request for placement. The minor's counsel had no view on placement because he had not spoken to the parties.

The court granted father's request, finding it was in the minor's best interest. The court explained it was "looking for somebody to take care of this child," and the current placement would not do because the maternal grandfather was in Reno during the work week and the alleged stepgrandmother was a non-relative.

On January 25, 2010, the juvenile court received a confidential report on father's paternity test.

The disposition report, filed February 9, 2010, recommended placing the minor with father and his parents and terminating jurisdiction. The report stated:

The criminal investigation of the sexual assault on the minor was not yet concluded. So long as the assailant's identity remained unknown, the minor could not safely be returned to mother's custody.

The paternity test report showed nearly a 100 percent probability that the alleged father was the minor's biological father. Therefore, it was recommended that he be found "the minor's biological and presumed father." (Italics added.)

Mother turned 18 in January 2010. She had a close relationship with her father (the minor's maternal grandfather), but had not seen her mother (the minor's maternal grandmother) in five years.

She graduated from high school a year early with excellent grades. She was now unemployed and looking for work. She knew she needed a job to support the minor.

According to mother, she and father began dating sometime in 2008, but often broke up. She became pregnant in November 2008. After her first ultrasound in February 2009, father broke up with her for good. She last spoke to him briefly before the minor's birth.

She had had a steady relationship with 16-year-old N.S. since June 2009, but they did not talk about the minor much. She planned to wait and see where things went with the relationship.

She had cooperated with the criminal investigation, but "d[id]n't know who to trust." She found it painful to "hand . . . back" the minor at the end of visits. She did not think coparenting with father would work.

Mother's strengths included her intelligence, her physical health, her extended family support, and her cooperation with the agency. She had participated in a parenting program during the last six weeks, and her visits with the minor were good. The extent of her progress toward alleviating or mitigating the causes necessitating placement was "moderate."

Father was currently a junior in high school. He had a 3.2 GPA and played several sports.

He said he and mother had had an on-again, off-again dating relationship which ended when she told him she was pregnant. He was involved in mother's prenatal care for the first couple of months, but this ended due to "'a combination of [his] dad not wanting [him] to talk to [mother] and her putting pressure on [him].'"

He met the minor for the first time after her detention. Since she was placed with him, he had become "attuned to [her] cues." His parents were good examples and teachers, and other family, friends, and neighbors also provided support.

He thought he could coparent with mother, but he did not know if she could do it.

Father's strengths included "draw[ing] strength from finding humor in every situation," "robust self-esteem," and "solid family relationships."

The minor "appear[ed] to be a happy infant" and "adjust[ed] easily during the transition periods of visits."

Although mother was able to "read [the minor]'s cues" and meet her immediate physical needs, her safety might be at risk in mother's care. The minor appeared safe and healthy in father's care. "It is in the minor['s] best interest to exit the child welfare system, and [father's] family seems to possess adequate skills, resources, and support for the task ahead of them." (Italics added.)

The CASA report, filed February 10, 2010, endorsed the Department's recommendation. The report stated concerns about mother's alleged postpartum depression, her failure to accompany the minor to the sexual abuse examination, her use of her cell phone and texting during visitation, and her mental health in general. The report also stated, however, that mother would benefit from parenting classes and recommended such services if the juvenile court retained jurisdiction.

The dispositional hearing was held on February 11, 2010 (Hon. John P. Moran, judge presiding).

At the outset, the juvenile court, informed that mother was now an adult, agreed to rescind the appointment of a guardian ad litem for her.

Mother's counsel, opposing the Department's recommendation, asked for a contested dispositional hearing at which she could present evidence.

County counsel asserted that section 361.2 required the court to give custody to the "nonoffending father." Mother's counsel replied: "Unless the Court finds it to be detrimental to do so. I would submit cutting off the mother's opportunity for reunification for her child is certainly a potential detriment to the child and I think there may be some other factors as well[.]" Father's counsel endorsed the Department's position, saying, "I think it's statutory."

The juvenile court judge said: "I agree. If we have a nonoffending parent, the child is to be placed with that parent. The Court is going to in this case adopt the findings [and recommendations] of the agency[.]" (Italics added.)

Mother's counsel argued: "Number one, I don't know if the Court is aware but the father of this child is himself a minor still. Secondly, under the statute the Court does not have a mandatory duty to place with the nonoffending parent and close the case. It has the option of closing the case upon placement with the nonoffending parent but it also has the option of keeping jurisdiction open. And . . . if the Court were to keep the dependency open, whether or not it ultimately decides to change the recommendation as far as the present custody, that . . . would give the other parent . . . an opportunity to avail herself of reunification services, which I believe would be in the minor's long-term best interest. And also because the other parent is himself a minor, I don't believe that it would be appropriate to leave the child in his care without the provision for any services from CPS to [e]nsure that the child is adequately and safely cared for." (Italics added.)

Father's counsel replied that father had an appointed guardian ad litem, his father (the minor's paternal grandfather).

The judge stated: "I see no problem placing the child with the minor [sic; father]."

The court then observed that the minor's counsel, Attorney Funk, was not present. After a recess, father's counsel said they had not been able to reach Funk, but suggested appointing John Lawson, an attorney who was in court and was apparently associated with Funk, in substitution for him: "[H]e is familiarizing himself and already has with the report [sic]. We have discussed the case with him." The court relieved Attorney Funk as the minor's counsel and appointed Attorney Lawson "[f]or the purposes of this proceeding."

Asked if he had any comment, Attorney Lawson replied: "No, Your Honor. Having the opportunity to review the report and petition I would submit on the recommendation to award full custody to the father and terminate jurisdiction."

The judge then addressed mother: "[T. M.], I want to emphasize I was not present at the hearing in which the petition was found to be true. The only thing I can say is, I'm sure that Judge Bradbury carefully considered this matter before making a finding that the child was injured while under your protection or control. I think that under the circumstances in [sic] that finding having been made, it's appropriate for the Court to adopt the recommendation of the . . . agency and award custody to the father of the child. I understand from reading the file he hadn't had contact with the child until this matter came up but under the circumstances the appropriate way to handle this is to a[ward] him custody of the child and terminate these proceedings. That order can be modified in the future, that custody order. If the circumstances change either with respect to him or with respect to you, you are entitled to apply for a modification of that order." (Italics added.)

Attorney Lawson asked the court to find, based on the DNA test results, that father was the presumed father. The court replied: "That's ordered. He's the biological father." (Italics added.) Lawson added: "He was originally designated the alleged father." The court replied: "He's the biological father. There's no question about that." (Italics added.)

The juvenile court thereafter entered final judgment placing the minor with father and his parents, giving him sole physical and legal custody, granting supervised visitation to mother, and terminating the dependency. The judgment states that father "was declared the father of [the minor]" by order of the juvenile court on February 11, 2010.



Mother contends the juvenile court erred prejudicially by denying her the contested dispositional hearing she requested. We agree. The court's failure to hold a contested hearing is incomprehensible except on the premise that section 361.2 dictated the outcome and made it pointless to hear evidence. That premise was incorrect.

In dependency matters, once the juvenile court has found jurisdiction under section 300, it must conduct a dispositional hearing. (§ 358.) At the dispositional hearing, the standard of proof for removal from a custodial parent is clear and convincing evidence. (§ 361, subd. (c).)

Section 361.2 provides in relevant part:

"(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.

"(b) If the court places the child with that parent it may do any of the following:

"(1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the non-custodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents.

"(2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. . . . After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1) [or] (3) . . . . However, nothing in this paragraph shall be interpreted to imply that the court is required to take the action described in this paragraph as a prerequisite to the court taking the action described in either paragraph (1) or paragraph (3).

"(3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent . . . from whom the child is being removed . . . ."

"[T]he statute's use of the words 'parent' and 'custody' indicate that . . . only a presumed father is entitled to assume immediate custody." (In re Zacharia D. (1993) 6 Cal.4th 435, 454.) Thus, to receive immediate custody under section 361.2, a biological father must have achieved presumed father status by the time the minor was removed from the mother's custody. (Ibid.)

To qualify as a presumed father, an unwed father must have "'promptly' demonstrated a 'full commitment' to parenthood during pregnancy and within a short time after he discovered . . . that the biological mother was pregnant with his child[.] [H]e cannot compensate for his failure to do so by attempting to assume his parental responsibilities many months after learning of the pregnancy." (Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054.)

Normally, we review the juvenile court's dispositional orders for abuse of discretion. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474.) In this case, it is unclear whether the court recognized it had discretion under section 361.2, because the court's remarks strongly suggest that it thought its order was mandatory. In any event, the court's order was plainly an abuse of discretion which requires reversal.

Mother's counsel pointed out that, assuming section 361.2 applied, the juvenile court could follow either subdivision (b)(1) (sole physical and legal custody to father with termination of jurisdiction) or subdivision (b)(3) (physical custody to father with reunification services for mother). Counsel also asked for a contested dispositional hearing at which the parties could put on evidence to inform the court's exercise of discretion. Yet the court appeared to think it had no discretion to exercise: Without explaining either why it would not hold a contested hearing or why subdivision (b)(3) could not apply, the court stated wrongly that section 361.2 required the order made here. If the court genuinely believed that, despite the express terms of subdivision (b)(3), its decision was founded on an error of law, which would necessarily make it an abuse of discretion. (In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1061.)

It is true that the social worker's and the CASA reports recommended the order the court made. But these recommendations were not well reasoned.

First, the social worker's recommendation that father be declared the presumed father rested on a factually and legally inadequate footing. The social worker noted that he was the biological father, and that after the dependency began he held out the minor as his child and took her into his home. But, as we shall explain, that is not enough for presumed fatherhood on this record, and the critical question--whether father made every reasonable effort to assume a parental role before the dependency began--is impossible to resolve without an evidentiary hearing.

Second, by recommending the termination of jurisdiction, the social worker also necessarily recommended the denial of reunification services to mother. This recommendation was also legally unsupported.

Parents are presumed to be entitled to reunification services. (§ 361.5, subd. (a).) Thus, to deny services, there had to be some statutory ground for doing so. (§ 361.5, subds. (b), (c).) But the social worker cited no such ground and presented no evidence that would support any.

Third, and finally, the social worker's express justification for the proposed order--"It is in the minor['s] best interest to exit the child welfare system, and [father's] family seems to possess adequate skills, resources, and support for the task ahead of them"--is deeply unpersuasive. Its first clause is a truism that would apply in any dependency proceeding, and its second elides an obvious problem: Was father, a high school junior, expected to live with his parents indefinitely? If not, how did he plan to care for the minor on his own, and what would ensure that he followed through once jurisdiction was terminated? The social worker's report does not consider these questions.

The CASA report does not aid in this respect. Although it mentions additional alleged concerns about mother, these concerns also do not suggest a statutory ground for bypassing services, and the CASA did not propose one. On the contrary, the CASA opined that services would benefit mother and recommended she receive them if the juvenile court retained jurisdiction.

Because the social worker and the CASA failed to justify denying reunification services to mother and terminating jurisdiction (§ 361.2, subd. (b)(1)) instead of offering her services and retaining jurisdiction (§ 361.2, subd. (b)(3)), the juvenile court's reliance on their reports was misplaced.

In other contexts within the juvenile dependency regime, a parent may not be deprived of custody or other parental rights without a contested evidentiary hearing. (See Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302; In re James Q. (2000) 81 Cal.App.4th 255, 262-263; In re Michael W. (1997) 54 Cal.App.4th 190, 194-196; In re Natasha A. (1996) 42 Cal.App.4th 28, 35-36; In re Hirenia C. (1993) 18 Cal.App.4th 504, 516-517, 520; In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) We see no reason a different rule should apply here, where mother faced loss of custody over an infant whom she loved and had not been accused of directly harming in any way, and whom the juvenile court was prepared to hand over to a person who was still legally a minor himself. Furthermore, as we explain below, the court's failure to hold a contested hearing left key evidentiary issues unresolved.


Mother contends section 361.2 did not justify giving custody to father under either subdivision (b)(1) or subdivision (b)(3) because the statute authorizes giving custody only to presumed fathers, not to mere biological fathers, and there was no basis for a finding of presumed fatherhood here. (In re Zacharia D., supra, 6 Cal.4th at p. 454; see Adoption of Michael H., supra, 10 Cal.4th at p. 1054.) On remand, the juvenile court must decide this question based on the evidence presented at a contested dispositional hearing.

Mother asserts at the outset that the court did not even make the required finding: Though the minor's counsel requested a finding that father was the presumed father, the court stated (twice) only that father was "the biological father." We disagree. The court's first response to counsel's clearly worded request was: "That's ordered." Whatever the court said afterward, it had already made the required finding.

The real question is whether the evidence before the court supported this finding. As we have already suggested, it did not. To qualify as a presumed father, father would need to show that "he 'promptly' demonstrated a 'full commitment' to parenthood during pregnancy and within a short time after he discovered [the pregnancy]," not just "many months after learning of the pregnancy." (Adoption of Michael H., supra, 10 Cal.4th at p. 1054.) The record before us does not show this.

It is undisputed that the parents ended their relationship shortly after mother became pregnant, and that father did not see the minor or take part in her parenting until after these proceedings began. Judging from the social worker's report and the oral assertions of mother's counsel, however, the parents had sharply conflicting stories about father's attitude about the pregnancy, his attempts (if any) to assume his parental responsibilities before the dependency commenced, and why such attempts, if made, did not succeed. Because the juvenile court deprived mother of a contested dispositional hearing, these stories were not subjected to evidentiary scrutiny.

Mother's counsel asserted, presumably based on what mother told him, that father demanded she get an abortion because he did not want to be responsible for supporting a child. If the evidence supported this story, it would refute father's claim to presumed father status. On the other hand, father and his parents insisted that he tried to assume his parental responsibilities from the outset but was rebuffed by mother; if the evidence supported this story, he would be entitled to presumed father status. But the mere fact that he held the minor out as his child and took her into his care and custody after she was detained does not suffice. (In re Zacharia D., supra, 6 Cal.4th at p. 454.)

Because section 361.2 does not authorize giving custody of a minor to a non-custodial father unless he is the presumed father, the juvenile court must decide on remand whether father meets this standard, based on the evidence presented at the contested dispositional hearing.


Mother contends that even if father is qualified to assume custody under section 361.2, the juvenile court's decision to follow subdivision (b)(1) rather than subdivision (b)(3) was an abuse of discretion. For the reasons already stated in parts I and II of the Discussion, we agree. Nothing in the evidence before the court justified placing the minor with a parent who was a legal minor himself, who had no prior experience with caring for infants, and whose future plans were unknown, while depriving the minor of her mother's care and custody, even though mother had diligently participated in the services and visitation offered her so far.


Lastly, mother contends the juvenile court abused its discretion by appointing new substitute counsel for the minor at the dispositional hearing because the new counsel had no time to familiarize himself with the case and therefore provided ineffective representation. We need not decide this question because the minor's counsel will have ample time to familiarize himself with the case on remand.


The judgment is reversed. The matter is remanded to the juvenile court with directions to hold a contested dispositional hearing at which it shall determine, based on the evidence presented, whether father is entitled to the status of presumed father. If he is entitled to that status, the court shall then determine whether he should receive custody of the minor pursuant to section 361.2, subdivision (b)(1) or subdivision (b)(3). If he is not entitled to presumed father status, the court shall not award him custody under section 361.2 and shall order a proper disposition for the minor based on the evidence presented.

We concur: RAYE , P. J. ROBIE , J.

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