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

April 11, 2011

IN RE C.M., A PERSON COMING UNDER THE JUVENILE COURT LAW. LASSEN COUNTY DEPARTMENT OF HEALTH AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.M., DEFENDANT AND APPELLANT.



(Super. Ct. No. J5560)

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

In re C.M.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COPY

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.

FACTUAL AND PROCEDURAL BACKGROUND

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 ...


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