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In Re A.J., A Person Coming Under the Juvenile Court Law. v. Jamie P

March 14, 2013


APPEAL from orders of the Superior Court of San Diego County, Carol Isackson, Judge. (Super. Ct. No. J518270A)

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



Jamie P. appeals the juvenile court's order terminating jurisdiction after it placed her daughter, A.J., with A.J.'s biological and presumed father, Joshua S., in Hawaii. Jamie does not contest A.J.'s out-of-state placement with her father. She challenges only the trial court's denial of her request to retain dependency jurisdiction. We affirm.


Initial Dependency Proceedings and Attempts to Locate A.J.'s Natural Father

On October 26, 2011, the San Diego County Health and Human Services Agency (Agency) filed a petition under Welfare and Institutions Code section 300, subdivision (b)*fn2 on behalf of then seven-year-old A.J. and her two half siblings, ages five and nine months, alleging that A.J.'s stepfather had applied excessive discipline by beating A.J. with a belt, including over scars from a recent surgery, and that her mother, Jamie, had been aware of this abuse but failed to protect her.*fn3 The family had several prior referrals to the Agency for abuse of A.J. by her stepfather, one of which resulted in voluntary provision of services to Jamie and the stepfather in 2009. At the initial detention hearing, the juvenile court ordered A.J. detained at Polinsky Children's Center (Polinsky) or in a licensed foster home.

A.J. was the result of a brief encounter between Jamie and the natural father, and he was not named on her birth certificate. At the time of the detention hearing, the whereabouts of A.J.'s natural father were unknown, although Jamie informed the Agency that she last knew him to be living in Hawaii, and she had provided the Agency with a name. The court ordered the Agency to conduct a reasonable search for the father to inform him of the dependency proceedings.

In connection with the initial jurisdiction and disposition hearing, the Agency reported that attempts to locate A.J.'s natural father had thus far not been successful, even though the Agency was aware the father had been paying A.J.'s child support. At the January 5, 2012, settlement conference, the juvenile court sustained the allegations of the Agency's petition and ordered A.J.'s continued detention. The court also found that "reasonable search efforts have been made to locate and notify" A.J.'s natural father, but ordered the Agency to continue its efforts to locate him. A special hearing was set to address paternity and search efforts, but at that subsequent hearing the Agency reported that its further attempts to locate A.J.'s natural father had produced no new information.

A.J. was reported to be a bright, spirited little girl with some behavioral issues. She displayed a temper, was disobedient and had trouble following the rules. A.J. had been placed with a non-related extended family member, but in April 2012, the caregiver requested that A.J. be removed from her care because of A.J.'s unsafe behaviors, including leaving the home and attempting to injure herself. A.J. was removed to Polinsky on April 6, 2012, with the intention that she be placed in an Intensive Treatment Foster Care home. On April 30, 2012, the Agency filed a section 387 petition requesting the court order a higher level of care for A.J. The court ordered A.J.'s continued detention at Polinsky, set a jurisdiction and disposition hearing for May 2012 and scheduled the six- and 12-month review hearings.

Joshua's Appearance and Efforts to Obtain Custody of A.J.

In May 2012, the Agency reported that it was finally able to track down A.J.'s natural father through child support records, explaining that the name Jamie had given for the father was inaccurate. A.J.'s natural father, Joshua, contacted the Agency promptly after receiving the social worker's letter about A.J.'s situation. He explained that after his encounter with Jamie, he had moved to Hawaii to help with his aunt's farming business. He had not been informed of A.J.'s birth until a year later. He had undergone a paternity test and had regularly been making child support payments since 2004. Because he was living in Hawaii and had no relationship with Jamie or A.J., he did not know how he could have been an active father, and he had decided to "just let the mother care for" A.J. However, he stated that he was upset the Agency had not attempted to contact him during the 2009 voluntary case.

Joshua "expressed that he had made a grave mistake by not taking an active part [in A.J.'s] life and he [felt] awful that he allowed her to be raised in an abusive household." He had thought of A.J. often, particularly around the time of her birthday, and was very concerned she would be abused again in the future. Joshua married in 2007, and he and his wife have two daughters born in 2010 and 2011. Joshua is a high school graduate, attended community college and is employed as a maintenance supervisor. He and his wife have extensive family support in Hawaii.

Joshua made his first appearance telephonically before the juvenile court on May 21, 2012, and requested that A.J. be placed with him. The court appointed counsel for him and found him to be the biological father of A.J. His counsel informed the court that Joshua already had made contact with A.J. by telephone, letters and photographs and had scheduled an in-person visit. The Agency indicated it needed additional time to evaluate Joshua before making a recommendation as to placement. Jamie urged the court to "move rather slowly" with respect to a placement decision inasmuch as Joshua had not been present in A.J.'s life until that time and was a "mere biological father, not entitled to custody." The court ordered supervised visits between Joshua and A.J., with Agency discretion to lift the supervision, confirmed the six- and 12-month review dates and set a contested disposition hearing for June 29, 2012. Later, the court vacated the June 29, 2012, hearing date and ordered a new hearing date of July 27, 2012.

A.J. first learned about her biological father about five years previously, when she found a picture of him, but her mother had encouraged her to forget about him. A.J. was very excited to see the pictures and hear the letters from her father and his family members, and she was eager to visit with them. Joshua first visited San Diego in late May 2012 to meet and begin to establish a relationship with A.J. By all accounts, this visit was a success. Joshua and A.J. visited daily both at Polinsky and at a nearby park. A.J. was very comfortable with her father and enjoyed his visits immensely. Joshua acted appropriately with his daughter and was fully engaged when playing with her. After the initial visitations, A.J. was comfortable with short, unsupervised visits, and she and Joshua went to SeaWorld together. During his visit, Joshua was brought up-to-date on A.J.'s medical needs (particularly those resulting from kidney surgery she underwent in September 2011), and was made aware that she would need ongoing therapy to deal with the physical abuse in her past. He was also able to meet with A.J.'s teacher to learn about her academic and behavioral performance in school. Joshua and the Agency began to plan an extended visit for A.J. in Hawaii.

The Agency proposed that A.J. spend a week to 12 days with Joshua in Hawaii before the scheduled July hearing date, in order to more fully assess the suitability of A.J.'s placement with her father. Jamie objected to the visit, arguing that it would impede her reunification with A.J., and that the proposed length of the visit was too great given A.J.'s limited exposure to Joshua. On June 20, 2012, the juvenile court found the visit to be appropriate, and that a longer visit was warranted to give A.J. "a sense as to the family and what life is like" in Hawaii. The court confirmed its finding that Joshua is the biological father, and entered a judgment of parentage.*fn4 The court also continued the six-month review hearing from June 26 to July 16, 2012, to allow time for A.J.'s visit to Hawaii to be completed.

A.J. visited her father from June 24 to July 15, 2012, accompanied by the Agency's social worker. Again, the visit was successful. A.J. was very comfortable with her father and his family there. When asked by her social worker, A.J. was "adamant" that she wanted to live in Hawaii with her father and have frequent contact with her mother and family in California. The State of Hawaii Department of Human Services, Child Welfare Services (CWS) approved Joshua's home as a residence for A.J. The Agency recommended that the court place A.J. with Joshua and terminate jurisdiction. A.J.'s court-appointed special advocate also recommended placement with Joshua, but did not recommend termination of jurisdiction at that time.

At the initial six-month review hearing held on July 16, 2012, Joshua indicated he was seeking status as the presumed father under Family Code section 7611, subdivision (d). Jamie stated her opposition to A.J.'s placement with Joshua as he was a mere biological father, and indicated she would be requesting that A.J. be returned to her care. The Agency took the position at that time that Joshua did not yet meet the criteria for presumed father status, but argued that A.J. nevertheless should be placed with him. The court set the matter for July 27, 2012, combining it with the contested six-month review and section 387 jurisdiction and ...

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