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In re M.A.

California Court of Appeals, Fourth District, Second Division

February 26, 2018

In re M.A. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
A.A. et al., Defendants and Appellants M.Z. Defendant and Respondent

         APPEAL from the Superior Court of San Bernardino County Nos. J266868 & J266869 Steven A. Mapes, Judge. Reversed in part; affirmed in part.

          Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant A.A.

          Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant F.A.

          Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Respondent M.Z.

          Leslie A. Barry, under appointment by the Court of Appeal, for minors M.A. and E.A.

          Michelle Blakemore and Jean-Rene Basle, County Counsel, Danielle E. Wuchenich and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

          OPINION

          MILLER Acting P. J.

         The juvenile court found E.A. (Minor, a female, born in July 2008.) and M.A. (a male, born in May 2015) came within the court's jurisdiction. (Welf. & Inst. Code, § 300, subds. (a), (b) & (j).)[1] The court ordered Minor be removed from the custody of F.A. (Mother). The court ordered Minor be placed in the custody of A.A. (Stepfather), who was a nonoffending, noncustodial, presumed father. The juvenile court found M.Z. (Bio-Father), Minor's biological father, was a Kelsey S.[2] father, thus creating three parents for Minor. (Fam. Code, § 7612, subd. (c)). The juvenile court ordered Minor have visits with Bio-Father.

         Mother and Stepfather raise three issues on appeal: (1) the court's finding that Bio-Father is a Kelsey S. father is barred by collateral estoppel; (2) evidence does not support the finding that Bio-Father is a Kelsey S. father; and (3) the juvenile court erred by not terminating jurisdiction over Minor. Additionally, Mother asserts the juvenile court erred by granting visitation to Bio-Father. We reverse in part and affirm in part.[3]

         FACTUAL AND PROCEDURAL HISTORY

         A. BACKGROUND

         Mother and Stepfather married in 1992. Mother and Stepfather shared two adult children.[4] Mother and Stepfather separated in 2006. From 2006 to 2008, Mother was in a relationship with Bio-Father. In late 2007, Mother told Bio-Father she was pregnant. They decided to terminate the pregnancy. In early January 2008, Bio-Father took Mother to an abortion clinic. Bio-Father believed Mother had the abortion. Mother did not have the abortion. Mother and Bio-Father's relationship ended in January 2008. In 2008, Mother and Stepfather resumed their marital relationship. Stepfather helped to raise Minor.

         In 2010, two years after their relationship ended, Mother called Bio-Father, who was living in Texas, and told him they had a child-Minor. Bio-Father returned to California with the intention of being part of Minor's life. Bio-Father spent approximately two weeks with Minor. However, when Bio-Father did not show an interest in having a relationship with Mother, Mother avoided Bio-Father. At that point, Bio-Father initiated a family court case. Also in 2010, in Nevada, Mother married V.M.N. Mother and V.M.N. shared an adult child, D.A.

         In June 2012, in the family court proceedings initiated by Bio-Father, and involving Mother and Stepfather, the family court explained the issue before it was “whether or not either of the gentlemen involved in this case can establish a presumption of paternity under [Family Code section] 7611.” Bio-Father argued that the court should apply Kelsey S.[5] Stepfather asserted adoption cases, such as Kelsey S., are different from paternity cases, and thus Kelsey S. was inapplicable. The family court agreed with Stepfather.

         The family court found Stepfather met the criteria of a presumed father under Family Code section 7611, subdivision (a), and Bio-Father did not meet the criteria for a presumed father under Family Code section 7611, subdivision (d). The family court denied visitation between Minor and Bio-Father and denied custodial rights to Bio-Father. Bio-Father spoke to multiple attorneys about appealing the family court's judgment, but he was told “that [he] had no chance.”

         Mother and Stepfather separated in 2013. Following the 2013 separation, Stepfather agreed to pay $1, 500 in child support for Minor and he visited her approximately once a month.

         B. DETENTION

         On August 17, 2016, Minor had a bite-shaped bruise on her arm. Mother bit Minor. Mother struck Minor's legs with an umbrella causing bruises, and has struck Minor with a belt. Minor is spanked daily, and the spankings cause bruises. Mother explained that she spanked Minor because Minor was “constantly interrupting and trying to get other people's attention.” Mother admitted spanking Minor with her hand, a belt, and a stick. Mother admitted biting Minor. Mother said it happened when Mother was frustrated, and she regretted it. Mother said she struck Minor with the umbrella “ ‘out of desperation.' ” Mother was arrested for inflicting cruel or inhumane corporal punishment. (Pen. Code, § 273d.)

         Minor was placed with Stepfather. M.A. was placed with his adult half-sibling, V.A. The juvenile court ordered Minor and M.A. be detained from Mother.

         C. Request to Change a Court Order

         Bio-Father spoke with a social worker from San Bernardino County Children and Family Services (the Department). Bio-Father explained that he “has been trying to get involved” in Minor's life since he first learned about Minor. After Minor was detained, Bio-Father went to Stepfather's home and insisted that Bio-Father had a “right to the child.”

         At a hearing on September 12, 2016, Mother's attorney informed the juvenile court that the family court had previously denied Bio-Father visitation with Minor as well as custody of Minor. The juvenile court found Bio-Father had no status in relation to Minor and ordered Bio-Father to stay away from Minor, Minor's school, and Stepfather's home, and to have no contact with Minor.

         On October 27, Bio-Father filed a request to change the court's no-contact order. (§ 388.) Bio-Father explained that Mother did not inform D.A. that V.M.N. was D.A.'s father until D.A. was approximately 15 or 16 years old. Bio-Father asserted Mother would also hide Bio-Father's identity from Minor, unless the court changed its order. Bio-Father feared Mother would also ruin a potential relationship between Bio-Father and Minor by sharing negative views with Minor regarding Bio-Father's religion. Bio-Father asserted that because Stepfather had limited contact with Minor after Mother and Stepfather's separation, Minor would not be harmed by learning the identity of Bio-Father.

         The Department recommended Bio-Father and Minor have visits, and that the visits occur in a therapeutic setting. The Department reasoned that Minor would eventually learn about Bio-Father, and “it would be better [for Minor] to find out sooner rather than later.”

         D. DISPOSITION

         The Department recommended Minor continue to reside with Stepfather under family maintenance. The Department asserted family maintenance was preferable to dismissing the case because Stepfather might be unable to protect Minor. The Department based this concern on Stepfather allegedly lying when he obtained presumed father status in the family court in 2012. The Department asserted the 2012 presumed father finding was based upon Stepfather and Mother having been together during the entirety of Minor's life; however, Mother and Stepfather were most likely separated when Mother married V.M.N. in 2010. The Department contended that Stepfather's willingness to lie for Mother created the possibility that he would be unable to protect Minor from Mother.

         E. RULINGS ON JURISDICTION AND DISPOSITION

         In regard to Minor, the juvenile court found true the following allegations: (1) Minor suffered serious physical harm due to Mother's actions (§ 300, subd. (a)); and (2) Minor suffered serious physical harm due to Mother's failure or inability to provide Minor with adequate medical treatment (§ 300, subd. (b)). In regard to M.A., the juvenile court found M.A.'s sibling had been abused, thus creating a risk that M.A. would be abused. (§ 300, subd. (j).) The court ordered Minor continue to be removed from Mother's custody. The court ordered Minor remain in Stepfather's custody on a plan of family maintenance.

         F. HEARING ON THE REQUEST TO CHANGE A COURT ORDER

         The juvenile court held a hearing on Bio-Father's request to change the no-contact order. (§ 388.) In 2008, Mother and Bio-Father agreed Mother would abort Minor. Bio-Father took Mother to the abortion clinic and paid for the abortion. Mother instructed Bio-Father to leave the clinic and said she would meet him at home. When Bio-Father arrived home, Mother was lying down as if she were in pain, and she told Bio-Father to move out of the home. Bio-Father moved out and the relationship ended. Bio-Father believed Mother had the abortion. Mother did not have the abortion. Minor was born in July 2008.

         In 2010, Bio-Father was living in Texas. Mother called Bio-Father and informed him they had a child-Minor. Bio-Father moved to California in order to establish a relationship with Minor. Bio-Father began spending time with Minor. Bio-Father changed Minor's diaper, took her to the park, stayed overnight with Minor, put Minor to bed, and purchased items for Minor.

         After two weeks, when Bio-Father did not express an interest in having a relationship with Mother, Mother “disappeared” along with Minor. At that point, Bio-Father contacted an attorney in order to legally establish his parental rights. Bio-Father “want[ed] to be involved in [Minor's] life, take care of her in any means [he] could.” The family court proceedings lasted “a couple years.”

         In 2012, the family court found Stepfather was Minor's presumed father and concluded Bio-Father was not entitled to visits with Minor. Bio-Father spoke to multiple attorneys about appealing the family court's judgment, but he was told “that [he] had no chance.” Bio-Father explained, “I just want her to know... that her father, from day one has been fighting courts in and out and still am. [¶] I am going on. [Minor is] eight and a half years old. I've been at it since two and a half. I'm stepping up. I want to take care of my daughter.”

         The juvenile court said the request for modification (§ 388) was a collateral attack on the 2012 family court order concerning paternity. The juvenile court explained that the only change that existed was a change in the law: After the family court's judgment, the law changed to permit a child to have three legal parents. The juvenile court then considered whether Bio-Father met the criteria for a Kelsey S. father. Mother asserted the family court had already determined that Kelsey S. did not apply in this case. The juvenile court explained that the family court did not have the option of selecting three parents for Minor, hence, the change in circumstances and the juvenile court considering whether to modify the prior order.

         The juvenile court treated Bio-Father's request as a request to modify the family court's order. The juvenile court said it could consider parentage for jurisdictional purposes or under the section 388 request. The court concluded that under either path, it had the authority to consider Minor's parentage. The court found Bio-Father was a Kelsey S. father. The court granted Bio-Father visits with Minor in a therapeutic setting, once every two weeks.

         DISCUSSION

         A. COLLATERAL ESTOPPEL

         1. CONTENTION

         Mother and Stepfather contend the juvenile court's finding that Bio-Father is a Kelsey S. father is barred by collateral estoppel because the family court ruled on Bio-Father's paternity in 2012.

         2. COLLATERAL ESTOPPEL LAW AND STANDARD OF REVIEW

         “The doctrine of collateral estoppel is one aspect of the concept of res judicata.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341, fn. 3 (Lucido).) “Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.' ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) “ ‘The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully.' ” (Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal.App.4th 1474, 1485.)

         Collateral estoppel has five requirements: “First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding.” (Lucido ...


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