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In re J.P.

California Court of Appeals, Sixth District

July 26, 2019

In re J.P., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent,
v.
M.D., Defendant and Appellant.

          Trial Court: Santa Clara County Super. Ct. No. 17JD024630 Hon. Amber Rosen Trial Judge:

          Counsel for Plaintiff/Respondent: Santa Clara County Department of Family and Children's Services James R. Williams, County Counsel Hilary T. Kerrigan, Deputy County Counsel

          Counsel for Minor: J.P., No appearance

          Counsel for Defendant/Appellant: M.D. Under Appointment of the Court of Appeal Leslie A. Barry Michelle Jarvis

          PREMO, J.

         M.D. (mother) appeals from the juvenile court's order granting her ex boyfriend (Albert) visitation with her son, J.P. Mother argues that the juvenile court did not have the authority to order visitation with nonparents like Albert, and, even if such an order was permitted, the circumstances did not warrant granting Albert visitation with J.P. We disagree and conclude that the juvenile court did not abuse its discretion when it made the visitation order after determining that it would be in J.P.'s best interest. We affirm.

         Background

         On July 14, 2017, the Santa Clara County Department of Family and Children's Services (Department) filed a petition under Welfare and Institutions Code section 300, subdivision (b)(1)[1] alleging that J.P. (born 2013) came under the juvenile court's jurisdiction. The petition alleged that mother had been arrested for driving under the influence. J.P. and his younger half brother, A.A., were taken into protective custody.[2]

         Albert's stepmother said that Albert, mother, J.P., and A.A. lived with her from September or October 2016 through February or March 2017. Albert told the social worker that he was not J.P.'s biological father but wanted to legally adopt him. Albert was A.A.'s biological father. J.P.'s biological father, L.P., was not involved in J.P.'s life, but he was ordered to pay child support for J.P.

         At the initial hearing on the dependency petition, the juvenile court found Albert to be A.A.'s presumed father and found L.P. to be J.P.'s presumed father. The juvenile court further found that a prima facie showing had been made that both children came within its jurisdiction and ordered them removed from mother and Albert's custody.

         During interviews, Albert indicated to the Department that he wanted to be designated as J.P.'s presumed parent. Mother and Albert had separated during the dependency proceedings and did not intend to resume their relationship. Albert said that J.P. called him “dad, ” and he referred to J.P. as his son even though he was not J.P.'s biological father. Mother claimed that Albert had problems with alcohol, smoked heavily, and scared the children when he got into loud arguments. The Department determined that mother had a “long standing alcohol issue” and Albert was “well intentioned” but had a difficult time maintaining boundaries with mother to keep the children safe. The Department further determined that Albert had prior instances where he drank excessively.

         Before the jurisdictional hearing, mother alleged that Albert had committed domestic violence against her. Albert denied the allegations of abuse but conceded that he got into verbal altercations with mother. Mother had requested a restraining order against Albert, and a temporary restraining order was in effect at the time the Department prepared its addendum to the jurisdictional report. Police had responded several times to reports of disturbances between mother and Albert.

         On August 23, 2017, the juvenile court held a jurisdictional hearing and found the allegations in the dependency petition to be true. The court held a dispositional hearing several weeks later and declared both J.P. and A.A. to be dependents of the court. Services were ordered for mother and Albert. For J.P., the juvenile court ordered supervised visits with mother and L.P. For A.A., the juvenile court ordered supervised visits with mother and Albert.

         In November 2017, J.P. and A.A. were moved from their foster home placement to their paternal grandparents' (Albert's parents') home. L.P. had not made his whereabouts known to the Department, and he had not had any visits with J.P.

         In preparation for the six month review, the Department prepared a status review report that recommended J.P. be returned to mother's care under a plan of family maintenance and services for L.P. be terminated. The Department also recommended A.A. be returned to both mother and Albert and family maintenance be offered for mother and Albert's separate households. According to the report, the domestic violence case initiated by mother against Albert had been dismissed. Both parents had been consistent with visiting both children, and the Department believed the quality of visits was good. The children “show[ed] comfort” in Albert's presence, and Albert appeared to be hands on with the children when they were with him. Albert ensured that the children were fed, took ...


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