7 Cal.App.5th 886
Cal. Ct. App.2017Background
- In July 2015 CFS detained five children after the mother abandoned them; three older children at issue are Ro.R. (b. 2003), J.R. (b. 2005), and M.R. (b. 2006).
- Father R.R. was incarcerated since 2006; he is undisputed biological father of J.R. and M.R.; paternity for Ro.R. is disputed between R.R. and S.H.
- S.H. cared for Ro.R. frequently since infancy, held him out as his son, and had Ro.R. living with him full time by April 2015; S.H. sought placement and custody.
- Juvenile court sustained various section 300 allegations against mother and designated R.R. a noncustodial presumed father of J.R. and M.R.; it also designated both R.R. and S.H. as presumed fathers of Ro.R., dismissed Ro.R.’s dependency petition, awarded S.H. sole legal and physical custody, and set supervised visitation for R.R.
- On appeal mother argued ICWA notice was inadequate (as to Ro.R.); R.R. challenged jurisdictional findings against him under Welf. & Inst. Code §300(g), the presumed-father finding for S.H., and the custody/visitation exit orders.
- The Court of Appeal affirmed most orders but reversed the true findings that the children fell within §300(g) based on R.R.’s incarceration (lack of substantial evidence he could not arrange care). Other rulings were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Welf. & Inst. Code §300(g) based on R.R.’s incarceration | CFS: incarceration supports §300(g) jurisdiction | R.R.: no substantial evidence he could not arrange care while incarcerated | Reversed as to §300(g); CFS failed to prove R.R. could not arrange care, though other jurisdictional findings against mother sustain dependency overall |
| Presumed-father status for S.H. (Fam. Code §7611 / §7612(c)) | CFS/child’s counsel: S.H. had long-term parent-child relationship; recognizing only biological parents would be detrimental | R.R.: S.H. was a family friend, not a father; marital presumption favors R.R. | Affirmed: substantial evidence S.H. received and held out Ro.R.; court permissibly named two presumed fathers under §7612(c) to avoid detriment to child |
| Exit custody/visitation orders awarding S.H. custody and limiting R.R. to supervised visits | CFS/juvenile court: S.H. provides stability and best interests support custody to him | R.R.: orders arbitrary; too restrictive; sibling visitation not provided; jurisdictional error taints exit orders | Affirmed: orders not arbitrary or capricious; based on child’s best interests and record of R.R.’s limited contact and incarceration |
| ICWA notice/compliance | Mother/R.R.: ICWA notice was inadequate and mandates reversal or remand | CFS: ICWA not triggered for placement with a parent; notices were sent as warranted; proceedings re: J.R./M.R. still ongoing | No reversible error: ICWA did not apply to Ro.R.’s placement with a parent; R.R.’s challenge re J.R./M.R. premature because notices/ICWA process remained ongoing |
Key Cases Cited
- In re Andrew S., 2 Cal.App.5th 536 (Cal. Ct. App.) (burden on agency to prove incarcerated parent cannot arrange care)
- In re S.D., 99 Cal.App.4th 1068 (Cal. Ct. App.) (no automatic loss of custody from incarceration; parent must be unable to arrange care)
- In re Aaron S., 228 Cal.App.3d 202 (Cal. Ct. App.) (§300(g) applies when parent cannot make arrangements for care)
- In re J.L., 159 Cal.App.4th 1010 (Cal. Ct. App.) (presumed-father status is based on familial relationship, not biology)
- Martinez v. Vaziri, 246 Cal.App.4th 373 (Cal. Ct. App.) (focus on established relationship and commitment in presumed-parent analysis)
- In re Donovan L., 244 Cal.App.4th 1075 (Cal. Ct. App.) (§7612(c) preserves existing relationships; cannot be used to create a potential one)
- In re Alexis H., 132 Cal.App.4th 11 (Cal. Ct. App.) (ICWA notice not required where child is placed with a parent)
- Bridget A. v. Superior Court, 148 Cal.App.4th 285 (Cal. Ct. App.) (standard of review for termination of dependency and exit orders)