In re M.R.
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion filed in this matter on January 20, 2017, is modified as follows:
On page 17, in the first line of the first paragraph, delete “Roland” and replace with “R.R.”
Except for this modification, the opinion remains unchanged. This modification does not effect a change in judgment.
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER J.
SLOUGH J.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes and Cheryl C. Kersey, Judges. Affirmed in part; reversed in part.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant M.G.
Sharon S. Rollo, under appointment by the Court of Appeal, for Defendant and Appellant R.R.
Jean-Rene Basle, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.
In July 2015, plaintiff and respondent San Bernardino County Children and Family Services (CFS) was contacted by the maternal grandmother of five children whose mother, defendant and appellant M.G. (mother), had “left the children with her” and then “took off.” Issues relating to the three oldest of those children are raised by one or more parties in the present appeal; Ro.R., born in 2003; J.R., born in 2005; and M.R., born in 2006. The juvenile court declared J.R. and M.R. to be dependents of the court, placing them with the maternal grandmother, and ordering reunification services for mother, but not their father, defendant and appellant R.R. With respect to Ro.R., the juvenile court found two men—R.R., and defendant and respondent S.H.1—both to be presumed fathers of the child, pursuant to
Mother contends on appeal that the juvenile court erred by failing to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (
We reverse the jurisdictional findings against R.R.; the trial court‘s exercise of jurisdiction over Ro.R., J.R. and M.R. on other bases, and all other orders appealed from, are affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
No party has disputed that R.R. is the biological father of J.R. and M.R., but both S.H. and R.R. claim to be the biological father of Ro.R. S.H. met mother when she was 16 years old and he was 18, and subsequently they dated for about two years—based on their birthdates, from about 1999 until 2001. Mother married R.R. in March 2003, after living with him for several years. Based on a normal gestation period and Ro.R.‘s birthdate, mother was already living with R.R. when Ro.R. was conceived, in about December 2002.
In July 2015, the maternal grandmother of Ro.R., J.R., M.R., and their two younger half siblings (born in 2010 and 2011) contacted CFS, telling a social worker that mother had left all five children with her six weeks earlier, and “took off.” Mother‘s whereabouts were unknown; mother‘s live-in boyfriend, A.R., the father of the two youngest children, was incarcerated.
On July 22, 2015, CFS detained the children, placing them with the maternal grandmother on an emergency basis. On July 24, 2015, CFS filed dependency petitions with respect to each of them. The petitions regarding Ro.R., J.R., and M.R. included allegations under
In a statement of parentage filed on July 27, 2015, S.H. asserted that Ro.R. had spent a substantial amount of time with him, especially since Ro.R. was three years old.4 Starting at age 3, Ro.R. had spent approximately 24 weekends per year with S.H.‘s family. For the past five or six years, Ro.R. had spent entire spring and Christmas breaks with S.H. For the past three years, Ro.R. had spent his entire summer break with S.H.‘s family; prior to that, he would spend half of summer breaks there. S.H. had presented Ro.R. as his own child to his wife and other two children, as well as his extended family. S.H. had participated in various activities with Ro.R., including “vacation, amusement parks, birthdays, beach, sports, school work [and] events.”
At the continued detention hearing, in response to inquiry by the court, mother asserted that R.R. is the biological father of Ro.R., and that she did not wish to “give rights away” to S.H. She acknowledged that S.H. and Ro.R. had a relationship, stating that “my son loves him to death,” but contended that he “is just a very good friend and has been around the child, but he is not related in any way, shape, or form.” The court detained Ro.R. and ordered that he be placed with S.H.
A contested jurisdictional/dispositional hearing was held on September 11, 2015. CFS had not interviewed R.R. in preparing its detention report or its jurisdiction/disposition report; several attempts by the social worker to contact him were unsuccessful. Nevertheless, the evidence considered at the hearing included R.R.‘s statement of parentage, which he filed August 24, 2015. R.R. disputed S.H.‘s claim to have been in Ro.R.‘s life since birth, calling it “an outright lie.” He asserted that he is the
R.R. was transported from prison to appear at the jurisdictional hearing. He testified that mother had told him he was Ro.R.‘s father when she became pregnant; that he accompanied her to prenatal appointments, and was at the hospital when Ro.R. was born; and that he was listed as the father on Ro.R.‘s birth certificate. R.R. had lived with Ro.R. from the child‘s birth until early 2006, when he was incarcerated. Since then, R.R. and the children had communicated primarily though mail and phone calls; Ro.R. had written to R.R. most recently about a year before, and visited him in prison once, in 2009.
At the jurisdictional hearing, S.H. testified that so far as he knew, he was Ro.R.‘s biological father. During her pregnancy with Ro.R., mother told him that he “could possibly be [Ro.R.‘s] father, but she wasn‘t certain.” S.H. had held Ro.R. out as his son to his entire family, as well as to others outside of the family, such as teachers. S.H. never asked for a paternity test, and did not ask for one in these proceedings, “because, in my mind, he is my son.” He testified that it “doesn‘t matter” whether Ro.R. is his biological child: “As far as I‘m concerned, he has been in my life for 12 years. That‘s my son.” According to S.H., Ro.R. refers to him as “Dad,” and to his parents as “Grandma” and “Grandpa.”
Neither S.H. nor mother ever sought the involvement of the courts to establish paternity or set the terms of child support. S.H. and mother got along, and S.H. “just told her whatever he needs to let me know.” S.H. sent clothes, medicine, and money to Oregon for mother and Ro.R. until “she said that she finally moved back” while she was pregnant with M.R., which was in 2006. S.H. recalled that he threw a big party at his parents’ house for Ro.R.‘s third birthday, in 2006, “and pretty much after that [Ro.R.] was coming around a lot.” S.H. tried to have Ro.R. over as much as he could; when S.H. had to work, his wife, whom he described as a “stay-at-home mother,” would take care of him at their house. By 2006 or 2007, Ro.R. would regularly spend weekends, holidays, and school breaks in S.H.‘s household.
In accord with the recommendations of CFS, the juvenile court struck all petition allegations asserted against S.H. It modified the allegations against the other parents, and sustained them as modified, finding among other things that J.R., M.R., and Ro.R. each fell within
The juvenile court did not immediately rule with respect to disposition, instead setting a further hearing so that ICWA noticing could be completed. At the hearing on September 11, 2015, R.R. claimed possible “Apache” ancestry. CFS therefore sent notices to various Apache and Sioux tribes. At the continued hearing regarding disposition, on October 7, 2015, R.R. clarified that “[t]he tribe is actually two. It‘s
With respect to J.R. and M.R. (and their two younger half siblings), the juvenile court adopted the disposition findings and orders recommended by CFS, modified to reflect that they may come under the Indian Child Welfare Act, and that noticing pursuant to ICWA has been conducted. The court found R.R. to be the noncustodial presumed father of J.R. and M.R. The court declared J.R. and M.R. to be dependents of the court, placed them with their maternal grandmother, and ordered reunification services for mother, but not R.R.
The juvenile court followed CFS‘s recommendations with respect to Ro.R. as well. It designated both S.H. and R.R. as noncustodial presumed fathers, applying
II. DISCUSSION
A. Jurisdictional Findings with Respect to R.R.
R.R. has conceded that the juvenile court‘s exercise of jurisdiction over the children was proper, challenging only one of the juvenile court‘s several jurisdictional findings, specifically, its finding that Ro.R., M.R., and J.R. come within
R.R. contends that no substantial evidence supports the trial court‘s jurisdictional findings with respect to him under
A parent‘s incarceration may provide a basis for dependency jurisdiction under
There is no question that R.R. was incarcerated at the time of the jurisdictional hearing, as he had been since 2006. There is no substantial evidence in the record, however, to support the conclusion that he “does not know how to make, or is physically or mentally incapable of making, preparations or plans” for the care of his children.7 (In re Aaron S., supra, 228 Cal.App.3d at p. 208.) CFS never interviewed R.R. to determine what sort of arrangements he could make for the children. The burden of proof was on CFS to show R.R. “could not arrange for [Ro.R.‘s] care,” and he “might have prevailed without making any factual showing at all.” (In re S.D., supra, 99 Cal.App.4th at p. 1078.) Nevertheless, R.R. affirmatively asserted his ability to make arrangements for their care with “immediate family“—the record suggests that perhaps he had in mind his own mother, whom he indicated had previously provided some assistance in caring for the children, and who was in attendance at the dependency proceedings; or perhaps his former mother-in-law, the maternal grandmother with whom CFS initially placed the children, and with whom J.R. and M.R. and their younger half siblings continued to be placed after they were found to be dependents of the court. Moreover, although R.R. had not been able to physically care for the children since his incarceration, there was some evidence that he took an interest in them, and attempted to provide for them to some
Because CFS “presented no evidence that [R.R.] could not arrange care while he was incarcerated . . . it failed to satisfy its burden of proof to establish jurisdiction based on [his] incarceration and his inability to arrange for the children‘s care.” (In re Andrew S., supra, 2 Cal.App.5th at p. 543.) We will therefore reverse the trial court‘s true finding with respect to the exercise of jurisdiction under
B. The Juvenile Court Did Not Err in Ruling S.H. to Be a Presumed Father of Ro.R.
R.R. contends that the trial court erred in finding S.H. to be a presumed father. He asserts, among other things, that the relationship between S.H. and Ro.R. “was that of a close family friend, not a father.” We disagree, and find no error; substantial evidence supports the juvenile court‘s conclusions that a parent-child relationship developed between S.H. and Ro.R., and that it would be detrimental to Ro.R. if only R.R. were to be recognized as his presumed father.
“Presumed father status is governed by
While the juvenile court may consider a wide range of factors in making a presumed parent determination, as appropriate to the circumstances (see, e.g., In re T.R. (2005) 132 Cal.App.4th 1202, 1211), the core issues are the person‘s established relationship with and demonstrated commitment to the child. (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 384-385.) In considering a challenge to a juvenile court‘s finding regarding presumed father status, we apply the substantial evidence test, drawing all reasonable inferences and resolving conflicts in the evidence in favor of the trial court‘s ruling, and refraining from any reweighing of the evidence. (In re A.A. (2003) 114 Cal.App.4th 771, 782.)
It used to be that a child could have only one presumed father, even if more than one individual might fulfill the statutory criteria. (In re J.L., supra, 159 Cal.App.4th at p. 1019.) In 2013, however, the Legislature amended
Substantial evidence supports the juvenile court‘s finding that S.H. meets the statutory criteria of a presumed father. S.H. testified that mother had told him that he could be the biological father of Ro.R., that he had always viewed Ro.R. as his son, and that he had always held him out as such to others. Although Ro.R. primarily lived with mother before April 2015, S.H. received him into his home and his family as often as he could. Particularly after R.R. was incarcerated in 2006, the visits grew more extended, eventually encompassing entire summer breaks, in addition to numerous weekends and other shorter visits. There was evidence Ro.R. had been cared for in S.H.‘s household some of the time, and treated as part of the family not only by S.H., but also his wife and extended family, since he was six months old. Not only did S.H. view Ro.R. as his son, Ro.R. also viewed S.H. as his father. In short, substantial evidence in the record supports the conclusion S.H. had an established parent-child relationship with Ro.R., and a demonstrated commitment to him, so as to satisfy the requirements for being a presumed parent.
Moreover, presumed parent status is based on the “familial relationship between the man and child, rather than any biological connection.” (In re J.L., supra, 159 Cal.App.4th at p. 1018.) In this case, no paternity testing has been performed to determine whether S.H., R.R. or some other man is the biological father of Ro.R. But even if paternity testing were to exclude the possibility that S.H. is Ro.R.‘s biological father, it would not negate the substantial evidence of S.H.‘s demonstrated commitment to Ro.R. and the established relationship between them, on which the juvenile court properly based its determination that S.H. should be deemed a presumed parent of Ro.R. (Martinez v. Vaziri, supra, 246 Cal.App.4th at pp. 384-385.)
R.R. further argues that he is entitled to a conclusive marital presumption that he is R.R‘s parent under
First,
Second, the circumstance that R.R. is a presumed parent of Ro.R.—whether under
In re Donovan L., supra, 244 Cal.App.4th 1075, relied on by R.R., does not require a different result. In that case, the court of appeal ruled that the juvenile court erred by applying
The existing, well-established relationship between S.H. and Ro.R. is fundamentally different from the potential relationship at issue in In re Donovan L. For the reasons discussed above, the juvenile court‘s ruling here falls squarely within the purposes of the statute, including to preserve “a stable placement with a parent who has fulfilled the child‘s physical needs and the child‘s psychological needs for care and affection, and who has assumed that role for a substantial period of time.” (
There is an ample support in the record for the juvenile court‘s conclusion that to recognize only R.R. and mother as Ro.R.‘s parents would be detrimental to Ro.R, and its decision to designate both R.R. and S.H. as presumed fathers on that basis. We will not disturb the trial court‘s ruling.
R.R. objects to the juvenile court‘s orders, upon termination of its dependency jurisdiction over Ro.R., awarding S.H. full legal and physical custody, and allowing R.R. one hour of supervised visitation per month, beginning once he is released from custody. We find no abuse of discretion in the trial court‘s orders.
“We normally review the juvenile court‘s decision to terminate dependency jurisdiction and to issue a custody (or ‘exit‘) order pursuant to
There is nothing arbitrary, capricious, or patently absurd in the trial court‘s determination that S.H. should have full legal and physical custody of Ro.R. Mother suffers from drug addiction; had abandoned the children with the maternal grandmother and just “took off“; had engaged in domestic violence with her live-in boyfriend; and had failed to protect the children from physical violence at the hands of her live-in boyfriend. R.R. was in prison serving a 10-year sentence for attempted murder, had last been a full-time parent of Ro.R. in 2006, and had only minimal contact with Ro.R. since then. In contrast, the record strongly supports the conclusion that S.H. has accepted Ro.R. as his son, and regularly provided paternal love and care since the child was an infant, even though Ro.R. only came to live with him full time relatively recently, and even though they may or may not share a biological connection. As the juvenile court found, S.H. is
R.R.‘s arguments in support of the contrary conclusion rest in part on the premise that “[S.H.] is neither [Ro.R.‘s] biological nor his presumed father.” This premise is not supported by the record. S.H. has not been excluded as the possible biological father of Ro.R., but even if he had been, that circumstance would have no bearing on the propriety of the juvenile court‘s custody and visitation orders. And, for the reasons discussed above, S.H. was properly designated as a presumed father of Ro.R.
R.R. asserts that the trial court‘s erroneous jurisdictional findings with respect to him, which we discussed above, are “partly responsible” for the trial court‘s decisions regarding custody and visitation of Ro.R. They are not. There is nothing in the record to suggest that, in making its custody and visitation orders, the juvenile court gave any particular weight to the technicality of whether or not Ro.R. fell within R.R. notes that the juvenile court‘s orders do not “account for sibling visitation.” There is no requirement, however, for the juvenile court to include such matters in its exit R.R. also complains about the substantial showing of changed circumstances he will have to make in order to convince the family court to modify the custody and visitation orders put in place by the juvenile court. (E.g., In re Michael W. (1997) 54 Cal.App.4th 190, 196.) Nothing about the burden of obtaining modifications to the juvenile court‘s orders from the family court, however, demonstrates that the orders are themselves erroneous. Because R.R. fails to demonstrate that the juvenile court‘s exit orders are arbitrary, capricious, or patently absurd, they will be affirmed. Both mother and R.R. challenge the adequacy of the efforts made to comply with the notice requirements of ICWA; mother raises this issue only with respect to Ro.R., while R.R. raises it with respect to Ro.R., J.R., and M.R. Neither mother or R.R., however, demonstrate any reversible error. Juvenile courts and child protective agencies have “‘an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.‘” (In re H.B. (2008) 161 Cal.App.4th 115, 121; At the dispositional hearing on October 7, 2015, the juvenile court found that noticing under ICWA had been initiated, and that ICWA may apply as to M.R. and J.R. It made no final ruling as to whether proper notice has been completed, and whether Although CFS initially detained Ro.R. with his maternal grandmother, it very shortly thereafter sought to place Ro.R. with S.H., and never sought long-term foster care placement or termination of mother or R.R.‘s parental rights. (See In re Alexis H., supra, 132 Cal.App.4th at p. 14.) ICWA and its attendant notice requirements do not apply to a proceeding in which a dependent child is removed from one parent and placed with another. (In re Alexis H., supra, at p. 14; see In re J.B., supra, 178 Cal.App.4th at p. 758.) As such, there can be no ICWA related error with respect to the juvenile court‘s orders regarding Ro.R.; his placement with S.H. is a placement with a parent. Mother argues that the California case law finding ICWA not to apply to proceedings in which a child is removed from one parent and placed with another is wrongly decided, because it conflicts with ICWA‘s “fundamental goal of promoting the stability and security of Indian tribes and families.” In re J.B. discusses the legislative intent of ICWA and comes to a different conclusion: “Congress declared its policy ‘to protect the best interests of Indian children and to promote the stability and security of Mother also suggests that Ro.R.‘s placement with S.H. is reasonably viewed as “an ‘action removing an Indian child from its parent . . . for temporary placement in . . . the home of a guardian . . . where the parent . . . cannot have the child returned upon demand‘” in the meaning of Mother and R.R. both make arguments that depend on the propositions that S.H. is not Ro.R.‘s biological father, and that R.R. is. As previously noted, the present record does not definitively establish either of those propositions to be true. We therefore will leave detailed discussion of whether ICWA applies where a child is removed from the custody of both of his biological parents, and placed in the custody of a third parent who is not a biological parent, for a case that presents those facts. For present purposes, it suffices to briefly note that we are not persuaded that the rule articulated in In re J.B. and The trial court‘s jurisdictional findings that Ro.R., J.R., and M.R. came within CERTIFIED FOR PUBLICATION HOLLENHORST Acting P. J. We concur: MCKINSTER J. SLOUGH J.D. Mother and R.R. Fail to Demonstrate Any Reversible Error Based on ICWA Compliance.
III. DISPOSITION