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In re Tyler M.

California Court of Appeals, Third District, Sacramento
Mar 7, 2008
No. C055995 (Cal. Ct. App. Mar. 7, 2008)

Opinion


In re TYLER M., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. C.M., Defendant and Appellant. C055995 California Court of Appeal, Third District, Sacramento March 7, 2008

NOT TO BE PUBLISHED

Super. Ct. No. JD225128

BLEASE, Acting P. J.

Appellant, mother of minor T.M., appeals from the judgment of the juvenile court declaring the minor a dependent, awarding custody to his father, N.M., and terminating jurisdiction. (Welf. & Inst. Code, §§ 300, subd. (b), 361, subd. (c)(1), 361.2, subd. (a), (b)(1), 395; further undesignated statutory references are to this code.) On appeal, she claims the juvenile court erred in awarding custody to N.M. because he had not been established to be the presumed father. She also contends the court erred by not finding N.M.’s custody of the minor would be detrimental and by terminating jurisdiction. We shall affirm.

BACKGROUND

We provide a brief background summary. Additional facts relevant to appellant’s contentions will be recounted in our discussion.

On November 22, 2006, Sacramento County Department of Health and Human Services (DHHS) filed a section 300 petition on behalf of six-month-old T.M., alleging appellant had failed to provide proper care for the minor resulting in a diagnosis of failure to thrive. Appellant identified N.M. as the father of the minor. The minor was hospitalized and detained. Appellant began participating in reunification services.

DHHS contacted N.M., who was currently on active duty in the U.S. Army and training in Fort Bliss, Texas. N.M. indicated that he was not sure if he was the biological father of the child, but he wanted to participate in a paternity test and wanted custody of the child if he was proved to be his biological father. Upon paternity testing, N.M. was found to be the biological father and he was appointed counsel. N.M. remained in contact with the social worker, participated in court hearings by telephone, and continued to request custody of the minor.

A contested jurisdiction/disposition hearing was held on May 30, 2007. DHHS filed a report prior to the hearing requesting the juvenile court declare T.M. a dependent child of the court. DHHS further recommended the child be placed with N.M. as the nonoffending, noncustodial parent pursuant to section 361.2, and jurisdiction be terminated with sole legal and physical custody to N.M.

N.M. appeared at the hearing by telephone so he could listen in to the proceedings, but he was not permitted to actively participate or testify, since he could not be personally present. Appellant testified at the hearing. Her testimony centered around her participation in the services and the benefit she was obtaining from those services.

At the conclusion of the hearing, the juvenile court adjudged T.M. a dependent child of the court, committed him under section 361.2, subdivision (a), to the care, custody and control of N.M. with shared joint legal custody to both parents, and terminated jurisdiction.

DISCUSSION

I

Appellant contends the juvenile court should not have given custody of the minor to N.M. pursuant to section 361.2, subdivision (a), because N.M. had not been established as the minor’s presumed father and only presumed fathers are entitled to custody of a child under that section. (In re Zacharia D. (1993) 6 Cal.4th 435, 439.) She acknowledges that her failure to raise N.M.’s status in the juvenile court “forfeited a claim that the juvenile court acted in excess of its authority when it awarded custody to [N.M.] without ever finding him to be a presumed father.” She nevertheless argues she has not forfeited “her right to appeal the custody order on the grounds that substantial evidence does not support an implied finding that [N.M.] was the presumed father.” We find her objection to N.M.’s award of custody forfeited.

DHHS’s disposition report specifically stated that N.M. “appears to rise to the level of presumed father” and “[s]hould he prove to be the biological father, he would than [sic] be a non-custodial, non-offending parent and the child could be placed with him and the case dismissed.” Thereafter, N.M. was established as the biological father and DHHS requested, in an addendum report, as follows:

“As to Disposition: Before the Court’s consideration is the father, [N.M.], who falls under Welfare and Institutions Code section 361.2 in that he is the non[-]custodial, non-offending parent and he has requested custody of the child. At the time the child was placed into Protective Custody paternity had not been established. Upon the results of the paternity test, the father, [N.M] has made every effort possible to insure the return of the child, [T.M.], to his care and custody. The father has made arrangements for the care and supervision of the child while he is stationed at [Fort Bliss], and the father has developed a Family Care Plan in that he identified a relative who would be willing and able to care for the child in the event the father would be deployed to an assignment in which children are not allowed to reside with their parents. The father has demonstrated that he has developed a bond with the child in that during her pregnancy he transported the mother to the doctor for her prenatal care, after birth he transported the child to his medical appointments, he helped to purchase diapers and food for the child, and he visited with the child twice a week regularly until he joined the army and was sent to Fort Bliss in El Paso Texas. [¶] Therefore, the undersigned respectfully recommends that the child, [T.M.], be adjudged a Dependent child of the Juvenile Court of Sacramento County. It is further recommended that dependency be terminated with the sole physical and legal custody granted to the father, [N.M.].” (Italics added.)

Despite the specificity of this recommendation, appellant never contended or even suggested that section 361.2, subdivision (a), was inapplicable. She never contested N.M.’s right to custody pursuant to that section nor contended placement with N.M. was inappropriate for any reason. Instead, appellant argued that the court should not terminate jurisdiction (enter an exit order) because she wished to continue with reunification services. She argued, alternatively, that if the court should terminate jurisdiction, she should be given joint legal and physical custody with N.M. Only now does she argue for the first time that custody of the minor to N.M. pursuant to section 361.2, subdivision (a), is improper because N.M. had not been established as the minor’s presumed father.

In In re Dakota S. (2000) 85 Cal.App.4th 494, 501, the appellant contended a guardianship order must be reversed because DHHS did not prepare, and the juvenile court did not consider, the statutorily required preliminary assessment of the foster parent as a prospective guardian. This court held that the failure to object in the juvenile court to this omission forfeited her claim on appeal. As we explained: “‘“An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been but was not presented to the [trial] court by some appropriate method

. . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial.” [Citation.]’ (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 [], italics added by Doers; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468 [].) [¶] Moreover, it would be inappropriate to allow a party not to object to an error of which the party is or should be aware, ‘“thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.” [Citation.]’ (Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1291 [].)” (In re Dakota S., supra, 85 Cal.App.4th at p. 501.)

Likewise, in Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811, the father contended on appeal that the Fresno County Department of Social Services (Department) had failed to adopt an adequate reunification plan for his benefit. The Department argued the father had no right to challenge the reasonableness of the services because he was not the child’s presumed father and, accordingly, was never entitled to services. (Id. at p. 810.) The appellate court rejected the Department’s position because the Department had never disputed the father’s right to services on that or any other ground in the juvenile court, and it would be unfair to give appellate consideration to a defect which could have been presented, and possibly cured, by the juvenile court. (Id. at pp. 810-811.) If the appellate court were to examine that issue on appeal, it would “in effect sanction a practice of allowing a party to keep its legal contentions secret during trial and later pursue a theory on appeal never tendered to the trial court.” (Id. at p. 811.)

Similarly, appellant here was on notice that custody to N.M. was being pursued pursuant to section 361.2. She had every opportunity in the juvenile court to argue that section 361.2 was inapplicable because N.M. was not the presumed father, or to request the juvenile court conduct further inquiry into the subject. She did not do so. Accordingly, appellant forfeited any objection to the applicability of section 361.2, subdivision (a), or to N.M.’s custody of the minor without finding he is a presumed father.

In any event, contrary to appellant’s assertion on appeal, there is substantial evidence in the record to support an implied finding that N.M. is the presumed father of the minor.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Presumed father status is the most advantageous to a father in the dependency system. Presumed fatherhood, for purposes of dependency actions, refers to a situation in which a father comes forward promptly and demonstrates a complete commitment to his parental responsibilities. (In re Jerry P. (2002) 95 Cal.App.4th 793, 801-802.)

In deciding whether a biological father has attained presumed father status, the juvenile court “should consider all factors relevant to that determination. The father’s conduct both before and after the child’s birth must be considered. Once he knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit.” (Adoption of Kelsey S. (1992) 1 Cal.4th 816, 849.) “A court should also consider the father’s public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child.” (Ibid., fn. omitted.)

Here, the evidence was conflicting as to whether N.M. was present at the child’s birth or named on the birth certificate. The social worker reported, however, that N.M. had transported appellant to all her prenatal appointments and, after the child’s birth, he transported the child to his medical appointments. N.M. assisted in the child’s care and visited with the child two to four times a week regularly until he joined the army and was sent to Fort Bliss in El Paso, Texas. N.M. also helped to purchase diapers and food for the child. N.M. had developed a bond with the child and, upon the results of the paternity test, made every effort possible to insure the return of the child to his care and custody.

The juvenile court had ordered N.M. have no contact with the minor until the paternity test established he was the biological father.

Further, there was no evidence that N.M. failed to take any action or otherwise do anything that he could have done to further establish or create his presumed father status. The record neither reflects N.M. could have taken additional action, nor does it reflect N.M. failed to take such action.

Any potential conflict was resolved by the court in favor of N.M.’s status as presumed father and we may not reweigh the evidence. Substantial evidence supports the juvenile court’s implied finding that N.M. is the minor’s presumed father.

II

Appellant next argues that the juvenile court erred by not finding that placement with N.M. would be detrimental to the minor.

Section 361.2 establishes the procedures a court must follow for placing a dependent child following removal from the custodial parent pursuant to section 361. (In re Marquis D. (1995) 38 Cal.App.4th 1813, 1820.) When a court orders removal of a minor under section 361, the court first determines whether there is a parent who wants to assume custody who was not residing with the minor at the time the events that brought the minor within the provisions of section 300 occurred. (§ 361.2, subd. (a).) “If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, subd. (a)., italics added.) The juvenile court must make the detriment finding by clear and convincing evidence. (In re Isayah C. (2004) 118 Cal.App.4th 684, 700.)

“[A] nonoffending parent has a constitutionally protected interest in assuming physical custody, as well as a statutory right to do so, in the absence of clear and convincing evidence that the parent’s choices will be ‘detrimental to the safety, protection, or physical or emotional well-being of the child.’ [Citation.].” (In re Isayah C., supra, 118 Cal.App.4th at p. 697.) It is not the nonoffending parent’s burden to show that he is capable of caring for his child. It is the party opposing placement (usually DHHS) who has the burden to show by clear and convincing evidence that the child will be harmed if the nonoffending parent is given custody.

Here, the juvenile court did not find that placement of the minor with N.M. would result in a detriment to the minor. Thus, properly framed, the issue is whether the evidence before the juvenile court compelled a finding, by clear and convincing evidence, that placement with N.M. would be detrimental to the safety, protection, or physical or emotional well-being of the child. It did not.

No one argued in the juvenile court that placement with N.M. would be detrimental and no one presented such evidence. He has no criminal or child protective services history. Appellant points to the information in the social worker’s report that N.M. is a military officer in the Army as the source of the alleged detriment. N.M. was attending classes on the military base to improve his education and planned to attend a training program with the FBI the following year to pursue his career in military law enforcement. As a military officer, he has some inflexible military duties and could be relocated or perhaps deployed to location where he could not bring the minor.

Appellant’s pretrial statement listed “[w]hether there is a substantial risk of detriment if [T.M.] were returned to the father’s care and custody” as a potential legal issue. Appellant, however, presented no such evidence and made no such argument at the contested hearing.

The social worker’s report also explained, however, that N.M. had, in accordance with Army requirements, designated a “back-up support person” who would be able to care for T.M. if N.M. were placed on an extended assignment which would preclude him from returning to the residence at a reasonable time, and who would be able to care for T.M. if T.M. would be unable to attend school or daycare due to illness. The person designated by N.M. performs this service for other soldiers and officers at the base. N.M. had also, in accordance with Army requirements, identified the maternal grandmother as the Family Care Plan relative he would designate to provide care and supervision for T.M. in the event N.M. were deployed to a location where children are not permitted. At the time of the disposition hearing, T.M. was placed with the maternal grandmother and the Kinship Unit had approved her home. Additionally, the commanding officer informed the social worker that N.M. would be assigned appropriate housing if he were given custody of T.M.

There is nothing coming even close to compelling a finding of detriment in this evidence. Appellant complains that the fact that N.M., like other Army personnel, can and will likely be relocated creates a detriment to the minor. But there is no “join the Army, lose your child” rule. (See In re S.D. (2002) 99 Cal.App.4th 1068, 1077 [no go to jail, lose your child rule].) Appellant also complains that N.M. did not provide the actual name of the person that he designated (pursuant to Army rules) as the caretaker for short-term care of the minor. But the fact that N.M. may rely on third party caretakers does not warrant denial of custody. A parent generally enjoys the right to make reasonable decisions in that regard. (See In re Isayah C., supra, 118 Cal.App.4th at p. 697.)

In sum, there was simply no evidence to compel a juvenile court’s finding that placement with N.M. would be detrimental. Thus, the juvenile court did not err when it made no finding of detriment and placed the child with N.M.

III

Finally, appellant contends the juvenile court erred by terminating jurisdiction. She argues the court “failed to even analyze whether ongoing supervision was necessary.”

When a juvenile court transfers custody to the noncustodial parent pursuant to section 361.2, it can terminate jurisdiction if it finds ongoing supervision is no longer necessary.

(§ 361.2, subd. (b)(1); In re Austin P. (2004) 118 Cal.App.4th 1124, 1135.) The juvenile court’s discretion to terminate jurisdiction or continue its supervision is very broad. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179.) The exercise of such discretion will not be disturbed on appeal absent an abuse of discretion. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204.)

Welfare and Institutions Code section 361.2, subdivision (b), provides the court with three alternatives at disposition when a child is placed with the noncustodial parent. The court may: “(1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. . . . (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. . . . After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1), (3), or this paragraph. . . . (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.”

Here, the juvenile court did not abuse its discretion by granting custody to the father and terminating jurisdiction. Nor did it, contrary to appellant’s assertion, fail to consider whether continuing supervision was necessary.

At disposition, DHHS took the position that it did “not have any indication that [N.M.] would not be able to appropriately care for this child.” DHHS noted that N.M. had plans for daycare and a family care plan, and DHHS did not “have any concerns regarding his ability to care for the child

. . . .” Accordingly, DHHS requested placement with N.M. and termination of jurisdiction.

Counsel for the minor expressed concern about appellant’s disposition hearing testimony that she and N.M. were “discussing” marriage after she finishes school, although appellant had no current plans to move to N.M.’s location. Thus, counsel for the minor requested placement with N.M. with continued services to appellant.

Appellant requested to continue with her reunification services. N.M.’s counsel requested custody and termination of dependency, as there was no evidence N.M. could not appropriately take care of the minor. N.M.’s counsel further argued that there was no plan of marriage any time soon, if at all, and that such a possibility did not warrant retaining jurisdiction.

The juvenile court stated: “And while I did hear the testimony of the mother that she and the father had been in discussion of possibly getting married, I do not find that that is sufficiently credible to establish that if, in fact, there is a marriage that is in the offing, there being no date set and no specific plans having been made. I do not believe that’s sufficient cause to not terminate dependency.”

Thus, contrary to appellant’s assertion on appeal, the juvenile court did consider whether ongoing jurisdiction was necessary and rejected the only argument and evidence supporting such a need.

We do not accept appellant’s argument that “it is not clear that [N.M] can presently function as a father. The record is devoid of any evidence regarding his current location, his current living arrangements, his plan for caring for [T.M.], or the identity of his back-up childcare provider.” Although N.M. had been scheduled to graduate from his training program a few weeks before the disposition hearing, there was no indication he had yet relocated. His commanding officer stated he would be provided suitable housing if he was awarded custody of the minor. N.M. had designated his short term and family care plan caregivers, as required by Army procedures.

There was no evidence to suggest that N.M. required any supervision or services in order to properly care for the minor. The juvenile court did not abuse its discretion by terminating jurisdiction.

DISPOSITION

The judgment is affirmed.

We concur: DAVIS, J., NICHOLSON, J.


Summaries of

In re Tyler M.

California Court of Appeals, Third District, Sacramento
Mar 7, 2008
No. C055995 (Cal. Ct. App. Mar. 7, 2008)
Case details for

In re Tyler M.

Case Details

Full title:DEPARTMENT OF HEALTH & HUMAN SERVICES, Plaintiff and Respondent, v. C.M.…

Court:California Court of Appeals, Third District, Sacramento

Date published: Mar 7, 2008

Citations

No. C055995 (Cal. Ct. App. Mar. 7, 2008)