Opinion
B298060
02-03-2020
In re B.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ADAM F., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP07717) APPEAL from an order of the Superior Court of Los Angeles County, Emma Castro, Commissioner. Affirmed in part, reversed in part, and remanded with directions. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and Respondent.
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The Los Angeles County Department of Children and Family Services (DCFS) initiated juvenile dependency proceedings concerning B.M. on the ground that her mother (mother) was unaware of B.M.'s whereabouts and had refused to file a missing person's report. Appellant Adam F. later appeared at a hearing in the instant matter. The juvenile court appointed him counsel, initially found that he was B.M.'s presumed father pursuant to Family Code section 7611, subdivision (d), and, shortly thereafter, rescinded that finding and found that he was merely B.M.'s alleged father. The juvenile court later held an adjudication and disposition hearing at which it (1) sustained an amended petition alleging, among other things, that Adam F. had sexually abused B.M. when she was a toddler; (2) denied Adam F. reunification services; and (3) relieved his appointed counsel.
Adam F. appeals the adjudication and disposition order. He argues that the juvenile court erred in: (1) rescinding its prior finding that he was a presumed father; (2) sustaining the allegation that he sexually abused B.M.; (3) denying him reunification services; and (4) relieving his appointed counsel.
We reject all but the last claim of error. At the time the juvenile court rescinded its finding that Adam F. was a presumed father, the record did not show that Adam F. satisfied an essential element of Family Code section 7611, subdivision (d)— i.e., that he had held B.M. out as his natural daughter. We also conclude that the sexual abuse finding is supported by substantial evidence. Further, Adam F.'s challenge to the order denying reunification services necessarily fails because it is predicated on his first two claims of error. We, however, reverse the order relieving Adam F.'s appointed counsel because the juvenile court did not hold a properly noticed hearing on that issue. We remand with directions to reappoint Adam F.'s counsel and to hold a noticed hearing on whether his counsel should be relieved.
FACTUAL AND PROCEDURAL BACKROUND
We summarize only those facts that are relevant to the instant appeal. 1. The initial juvenile dependency petition , its supporting documents , and the detention hearing
On December 4, 2018, DCFS filed a juvenile dependency petition concerning 14-year-old B.M., along with a detention report and an addendum report. The petition alleged that mother had "failed to provide appropriate parental care and supervision for the child in that mother . . . [was] unaware of the child's . . . whereabouts[,] . . . refused to file a missing person's report. . . . [and,] [o]n prior occasions, . . . mother allowed the child to stay out of the home without adult supervision." DCFS asserted that B.M. was "at large," and requested a protective custody warrant for B.M. (Capitalization omitted.) The petition identified Adam F. as B.M.'s alleged father.
On December 5, 2018, the juvenile court held a detention hearing. DCFS was the only party that made an appearance at the hearing. The juvenile court found a "prima facie case for detaining" B.M., and "order[ed] the child removed from the home and the care, custody, and control" of mother pending disposition or further order of that court. The court also issued a protective custody warrant for B.M., and scheduled another hearing for February 5, 2019.
2. The jurisdiction/disposition report
On January 18, 2019, DCFS filed a jurisdiction/disposition report. We discuss only those portions of the report that are relevant to this appeal.
On January 9, 2019, mother told DCFS the following: " 'I don't know where Adam is. I don't know if he is the father. It might be but I don't know. No, he hasn't ever provided for her. I am the only one that has taken care of her ([B.M.]). He did see her when she was a baby but not since there [sic]. No, we were never together.' "
A social worker contacted Adam F. on January 16, 2019. The social worker asked Adam F. whether he has any children, and he responded that he has two adult daughters. The social worker further asked him whether he believed he had a child with mother, "to which he replied that he wasn't sure as he never completed the DNA process." Adam F. claimed that although he previously attempted to complete that process, he was unable to do so because mother and B.M.'s maternal grandmother (maternal grandmother) had falsely accused him of sexually abusing B.M. Consequently, he does not " 'see them no more [sic].' "
According to the jurisdiction/disposition report, Adam F. "reported he has not had contact with [B.M.] since she was approximately 3 years old." Nevertheless, B.M. was about five years old when Adam F. allegedly sexually abused her.
Adam F. further told the social worker that "he would[ ] 'like to help [B.M.], even if she is not [his] daughter.' " He reiterated that he did not know whether he is B.M.'s father, indicated that he would like to take a paternity test, and expressed his intention to attend the next court hearing. B.M.'s birth certificate does not identify her father or bear Adam F.'s signature.
DCFS found that an allegation that Adam F. had sexually abused B.M. in December 2008 had been substantiated. B.M. had reported Adam F. "touched her private area over her clothes once during a visit at mother's house"; mother and B.M.'s maternal grandmother also reported B.M. told them that Adam F. "touched [B.M.] in her privates." B.M.'s maternal grandmother further informed DCFS that "she called City of Industry Police and reported the incident."
DCFS's search of the California Law Enforcement Telecommunications System (CLETS) revealed Adam F. had "an extensive criminal record from the 1980's to 2007." (See also In re M.W. (2015) 238 Cal.App.4th 1444, 1449, fn. 3 (M.W.) ["CLETS is an acronym for the California Law Enforcement Telecommunications System, a computer system administered by the Department of Justice"].) Among other things, the CLETS search indicated that in July 1984, Adam F. was convicted of assault with intent to commit rape, in violation of Penal Code section 220. The CLETS report also showed that Adam F. was arrested in April 2007 for rape, as defined by Penal Code section 261, subdivision (a)(2); it appears that county officials chose not to prosecute Adam F. for this offense because the victim was unavailable or declined to testify against him. Additionally, CLETS indicated that Adam F. is a registered sex offender for the purposes of Penal Code section 290. 3. The February 5 , 2019 hearing
The juvenile court held a hearing on February 5, 2019. Although DCFS and Adam F. appeared at the hearing, mother and B.M. were not present. At the outset of the hearing, the juvenile court appointed counsel to represent Adam F.
Thereafter, the court asked Adam F. whether he ever lived with B.M. when she was younger, and he responded, "I go and visit them and stay there a couple of nights and weekends." Adam F.'s newly appointed counsel stated her "understanding" was "that he has never lived with the child permanently in the home, but he would be in-n-out [sic] of the home, in terms of visits and overnights." The juvenile court asked Adam F. whether B.M. had ever come to his home and spent the night there when she was an infant, and Adam F. indicated that he did not have overnight visits with B.M. until she was two years old.
After Adam F. provided certain unclear responses to the juvenile court's other questions regarding his overnight visits with B.M., his counsel stated her belief that he was saying "mother and the child would sleep over [at] his home[ a]nd . . . maternal grandmother would allow . . . mother to do that." The juvenile court next asked Adam F. whether he was at the hospital when B.M. was born, and he responded that he was not. Immediately thereafter, the juvenile court made the following statement: "At this time, the court is going to find [Adam F.] to be [a] presumed father by [Family Code section] 7611[, subdivision] (d)." The court directed Adam F.'s attorney to submit a Judicial Council Form JV-505 statement regarding parentage, and counsel indicated that she would comply with that instruction.
Shortly thereafter, DCFS objected to the juvenile court's finding that Adam F. was B.M.'s presumed father. Specifically, DCFS asserted that Adam F. "questioned whether he was actually the father, and he never completed a DNA test." DCFS claimed that Adam F. "was in the process of doing so, but then he was accused of sexual abuse of the minor." The juvenile court asked Adam F. whether he "ha[d] doubts" as to whether he was B.M.'s father. Adam F. answered in the affirmative. In response, the court stated, "The court will rescind its presumed father standing [sic]."
Adam F. thereafter confirmed that he wanted to take a test to ascertain whether he is B.M.'s father, and DCFS and Adam's counsel informed the court that Adam F. was not identified on B.M.'s birth certificate. Upon receiving this information, the juvenile court stated, "[S]o [Adam F.], at this time will be alleged only." The minute order for this hearing likewise provides, "The Court finds Adam [F.] to be the alleged father of the minor child [B.M.]."
The court also appointed a laboratory to examine Adam F. and B.M. to determine whether he is her biological father, and scheduled an adjudication and disposition hearing for May 13, 2019.
It appears that shortly after the February 5, 2019 hearing, Adam F. filed a JV-505 form. On that form, Adam F. stated he did not know if he is the parent of the child, requested blood or DNA testing to determine whether he is B.M.'s biological parent, and asserted he did not sign B.M.'s birth certificate because he had been "in custody." He did not mark a box used to indicate that he "believe[d] [he was] the parent of the child and request[ed] that the court find that [he was] the presumed parent of the child." Adam F. did state, however, that he told "[f]amily and friends" that B.M. is his child, and that B.M. "has spent time [with him,] including overnight visits in [his] home. Adam F. claimed he participated in the following activities with B.M.: "Park, restaurants, holiday events, family gatherings, and carnivals." He further claimed to have provided the following "money or things" to B.M.: "Clothing, food, toys, and shelter [with] . . . mother."
During the February 5, 2019 hearing, the juvenile court directed Adam F.'s appointed counsel to file a JV-505 form, and the attorney replied that she intended to do so. Thus, we assume Adam F. had not yet submitted his JV-505 form when the juvenile court rescinded its finding that he was B.M.'s presumed father. (See Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787 [" ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent" ' "].)
4. The first amended petition
On March 21, 2019, DCFS filed the first amended petition, which reasserted one count under Welfare and Institutions Code section 300, subdivision (b) against mother (i.e., count b-1); one count under section 300, subdivision (b) against Adam F. (i.e., count b-2); and one count under section 300, subdivision (d) against him (i.e., count d-1). With regard to its two counts against Adam F., the first amended petition alleged that B.M.'s physical and emotional health was in danger because Adam F. sexually abused B.M. in 2008, was convicted of assault with intent to commit rape in July 1984, and is a registered sex offender as a result of that conviction. 5. The March 22 , 2019 addendum report and its attachments
Undesignated statutory citations are to the Welfare and Institutions Code.
On March 22, 2019, DCFS filed an addendum report that provided further support for counts b-2 and d-1 of the first amended petition. In its report, DCFS recommended that the juvenile court decline to provide family reunification services to Adam F. because he admitted he has not had contact with B.M. since 2008; he was convicted of assault with intent to commit rape in July 1984; he is a registered sex offender; and in connection with the allegation of sexual abuse, B.M. "was very specific in explaining what [Adam F.] had done to her." DCFS attached to the addendum report, among other items, a police report dated December 22, 2008 (police report), a supplemental police report dated March 5, 2009 (supplemental report), and a report concerning DCFS's investigation of the alleged incident of sexual abuse (DCFS's investigation narrative).
According to the police report, B.M.'s maternal grandmother informed the police that B.M. told grandmother that Adam F. had touched her vagina on December 20, 2008. The investigating officers next contacted B.M., whom the report described as "an extremely bright and articulate four year old," who spoke "with enunciation and certainty." B.M. claimed that before the incident, she was watching cartoons on her mother's bed while Adam F. was sitting on a chair beside the bed. B.M. recounted that Adam F. told her, " 'Come here, [B.M.]' "; B.M. said she then went over to Adam F., who picked her up and placed her on his lap. B.M. claimed Adam F. thereafter "dragged his hand downward on her vaginal area once through her jeans." B.M. told officers that Adam F. then "made a funny noise." B.M. stated after Adam F. touched her vagina through her jeans, Adam F. stood up, said, " 'I'm sorry,' " and left the room.
The remainder of this paragraph summarizes certain pertinent aspects of the report.
The police report also states that B.M. "demonstrate[d] the movement of [Adam F.'s] hand during this incident on a Care Bear stuffed animal."
The report asserted that B.M. was unable to "demonstrate the funny noise" that Adam F. made, or "determine if [Adam F.] had become sexually aroused or gratified due to this incident."
According to the supplemental report, B.M.'s maternal grandmother told the police that since B.M. was born, Adam F. had been "in and out of " maternal grandmother's, mother's, and B.M.'s lives, "visiting maybe six or seven times a year." Maternal grandmother stated that "for the past two years or so, Adam has been visiting once or twice a week on the regularly [sic]." She also claimed that Adam F. "would put [B.M.] on his legs and bounce [her] up and down like a horse." Maternal grandmother said that "during the last month or so [i.e., December 2008], she noticed that [B.M.] was sitting in Adam's lap more and more during his visitations," and that, on the date of the incident, maternal grandmother "saw [B.M.] sitting on Adam's lap[, and] Adam appeared to be rubbing [B.M.'s] leg as he shook her." Maternal grandmother reported that she told B.M. to get out of his lap and B.M. "jumped off."
The remainder of this paragraph and the following two paragraphs discuss certain parts of the supplemental report.
Per the supplemental report, mother also informed the detective that she observed Adam F. rub B.M. between B.M.'s legs on the date of the incident, and maternal grandmother told her B.M. had said Adam F. had touched B.M. between her legs.
The detective who prepared the supplemental report next interviewed Adam F. Adam F. claimed that he initially visited B.M. "every other month because he worked two and three jobs," and that, "over the past two years[,] he has been visiting at least once a week." Adam F. told the police he "still gives [mother] four hundred dollars a month out of his disability check and has signed papers for [B.M.] to receive his social security when he dies." The police asked Adam F. if he thought he was B.M.'s biological father, to which he replied, " 'Even if [I] am not, I'll still take care of her. I am the only dad she knows and I am attached to her.' " The detective noticed that Adam's "arms and hands were constantly shaking" during the interview; Adam F. claimed he was shaking because he had been diagnosed with Lou Gehrig's disease in July 2006. At one point, as Adam F. held his hands out in front of him, the detective observed that "both hands shook vigorously approximately three to four inches each way."
Adam F. told the detective that "he never intentionally touched [B.M.]" but may have unintentionally rubbed her. Adam F. claimed he would shake when B.M. was on his lap and he would try to hold onto her to keep her from falling off. He stated he sometimes "shakes so bad [sic] that he falls out [of] the bed as he sleeps." After the detective informed maternal grandmother of Adam's condition the following day, she indicated "now she understands what was happening when she saw what she though[t] was Adam rubbing [B.M.,]" and "[n]ow she knows he could not control his hand." The detective concluded "there is insufficient evidence to prove a crime occurred."
DCFS's investigation narrative found that the allegation of sexual abuse perpetrated by Adam F. was substantiated by (1) the police report; (2) B.M.'s statement that Adam F. "touched her private area over her clothes . . . during a visit at mother's house"; (3) mother's statement that B.M. "told her Adam [F.] touched her in her privates"; and (4) maternal grandmother's statement that B.M. "told her Adam [F.] touched her in her privates." The investigation narrative stated that the following action was taken at the conclusion of the investigation: "[B.M.] to safely remain in the home with a safety intervention plan. Referral will open to a [voluntary family maintenance agreement]." (Some capitalization omitted.) 6. The May 13 , 2019 adjudication and disposition hearing
On May 13, 2019, the juvenile court held a combined adjudication and disposition hearing, and thereafter issued its minute order. B.M. personally attended the hearing and was represented by appointed counsel. Although Adam F. and mother did not personally attend the hearing, Adam F.'s appointed counsel did appear on his behalf.
The juvenile court admitted the following DCFS exhibits into evidence: (1) the detention report and the initial addendum report (including their respective attachments); (2) the jurisdiction/disposition report (including its attachments); (3) the March 22, 2019 addendum report (including its attachments); and (4) a last minute information filed on May 13, 2019. In the last minute information, DCFS claimed to have recently found B.M. at mother's residence, and placed B.M. in a group home. DCFS further claimed that when a social worker explained to B.M. that Adam F. expressed interest in caring for her, she responded, " 'Hellll [sic] no. I don't know him like that! No way. I'm not going to live there.' "
Adam F.'s counsel declined to introduce any evidence. Instead, she offered argument to support her client's position that he should be struck from the amended petition. She contended Adam F. constituted no "current risk to [B.M.] today" because the alleged sexual abuse occurred 11 years ago, he has not seen B.M. since that time, and he has "Parkinson's disease," which limits "his mobility and contact."
The juvenile court sustained counts b-1, b-2, and d-1 of the amended petition, adjudged B.M. to be a dependent of the court, and ordered B.M. to be removed from mother's care, custody, and control and placed in DCFS's care, custody, and control. With regard to Adam F., the court found "there is currently a potential for risk of harm, given that it is reported that [B.M.] made [a] very detailed, explicit report of inappropriate sexual touching when she was yet a toddler; . . . [Adam F.] is a registered sex offender; and . . . he was convicted of a violent felony, all of which placed [B.M.] at risk of harm if he continues his efforts to be involved as a parent figure for [her]."
While the juvenile court ordered DCFS to provide family reunification services to mother, it ordered the agency to provide no reunification services to Adam F. With regard to the second ruling, the court found that section 361.5, subdivisions (b)(12) and (b)(16) had been satisfied. The court also found that section 361.5, subdivision (a) authorized it to deny family reunification services to Adam F., apparently because he was merely an alleged father of B.M.
Section 361.5, subdivisions (b)(12) and (b)(16) provide in relevant part: "Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶] (12) That the parent or guardian of the child has been convicted of a violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code. [¶] . . . [¶] (16) That the parent or guardian has been required by the court to be registered on a sex offender registry under the federal Adam Walsh Child Protection and Safety Act of 2006 [citation], as required in Section 106(b)(2)(B)(xvi)(VI) of the federal Child Abuse Prevention and Treatment Act [citation]."
Section 361.5, subdivision (a) ordinarily requires juvenile courts to offer family reunification services to presumed fathers, but also provides that juvenile courts "may" order such services for mere biological fathers. (See § 361.5, subds. (a) & (a)(1).)
During the hearing, the juvenile court also directed the following statement to Adam F.'s counsel: "You will be relieved as father's counsel, as he is an alleged father only, not entitled to court appointed counsel; particularly, since he has not appeared nor contacted the department, and he has not followed through on his request for DNA testing." In response, Adam F.'s counsel noted her objection for the record. Yet, the minute order pertaining to this hearing does not indicate that the juvenile court actually did relieve Adam F.'s appointed counsel.
On May 21, 2019, Adam F. appealed the May 13, 2019 adjudication and disposition order.
DISCUSSION
On appeal, Adam F. seeks reversal of the following rulings: (1) the juvenile court's decision to "rescind[ ] [his] presumed father status"; (2) the lower court's finding that he sexually abused B.M.; (3) the court's order bypassing reunification services on the ground that it was predicated on the first two errors; and (4) the order relieving Adam F.'s appointed counsel.
For the reasons discussed below, we conclude the juvenile court did not err in rescinding its finding that Adam F. was a presumed father, or in finding that he sexually abused B.M. Thus, Adam F.'s challenge to the juvenile court's order denying him reunification services necessarily fails.
On the other hand, we conclude the juvenile court erred in relieving Adam F.'s appointed counsel without first holding a properly noticed hearing on the matter. Accordingly, we reverse only that aspect of the juvenile court's order, and remand with directions for the court to reconsider whether to relieve Adam F.'s counsel after holding a properly noticed hearing thereon.
A. The Juvenile Court Did Not Erroneously "Rescind" Adam F.'s Presumed Father Status
Adam F. contends that the juvenile court should not have rescinded its finding that he was a presumed father under Family Code section 7611, subdivision (d) simply because he "questioned whether he was the biological father." He argues, "[T]his case presents a purely legal question subject to de novo review[: ] whether the presumption arising under Family Code section 7611 may be rebutted solely because the man questions whether he is the biological father." Adam F. further claims the juvenile court's initial finding must be "reinstated" because (1) that finding is supported by substantial evidence; and (2) Adam F.'s failure to maintain contact with B.M. does not rebut Family Code section 7611, subdivision (d)'s presumption of paternity. Assuming arguendo that we review the juvenile court's decision to rescind Adam F.'s presumed father status de novo, we conclude that the juvenile court did not err.
Under Family Code section 7611, subdivision (d), a man "is presumed to be the natural parent of a child if " he "receives the child into his . . . home and openly holds out the child as his . . . natural child." (See Fam. Code, § 7611, subd. (d).) " '[T]o become a presumed father [under this provision], a man who has neither married nor attempted to marry his child's biological mother must not only openly and publicly admit paternity, but must also physically bring the child into his home.' " (See In re D.A. (2012) 204 Cal.App.4th 811, 827, italics added, quoting Adoption of Michael H. (1995) 10 Cal.4th 1043, 1051.)
The Legislature has revised this provision such that, effective January 1, 2020, this provision instead utilizes the gender-neutral possessive pronoun "their." (See Stats 2019, ch. 115, § 87.)
The DCFS filings submitted prior to the February 5, 2019 hearing did not show that Adam F. had openly and publicly admitted paternity. The original juvenile dependency petition merely identified Adam F. as an alleged father, as did the detention report and the jurisdiction/disposition report. (See In re A.A. (2003) 114 Cal.App.4th 771, 779 (A.A.) ["An alleged father may be the father of a dependent child. However, he has not yet been established to be the child's natural or presumed father"].) Further, the jurisdiction/detention report shows that when a social worker asked Adam F. whether he has any children, he identified only two adult daughters, but not B.M. Adam F. told the social worker he was unsure whether B.M. was his daughter, indicated that he intended to take a test to determine his paternity, and stated that "he would[ ] 'like to help [B.M.], even if she is not [his] daughter.' " Attached to the report was B.M.'s birth certificate, which does not identify Adam F. as her father or contain his signature.
During the February 5, 2019 hearing, the juvenile court initially found that Adam F. was B.M.'s presumed father after Adam F. and his counsel made certain representations regarding when and how often he had visited B.M. DCFS's counsel objected to that finding and reminded the juvenile court that Adam F. had questioned whether he actually was B.M.'s father. Adam F. confirmed that he doubted whether he was B.M.'s father, and answered in the affirmative when asked whether he desired to take a paternity test. Next, Adam F.'s counsel conceded that Adam F.'s name did not appear on the child's birth certificate. The juvenile court then stated, "[Adam F.], at this time will be [an] alleged [father] only." In sum, although Adam F. and/or his counsel made statements at the hearing that implicated the first prong of section 7611, subdivision (d) (i.e., that he received B.M. into his home), these statements did not indicate that Adam F. had held B.M. out as his natural child.
Admittedly, Adam F. did not have to be B.M.'s biological father in order to attain presumed father status. (See A.A., supra, 114 Cal.App.4th at p. 779 ["A natural father is one who has been established as a child's biological father. [Citation.] . . . [¶] . . . [A] presumed father can be a natural father, but is not necessarily one"].) Nevertheless, at the time of the hearing, the record did not show that, notwithstanding Adam F.'s doubts concerning paternity, he had held B.M. out as his natural child. (See, e.g., L.L., supra, 13 Cal.App.5th at p. 1314 [concluding that a father held a minor out as his own child by "telling family members, friends, and strangers that [the minor] was his child, naming [the minor] as his child on insurance and other employment forms, and filing an action in family court to obtain joint legal custody to, and visitation with, [the minor]"].) Thus, the juvenile court did not err in restoring Adam F. to his alleged father status.
Adam F. contends that during his January 16, 2019 interview with the social worker, he "continued to refer to [B.M.] as his daughter . . . ." It appears that Adam F. is referring to these two statements from the jurisdiction/disposition report: (1) " '[mother and maternal grandmother] accused me of molesting my daughter' "; and (2) " 'I don't do that thing (sexual abuse) to my daughter.' " In light of Adam F.'s claim that "he wasn't sure" whether he was B.M.'s father and his representation suggesting that he has only "two adult daughters," the aforementioned statements fall short of establishing that Adam F. openly and publicly admitted paternity. (See In re L.L. (2017) 13 Cal.App.5th 1302, 1310 (L.L.) [noting that " 'the breadth and unequivocal nature of the person's acknowledgement of the child as his or her own' " is a relevant factor under Family Code section 7611, subdivision (d)].)
Because we conclude that the juvenile court merely reconsidered its initial oral finding that Adam F. satisfied Family Code section 7611, subdivision (d), we reject his apparent argument that the juvenile court erroneously found the presumption of paternity had been rebutted. (See Fam. Code, § 7612, subd. (a) [providing in pertinent part that "a presumption under Section 7611 [of natural fatherhood] is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence"].)
Furthermore, the juvenile court did not err by failing to consider other evidence on which Adam F. now relies to establish his presumed father status. California Rules of Court, rule 5.635(a) and section 316.2, subdivision (a) required the juvenile court to "inquire about and to attempt to determine" B.M.'s parentage. (See Cal. Rules of Court, rule 5.635(a) ["The juvenile court has a duty to inquire about and to attempt to determine the parentage of each child who is the subject of a petition filed under section 300, 601, or 602"].) The juvenile court discharged that obligation by directing Adam F.'s counsel to file a JV-505, which asked him whether he "believe[d] [he is] the parent of the child and request[ed] that the court find that [he is] the presumed parent of the child." (See Cal. Rules of Court, rule 5.635(e)(1) ["If . . . there has been no prior determination of parentage of the child, the juvenile court must take appropriate steps to make such a determination. [¶] Any alleged father and his counsel must complete and submit . . . [a] form JV-505[ ]"].)
(See § 316.2, subd. (a)(7) ["At the detention hearing, or as soon thereafter as practicable, the court shall inquire of the mother and any other appropriate person as to the identity and address of all presumed or alleged fathers. . . . The inquiry shall include at least all of the following, as the court deems appropriate: [¶] Whether any man otherwise qualifies as a presumed father pursuant to Section 7611, or any other provision, of the Family Code"].)
Adam F. did not answer that question in the affirmative or otherwise ask the court to declare that he is B.M.'s presumed father. Instead, he stated on the form that he did "not know if [he is] the parent of the child . . . ." In the absence of such a request, the juvenile court had no duty to declare that Adam F. was B.M.'s presumed father. (See In re O.S. (2002) 102 Cal.App.4th 1402, 1410 (O.S.) ["To be declared a presumed father under Family Code section 7611, a man must ask the trier of fact to make such a determination . . . . [Citation.] . . . [T]he court cannot sua sponte make such a declaration," footnote omitted, italics added]; § 316.2, subd. (d) ["If a man appears in the dependency action and files an action [seeking a paternity determination], the court shall determine if he is the father," italics added]; Cal. Rules of Court, rule 5.635(h)(2) ["If a person appears at a hearing in dependency matter [sic] . . . and requests a judgment of parentage on form JV-505, the court must determine: [¶] . . . [¶] Whether that person is the presumed parent of the child, if that finding is requested," italics added.)
Adam F. argues that because "the paternity ruling had already been resolved against [him], . . . it would have served no purpose to request a contrary finding on the JV-505 form." He ignores the fact that the juvenile court indicated it had merely rendered a tentative ruling on this point. Even if this ruling had not been a tentative one, section 388 allowed Adam F. to petition to set it aside. (See § 388, subd. (a)(1) ["Any . . . person having an interest in a child . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made"].)
For these reasons, the trial court did not err in "rescinding" its oral tentative ruling that Adam F. was B.M.'s presumed father, and finding he was B.M.'s alleged father.
B. Substantial Evidence Supports the Juvenile Court's Finding that Adam F. Sexually Abused B.M.
"Preliminarily, Adam acknowledges that the jurisdictional order will remain even if this court agrees that no substantial evidence supported the finding of sexual abuse," because he does not challenge count b-1's allegations against mother.
"As a general rule, a single jurisdictional finding supported by substantial evidence is sufficient to support jurisdiction and render moot a challenge to the other findings. [Citation.] We nonetheless retain discretion to consider the merits of a parent's appeal [citation], and often do so when the finding '(1) serves as the basis for dispositional orders that are also challenged on appeal [citation]; (2) could be prejudicial to the appellant or could potentially impact the current or future dependency proceedings [citations]; or (3) "could have other consequences for [the appellant], beyond jurisdiction" [citation].' " (M.W., supra, 238 Cal.App.4th at p. 1452.) Adam F. argues, and we agree, that we should exercise our discretion to consider his challenge to the sexual abuse finding because, given its " 'pernicious' nature," it will likely impact future dependency proceedings. (Cf. M.W., at p. 1452 [reviewing a jurisdictional finding that "mother knowingly or negligently exposed her children to a substantial risk of physical and sexual abuse" in part because the finding was "pernicious" and "carrie[d] a particular stigma"].)
" 'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court[.]" ' " (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
Adam F. argues that the juvenile court's finding of sexual abuse does not satisfy this standard because "DCFS failed to present any reasonable or credible evidence showing that [Adam F.'s] touching [of B.M.'s vaginal area over her clothing] was intentional, or for purposes of sexual gratification." In particular, Adam F. argues "there is an obvious and benign explanation" for his conduct—i.e., Lou Gehrig's disease caused his hands to shake such that he "may have unintentionally touched [B.M.] to keep her from falling off of his lap." He also points out that "[a]fter being informed of [Adam F.'s] condition, . . . [maternal grandmother] immediately retracted her suspicions [of sexual abuse], explaining that she[ ] 'now . . . understands what was happening when she saw what she though[t] was Adam rubbing [B.M.] Now she knows he could not control his hand.' "
The parties do not dispute that we may affirm the juvenile court's finding of sexual abuse if there is substantial evidence that Adam F. intentionally touched B.M.'s vaginal area for the purposes of sexual arousal or gratification. (See § 300, subd. (d) [utilizing the definition of sexual abuse provided in "Section 11165.1 of the Penal Code"]; Pen. Code, § 11165.1, subd. (b)(4) [providing that the term includes "[t]he intentional touching of the genitals or intimate parts . . . of a child, . . . for purposes of sexual arousal or gratification," but "does not include acts which may reasonably be construed to be normal caretaker responsibilities"].)
Adam F. overlooks evidence in the record contradicting his version of the facts. B.M.'s claims that Adam F. "dragged" his hand down to her vaginal area and then "made a funny noise" are inconsistent with Adam F.'s theory that he either mistakenly placed his hand on B.M.'s groin because his hands shook uncontrollably, or touched that part of B.M.'s body to prevent her from falling off his lap. Adam F. tacitly concedes that if neither of these alternative explanations is viable, then the juvenile court reasonably could have found he sexually abused B.M. In particular, he "concede[s] that under normal circumstances, a reasonable trier of fact could find that such touching [of B.M.'s vaginal area], even without more evidence, was for purposes of sexual arousal or gratification."
B.M. also told the police that "[a]fter [Adam F.] touched [her] vagina through her jeans, he stood up, said, 'I'm sorry' " and "left the room." This is circumstantial evidence of Adam F.'s consciousness of guilt. (Cf. In re Clyde H. (1979) 92 Cal.App.3d 338, 341, 344 [finding that the following constituted "evidence that [a minor] knew [his] conduct was wrong": (1) he "left the scene" after throwing a rock at another child and (2) he said " 'I'm sorry' " in the course of discussing past similar incidents in which he threw rocks at children].)
Adopting Adam F.'s theory would require us to " ' "reweigh the evidence or exercise independent judgment." ' " (See I.J., supra, 56 Cal.4th at p. 773.) This we cannot do. (See ibid. [" ' "[W]e note that issues of fact and credibility are the province of the trial court" ' "].) Accordingly, we conclude substantial evidence supported the juvenile court's finding that Adam F. sexually abused B.M.
C. The Juvenile Court Erred in Relieving Adam F.'s Counsel Without First Holding a Properly Noticed Hearing
As a preliminary matter, we note the record does not clearly show that the juvenile court actually did relieve Adam F.'s appointed counsel at the May 13, 2019 adjudication and disposition hearing. The juvenile court stated at the hearing that Adam F.'s attorney "will be relieved," but the minute order issued after the hearing does not state that his attorney was relieved. Additionally, the juvenile court's November 7, 2019 and November 19, 2019 minute orders indicate that counsel appeared on behalf of "Father" on each of those dates.
We previously took judicial notice of each of these minute orders pursuant to Evidence Code sections 452, subdivision (d) and 459.
We requested supplemental briefing from Adam F. and DCFS on this issue. The parties were unable to contact the court reporter who transcribed the November 19, 2019 hearing. They, however, concede in their respective letter briefs that: (1) the (albeit equivocal) transcript of the May 13, 2019 hearing establishes that the juvenile court actually relieved Adam F.'s counsel, and (2) the court reporter's notes show that the juvenile court confirmed at the November 7, 2019 hearing that it had made that ruling. Additionally, according to DCFS, Adam F.'s trial counsel informed the agency that "she accepted appointment for the alleged father on November 19, 2019, in error, as counsel for the alleged father had previously been relieved." Accordingly, we proceed on the assumption that the juvenile court relieved Adam F.'s counsel at the May 13, 2019 hearing. (See Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party' "]; 9 Witkin, Cal. Procedure (5th ed. 2019) Appeal, § 704, p. 773 ["An express concession or assertion in a brief is frequently treated as an admission of a legal or factual point, controlling in the disposition of the case"].)
A juvenile court may not relieve appointed counsel unless and until it conducts a properly noticed hearing. (See Janet O. v. Superior Court (1996) 42 Cal.App.4th 1058, 1061, 1066.) "The notice would be sufficient if mailed by first class mail addressed to the parent's last designated mailing address no earlier than 30 days nor later than 15 days preceding the date of the hearing. The notice should contain a statement regarding the nature of the hearing to be held, i.e., that the court is contemplating relieving counsel." (Id. at pp. 1066-1067, fn. omitted.) The record contains no evidence that Adam F. received any such notice. Rather, the notice provided to Adam F. merely informed him that a "Jurisdiction/Disposition Hearing [would] be held" on May 13, 2019.
Although an alleged father does not have a statutory right to the appointment of counsel, (see O.S., supra, 102 Cal.App.4th at pp. 1406-1407, & fn. 3), the parties do not dispute that, after counsel has been appointed for an alleged father, he is entitled to a properly noticed hearing before the juvenile court relieves his attorney. (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2.) Further, neither party has cited any authority to the contrary.
We therefore conclude that the juvenile court erred in relieving Adam F.'s counsel without first holding a noticed hearing. We reverse that ruling, and remand this matter with directions to reappoint Adam F.'s counsel and set a properly noticed hearing on whether his attorney should be relieved. Given our resolution of this claim of error, we need not address whether—had the juvenile court complied with this procedure—it otherwise had sufficient grounds to relieve Adam F.'s counsel.
Our order requiring that the juvenile court reconsider its decision to relieve Adam F.'s counsel is not necessarily futile. This is because, upon remand, Adam F. could ask the court to reconsider whether he is B.M.'s presumed father. (See ante, fn. 15 [discussing petitions for reconsideration].)
DISPOSITION
The juvenile court's May 13, 2019 adjudication and disposition order is reversed only insofar as the court relieved Adam F.'s appointed counsel. The remainder of the order is affirmed. This matter is remanded to the juvenile court with directions to reappoint Adam F.'s counsel and set a properly noticed hearing on whether his attorney should be relieved.
NOT TO BE PUBLISHED.
BENDIX, J. We concur:
ROTHSCHILD, P. J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.