Opinion
E069385
06-11-2018
In re E.A., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. M.Z., Defendant and Respondent; A.A. et al., Defendants and Appellants.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant A.A. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant F.A. Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Respondent M.Z. Linda S. Rehm, under appointment by the Court of Appeal, for Minor. Michelle D. Blakemore, County Counsel, Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J266869) OPINION APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes, Judge. Affirmed in part; reversed in part. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant A.A. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant F.A. Johanna R. Shargel, under appointment by the Court of Appeal, for Defendant and Respondent M.Z. Linda S. Rehm, under appointment by the Court of Appeal, for Minor. Michelle D. Blakemore, County Counsel, Kristina M. Robb, Deputy County Counsel for Plaintiff and Respondent.
This court previously addressed this case in In re M.A. (Feb. 26, 2018), E067604, opn. ordered nonpub. May 9, 2018. In the prior case, this court examined issues arising during the disposition phase of the dependency proceedings. The child at issue is E.A., a female born in July 2008. F.A. (Mother), who is E.A.'s mother, and A.A. (Stepfather), who is E.A.'s presumed father, disputed M.Z.'s (Bio-Father) status as the Kelsey S. father of E.A. This court reversed the juvenile court's finding that Bio-Father is a Kelsey S. father due to the finding being barred by collateral estoppel; however, this court affirmed the order for visitation between Bio-Father and E.A., due to the juvenile court not abusing its discretion in determining the visits were in E.A.'s best interests.
Adoption of Kelsey S. (1992) 1 Cal.4th 816.
On October 23, 2017, while the prior appeal was pending in this court, the juvenile court dismissed the dependency case with a family court order that Bio-Father and E.A. continue to visit once per week in a therapeutic setting until January 2018, and then have supervised visits once per week for one hour. Mother and Stepfather appeal.
Mother and Stepfather raise two issues. First, Mother and Stepfather contend the juvenile court erred by declaring Bio-Father to be a Kelsey S. father. The Department concedes the first contention is correct due to this court's prior holding. Second, Mother and Stepfather contend the juvenile court erred by ordering visits between Bio-Father and E.A. We reverse in part, and affirm in part.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Mother and Stepfather married in 1992, and they share two adult children. From 2006 to 2008, while Mother and Stepfather were separated, Mother had a relationship with Bio-Father. Mother became pregnant. Mother and Bio-Father agreed to terminate the pregnancy. Bio-Father believed Mother had an abortion, but she did not have an abortion. Mother and Bio-Father's relationship ended in 2008, and Mother resumed her marital relationship with Stepfather.
In 2010, Mother called Bio-Father and informed him they shared a child—E.A. Bio-Father came to California from Texas, in order to be part of E.A.'s life. When Mother withheld E.A. from Bio-Father, he initiated a family court case. In June 2012, the family court found Stepfather was E.A.'s presumed father (Fam. Code, § 7611, subd. (a)) and that Bio-Father did not meet the criteria for a presumed father (Fam. Code, § 7611, subd. (d)). The family court found Kelsey S. to be inapplicable. Bio-Father did not appeal the judgment.
Mother and Stepfather separated in 2013. E.A. has been diagnosed with Usher syndrome, which can cause deafness and blindness. E.A. wears glasses and hearing aids. E.A. is allergic to the sun. As a result, E.A. spends lunch, recess, and physical education class in the school nurse's office.
B. DETENTION
On August 17, 2016, E.A. had a bite-shaped bruise on her arm. Mother admitted spanking E.A. with her hand, a belt, and a stick, and admitted biting E.A. Mother said it happened when Mother was frustrated, and she regretted it. Mother said she struck E.A. with the umbrella " 'out of desperation.' "
E.A. was placed with Stepfather. The matter continued on a plan of family maintenance due to concerns that Stepfather would be unable to protect E.A. from Mother. As part of the plan, Stepfather was required to participate in individual counseling.
C. REQUEST TO CHANGE A COURT ORDER
Bio-Father filed a request to change a court order. (Welf. & Inst. Code, § 388.) Bio-Father requested to have contact with E.A. San Bernardino County Children and Family Services (the Department) recommended Bio-Father and E.A. have visits in a therapeutic setting. The juvenile court found Bio-Father was E.A.'s Kelsey S. father, and ordered E.A. and Bio-Father have visits once every two weeks in a therapeutic setting.
D. PRIOR APPEAL
Mother and Stepfather appealed. They contended the juvenile court's finding that Bio-Father is a Kelsey S. father was barred by collateral estoppel due to the family court's 2012 judgment. This court agreed and reversed the portion of the juvenile court's order that reflected Bio-Father was E.A.'s Kelsey S. father. However, this court affirmed the visitation portion of the juvenile court's order. This court concluded the juvenile court did not abuse its discretion by finding there were changed circumstances and the visits served E.A.'s best interests (Welf. & Ins. Code, § 388). The opinion in the prior appeal was filed on February 26, 2018.
E. STATUS REVIEW HEARING
While the prior appeal was pending in this court, the proceedings continued in the juvenile court. The therapist for the therapeutic visits between Bio-Father and E.A., was Belinda Gutierrez. Gutierrez's report reflects that, during a session on January 17, 2017, she spoke to E.A. about stepfathers. E.A. said Stepfather was not her stepfather. On January 24, Gutierrez spoke to E.A. about stepfathers and biological fathers. E.A. said she would want to know her biological father.
On February 9, Stepfather participated in the therapy session. Stepfather told Gutierrez he did not want to be present when she told E.A. about her biological father. On February 23, Mother, for the first time, brought E.A. to the therapy session. During the session, Gutierrez used stories and dolls to tell E.A. about Bio-Father. E.A. "responded by being excited about meeting her biological father and trying to look for him out the window. [E.A.] had a toy that resembled binoculars, and kept saying 'where is he, I know he is out there somewhere!' [E.A.] was excited, and smiling." Gutierrez called Bio-Father on the telephone. E.A. listened to Bio-Father's and Gutierrez's conversation on speaker phone, and then started talking to Bio-Father. E.A. said she wanted to see Bio-Father, so Bio-Father texted a photograph to Gutierrez. E.A. then "wanted to send one of herself with hearts telling him 'I love you!!' " E.A. asked Gutierrez if she could meet Bio-Father on Tuesday.
E.A. ran into the office waiting room "announcing to [M]other that she has a biological father, and [M]other did not respond well. Mother became angry." Mother asked Gutierrez "who gave her the right to tell [E.A.] that information." Gutierrez explained that she was working under the juvenile court's orders.
On March 16, E.A. was brought to the therapy session by Mother and Stepfather. E.A. appeared nervous and did not smile at Gutierrez, which she had done in the past. When called into Gutierrez's office, E.A. "kept looking back at her mother." Upon entering the treatment room, E.A. "kept saying, 'I'm not ready to see him.' When [Gutierrez] asked what happened from the last session when she was very excited until now, [E.A.] looked nervous and said 'I don't know, I'm just nervous.' "
On March 30, Mother and Stepfather brought E.A. to the therapy session. Gutierrez planned to introduce E.A. to Bio-Father. Gutierrez had Bio-Father wait in a separate therapy room so as to minimize any issues. When E.A. was called from the waiting room to Gutierrez's office, Mother called E.A. over to her, held E.A.'s face in her hands and spoke softly to E.A. E.A. "kept nodding, and looking very serious at [M]other." E.A. appeared nervous when walking toward Gutierrez's office.
Gutierrez told E.A. that E.A. would be meeting Bio-Father. E.A. said she was not ready to meet him. E.A. avoided eye contact with Gutierrez. Gutierrez asked E.A. why she was nervous when she had previously been excited. E.A. "shrugged her shoulders and said, 'Well, I always get nervous when I have to meet people I don't know.' " E.A. asked to get her glasses from Mother. Gutierrez asked E.A. to wait a moment. Gutierrez then worked with E.A. to reduce her anxiety. E.A. said she wanted to use the restroom. Gutierrez asked E.A. to wait for one minute. Gutierrez opened the door to the room where Bio-Father was waiting. E.A. looked at Bio-Father for a moment, and then walked into the room and hugged him.
Bio-Father hugged E.A. and said he was glad to meet her. E.A. sat down on the sofa next to Bio-Father. Gutierrez asked E.A. if she wanted to end the visit. E.A. said, " 'No, I'm okay.' " They had a "light" conversation "about [E.A.]'s favorites," such as her favorite color, food, and game. When E.A. returned to the waiting room, upon seeing Mother, E.A. "looked worried." Gutierrez went to a separate room to inform Stepfather of how the session went; Mother was not on the Department's referral. When Gutierrez returned to the waiting room, E.A. placed her hands on her hips and told Gutierrez that she did not appreciate Gutierrez not permitting her to go to the bathroom or get her glasses from Mother during the session. E.A. "kept trying to look at her mother," while speaking to Gutierrez. Gutierrez reminded E.A. that E.A. said, "No, I'm okay," when Gutierrez asked if E.A. wanted to end the session. E.A. responded, " '[Y]es, but then I forgot.' "
Gutierrez opined that E.A. experienced anxiety due to a perception that she was disappointing or angering Mother and/or Stepfather due to the visits with Bio-Father. Gutierrez explained that E.A.'s angry outburst (about the glasses and the restroom) was uncharacteristic of E.A. and indicated E.A. was suffering stress. E.A. appeared comfortable interacting with Bio-Father, but was anxious while interacting with Mother. Mother appeared "very angry" during interactions with Gutierrez.
Gutierrez recommended E.A. continue in therapy "in order to process the introduction to [Bio-Father], and to process the anxiety that she experienced due to the tension and negative response of [M]other during the process of introduction." Gutierrez explained, "It is important for the . . . courts to be aware of the extreme reaction of [Mother] to involvement of [Bio-Father] and if visits continue, therapeutic visitation in a structured setting by a professional visitation monitor would be crucial, along with providing interventions for [Mother] and her responses to these visits."
The juvenile court ordered further therapeutic visits between E.A. and Bio-Father. The court also ordered Mother's individual counseling to address Mother's reaction to E.A.'s visits with Bio-Father.
F. SEMI-ANNUAL REVIEW HEARING
Mother and Stepfather participated in individual counseling sessions. Bio-Father and E.A. did not have any visits between their introduction on March 30 and the hearing on July 10. The lack of visits was partially due to the matter being transferred to a new therapist, and also partially due to E.A. stating she was nervous to visit with Bio-Father.
E.A. told a Department social worker that "she was confused and nervous about visits with [Bio-Father] and that she did not really understand who he is or why she is having visits with him. She said that she does not know him. She also stated that she was upset that the last therapist did not let her use the restroom at their last visit together when she really needed to use it." The social worker felt a therapist would be better equipped to explain to E.A. her relationship with Bio-Father because a therapist "would have more time to take with [E.A.] to elaborate on this and explain it correctly so that [E.A.] could process this emotionally in a safe/secure place." The new therapist did not integrate Bio-Father into the first three sessions with E.A. because the therapist believed E.A.'s emotional wellbeing would best be served by first building a trusting relationship with the therapist.
At a hearing on July 10, 2017, the juvenile court said, "Right now the therapist recommends ten more sessions with [E.A.] to prepare her to meet [Bio-Father] again. Everybody has their own methodology of practicing and what their comfort levels are. The only thing that seems odd is that there was contact and meeting with him, and that was okay, and then we have totally gone off the rails, and I don't understand why we need ten more sessions, even based on what I read. . . . [¶] . . . To me, it's almost like, well, why don't we just start bringing [Bio-Father] in right away because there's—really we're going to be in the same place we are in ten weeks. I mean, [I] don't see how things are going to change if we keep doing the same thing. [¶] I think the only thing that will cause a change is actually having a meeting with [E.A.] and [Bio-Father] even if it's only for, like five minutes the first time, and maybe the next week, it's 10 minutes, and it progresses from there."
Stepfather objected to the visits. The juvenile court set the matter for a contested hearing. The court said, "What I would expect is a gradual increase between now and the next hearing with reports on each one of how that went."
G. SPECIAL HEARING
E.A. missed the visits on July 15 and July 22. The July 22 visit was canceled due to E.A. being ill. Bio-Father requested a special hearing wherein the juvenile court would order Mother and Stepfather to bring E.A. to the visits or require them to produce medical notes for the court explaining why E.A. could not attend the visits. The juvenile court ordered Stepfather to bring E.A. to a visit scheduled for the following Saturday, August 26.
H. CONTESTED SEMI-ANNUAL REVIEW HEARING
The August 26 visit did not occur due to the therapist no longer accepting Department referrals. The Department referred E.A. and Bio-Father to another therapist, and they had a visit on September 9. Bio-Father told the Department that E.A. was attending visits but that she did not greet him or make eye contact with him. Bio-Father was concerned about E.A.'s wellbeing.
A Department social worker met with E.A. During the social worker's visit, E.A. did not make eye contact with the social worker. E.A. told the social worker that she did not want to visit Bio-Father and that she would rather spend time with Stepfather. E.A. said she was scared and nervous during visits with Bio-Father and that she did not feel safe with Bio-Father. The social worker asked if anything specific had occurred to cause E.A. to feel unsafe. E.A. said Bio-Father "was weird and that [he] just kept saying the same things over and over to her," such as " 'he says he loves me and likes me.' "
The Department social worker spoke to the therapist. The therapist confirmed that E.A. did not make eye contact during the therapy sessions. The therapist said little progress was made during the therapy sessions, but that "there was a little bit the last few sessions." In the Department's report, the social worker wrote, "[I]t appears that [E.A.] either does not want to have a relationship with [Bio-Father] or that she is not allowed to."
The Department social worker spoke to Mother. The social worker asked why there was such a drastic change from E.A. hugging Bio-Father and saying she loved him to the current situation. "[M]other stated that [E.A.] was confused about who [Bio-Father] was and actually thought he was a relative of [Stepfather] who was coming to visit her from Texas so she was confused." The Department requested that E.A.'s case be dismissed because there was no longer a protection issue, but also requested therapeutic visits continue once per week "in hopes that there will be some positive future change for [E.A.]"
The juvenile court held the contested semi-annual review hearing on October 23, 2017. Bio-Father argued that Mother attempted to thwart Bio-Father and E.A. from having a meaningful relationship. Bio-Father asserted that E.A.'s change in behavior toward him was "obviously due to somebody[] else['s] influence." Bio-Father objected to the request to dismiss the case because it would be unlikely that Mother would bring E.A. to visits with Bio-Father. Bio-Father contended it was not in E.A.'s best interest to have the family court enforce the visitation orders.
E.A.'s attorney agreed with Bio-Father's argument. E.A.'s attorney noted that the reports reflect E.A. "keeps looking to the mother." E.A.'s attorney said, "I am concerned that there is [an] outside influence effecting [E.A.] in this case." The attorney said he did not have any evidence to support his theory but that he was "very concerned."
The Department asserted that a dependency case could not remain open for the sake of building a relationship between E.A. and Bio-Father. The Department contended the orders for visitation could be handled by the family court. Mother requested the case be dismissed with family court orders for joint legal and physical custody between Mother and Stepfather, with Stepfather's home as the primary residence.
The juvenile court said, "I agree with [Bio-Father's] analysis, you feel like something is wrong, something is going on, but there is nothing you can sink your teeth into to prove it. There is no evidence of any wrongdoing right now to cause [E.A.] to act like she is. I suspect it, but that is not evidence. You know, and so I'm left with what it is. And it looks like right now, I tried to go through therapeutic visits, we had three different therapists. And it's really, that's failed.
"In considering at the end of the day, I'm looking at this child and what is in her best interest. And unfortunately for [Bio-Father], I'm not looking particularly at his best interest or his efforts. I consider those, but obviously the child's best interest[s] and her emotional stability at the end of the day are what actually matter most.
"So I am going to establish some sort of procedure by which there could be a visitation for [Bio-Father] and that would either be by a therapeutic visit or a supervised visit either by [a] mutually agreed upon third party which I don't think will happen or by somebody at [Bio-Father's] expense."
Later, the court explained, "In my mind, it's a step-up order. After the therapist sessions, when it's appropriate, moving to the supervised visits once a week is appropriate for an hour for [Bio-Father]. I know this is going to end up in family law court and I'm trying to prevent that, but I don't think there is anything I can do to prevent it from going there so is there any other input? No?"
The juvenile court dismissed the dependency case with a family court order for joint legal and physical custody between Mother and Stepfather, with Stepfather's home as the primary residence, and visitation between E.A. and Bio-Father once per week for one hour with a therapist until January 2018, with Bio-Father and Mother splitting the cost, and then supervised visits once per week for one hour.
DISCUSSION
A. KELSEY S . RECOGNITION
The juvenile court's October 2017 custody order includes a sentence reflecting Bio-Father is E.A.'s presumed father. Mother and Stepfather contend the juvenile court erred in October 2017 by declaring Bio-Father to be a Kelsey S. father. The Department concedes the contention is correct. In this court's prior opinion, filed on February 26, 2018, this court reversed the juvenile court's Kelsey S. ruling. As a result, the sentence in the custody order declaring Bio-Father to be a Kelsey S. father contradicts this court's holding in our prior opinion. Accordingly, we will reverse the portion of the final custody order that declares Bio-Father to be a presumed father of E.A.
Mother asserts this court should wait to rule on this issue until the Supreme Court either denies Bio-Father's petition for review or issues an opinion in the case. The Supreme Court denied review on May 9, 2018; even if review had not yet been denied, because this is a dependency case, we treat it as an urgent matter. Accordingly, to the extent Mother is requesting a continuance, we deny the request. We choose to issue an opinion without delay. (See Welf. & Inst. Code, § 395, subd. (a)(1) [dependency appeals are given precedence]; see also Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 246-247 [discussing the problem of delays in the dependency system].)
B. VISITATION
1. BEST INTERESTS
Mother and Stepfather contend the juvenile court erred by ordering visitation between E.A. and Bio-Father.
If the juvenile court terminates jurisdiction over a minor, then the juvenile court may issue a family court order concerning custody of, and visitation with, the child. (Welf. & Inst. Code, § 362.4, subds. (a)&(c).) "This includes orders tailored for nonparents such as adoptive parents, de facto parents, and grandparents." (In re Armando L. (2016) 1 Cal.App.5th 606, 616.) A juvenile court may order visitation between a biological father and his child. (Francisco G. v. Superior Court (2001) 91 Cal.App.4th 586, 596; In re Korbin Z. (2016) 3 Cal.App.5th 511, 518.) When making family court orders upon the termination of a dependency case, the best interests of the child are the paramount concern. (In re John W. (1996) 41 Cal.App.4th 961, 965, 973.) We apply the abuse of discretion standard of review when reviewing the juvenile court's visitation order. (In re M.R. (2017) 7 Cal.App.5th 886, 902.)
On February 23, 2017, E.A. talked to Bio-Father on the telephone. E.A. was excited about the prospect of meeting Bio-Father. Mother was angry about E.A. learning of Bio-Father. On March 30, E.A. visited with Bio-Father in-person. E.A. appeared nervous, she did not make eye contact, and she had an angry outburst toward Gutierrez. Gutierrez opined that further visits with Bio-Father could be beneficial to E.A., if the tension with Mother were resolved.
Gutierrez recommended E.A. continue in therapy "in order to process the introduction to her biological father, and to process the anxiety that she experienced due to the tension and negative response of [M]other during the process of introduction." The Department social worker believed E.A. needed to attend therapy so a therapist could explain to E.A. her relationship with Bio-Father and so E.A. "could process this emotionally in a safe/secure place." Mother told the social worker that E.A. reacted negatively to the visits with Bio-Father because E.A. was confused as how she was related to Bio-Father.
Given E.A.'s confusion and emotional suffering, the juvenile court could reasonably conclude that therapeutic visits with Bio-Father would be in E.A.'s best interests. In the therapeutic visits, E.A. could learn how to process the information, concerning Bio-Father being her biological father, in a healthier manner—as opposed to withdrawing, e.g., not making eye contact. Also, because E.A. was confused, having Bio-Father at the session would be helpful because he could answer any questions she may have.
We presume the issue of whether the juvenile court erred by ordering therapeutic visits is moot because they were scheduled to end in January 2018, and it is now June 2018. (In re Albert G. (2003) 113 Cal.App.4th 132, 134 [an issue is moot when no effective relief can be granted].) Nevertheless, no party has informed the court that the issue is moot, therefore, we addressed it out of an abundance of caution. --------
The supervised visits that were ordered to continue after the therapeutic visits could reasonably be found to be in E.A.'s best interests because, as the social worker testified, it is beneficial for children to know their biological parents. In September and October 2017, E.A. was making a small amount of progress in her relationship with Bio-Father during the therapeutic visits. The therapeutic visits would continue until January 2018. If the relationship were to suddenly end, it could cause E.A. to again withdraw or display other negative emotional behaviors.
In sum, the therapeutic visits with Bio-Father were in E.A.'s best interest because she needed to process the confusion she was experiencing around learning that Bio-Father was her biological father. The follow-up supervised visits were in E.A.'s best interest because (1) it is beneficial for children to know their biological parents, and (2) it could negatively impact E.A. to suddenly end the relationship with Bio-Father. Therefore, we conclude the juvenile court acted within the bounds of its discretion by ordering ongoing visitation between E.A. and Bio-Father.
Stepfather contends the juvenile court erred in ordering visitation with Bio-Father because the order was based upon the juvenile court's erroneous belief that Bio- Father was a Kelsey S. father. In explaining its reasoning, the juvenile court said, "I'm looking at this child and what is in her best interest[s]. And unfortunately for [Bio-Father], I'm not looking particularly at his best interest or his efforts. I consider those, but obviously the child's best interest[s] and her emotional stability at the end of the day are what actually matter most."
The juvenile court's comments that it was giving greater weight to E.A.'s best interests, as compared to Bio-Father's efforts, reflects the juvenile court made its visitation order based primarily upon E.A.'s best interests, rather than Bio-Father's status as a Kelsey S. father. Further, this court reviews the juvenile court's ruling, not its reasoning. (In re Zamer G. (2007) 153 Cal.App.4th 1253, 1271.) Therefore, because (1) the juvenile court's ruling was based primarily upon E.A.'s best interests, and (2) this court does not review the juvenile court's reasoning, we find Stepfather's argument to be unpersuasive.
2. DUE PROCESS
Stepfather contends the juvenile court erred by ordering visitation between E.A. and Bio-Father because the court failed to apply the presumption of parental autonomy.
Fit parents have a fundamental right to make decisions concerning the care, custody, and control of their children, which is provided by the Due Process Clause of the Fourteenth Amendment. (Troxel v. Granville (2000) 530 U.S. 57, 66 (Troxel).) When a court makes a visitation order that is against the wishes of fit parents, it must give special weight to the parents' wishes; the court should presume that fit parents act in the best interests of their children. (Id. at p. 69.)
Troxel is not a dependency case. (Troxel, supra, 530 U.S. 57 at pp. 60-61.) The juvenile dependency court differs from the family court. The family court settles private disputes, and "[i]n that setting, parents are presumed to be fit and capable of raising their children. [Citation.] The juvenile court, by contrast, provides the state a forum to 'restrict parental behavior regarding children, . . . . The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child. [Citation.] Accordingly, although both courts focus on the best interests of the child, '[t]he presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases' decided in the juvenile court." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)
The juvenile court found true the jurisdictional allegations involving Mother inflicting serious harm upon E.A. (Welf. & Ins. Code, § 300, subds. (a) & (b)). Although E.A. was placed with Stepfather, the matter remained in the dependency court on a plan of family maintenance because there were concerns that Stepfather could not protect E.A. from Mother. As part of that plan, Stepfather was ordered to participate in individual counseling. Thus, E.A. remained a dependent of the juvenile court. Because this was a juvenile court matter, and not a family court matter, the presumption of parental fitness does not apply. (In re Chantal S., supra, 13 Cal.4th at p. 201.) Accordingly, the juvenile court did not err by not applying the presumption.
3. E.A.'S WISHES
E.A.'s appellate attorney filed a letter brief with this court, rather than a formal respondent's brief. In the letter brief, E.A.'s attorney joins in the Department's arguments. E.A.'s attorney also describes a meeting she had with E.A. on March 8, 2018. The notice of appeal in this case was filed on November 7, 2017.
Stepfather relies on E.A.'s appellate attorney's description of the March 2018 meeting to assert that E.A. is doing well in Mother's care. Stepfather cites to portions of the record that reflect E.A. did not want to visit with Bio-Father. Stepfather then asserts that because E.A. is doing well in Mother's care and does not want to visit Bio-Father, the juvenile court erred by ordering visitation.
An attorney's unsworn statement is not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11.) Accordingly, because E.A.'s counsel's description of her meeting is not evidence, we do not consider it in evaluating whether the juvenile court erred. In regard to E.A.'s wishes, E.A. "kept repeating (without eye contact with the social worker) that she was scared and nervous during the visits and didn't feel safe with [Bio-Father]." The juvenile court could reasonably conclude that E.A.'s feelings required therapeutic visits and supervised visits, so as to help E.A. feel comfortable. E.A.'s feelings do not necessitate that visits be denied. As explained ante, the juvenile court could, looking at the totality of the circumstances, determine the visits served E.A.'s best interests. (In re Chantal S., supra, 13 Cal.4th at p. 201 ["The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child."].)
4. EXPENSE
Stepfather contends the juvenile court erred by ordering visitation because Stepfather will be burdened by expensive family court litigation in seeking to alter the order. Stepfather does not cite to any law reflecting that the possible expense of potential family court litigation is an appropriate factor for the juvenile court to consider when making exit orders. (See In re John W., supra, 41 Cal.App.4th at p. 965 [when making exit orders the child's best interests are the paramount concern].) Accordingly, we are not persuaded that the juvenile court erred by not factoring into its ruling the possible expense of potential future litigation.
DISPOSITION
The portion of the final judgment custody order that declares M.Z. to be a presumed father of E.A. is reversed. In all other respects, including the visitation order between M.Z. and E.A., the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.