L. A. Cnty. Dep't of Children & Family Servs. v. G.R. (In re A.M.)

• Decision Date: 13 April 2022
• Docket Number: B308966
• Parties: In re A.M. et al., Persons Coming Under the Juvenile Court Law. v. G.R., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
• Court: California Court of Appeals Court of Appeals

In re A.M. et al., Persons Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. G.R., Defendant and Appellant.

B308966

California Court of Appeals, Second District, First Division

April 13, 2022

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County, No 18CCJP07933 Martha A. Matthews, Judge.

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

Caitlin Christian, under appointment by the Court of Appeal for Minors and Respondents, A.M. and F.M.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.

BENDIX, J.

The Los Angeles County Department of Children and Family Services (DCFS) initiated juvenile dependency proceedings concerning A.M., F.M., Vi.M., M.M., and Va.M. on the grounds that their mother (mother) and the biological father of A.M. and F.M. (G.R.) had physically abused A.M. and F.M. At the outset of the proceedings, the juvenile court declared that A.M. had two presumed fathers-(1) G.R. and (2) A.S., who is the biological father of Vi.M., M.M., and Va.M. The court also found that A.S. is the sole presumed father of F.M., Vi.M., M.M., and Va.M. The court later sustained an amended version of the initial petition, which included an allegation that A.S. had exposed F.M. to A.S.'s domestic violence against mother. The juvenile court declared all five children dependents of the court, removed them from their parents, and ordered DCFS to provide family reunification services.

DCFS filed a subsequent petition alleging dependency jurisdiction over the five children under Welfare & Institutions Code^[1] section 300, subdivisions (b)(1), (d), and (j) because G.R. sexually abused A.M. and mother failed to protect A.M. from G.R.'s misconduct. At the adjudication hearing, the juvenile court sustained the petition and invited the parties to address at the upcoming disposition hearing whether it should set aside G.R.'s designation as presumed father of A.M. in light of its finding that G.R. had sexually abused A.M. Upon A.M.'s request, the court thereafter declared that G.R. was merely A.M.'s biological father and A.S. was A.M.'s sole presumed father. The juvenile court then issued custody and parentage orders that gave sole physical custody of the five children to A.S. and monitored visitation to mother, and terminated dependency jurisdiction.

On appeal, G.R. claims the juvenile court erred in sustaining the subsequent petition and setting aside his designation as a presumed father of A.M.^[2] We reject G.R.'s challenge to the court's jurisdictional findings because most of his arguments would have us reweigh the evidence presented to the juvenile court, and the remainder of his contentions does not establish that A.M.'s allegations of abuse are physically impossible or inherently incredible. Further, he fails to show the court abused its discretion in reconsidering its prior parentage ruling and concluding that it was in A.M.'s best interest to designate A.S. as her sole presumed father. Finding no error, we affirm.

PROCEDURAL BACKGROUND^[3]

We summarize only those aspects of the procedural history that are relevant to this appeal.

On December 13, 2018, DCFS filed a juvenile dependency petition pursuant to section 300 concerning A.M., F.M., Vi.M., M.M., and Va.M.^[4] (A.M. I, supra, B299164.) In essence, the petition alleged: (1) G.R. had physically abused A.M. and F.M. and mother failed to protect them, and (2) mother had physically abused A.M. and F.M. and G.R. failed to protect them. (Ibid.) At the December 14, 2018 detention hearing, the juvenile court declared G.R. the presumed father of A.M. and F.M., and A.S. the presumed father of Vi.M., M.M., and Va.M. (Ibid.) The court ordered DCFS to detain the five children pending disposition or a further order of the court. (Ibid.)

At a hearing held on February 4, 2019, the juvenile court declared A.S. to be a presumed father of A.M. and F.M. (A.M. I, supra, B299164.) At a February 8, 2019 hearing, the court declared that G.R. was not F.M.'s presumed father, thereby negating its prior ruling affording him that status. (Ibid.) The court nonetheless reaffirmed its prior ruling declaring G.R. to be a presumed father of A.M. (Ibid.) Thus, pursuant to the court's rulings, A.M.'s presumed fathers were A.S. and G.R., and A.S. remained the sole presumed father of F.M., Vi.M., M.M., and Va.M. (Ibid.)

On April 4, 2019, DCFS filed a first amended petition, which reasserted the initial petition's counts against mother and G.R., and added two identical counts (count b-5 and count c-1) that alleged A.S. struck mother in F.M.'s presence. (A.M. I, supra, B299164.) At the June 10, 2019 adjudication hearing, the juvenile court found that amended versions of the 12 counts alleged against G.R. and mother were true, dismissed count c-1, and sustained an amended version of count b-5. (See ibid.) On June 26, 2019, the court declared each of the children dependents of the court, removed them from the care, custody, and control of their mother and respective fathers, and ordered DCFS to provide family reunification services to mother, G.R., and A.S. (Ibid.) Mother's case plan permitted her to have monitored visits with all five children, and G.R.'s case plan authorized monitored visits with A.M. and F.M. We later affirmed the jurisdictional and dispositional orders against A.S. in A.M. I. (Ibid.)

On January 6, 2020, the juvenile court held a review hearing at which it found G.R. and mother had made substantial progress on their case plans, but also found that returning A.M. and F.M. to G.R.'s and mother's physical custody would create a substantial risk of detriment to these children. The court ordered DCFS to continue to provide reunification services to G.R. and mother, and allowed them to have unmonitored visits with A.M. and F.M.

On March 2, 2020, DCFS filed a subsequent petition pursuant to section 342.^[5] The subsequent petition invoked the juvenile court's jurisdiction under section 300, subdivisions (b)(1), (d), and (j), and alleged three identical counts: count b-1, count d-1, and count j-1. These counts averred: "On a prior occasion, the children['s] . . . mother['s] . . . male companion, [G.R.], father of the children, [A.M.] and [F.M.], sexually abused . . . [A.M.] by fondling [A.M.'s] vagina with [G.R.'s] hand. On a prior occasion, [G.R.] fondled [A.M.'s] legs and the area above the child's vagina and below the child's belly button with [G.R.'s] hands. On prior occasions, [G.R.] hugged [A.M.], while [G.R.] fondled the child's back underneath the child's clothes and on top of the child's clothes, causing [A.M.] to feel uncomfortable. On prior occasions, [G.R.] fondled . . . [A.M.'s] hands, legs and knees with [G.R.'s] hands, causing [A.M.] to feel uncomfortable. The mother failed to take action to protect [A.M.] and the mother does not believe the child's sexual abuse disclosure. Such sexual abuse of [A.M.] on [the] part of [G.R.] and the mother's failure to protect the child endangers the child's physical health and safety, and places [A.M.] and siblings, [F.M., Vi.M., M.M., and Va.M.] at risk of serious physical harm, damage, danger, sexual abuse and failure to protect."

On March 3, 2020, the juvenile court detained all five children, and authorized G.R. and mother to have only monitored visits with A.M. and F.M.

On August 17, 2020, the juvenile court held an adjudication hearing on the subsequent petition. The court admitted into evidence six reports from DCFS, five of which have attachments that were also admitted into evidence.^[6] G.R. called A.M. as a witness. The court later found A.M. to be "highly credible as a witness" and sustained counts b-1, d-1, and j-1 of the subsequent petition. The court also stated that at the upcoming disposition hearing, the parties could address whether G.R. should retain his designation as a presumed father of A.M. Specifically, the court remarked, "Now that the [subsequent petition] has been sustained, [the court] believe[d] there's some support in the case law for making a determination under Family Code [section] 7612 that stronger considerations of policy would support [A.S.'s] claim to presumed father status, and [A.S. and G.R.] should not continue to both have presumed father status."

On September 18, 2020, A.M. filed a motion requesting the court to set aside its prior ruling that G.R. is a presumed father of A.M. In particular, A.M. argued that "[i]n light of the sustained allegation of sexual abuse by [G.R.], the Court should find that [A.S.] has the stronger claim to presumed father status[, ] . . . and . . . that [G.R.] is merely a biological father."

At the disposition hearing also held on September 18, 2020, the juvenile court set aside G.R.'s designation as a presumed father of A.M., declared A.S. to be A.M.'s sole presumed father, and found G.R. was only A.M.'s biological father. The court ruled G.R. "shall have no visits" with A.M. and F.M. It also found that "those conditions which would justify the initial assumption of jurisdiction under . . . section 300 no longer exist and are not likely to exist if supervision is withdrawn and the court terminates jurisdiction with a juvenile custody order awarding parents joint legal custody, ^[7] and [A.S.] sole physical custody[, with] mother . . . hav[ing] monitored visits a minimum of nine hours per week." (Capitalization omitted.)

On September 23, 2020, the juvenile court issued custody and parentage orders that are consistent with its September 18 2020 rulings,...