In re Cynthia B.

Filed 7/11/06 In re Cynthia B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

Juvenile dependency proceedings were initiated on behalf of Cynthia B., Jose Eduardo B., Jose Eric B., and Neo B. (collectively, the children) following an incident of domestic violence perpetrated against the children's mother, Gloria J., by appellant, Jose B. (Jose). Jose is the presumed father of Cynthia, Jose Eduardo and Jose Eric, and the alleged father of Neo. Jose was granted reunification services with respect to Cynthia who was placed in the home of her paternal grandmother. However, the juvenile court terminated jurisdiction as to the three boys, all of whom were placed in the physical custody of their mother. Legal custody of the youngest boy, Neo, was granted to both Gloria J. and Neo's presumed father, James R.

On appeal, Jose contends the juvenile court erred by finding that James R. was Neo's presumed father and reversing a prior order granting Jose presumed father status as to this child. Jose also challenges orders granting Gloria sole custody of the boys and denying both him and Cynthia visitation with the boys. We affirm.

II. STATEMENT OF FACTS

A. The Petition and Detention

On February 3, 2004, the Contra Costa County Bureau of Children and Family Services (the Bureau) filed juvenile dependency petitions on behalf of Cynthia, who was almost thirteen, eleven-year-old Jose Eduardo, nine-year-old Jose Eric and Neo, who was two-and-a-half years old. The petitions were filed pursuant to Welfare and Institutions Code section 300, subdivision (b)^[1] on the ground that the children suffered, or there was a substantial risk they would suffer, serious physical harm or illness as a result of the failure or inability of the parents to supervise or adequately protect them.

The petitions were supported by factual allegations of a pattern of domestic violence by Jose against Gloria. On November 17, 2003, Jose held a knife to Gloria's neck which left a mark, and threatened to kill her. The children heard the threat and subsequently expressed fear Jose would kill Gloria. In December 2003, there was another violent altercation during which a thrown cell phone hit Neo on the head. In January 2004, the children were allegedly present when Gloria hit Jose with her car while trying to get away from him. According to the petitions, the children had witnessed many domestic violence incidents during which Jose threatened to hurt their mother.

At a February 4, 2004, detention hearing the court ordered that the children were to be detained and authorized the Bureau to place them with their mother in a shelter. On February 11, the court issued a temporary restraining order against Jose to stay away from Gloria and, after a hearing on the matter, the court issued an order restraining Jose from having contact with Gloria until February 25, 2005.

B. Jurisdiction and Disposition of Original Petition

In an April 13, 2004, jurisdiction report, the Bureau reported that Jose and Gloria had never married but that Jose was presumed to be the father of all four children based on the facts that (1) both Gloria and Jose asserted that Jose was the children's father; (2) Jose, Gloria and the children had lived together for many years; and (3) Jose supported the children financially and held them out as his own.

According to the jurisdiction report, all of the children had witnessed incidents of domestic violence between Jose and Gloria, the three older children had heard Jose threaten their mother's life, and they all feared that he would kill her. Gloria told the Bureau that Jose had physically and verbally abused her throughout their 13-year relationship but that the incidents had become more frequent during the past year and the violence had escalated culminating in the incident during which Jose threatened her with a knife to her neck while the children were nearby. Gloria reported this incident to the police.

The jurisdiction hearing was held on April 13, 2004. At the hearing, the court found that Jose was the presumed father of the children. Jose and Gloria admitted to an amended allegation that they had engaged in incidents of domestic violence in front of the children and, based solely on that allegation, stipulated to the jurisdiction of the juvenile court. The court adjudged the children dependents. A dispositional hearing was set for May 5 and continued until June 2, 2004.

A May 5, 2004, disposition report indicated that Gloria and the children were living in a shelter. Although Gloria was having trouble finding housing, she declined Jose's offer to vacate the family home so she and the children could live there. Gloria reported she would not feel safe returning home because she feared that Jose would constantly harass and stalk her and she was afraid for her safety. Gloria told the Bureau that Jose had always been abusive, that she was tired of the abuse and that she no longer loved him.

According to the Bureau, Jose had repeatedly communicated that he wanted to engage in family therapy and to reunify with his family and that he told the social worker: â€