1
Filed 5/2/17 In re C.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re C.C., a Person Coming Under the
Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Plaintiff and Respondent,
v.
J.L.,
Defendant and Respondent;
M.R.,
Objector and Appellant.
A147563
(Alameda County
Super. Ct. No. J13021094)
I. INTRODUCTION
This dependency case was filed more than three years ago when the Alameda
County Social Services Agency (the Agency) took C.C. into emergency custody after she
tested positive for methamphetamine at birth. A few weeks later, the Agency arranged
for a relative placement for C.C. with her maternal grandmother, M.R., who immediately
expressed a desire to adopt C.C. if reunification efforts failed. The dependency
proceedings were protracted primarily because of persistent resistance to, or confusion
about, the rights of C.C.’s father, J.L.
In December 2014, this court granted J.L.’s petition for an extraordinary writ.
(In re C.C. (Dec. 4, 2014, A142870) [nonpub. opn.] (C.C. I).) We directed the juvenile
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court to vacate an order setting a permanency planning hearing pursuant to Welfare and
Institutions Code section 366.26,1
and to provide J.L. with six months of reasonable
reunification services. We also attempted to clarify that the juvenile court record
established that J.L. qualified as a presumed father under the test set forth by our
Supreme Court in Adoption of Kelsey S. (1992) 1 Cal.4th 816 (Kelsey S.).
Unfortunately, after this case was remanded, questions about J.L.’s parental status
persisted for several months. However, on January 29, 2016, the juvenile court finally
completed a six-month status review and adopted the Agency’s recommendation to place
C.C. in the home of her presumed father J.L. with family maintenance services. M.R.
appeals this placement order, arguing that the juvenile court “violated mandatory
permanency timelines” in an effort to facilitate J.L.’s reunification with his daughter.
Finding no merit to M.R.’s claims of error, we will affirm the appealed order.
II. STATEMENT OF FACTS
A. Background2
In June 2013, when the Agency took C.C. into emergency custody at the hospital,
C.C.’s mother (mother) told the social worker that J.L. could be C.C.’s father, but that she
was uncertain.
Before a dependency petition was filed, the social worker made an unannounced
visit to the home of J.L., who is the father and caregiver of two young children that he
had with mother. J.L. was cooperative and his children appeared happy and well cared
for. J.L. knew about mother’s pregnancy, but he did not know C.C. had been born or
whether he was her father. Mother had sometimes claimed he was and other times
identified another man, J.R., as the father.

1
Statutory references are to the Welfare & Institutions Code, unless otherwise
stated.
2
C.C. I, a copy of which is included in the appellate record, contains a detailed
account of the first 14 months of this dependency case. We briefly summarize that
account here in order to provide background relevant to the issues on appeal.
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The Agency social worker also visited M.R. on the day C.C. was taken into
custody. M.R. had set up her home for C.C. and mother to live there. She told the social
worker she was willing to raise C.C. by herself if mother were unable. M.R. also
reported that she did not get along with J.L., and that she had no contact with her
grandchildren who lived with him.
The Agency filed a dependency petition on behalf of C.C. under section 300,
subdivisions (b) [failure/inability to protect] and (g) [failure to provide support]. The
detention hearing was held on June 12, 2013. J.L. was not provided with notice of that
hearing and did not appear. C.C. was formally detained from mother. The issue of
paternity was deferred after mother identified both J.L. and J.R. as possible fathers. On
June 20, C.C. was placed in M.R.’s home.
In July 2013, the court held a jurisdiction/disposition hearing. The Agency social
worker had one conversation with J.L. before that hearing. J.L. expressed concern that if
he went to court he might be arrested for violating a restraining order that mother
obtained against him before C.C. was conceived, and if he were arrested there would be
nobody to care for his other children. J.L. did not receive a copy of the Agency’s
jurisdiction/disposition report or appear at the hearing. Mother submitted the matter
pursuant to an amended petition, which alleged that: her recent substance abuse impacted
her ability to care for C.C.; she and J.L. had a history of domestic abuse; and J.L. was
currently unwilling to provide for C.C. because he did not know if he was her biological
father. The court adjudged C.C. a court dependent, and ordered reunification services for
mother. The court found that J.L. and J.R. were alleged fathers and the Agency was not
required to provide reunification services to them unless they established a right to those
services.
In December 2013, the court conducted a six-month status review. The Agency
recommended terminating mother’s reunification services and setting a permanency
planning hearing with a goal of adoption by M.R. By that time, an adoption assessment
had already been completed and the Agency reported that M.R. was “the most feasible
relative able to meet the minor’s needs . . . and [was] currently prepared and motivated to
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move forward with adoption.” The Agency report did not document any effort to
communicate with J.L., aside from a letter notifying him about the review hearing and
providing a referral for legal assistance.
At the first session of the review hearing, mother contested the Agency
recommendations. J.L. appeared with counsel and filed a “JV-505 Statement Regarding
Parentage” form, requesting that the court order a DNA test and order visitation for him
and his two children who could be C.C.’s siblings. J.L. stated that he offered food,
clothes and diapers for C.C. and whatever else she needed, but mother refused his offers,
telling him he was not C.C.’s father. The court ordered a paternity DNA test for J.L. and
continued the hearing for mother’s contest. That contest was completed before the results
of the paternity test were known. Mother’s services were terminated; the Agency was
granted discretion to arrange supervised visits for J.L.; and a section 366.26 hearing was
set for June 2014.
In April 2014, J.L. filed a section 388 petition requesting that the court vacate the
section 366.26 hearing and provide him with reunification services including visitation.
J.L. alleged that he had maintained contact with the Agency throughout the proceedings,
that he took steps to determine his legal rights, and that a March 2014 paternity test
showed there was a 99.9 percent probability that he was C.C.’s biological father. In a
supporting declaration, J.L requested elevation to presumed father status. J.L. wanted to
be C.C.’s parent and for her to live with her siblings who were already in his care. J.L.
stated that mother had left him before he knew she was pregnant, subsequently denied
J.L. was the baby’s father, and rejected his offers of support. Furthermore, after C.C. was
removed from mother, J.L. requested visitation but the Agency social worker told him “to
wait until the paternity test results became known.” The Agency did not file a response
to J.L.’s section 388 petition.
On April 15, 2014, the court made a formal finding that J.L. was C.C.’s biological
father and then continued the matter for a contest regarding J.L.’s section 388 petition.
According to a joint contested hearing statement, the disputed issue was whether J.L. met
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the requirements for presumed father status and, if not, whether the court should provide
him with services as a biological father or a “Kelsey dad.”
On April 25, 2014, the court found that there was “a factual basis for granting”
J.L.’s petition. The court’s minute order stated: “JV-180 petition filed by the father is
granted. [¶] The Agency is to provide father with family reunification services.” The
section 366.26 hearing was vacated and the court gave the Agency discretion “to
facilitate unsupervised contact between the child and the father.”
In June 2014, the court began its 12-month review. The Agency recommended
that the court terminate J.L.’s reunification services and schedule a section 366.26
hearing with a goal of adoption by M.R. The Agency reported that M.R. was “very
motivated” to move forward with adoption if J.L. was unable to reunify. Meanwhile, J.L.
failed to provide the Agency with any evidence that he complied with referrals for
weekly drug testing and a 12-step program. He also missed an orientation meeting with
an outside agency that had been engaged to supervise visitation. The Agency report
characterized J.L. as an alleged father and a biological father, ignoring the fact that the
juvenile court had granted J.L.’s section 388 petition. A case plan attached to the report
was not signed by J.L., and there was no indication anyone had discussed it with him.
In July and August 2014, the court held a contested hearing on the Agency’s
recommendations. The Agency social worker, Ms. Morineau, testified that she had spent
time evaluating C.C’s relationship with M.R., but she had not even met J.L. until that
day. An “adoption” case worker had prepared J.L.’s case plan and issued referrals to
him. J.L. testified that he did not realize the Agency was claiming that he had failed to
comply with their requirements until he received a packet of material about the 12-month
review. J.L. acknowledged the adoption worker had recommended that he do some
things, but he did not understand they were requirements. J.L. also testified that the
Agency made him wait for almost a month before telling him he was allowed to visit
C.C. and after that there were miscommunications about when an orientation was to take
place. J.L was willing to engage in services and definitely wanted C.C. to be placed in
his care.
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During the status review hearing, the Agency counsel and C.C.’s counsel
maintained that J.L. was a “mere” biological father. Agency counsel advised the court
that the April 15, 2014 minute order contained a finding that J.L. was a biological father,
but neglected to mention that the matter was continued for a contest and that the court
subsequently granted J.L.’s section 388 petition. At the conclusion of the hearing, the
juvenile court found that J.L. had been provided with reasonable reunification services
and that he made only “minimal” progress on his case plan. In an August 26, 2014 order,
the court terminated J.L.’s reunification services and set a section 366.26 hearing for
December 18, 2014.
On December 4, 2014, this court filed our decision in C.C. I granting J.L.’s
petition for an extraordinary writ because the Agency failed to provide him with six
months of reasonable reunification services. As we noted at the outset of our discussion,
the remedy for that error was to extend the reunification period even if that meant
extending the dependency beyond the 18-month deadline. (See In re Alvin R. (2003) 108
Cal.App.4th 962, 975; In re Taylor J. (2014) 223 Cal.App.4th 1446, 1453.) Accordingly,
we ordered the juvenile court to vacate the section 366.26 hearing and provide J.L. with
six-months of appropriate reunification services.
In C.C. I, we spent significant time addressing J.L.’s parental status. We outlined
our concerns about the way the Agency handled this very important issue, including its
unexplained oral opposition to J.L.’s section 388 petition, its resistance to providing him
with reunification services, and its failure to make a proper record about J.L.’s request to
be elevated to the status of a presumed father under Kelsey S. We found that, although
the April 25, 2014 juvenile court order should have been more clear, the court’s findings
established that “J.L. qualified as a presumed father under Kelsey S.” We also found that
the Agency failed in its statutory duty to facilitate reunification between C.C. and J.L.
because of its myopic and premature commitment to facilitating C.C.’s adoption by M.R.
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B. The Post-Remand Proceedings
1. Interim Reviews
On December 18, 2014, the juvenile court ordered the Agency to create a new case
plan for J.L. The Agency reassigned the case to social worker Mike Piedade. On
January 6, 2015, Piedade provided J.L. with a copy of his new case plan, which required
him to participate in weekly counseling, substance abuse testing, and supervised visits
with a “goal” of unsupervised visits.
On January 8, 2015, the court held an interim review. In its report, the Agency
referred to J.L. inconsistently as a presumed father, an alleged father and a biological
father. The Agency did not acknowledge that this court had determined that the April
2014 findings established that J.L. qualified as a presumed father under Kelsey S.
Instead, the Agency recommended that the juvenile court find that J.L. was a biological
father and that it was in the best interests of C.C. that the biological father be provided
with reunification services. A transcript of the review hearing is not included in the
record, but the minute order states that the court adopted all of the Agency’s
recommended findings and orders.
On February 6, 2015, the court held another interim review. The Agency report
for this hearing acknowledged that J.L. had been raised to presumed father status. The
Agency recommended that services continue, but expressed concern that J.L. had tested
positive for marijuana a few times in August of the previous year. At the hearing, the
court ordered J.L. to participate in random drug testing, and the Agency to consider
referring him for outpatient services.
On April 16, 2015, the court held another interim review. The Agency report
referred to J.L. as an alleged father. The Agency addressed two basic issues. First, after
testing positive for marijuana several times, J.L. had reluctantly agreed to participate in
outpatient services. Second, J.L. had substantially complied with his visitation plan and
the quality of the visits continuously improved, but M.R. was not supportive of C.C.’s
visits with J.L. or her siblings. A transcript of the April 2015 review hearing is not in the
appellate record. The minute order reflects that M.R. made an ex parte request to be
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elevated to the status of a de facto parent, and J.L. made an ex parte request to clarify his
parental status. Those issues were set for a hearing on May 6, 2015. A minute order for
the May 6 hearing reflects that the court granted M.R.’s de facto parent request and that
J.L.’s “request for presumed father status” was withdrawn. In addition, the court ordered
the parties to attend mediation to attempt to resolve “Visitation” and
“Communication/Relational” issues.
2. The (Post-Remand) Six-Month Review
A six-month status review was set for June 9, 2015. The Agency report
characterized J.L. as an alleged father and a biological father. The Agency recommended
that the court terminate J.L.’s reunification services and set the case for a section 366.26
hearing, with a goal of adoption by M.R. J.L. had participated in individual counseling
and twice-weekly visitation, but he had tested positive for marijuana 5 times and positive
for alcohol 14 times, raising concerns about unresolved substance abuse issues. J.L. had
good visits with C.C. and was working on developing a bond with her, but the Agency
was not recommending continued visitation because of problems between J.L. and M.R.
At the June 9 session of the hearing, Agency counsel reported that the parties had
drafted a visitation agreement during court-ordered mediation that would allow J.L. to
continue to visit C.C. J.L. had not signed the agreement, but his counsel said that he
would once his legal questions were answered. In the meantime, J.L. contested the
Agency’s recommendations. C.C.’s counsel suggested that J.L. was a biological father
without standing to demand a contest. That issue was deferred until the contested
hearing, which was set for August 13, 2015.
At the beginning of the August 13 hearing, attorneys representing the Agency and
C.C. requested clarification about “what the Court considers the status of the father to
be.” J.L.’s counsel argued that J.L. became a Kelsey S. father on April 25, 2014. C.C.’s
attorney disagreed, stating that when the appellate court (i.e., this court) adjudicated
J.L.’s writ petition, it remanded the case for clarification regarding J.L.’s parental status.
In light of these conflicting representations, the juvenile court determined the issue of
paternity needed to be resolved before proceeding to the contest.
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The paternity inquiry was held over several court sessions in August and
September 2015. On September 29, 2015, the juvenile court made its formal ruling.
First, the court found that J.L. was not a presumed father because he had never been
married to mother, there was no evidence of a declaration of paternity, and he did not
meet the statutory requirements of presumed fatherhood set forth in section 7611. The
court reasoned that J.L. could not show that he received C.C. in his home based on the
visitation he was allowed during the dependency case. However, the court found that J.L.
did qualify as a Kelsey S. father because he promptly stepped forward to assume his
parental obligations, but was thwarted in doing so by mother and other third parties.
Thus, the court concluded that J.L.’s elevated rights entitled him to seek custody of C.C.
On October 19, 2015, the contested review hearing finally began. The Agency
submitted the matter on its reports, including an August 2015 addendum report, which
contained the following summary of the Agency’s position: “[J.L]. has made tremendous
strides since May, 2015 in working on his sobriety and parenting skills. [J.L.] has
demonstrated that he has a sincere desire to be part of [C.C.’s] life. However, during the
additional six months of services, [J.L.] was not able to fully participate in services or
comply with substance abuse outpatient services. Further, [C.C.] looks to her maternal
grandmother, [M.R.], as primary caregiver. [C.C.] would likely need a significant
amount of time to transition to the father’s care, if that were to be the court’s plan for this
matter. Additionally, [J.L.] needs more clean time, as he is newly sober and has
approximately three months of clean drug test results. The current goal is that [M.R.]
will continue to facilitate quality contact between [C.C.] and [J.L.], while also providing
the necessary permanency that [C.C]. needs at this time.”
At the October 19 hearing, C.C.’s counsel called the social worker to testify about
the Agency reports. During that testimony, another dispute arose about the nature of
J.L.’s rights as a Kelsey S. father. Meanwhile, the court continued to hear testimony. The
social worker testified on October 19 and November 4 without completing his testimony.
The review was continued until November 20.
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At the beginning of the November 20, 2015 hearing, the court stated that it had
conducted an in-chambers conference with all counsel that morning and information was
shared that raised a question whether it was necessary to proceed with the contest.
Agency counsel then made a record of the fact that the Agency had changed its
recommendations by proposing that C.C. be placed in the home of J.L. with family
maintenance services. C.C.’s counsel agreed with the Agency’s new recommendation, as
did J.L. However, M.R. and her counsel were “very much opposed to the Agency’s
changed position.” M.R.’s counsel acknowledged the “parental preference doctrine,” but
argued that C.C. had an overriding interest in a stable permanent placement. M.R.
requested a contest and the right to present evidence on the changed recommendation.
The court ordered the Agency to prepare a report formalizing its new recommendation,
gave the Agency discretion to increase visitation for J.L., and continued the matter for
M.R.’s contest.
The Agency formalized its recommendation to place J.L. with C.C. in a
December 9, 2015 report. According to that report, J.L. had fully complied with his case
plan, committed to an authentic change in his lifestyle, and demonstrated his ability to
care for C.C. during unsupervised visits. He was in the process of moving to a home
across the street from his mother so that she could assist with the children’s care. C.C.
was comfortable with J.L. and was forming attachments to her paternal relatives.
The contested review hearing was set to continue on December 9, 2015. However,
the contest was continued to give M.R. more time to prepare her opposition. Then, the
court agreed to use the hearing to address M.R.’s objection to the Agency’s plan to
increase J.L.’s visitation from a single overnight to a two-night weekend visit. After
conducting an evidentiary hearing on that issue, the court granted the Agency discretion
to increase J.L.’s overnight visits to two nights. The case was continued to January 12,
2016, for M.R.’s contest.
At the January 12, 2016 hearing, mother’s counsel notified the court that mother,
who had not appeared since very early in the case, joined M.R. in opposing the Agency’s
recommendation to place C.C. with J.L. The court took evidence on January 12 and
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January 29. Proceedings were protracted due to yet another dispute about J.L.’s parental
status, which led to another evidentiary hearing. Ultimately, the court concluded that J.L.
was a presumed father. At the conclusion of the January 29 session of the review
hearing, the court followed the Agency’s recommendation and placed C.C. in the home
of her father with family maintenance services. Findings made in support of the order
included that J.L. had made substantial progress toward alleviating or mitigating the
causes necessitating C.C.’s placement; the permanent plan was to return C.C. to the home
of a previously noncustodial parent; and M.R. was entitled to liberal visitation.
III. DISCUSSION
A. Issues on Appeal
M.R. uses the first several pages of the argument section of her brief to share her
theories about how and why the statutory time line for adjudicating a dependency case
was “derailed” in this particular case. Respondent J.L. disputes many of M.R.’s
assertions, and in her reply brief, M.R. concedes some errors but stands by her basic
timeline. This exercise is unrelated to M.R.’s claims of error. We decline to address her
general synopsis of what went wrong in this case. Suffice to say, no one disputes that the
statutory time line for resolving a dependency case was not followed here. The pertinent
question is whether that fact has any bearing on the validity of the January 2016
placement order, which is the subject of this appeal.
M.R. makes only two cognizable claims of error. First, she contends that the
juvenile court erred by continuing the six-month status review hearing beyond
November 20, 2015. According to M.R., that continuance was an act in excess of
jurisdiction because there was no extraordinary circumstance to warrant a continuance.
Second, M.R. claims the juvenile court abused its discretion by expanding J.L.’s
visitation with C.C. over her objection.
Respondents dispute these claims but also argue that this appeal is moot. The
Agency requests judicial notice of an August 15, 2016 juvenile court order dismissing
C.C.’s dependency case and granting J.L. sole legal and physical custody of C.C.
Respondents argue this appeal is moot because M.R. did not file an appeal from the
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dismissal order. M.R. disputes this claim in her reply brief and makes her own request
for judicial notice of her notice of appeal from the dismissal order. Initially, we
considered consolidating M.R.’s appeals, but in light of J.L.’s objection, we have elected
to avoid further delay. Thus, we deny both requests for judicial notice and limit our
discussion to the issues raised in this appeal.
B. The Continuance
The juvenile court has authority to continue any hearing beyond the time limit
within which the hearing is otherwise required to be held when to do so is not contrary to
the best interests of the minor. (In re Michael R. (1992) 5 Cal.App.4th 687, 693-694.)
That authority is conferred by section 352, which states in pertinent part:
“(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the
court may continue any hearing under this chapter beyond the time limit within which the
hearing is otherwise required to be held, provided that no continuance shall be granted
that is contrary to the interest of the minor. In considering the minor's interests, the court
shall give substantial weight to a minor’s need for prompt resolution of his or her custody
status, the need to provide children with stable environments, and the damage to a minor
of prolonged temporary placements.
“Continuances shall be granted only upon a showing of good cause and only for
that period of time shown to be necessary by the evidence presented at the hearing on the
motion for the continuance. Neither a stipulation between counsel nor the convenience of
the parties is in and of itself a good cause. Further, neither a pending criminal
prosecution nor family law matter shall be considered in and of itself as good cause.
Whenever any continuance is granted, the facts proven which require the continuance
shall be entered upon the minutes of the court.
“In order to obtain a motion for a continuance of the hearing, written notice shall
be filed at least two court days prior to the date set for hearing, together with affidavits or
declarations detailing specific facts showing that a continuance is necessary, unless the
court for good cause entertains an oral motion for continuance.”
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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“(c) In any case in which the parent, guardian, or minor is represented by counsel
and no objection is made to an order continuing any such hearing beyond the time limit
within which the hearing is otherwise required to be held, the absence of such an
objection shall be deemed a consent to the continuance. The consent does not affect the
requirements of subdivision (a).”
In this appeal, M.R. argues the January 2016 placement order must be reversed
because the juvenile court violated section 352 by granting the Agency a continuance at
the November 20 hearing so that it could change its placement recommendation, without
making any finding that a continuance was in the best interest of C.C., or that there was
good cause for it. We reject this argument for several reasons.
First, as the statutory language reflects, a party is deemed to have consented to any
continuance to which he or she did not object. (§ 352, subd. (c).) M.R. suggests that she
was not required to object because she is not a “parent, guardian or minor.” However,
M.R.’s standing in this case derives from her status as a de facto parent and, as such, she
was obligated to object to any continuance if she did not consent to it.
Second, the record shows that M.R. affirmatively consented to the continuance. In
her appellate brief, M.R. contends that the November 2015 hearing was continued so that
the Agency could change its recommendation. However, she ignores the fact that the
only real purpose of the continuance was to give her the opportunity to present evidence
in opposition to that recommendation.
Third, M.R.’s factual contention that the court failed to make a finding of good
cause is unsupported. At the beginning of the December 9, 2015 hearing, the court stated
that the need for a continuance had not been expressly addressed at the November 20
hearing, but that a continuance was clearly warranted, explaining: “I will continue this
matter to a different date to allow the grandmother to present her information to the Court
so that everyone can be prepared. [¶] None of us, including [C.C.], benefit when all
parties don’t have an adequate opportunity to be informed and make informed decisions
in this case including informed questioning and cross-examination.”
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Fourth, as the juvenile court’s remarks at the December 9 hearing make clear, the
continuance was granted to accommodate M.R. She cannot now complain about a ruling
that benefited her by giving her the opportunity to present evidence in opposition to the
recommendation to place C.C. with J.L. (See In re Marriage of Moore (1980) 28 Cal.3d
366, 374.)
Finally, M.R. contends that the November 20 continuance was an “order made in
excess of jurisdiction” because according to M.R.’s timeline J.L.’s reunification period
had already surpassed the 12-month deadline and, therefore, the court did not have
authority to provide J.L. with any additional services. The purpose of the November 20
continuance was not to provide J.L. with additional reunification services; it was to
provide M.R. with an opportunity to contest the placement recommendation.
Furthermore, and in any event, M.R. does not cite any authority suggesting that a juvenile
court lacks jurisdiction to continue a dependency case as long as necessary to complete a
statutorily mandated review.
C. The Visitation Order
M.R. contends that the juvenile court abused its discretion by liberalizing J.L.’s
visitation plan over her objection.
1. Background
As noted above, on December 9, 2015, after the court decided to continue the
contested review to give M.R. more time to prepare, the parties requested that the court
address M.R.’s. objection to the Agency’s plan to increase the length of C.C.’s overnights
visits with J.L. M.R. requested the opportunity to present evidence on the issue. The
court questioned whether M.R. had standing to challenge the visitation order, but
proceeded with the hearing because the other parties did not object.
J.L. testified that he had been participating in weekly single overnight visits for
approximately three weeks, and that C.C. was becoming more comfortable in his care.
On the second overnight visit, C.C. had some trouble falling asleep and asked for her
“mama,” but J.L. was able to calm her and there were no further problems. On the third
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visit, C.C.’s sister provided her assurance and she was able to fall asleep without trouble.
Generally, C.C. was very happy and excited about her visits with J.L.
Social worker Mike Piedade, testified that the Agency had “no concerns” about
C.C.’s unsupervised visits with J.L. Nor did any concerns arise when visitation was
increased to overnights. Piedade testified that M.R. had expressed concerns regarding
overnight visitation, but those concerns only reinforced Piedade’s belief that increasing
the visits to two overnights was the right plan. As Piedade explained: “I think it’s
expected that a child would have some amount of distress on an initial overnight not
being in that particular home, and it’s actually ideal to increase contact so she’ll have
more exposure and give the dad an opportunity to work on that.”
Piedade testified that M.R.’s reported concerns about overnight visits pertained to
basic hygiene, like whether C.C. was brushing her teeth; clothing not being returned to
M.R.’s home; and the fact that C.C. was asking for a night light when she did not
previously use one. Piedade believed it was important to address these issues and that
increasing visitation would provide an opportunity to do that. Piedade also testified that
the child’s desire for a night light was a developmental issue which he believed had
nothing to do with the overnight visits.
M.R. testified that since the overnight visits with J.L. began, C.C. did not want to
sleep alone, wanted the light on at night, and generally made expressions to indicate she
was experiencing fear like clenching her fists and tightening her facial muscles. She also
began asking for assurance that M.R. was “her mom,” and she was not as “happy” as she
was before the overnights began. M.R. testified that she is the only person who “really
knows” C.C. and can see the changes in her, and that she was concerned that J.L. was not
prepared to have the child in his home and bathe her, provide her clothing, and meet her
needs.
At the end of the December 2015 hearing, the court granted the Agency discretion
to increase the length of J.L.’s overnight visits from one to two nights, stating that it was
persuaded by Piedade’s testimony. But, the court also cautioned the Agency to exercise
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its discretion responsibly, and to “pull back if it proves inappropriate or otherwise
detrimental to the child or simply overwhelming.”
2. Analysis
M.R. did not file an appeal from the December 9, 2015 visitation order.
Furthermore, M.R. filed this appeal from the January 2016 placement order on
February 27, 2016, more than 60 days after the visitation order was entered. These facts
were brought to M.R.’s attention in the Agency’s respondent’s brief, but she does not
acknowledge them in her reply.
“ ‘A judgment in a proceeding under Section 300 may be appealed in the same
manner as any final judgment, and any subsequent order may be appealed as an order
after judgment.’ (§ 395, subd. (a)(1).) The notice of appeal must ordinarily ‘be filed
within 60 days after the rendition of the judgment or the making of the order being
appealed.’ ([Cal. Rules of Court,] [r]ule 8.406(a)(1).) [¶] ‘The dispositional order is the
“judgment” referred to in section 395, and all subsequent orders are appealable.
[Citation.] “ ‘A consequence of section 395 is that an unappealed disposition or
postdisposition order is final and binding and may not be attacked on an appeal from a
later appealable order.’ [Citation.]” [Citations.]’ [Citation.] Stated another way, ‘[a]n
appeal from the most recent order in a dependency matter may not challenge earlier
orders for which the time for filing an appeal has passed. [Citation.]’ [Citation.]” (In re
A.H. (2013) 218 Cal.App.4th 337, 351.)
Applying these rules here, we conclude that M.R. is barred from challenging the
December 2015 visitation order.
Even if M.R.’s appeal of the visitation order was timely, her claim would fail on
its merits. She argues the order was improper because her testimony at the December
2015 hearing was “strong evidence that overnights would be emotionally detrimental” to
C.C. First, we disagree with this characterization of her testimony. Second, and in any
event, the juvenile court was not required to credit it. Testimony from the social worker
and J.L. supported a finding that increasing the length of overnight visits from one to two
nights would not be detrimental to C.C. Furthermore, the court expressly directed the
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Agency to monitor the situation carefully and to limit the visits if C.C. expressed any
discomfort.
M.R. contends the visitation order was invalid because when that order was made
J.L. was not a presumed father with any right to services, but a biological father who
could be afforded services pursuant to the court’s discretionary authority only if those
service would benefit C.C. (Citing § 361.5, subd. (a).) This argument rests on the false
factual premise that J.L. was only a biological father.
As support for her contention that J.L. was still only a biological father in
December 2015, M.R. points to the following facts: On May 6, 2015, J.L. withdrew his
request for presumed father status; on September 29, 2015, the court refused to elevate
J.L. to presumed father status, finding he was only a Kelsey S. dad; and the juvenile court
did not actually grant J.L. presumed father status until January 29, 2016. These
procedural facts are evidence that the court was misinformed about J.L.’s parental status
and/or that the parties did not understand the scope of rights conferred on a Kelsey S.
father. As we have already explained, on April 25, 2014, J.L. acquired the rights of a
presumed father under Kelsey S. We confirmed this fact in C.C. I. Thus, M.R.’s
persistent mischaracterization of J.L. as a mere biological father is not well-taken.
D. M.R.’s Reply Brief
In her reply brief, M.R. argues first time that the juvenile court erred by granting
J.L. presumed father status at the January 29, 2016 hear. She further asserts that because
J.L. was not actually a presumed father, the placement order was also error because C.C.
could not be placed with a mere biological father absent a finding that the placement
change was in the best interests of C.C.
We reject M.R.’s challenge to the January 29, 2016 finding that J.L. is a presumed
father for several independent reasons. First, M.R. cannot properly allege this error for
the first time in her reply brief. (In re Marriage of Kheara & Sameer (2012) 206
Cal.App.4th 1467, 1478.) Second, the only possible error in declaring J.L. a presumed
father at the January 29, 2016 hearing was overlooking the fact that J.L. had already
acquired the rights of a presumed father under Kelsey S. Third, M.R. appears to contend
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that this court must accept as a given that C.C.’s interests were best served by continuing
her placement in M.R.’s home. However, pertinent law requires a contrary presumption.
As the Supreme Court explained in Kelsey S., supra, 1 Cal.4th at page 849: “If an unwed
father promptly comes forward and demonstrates a full commitment to his parental
responsibilities—emotional, financial, and otherwise—his federal constitutional right to
due process prohibits the termination of his parental relationship absent a showing of his
unfitness as a parent. Absent such a showing, the child’s well-being is presumptively
best served by continuation of the father’s parental relationship.”
As noted in our factual summary, the January 29, 2016 placement order was made
in furtherance of an approved permanent plan to return C.C. to the home of a previously
noncustodial parent. As a presumed father and previously noncustodial parent, J.L. was
entitled to have C.C. placed in his home at the conclusion of the review hearing absent a
finding that the placement would pose a substantial risk of detriment to C.C. (§§ 361.2,
subds. (a), (e)(1).) Substantial evidence supports the juvenile court’s finding that placing
C.C. in J.L.’s home with family maintenance services did not pose a substantial risk of
detriment to C.C.
IV. DISPOSITION
The January 29, 2016 order placing C.C. in the home of J.L. with family
reunification services is affirmed.
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_________________________
RUVOLO, P. J.
We concur:
_________________________
REARDON, J.
_________________________
STREETER, J.