Santa Clara Cnty. Dep't of Family v. M.D. (In re J.P.)

as J.P.'s presumed parent. Mother and Albert had separated during

During the presumed parenthood hearing, Albert testified about his relationship with J.P. Albert said that he met J.P. when the child was approximately three years old, sometime in 2016. Albert lived with mother and J.P. for approximately one and a half to two years. During that time, Albert developed a close relationship with J.P. Albert spent weekends with J.P. and mother, and Albert provided financial support for them, with the majority of the money that Albert earned going toward paying the family's bills. J.P. used to call Albert "daddy." In a recent encounter, Albert saw J.P. and tried to hug him, but mother pulled J.P. away from Albert and told J.P., " 'That's not your father, that's just [Albert].' " Albert referred to J.P. as his son and openly told others that he considered J.P. to be his son. Albert said that he was willing to financially provide for J.P.

Mother also testified at the hearing and disputed Albert's testimony. Mother said that Albert lived "off and on" with her and the children, and he would come and go as he pleased. He sometimes stayed overnight but would start arguments and would leave after getting drunk. Mother said that Albert did not provide financial support to A.A. or to mother after A.A. was born. According to mother, Albert did not spend one-on-one time with J.P. Mother conceded that Albert paid some of her rent for several months after A.A. was born. Mother, however, claimed that she later gave Albert money to pay rent, but he took the money and did not pay rent, forcing mother to be evicted from her apartment. According to mother, J.P. never asked for Albert. Mother also said that J.P. told him that Albert "kissed" him during a prior overnight visit, which left a mark behind J.P.'s ear.

On October 25, 2018, the juvenile court determined that Albert did not qualify as J.P.'s presumed father under Family Code section 7611, subdivision (d). The juvenile court observed that Albert did not seek presumed parenthood status for more than a year after the dependency proceedings began, he was not J.P.'s primary caregiver, and he did not take consistent financial

between Albert and J.P., noting that J.P. and A.A. used to visit Albert together, and J.P. had a bond with Albert. The Department argued that it was not necessarily asking for an additional visit but was requesting that the trial court order that if A.A. went to visit Albert, J.P. could also come along.

After considering these arguments, the juvenile court determined that there was a bond between J.P. and Albert, and the relationship was good. The juvenile court also concluded that it would be in J.P.'s best interest to maintain his relationship with Albert. After concluding that visitation would be in J.P.'s best interest, the juvenile court ordered weekly visitation between J.P. and Albert, which the juvenile court clarified could occur when A.A. visited Albert.

DISCUSSION

Mother argues that the juvenile court abused its discretion by ordering visitation between Albert and J.P. over her objection. Mother claims that the visitation order was unauthorized because Albert was not a presumed parent, de facto parent, or a nonrelative extended family member (NREFM) seeking to be considered as a placement option for J.P. Alternatively, mother argues that even if the juvenile court was permitted to order visitation between a

visitation if it is reasonably related to J.P.'s care and is in his best interest. (See In re Hirenia C. (1993) 18 Cal.App.4th 504 , 510, 22 Cal.Rptr.2d 443 ( Hirenia C. ) [a person whose relationship with child did not rise to level of de facto parenthood has standing to bring petition requesting visitation rights with child if facts establish that the person has " 'an interest' " in child as defined under § 388].)

Construing the statutes as barring juvenile courts from ordering visitation to other family members or interested individuals not expressly included in

J. T. , supra , 228 Cal.App.4th at pp. 962-964, 175 Cal.Rptr.3d 744 [visitation order made over mother's objection did not infringe upon her fundamental right to parent].)

In fact, the best interest standard is the one ultimately applied by the Hirenia C. court despite its reference to the factors described in Gayden. In Hirenia C. , the appellate court held that if there was "competent evidence that it would be in [child's] best interests to have visitation with appellant, [the juvenile court] may enter an order to that effect ...." ( Hirenia C. , supra , 18 Cal.App.4th at p. 520, 22 Cal.Rptr.2d 443 .) Thus, if sufficient evidence supports the juvenile court's determination that the visitation order was in J.P.'s best interest, the juvenile court did not abuse its discretion.

Here, the record reflects that the juvenile court expressly determined that visits between Albert and J.P. was in J.P.'s best interest and this finding is supported by the evidence in the record. J.P. had a bond with Albert; he used to live with Albert and used to call Albert "daddy." Albert said that he developed a close relationship with J.P. and wanted to maintain the relationship. Albert also said that he used to take J.P. on family outings, and they spent weekends together. During the hearing, the Department expressed that Albert and J.P. shared a bond and recommended that the juvenile court order visits. The Department's prior reports indicated that when J.P. visited with Albert, the visits were generally good, and both children, including J.P., "show[ed] comfort" in Albert's presence. Albert was also hands-on with the children when they were with him. During visits, Albert ensured that the children were fed and took them to local parks, buying them items such as clothes and food.

We acknowledge that there was evidence weighing against ordering visits. Mother disputed Albert's testimony. She claimed that J.P. did not ask about Albert and was happy "where he [was] at." Mother also disputed Albert's claim that he used to live together with mother, J.P., and A.A., describing

DISPOSITION

The juvenile court's order is affirmed.

WE CONCUR:

Greenwood, P.J.

Elia, J.

the dependency proceedings and did not intend to resume their relationship. Albert said that J.P. called him "dad," and he referred to J.P. as his son even though he was not J.P.'s biological father. Mother claimed that Albert had problems with alcohol, smoked heavily, and scared the children when he got into loud arguments. The Department determined that mother had a "long-standing alcohol issue" and Albert was "well-intentioned" but had a difficult time maintaining boundaries with mother to keep the children safe. The Department further determined that Albert had prior instances where he drank excessively.

Before the jurisdictional hearing, mother alleged that Albert had committed domestic violence against her. Albert denied the allegations of abuse but conceded that he got into verbal altercations with mother. Mother had requested a restraining order against Albert, and a temporary restraining order was in effect at the time the Department prepared its addendum to the jurisdictional report. Police had responded several times to reports of disturbances between mother and Albert.

On August 23, 2017, the juvenile court held a jurisdictional hearing and found the allegations in the dependency petition to be true. The court held a dispositional hearing several weeks later and declared both J.P. and A.A. to be dependents of the court. Services were ordered for mother and Albert. For J.P., the juvenile court ordered supervised visits with mother and L.P. For A.A., the juvenile court ordered supervised visits with mother and Albert.

In November 2017, J.P. and A.A. were moved from their foster home placement to their paternal grandparents' (Albert's parents') home. L.P. had not made his whereabouts known to the Department, and he had not had any visits with J.P.

In preparation for the six-month review, the Department prepared a status review report that recommended J.P. be returned to mother's care under a plan of family maintenance and services for L.P. be terminated. The Department also recommended A.A. be returned to both mother and Albert and family maintenance be offered for mother and Albert's separate households. According to the report, the domestic violence case initiated by mother against Albert had been dismissed. Both parents had been consistent with visiting both children, and the Department believed the quality of visits was good. The children "show[ed] comfort" in Albert's presence, and Albert appeared to be hands-on with the children when they were with him. Albert ensured that the children were fed, took them to local parks, and appeared to provide for their basic needs such as clothing and food. On March 27, 2018, the juvenile court adopted the Department's recommendations at the six-month review hearing.

On September 24, 2018, the Department filed a status review report. The report recommended that the juvenile court continue to offer family maintenance services to mother and Albert. During the review period, seven referrals of child abuse had been made concerning J.P. and A.A. The Department found most of the referrals to be unfounded and the remaining referrals to be inconclusive. J.P. had previously visited Albert with A.A., but he had not visited Albert for several months pursuant to mother's request. Albert did not have court-ordered visits with J.P.

Also on September 24, 2018, Albert asked the juvenile court to recognize him as J.P.'s presumed father. Subsequently, the court held a contested hearing on Albert's request.

responsibility for J.P. The juvenile court, however, noted that this case was "a little bit of a close call" and stated that there was "no doubt" that there was a bond between Albert and J.P. The juvenile court further observed that even if Albert qualified as a presumed parent under Family Code section 7611, subdivision (d), he would not qualify as a third parent (L.P. was J.P.'s presumed father) under Family Code section 7612, subdivision (c). Under Family Code section 7612, subdivision (c), a juvenile court may find that a child has a third parent if "recognizing only two parents would be detrimental to the child." The juvenile court explained that there was insufficient evidence of detriment to J.P. under Family Code section 7612, subdivision (c), but acknowledged that its decision did not imply that J.P. did not suffer from "some detrimental [e]ffect" due to his separation from Albert.

After the juvenile court made its presumed parenthood determination, Albert requested regular visitation with J.P. Mother opposed the visitation request, arguing that J.P. was doing "quite well" without seeing Albert. She also did not believe that the sibling bond between J.P. and A.A. suffered from J.P. not visiting with Albert. Mother also claimed that J.P. already had other "strong, male figures" in his life aside from Albert. J.P.'s attorney expressed conflicting feelings about visitation between Albert and J.P. J.P.'s attorney stated that she believed visitation would be in J.P.'s best interest in the short term, but if visits were to cease, J.P. would suffer from losing Albert from his life. The Department argued in favor of visitation

child and a nonparent like Albert, visitation in this case was inappropriate under the circumstances and constituted an abuse of discretion.

1. Authority to Order Visitation Between Child and Nonparent

First, we find no merit in mother's claim that the juvenile court lacked the authority to order visitation between Albert and J.P. Mother argues that there is no express statutory authority for this type of visitation order, as Albert is not J.P.'s parent. Although we agree with mother that there are no statutes that directly authorize the juvenile court to make such orders, the visitation order made in this case was within the juvenile court's power.

Specifically, the visitation order in this case falls within the scope of section 362, subdivision (a), which grants the juvenile court considerably broad authority to "make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the [dependent] child, including medical treatment, subject to further order of the court." Section 362, subdivision (d) also provides that "[t]he juvenile court may direct any reasonable orders to the parents or guardians of the child who is the subject of any proceedings under this chapter as the court deems necessary and proper to carry out this section ...."

Both mother and the Department agree that there are only two statutes that expressly discuss visitation orders made during ongoing dependency proceedings. First, the juvenile court must order visitation with parents and siblings subject to certain exceptions if the child is placed in foster care. (§ 362.1, subd. (a)(1)(A), (a)(2).) Second, the juvenile court must consider ordering visitation with grandparents if the child is removed from the parents' physical custody if "the best interest of the child" will be served by doing so. (§ 361.2, subd. (i).) However, simply because the statutory scheme requires the juvenile court to order visitation with parents and siblings in certain circumstances unless applicable exceptions apply and requires the juvenile court to consider grandparent visitation does not mean that ordering visitation with other interested individuals is not permitted. Albert may not have the statutory right to visitation, but there is nothing precluding the juvenile court from ordering

Mother argues the juvenile court abused its discretion, because there was no evidence that the factors permitting visitation identified by the court in Hirenia C. , supra , 18 Cal.App.4th 504 , 22 Cal.Rptr.2d 443 were present in this case. In Hirenia C. , a de facto parent sought visitation with a child following the termination of the dependency. ( Id. at pp. 510-512, 517, 22 Cal.Rptr.2d 443 .) The appellate court concluded that the juvenile court was authorized to order visitation in favor of a de facto parent under section 362.4 over the adoptive parent's objection despite the "large measure of deference to parental autonomy when considering a contested issue of visitation rights for a nonparent." ( Hirenia C. , supra , at p. 519, 22 Cal.Rptr.2d 443 .)

Citing Hirenia C. , mother argues that the Hirenia C. court set forth specific circumstances where a visitation order with a nonparent would be appropriate, such as where a person has " '(1) lived with the child for a substantial portion of the child's life; (2) been regularly involved in providing day-to-day care, nurturance and guidance for the child appropriate to the child's stage of development; and (3) been permitted by a biologic [or adoptive] parent to assume a parental role.' " ( Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443 , quoting In re Marriage of Gayden (1991) 229 Cal.App.3d 1510 , 1521-1522, 280 Cal.Rptr. 862 ( Gayden ).) Mother's strict reliance on these factors misinterprets Hirenia C. Although the Hirenia C. court cited to these factors in its decision, it did not imply that these factors were the only ones that should be considered by the juvenile court when issuing visitation orders to nonparents in dependency proceedings. Nor did it imply that in the absence of these factors, the juvenile court abuses its discretion by ordering visitation.

The Hirenia C. court referenced these three factors when it analyzed whether parents have the "unfettered right" to determine who can visit with their child. ( Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443 .) The Hirenia C. court noted that it had, in the past, held that "courts must give a large measure of deference to parental autonomy when considering a contested issue of visitation rights for a nonparent" ( ibid. ), citing to its decision in Gayden , supra , 229 Cal.App.3d 1510 , 280 Cal.Rptr. 862 and listing the three factors relied upon by mother here. The Hirenia C. court, however, observed that its decision in Gayden was careful to limit its holding with the observation that "courts are not required to submit in every case to the objection of a biologic or adoptive parent to a visitation award to another person with whom the minor has developed a close attachment." ( Hirenia C. , supra , at p. 519, 22 Cal.Rptr.2d 443 , citing Gayden , supra , at p. 1521, 280 Cal.Rptr. 862 .)

Gayden was a family law case. ( Gayden , supra , 229 Cal.App.3d 1510 , 280 Cal.Rptr. 862 .) And in Hirenia C. , an adoption had been finalized and it was the adoptive parent who objected to the juvenile court making a visitation order to the

nonparent. ( Hirenia C. , supra , 18 Cal.App.4th at p. 517, 22 Cal.Rptr.2d 443 .) The adoptive parent in Hirenia C. was not an offending parent; she took the child into her care after the child was placed in her foster care home. ( Id. at p. 510, 22 Cal.Rptr.2d 443 .) Both parents in Gayden and the adoptive parent in Hirenia C. were not unfit and were entitled to a presumption that they acted in their child's best interest. ( J. T. , supra , 228 Cal.App.4th at p. 964, 175 Cal.Rptr.3d 744 [fit parent entitled to presumption that he or she is acting in child's best interest]; Troxel v. Granville (2000) 530 U.S. 57 , 68, 120 S.Ct. 2054 , 147 L.Ed.2d 49 ( Troxel ) ["there is a

proceedings should be made over a parent's objection only under certain circumstances so as not to infringe upon a parent's fundamental right to make decisions concerning their children's care, such as if the factors outlined in Gayden and later echoed in Hirenia C. are met. ( Gayden , supra , 229 Cal.App.3d at p. 1521, 280 Cal.Rptr. 862 ; Hirenia C. , supra , 18 Cal.App.4th at p. 519, 22 Cal.Rptr.2d 443 ; see Troxel , supra , 530 U.S. at pp. 65-66, 120 S.Ct. 2054 [parents have fundamental right to make decisions concerning care, custody, and control of their children].) Whereas, the best interest standard governs in dependency proceedings, and the juvenile court should exercise its discretion to craft visitation orders for nonparents only after making a finding that doing so would be in the child's best interest. (See In re Korbin Z. (2016) 3 Cal.App.5th 511 , 518, 207 Cal.Rptr.3d 525 [juvenile court has broad discretion to determine what is in child's best interest when fashioning dispositional order];