Filed 2/28/23 In re K.W. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re K.W., a Person Coming Under
the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH & D080786
HUMAN SERVICES AGENCY,
Plaintiff and Respondent, (Super. Ct. No. EJ4725B)
v.
D.A.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Gary
M. Bubis, Judge. Reversed and remanded.
Leslie A. Barry, under appointment by the Court of Appeal, for
Defendant and Appellant.
Valerie N. Lankford, under appointment by the Court of Appeal, for
Plaintiff and Respondent.
Claudia Silva, County Counsel, Caitlin E. Rae, Chief Deputy County
Counsel, Lisa Maldonado, Deputy County Counsel, for Plaintiff and
Respondent.
Children’s Legal Services and Beth Ploesch, for Minor.
D.A. (Mother) appeals from the juvenile court’s custody and exit orders
regarding her daughter, K.W., giving her physical custody, awarding J.E.
(Father) joint legal custody, and terminating dependency jurisdiction. She
contends the juvenile court erred as a matter of law when it awarded Father
joint legal custody because, as a mere biological father, he had no right to
custody.1 We disagree with Mother’s contention that Father has no right to
custody as a matter of law but reverse the juvenile court’s order because it
misstated the applicable standard guiding its discretion.
FACTUAL AND PROCEDURAL BACKGROUND2
In December 2021, the Agency filed a petition alleging that four-year-
old K.W. was subject to juvenile court jurisdiction pursuant to section 300,
subdivision (b)(1), because she had been exposed to violent confrontations
between Mother and her boyfriend.3 At the detention hearing the following
day, the juvenile court found a prima facie showing had been made that K.W.
was described by section 300, detained her from Mother, and granted Mother
supervised visitation. Mother identified Father as K.W.’s biological father
but stated that he had not had contact with K.W. for over three years. The
Agency located Father who explained he had not seen K.W. since January or
1 Mother does not challenge the remainder of the juvenile court’s exit
orders. K.W. filed a letter brief joining in Mother’s arguments. The
San Diego County Health & Human Services Agency (Agency) filed a letter
brief stating, consistent with its position in the juvenile court, it will not be
defending the order on appeal.
2 Our summary of the facts and procedural history is limited to provide
context relevant to the single issue presented in this appeal.
3 Mother has a second child by a different father who is not a party to
this appeal.
2
February 2020 because Mother “disappeared” with K.W. after he told her
that he was moving to Washington state. He requested placement of K.W.
At the jurisdiction and disposition hearing in January 2022, the
juvenile court appointed counsel to represent Father and declared him to be
K.W.’s biological father. It sustained the petition and found K.W. to be a
person described by section 300, subdivision (b)(1). Proceeding to disposition,
the juvenile court declared K.W. a dependent, ordered her removed from
Mother’s custody, placed with her relatives, and ordered reunification
services for Mother.4
In April 2022, K.W. began a 60-day trial visit with Mother. In early
August 2022, the Agency reported that Mother made progress in all aspects
of her case plan. At the six-month review hearing in August 2022, Father’s
counsel objected to Mother’s proposed orders, stated that Father was a
nonoffending and noncustodial parent and asked the court to award joint
legal custody because there was no evidence it would be inappropriate for
Father to share joint legal rights with Mother and it would be in K.W.’s best
interests to have two interested parents who wanted the best for her.
The court found Mother had made substantive progress with her case
plan and it would not be detrimental for K.W. to remain in her care.
Regarding custody, it found Father had done nothing to disqualify himself, it
would be inappropriate to grant Mother sole legal custody, and such an order
could be “punitive” in the future. After granting Father visitation, the court
terminated dependency jurisdiction.
4 At an earlier hearing, the juvenile court declared Donte A., Mother’s
husband, to be K.W.’s presumed father pursuant to Family Code section
7611, subdivision (a). Dante has never been involved with K.W. and was
later struck from the petition.
3
DISCUSSION
A juvenile court is authorized to issue exit orders addressing custody
and visitation when terminating dependency jurisdiction over a child. 5
(§ 362.4, subd. (a); In re T.S. (2020) 52 Cal.App.5th 503, 513.) “When making
a custody determination under section 362.4, ‘the court’s focus and primary
consideration must always be the best interests of the child.’ ” (In re T.S., at
p. 513.) We review an order terminating dependency proceedings and
making a custody award for abuse of discretion. (Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 300.) “ ‘ “The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts, the
reviewing court has no authority to substitute its decision for that of the trial
court.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.) However, “[a]
discretionary order that is based on the application of improper criteria or
incorrect legal assumptions is not an exercise of informed discretion, and is
subject to reversal even though there may be substantial evidence to support
that order.” (Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1124–1125
(Mark T.), citing Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 436.)
Mother asserts the juvenile court erred by awarding joint legal custody
to Father. She claims that as a biological father, Father had no right to
custody. Thus, the presumption in favor of joint legal custody in dependency
proceedings does not apply and the juvenile court erred as a matter of law
when it granted Father joint legal custody of K.W.
5 The exit orders become part of the family law file and remains in effect
“until modified or terminated by a subsequent order of the superior court.”
(§ 362.4, subds. (b), (c); see Cal. Rules of Court, rule 5.700.)
4
In dependency cases, the interest at stake for a parent is “enormous.”
(In re Dakota H. (2005) 132 Cal.App.4th 212, 223.) When a dependency
proceeding is commenced, the priority is to preserve family relationships, if
possible. (In re Nolan W. (2009) 45 Cal.4th 1217, 1228.) “A biological or
natural father is one whose biological paternity has been established, but
who has not achieved presumed father status. . . .” (In re Zacharia D. (1993)
6 Cal.4th 435, 450, fn. 15 (Zacharia D.).) Under former Civil Code section
197 (now Fam. Code, § 3010), only a presumed father is entitled to custody of
his child. (Zacharia D., at p. 450; accord, Francisco G. v. Superior Court
(2001) 91 Cal.App.4th 586, 596 (Francisco G.).) Because Father was not
K.W.’s presumed father, he was not entitled to custody. (See In re E.T. (2013)
217 Cal.App.4th 426, 437; Zacharia D., at p. 451.)
Although “presumed fathers” have greater rights than biological
fathers, a biological father “does in fact have parental rights that simply
differ in degree to the parental rights conferred on a presumed father.”
(Francisco G., supra, 91 Cal.App.4th at p. 596.) “Until parental rights are
terminated, a parent retains a fundamental interest in his or her child’s
companionship, custody, management and care.” (In re Esperanza C. (2008)
165 Cal.App.4th 1042, 1053.) This interest is a “compelling one, ranked
among the most basic of civil rights.” (In re Marilyn H. (1993) 5 Cal.4th 295,
306.)
While Mother is correct that a biological father is not entitled to
custody, this does not mean that a juvenile court is precluded from giving a
noncustodial, nonoffending biological parent joint legal custody at the
disposition stage. “ ‘ “The juvenile court has broad discretion to determine
what would best serve and protect the child’s interest and to fashion a
dispositional order in accordance with this discretion.” ’ ” (In re A.J. (2013)
5
214 Cal.App.4th 525, 536.) [although section 361.2 did not apply to biological
father seeking placement, juvenile court had inherent authority to place child
with father where placement was in child’s best interests]; § 245.5 [Juvenile
court “may direct all such orders to the parent, parents, or guardian of a
minor . . . as the court deems necessary and proper for the best interests . . .
of the minor.”].) Accordingly, we reject Mother’s argument that the juvenile
court erred as a matter of law when it awarded Father joint legal custody of
K.W.
Nonetheless, the juvenile court’s statements suggest it mistakenly
based its custody order on the erroneous belief it was required to grant joint
legal custody. Specifically, the juvenile court stated:
“With regards to the custody orders, I’m going to order joint
custody because that’s the default order. I’m not saying
that this guy’s a great dad or that he has been an active
person in the child’s life, but it’s the default petition of the
court that joint legal custody is preferred. He hasn’t done
anything to disqualify himself. I totally agree with [minor’s
counsel] that mom’s in charge of this child, mom’s making
all of the decisions, but just because that is happening I
don’t think it’s appropriate to make a finding of sole legal
custody, which is a—it can be a punitive finding in the
future. But I’m thoroughly acknowledging [minor’s
counsel’s] representation as to who the child’s primary
caregiver is, there’s no doubt about it. So I’m not
disrespecting the mother by making a joint finding, I’m just
indicating that that is the law.” (Italics added.)
“The presumption of parental fitness that underlies custody law in the
family court just does not apply to dependency cases. Rather the juvenile
court, which has been intimately involved in the protection of the child, is
best situated to make custody determinations based on the best interests of
the child without any preferences or presumptions.” (In re Jennifer R. (1993)
14 Cal.App.4th 704, 712.) Reasonably construed, the juvenile court stated
6
“the law” is that joint legal custody “[is] the default order,” it is “preferred,”
and in order to justify a different order there must be evidence that Father
“has[] done [some]thing to disqualify himself.” Although the record here
supports a conclusion that an award of joint legal custody would not be an
abuse of discretion,6 we must reverse because there was no way to rule out
the reasonable possibility that in exercising its discretion the juvenile court
may have ruled differently under the proper standard. (Mark T., supra, 194
Cal.App.4th at pp. 1124–1125.)
6 The juvenile court expressly found that Father has not “done anything
to disqualify himself.” Mother did not challenge this finding and substantial
evidence supports it. Father reported that he was at the hospital after
Mother gave birth but did not sign K.W.’s birth certificate because Mother
gave “him a hard time.” Mother then disappeared with K.W. in 2020 and
stopped communicating with him. He unsuccessfully attempted to locate
Mother through family and friends. After learning of the proceeding, he
requested representation and placement of K.W. Ultimately, Father did not
seek to obtain physical custody of K.W. because her caregivers allowed him
contact with her, he did not want to move her out of California and planned
to move to San Diego.
7
DISPOSITION
The exit orders are reversed and the matter is remanded to the juvenile
court. We express no opinion on how the juvenile court should exercise its
discretion on remand.
O'ROURKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.
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