In re Nicholas H.

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Filed 10/9/01
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 977.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
In re NICHOLAS H., a Person Coming
Under the Juvenile Court Law.
ALAMEDA COUNTY SOCIAL
SERVICES AGENCY,
Petitioner and Respondent,
v.
KIMBERLY H.,
Objector and Appellant.
A094095
(Alameda County
Juvenile Ct. No. 178428)
I. INTRODUCTION
Kimberly H. appeals from a January 8, 2000, order (the January 8 order)
that was entered after a contested six-month review hearing in this dependency
case involving Kimberly’s six-year-old son, Nicholas. For reasons that follow, we
reverse the January 8 order.
II. NICHOLAS I
This is the third appeal Kimberly has filed in this case, the lengthy and
troubling history of which is summarized in In re Nicholas H. (2001) 91
Cal.App.4th 86 (hereafter Nicholas I). A brief summary of this factual history is
sufficient for present purposes.
Nicholas was taken into custody by the Alameda County Social Services
Agency (the Agency) on February 7, 2000. (Nicholas I, supra, 91 Cal.App.4th at
p. 89.) Thomas G. was identified as Nicholas’s alleged father. The Agency

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placed Nicholas in Thomas’s care on February 15, 2000, and he has remained
there throughout these proceedings. (Id. at p. 91.) Kimberly has consistently
maintained that Thomas is not Nicholas’s biological father and that he has no
parental rights in these proceedings. Thomas has maintained that his strong
father-son relationship and parental bond with Nicholas qualifies him as a
presumed father. (Id. at pp. 89, 98.) However, Thomas has also admitted under
oath that he is not Nicholas’s biological father. (Id. at p. 98.)
In Nicholas I, this court consolidated Kimberly’s two prior appeals because
the primary issue in both cases was whether the juvenile court erred by declaring
that Thomas is Nicholas’s presumed father. (Nicholas I, supra, 91 Cal.App.4th at
p. 89.) We concluded that a presumption that Thomas is Nicholas’s natural father
arose during the juvenile court proceedings, but that presumption was rebutted by
clear and convincing evidence that was presented during a contested dispositional
hearing. (Id. at pp. 103-110.) We reversed both an August 2, 2000, dispositional
order and an October 6, 2000, six-month review order to the extent that they
implemented the juvenile court’s erroneous finding that the presumption was not
rebutted. We expressly left to the juvenile court the task of determining the effect
of our decision on the specific rulings that were set forth in the challenged orders.
(Id. at p. 110.)
III. THE PRESENT APPEAL
When we decided Nicholas I, this appeal was already pending. We chose
not to consolidate this case with the prior appeals because briefing was not yet
complete and we did not want to delay resolving an important issue. Nevertheless,
the primary issue presented in this appeal is identical to the dispositive issue in
Nicholas I, i.e., whether Thomas is the presumed father of Nicholas.
In the present case, Kimberly contends the juvenile court’s January 8 order
must be reversed to the extent it continues the placement of Nicholas with
Thomas. Although she maintains that there are alternative grounds for removing
Nicholas from Thomas’s care, her primary contention is that the court’s placement

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is based on the erroneous finding that Thomas “qualified as a presumed father,
thereby qualified as a parent under Family Code 7611 and, therefore, qualified for
placement pursuant to Welfare and Institutions Code section 361.2.”
Our decision in Nicholas I requires us to reverse the January 8 order to the
extent that it implements the juvenile court’s erroneous finding that the
presumption that Thomas is Nicholas’s natural father has not been rebutted. As
we found in Nicholas I, the precise effect of the juvenile court’s erroneous
assumption on the specific rulings that are formalized in the January 8 order is best
determined by the juvenile court itself. We cannot fairly or efficiently evaluate
each of the court’s discreet rulings when all were based on the false premise that
Thomas is Nicholas’s presumed father.
In a letter brief filed at our request,1 Kimberly argues that this court should
resolve a separate issue raised by her appeal. She asks us to find that Welfare and
Institutions Code section 361.4 precludes Thomas from becoming a foster parent
for Nicholas. As a court of review, we decline this invitation to address an issue
that has not been litigated in the court below.
Both Thomas and the Agency ask us to affirm the juvenile court’s finding
that Nicholas could not be safely returned to Kimberly’s physical custody at the
conclusion of the six-month review hearing. We decline this invitation as well.
The January 8 order does not contain any express finding on this issue. At the
January 8 hearing, the court did state that returning Nicholas to Kimberly would
be detrimental to Nicholas at that time. However, the court’s reasoning was based
on the incorrect premise that two parents were asserting competing claims for
physical custody of their child. Absent this premise, the court’s analysis and
conclusion as to this and other issues related to Nicholas’s placement could be
substantially altered.
1 After we filed our decision in Nicholas I, we inquired of the parties whether the issues presented
by the present appeal had be rendered moot.

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IV. DISPOSITION
The January 8, 2000, order is reversed and this case is remanded to the
juvenile court so that it can reconsider the issues presented in light of our decision
in Nicholas I.
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.

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