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Filed 3/19/02
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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,
A095267
v.
KIMBERLY H.,
(Alameda County
Juvenile Ct. No. 178428)
Objector and Appellant.
I.
INTRODUCTION
This is the fourth appeal filed by Kimberly H. in this on-going dependency case
involving Kimberly's six-year-old son, Nicholas.
Kimberly's first two appeals in this case were consolidated by this court and
resulted in a published opinion. (In re Nicholas H. (2001) 91 Cal.App.4th 86, rev.
granted Nov. 14, 2001 [113 Cal.Rptr.2d 825] (hereafter Nicholas I).) We resolved
Kimberly's third appeal in an unpublished opinion. (In re Nicholas H. (Oct. 9, 2001,
AO94095) [nonpub. opn.] rev. granted Dec. 19, 2001 (hereafter Nicholas II).) Nicholas I
and Nicholas II set forth the factual and procedural history of this case and contain our
extensive analysis of an important legal issue which arises again in this appeal.
1

Therefore, the present opinion contains numerous references to both Nicholas I and
Nicholas II.1
In this appeal, Kimberly appeals from orders entered by the juvenile court on April
4, 2001, April 20, 2001, and May 9, 2001. For the reasons that follow, we reverse in part
and remand this case to the juvenile court.
II.
STATEMENT OF FACTS2
A.
Background
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 placed Nicholas in Thomas's
care on February 15, 2000, and he has remained there throughout these proceedings. (Id.
at p. 91.) In August 2000, Thomas obtained permission from the juvenile court to move
with Nicholas to Southern California. (Id. at p. 99.) In October 2000, the court ordered
that the location of visits between Kimberly and Nicholas was to alternate between
Alameda County and Southern California. (Id. at p. 101.)
Kimberly has consistently maintained that Thomas is not Nicholas's biological
father, that he has no parental rights in these proceedings, and that Nicholas should not be
placed in his care. Thomas has maintained that his strong father-son relationship and
parental bond with Nicholas qualifies him as a "presumed" father.3 (Nicholas I, supra,
91 Cal.App.4th at pp. 89, 98.) However, Thomas has also admitted under oath that he is
not Nicholas's biological father. (Id. at p. 98.)

1
We recognize that the Supreme Court has granted review in Nicholas I and Nicholas II. Thus, these
opinions are not published and, as a general rule, cannot be cited or relied on in "any other action or proceeding."
(Cal. Rules of Court, rule 977(a).) However, the present opinion derives from the same action which spawned our
prior opinions.
Furthermore, while unpublished opinions cannot be relied on as precedent, a court may adapt the analysis
of an issue that is set forth in a depublished opinion. (See, e.g., Cynthia D. v. Superior Court (1993) 5 Cal.4th 242,
254 & fn. 9.) In the present case, we do not rely on our prior decisions as precedent. Rather, in order to resolve the
present appeal and for the sake of judicial economy, we adopt and reiterate our own prior analyses of issues that
resurface for the fourth time in this case.
Finally, to obtain context, maintain consistency and economize judicial resources, we take judicial notice of
our prior opinions in Nicholas I and Nicholas II. (Evid. Code, � 451, subd. (a); see In re Luke L. (1996) 44
Cal.App.4th 670, 674, fn. 3.)
2
A detailed summary of the facts of this case appears in Nicholas I, supra, 91 Cal.App.4th 86.
3
See Family Code section 7611.
2

B.
Prior Appeals
In Nicholas I, this court consolidated Kimberly's separately filed appeals from an
August 2, 2000, dispositional order and an October 6, 2000, six-month review order. 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 the dispositional order and the 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.)
Kimberly filed her third appeal in this case before we issued our opinion in
Nicholas I. Kimberly challenged a January 8, 2000, order entered after a contested six-
month review hearing. As we explained in Nicholas II, the primary issue presented was
identical to the dispositive issue in Nicholas I, i.e., whether Thomas is the presumed
father of Nicholas. We reversed the juvenile court's January 8 order to the extent that it
implemented the juvenile court's erroneous finding that the presumption that Thomas is
Nicholas's natural father had not been rebutted.
C.
The 12-Month Review Proceedings
The present appeal is from three orders issued by the juvenile court at separate
hearings conducted as part of the 12-month review process. As was true in Nicholas II,
the orders that are the subject of this appeal were made before this court filed its opinion
in Nicholas I reversing the juvenile court's finding that Thomas is Nicholas's presumed
father.
The Agency status report filed in anticipation of the 12-month review indicated
that Nicholas and Thomas were living with Thomas's mother in Southern California.
The Agency recommended that Nicholas be continued as a court dependent, that both
3

Thomas and Kimberly receive an additional six months of services, and that the court
continue all other prior orders.
The first 12-month review hearing took place on April 4, 2001. Kimberly
appeared and contested the Agency's recommendations. The court continued the matter
and scheduled a contested hearing for April 20, 2001.
Kimberly's counsel appeared at the April 20 hearing but requested a continuance
because Kimberly was not available. Her infant son Joshua had been hospitalized after
suffering an injury. The Agency's counsel did not object to the continuance. However,
counsel did request that Kimberly's visitation order with Nicholas be modified in light of
the "current situation with Joshua." Counsel for the Agency was concerned by allegedly
inconsistent reports about Joshua's injury and because Joshua had been placed under a
protective hold while at the hospital. The Agency acknowledged visitation could not be
modified that day because Kimberly had not been given notice of the Agency's
modification request. Therefore, the Agency asked that a separate hearing be scheduled
to address visitation.
The juvenile court continued the 12-month review for a contested hearing to
commence on August 3. The court also scheduled a hearing for May 9, 2001, to address
issues regarding visitation. The court also made the following ruling: "[I]n light of what
I've been told this morning, that Joshua is now on a protective hold and that the Agency
is raising concerns about the care, I am going to modify the order this morning sua sponte
so that, in the future, between now and the hearing date on visitation, Mother's visits
shall occur in Southern California only and shall be supervised."
At the May 9 hearing, the Agency requested that Kimberly's visitation order be
permanently modified to provide that all visits with Nicholas be supervised and take
place in Southern California. When asked to clarify the basis for this request, the Agency
worker, Ruth Levin, admitted that she did not have a concern that Kimberly "would
physically harm Nicholas or that she would be dangerous to Nicholas in other ways."
Rather, Levin requested the change because she had heard that Kimberly had driven a car
without a license. Further, Kimberly had changed her residence and the Agency had been
4

unable to "clear" her new residence for overnight stays. Nicholas's counsel supported the
Agency's modification request because he was concerned that the trips Nicholas made to
Northern California to visit Kimberly were too burdensome for the boy.
Levin testified at the hearing. She recounted an incident during which she
discovered Kimberly sitting in the driver's seat of a parked car and asked if she had been
driving without a license. Kimberly responded that she had not been driving but was
waiting for a friend to return from an errand. Levin testified that she was concerned
Kimberly might obtain access to a car and drive Nicholas somewhere in which case
Nicholas's safety or well-being could be in jeopardy. Levin testified that she did not
have any concern that Kimberly would abuse Nicholas.
Levin testified that Kimberly had refused to give her information about a man
named Steven whom Kimberly was living with at the time Kimberly's son Joshua was
injured. When Levin discovered that Kimberly had spent time at that man's home during
a visit with Nicholas, Levin asked for information about him so she could do a
background check. Rather than provide the requested information, Kimberly told Levin
she would not stay there anymore. Levin admitted during cross-examination that
Kimberly had given the Agency the name of her current landlord and that a background
check on that man had been completed.
Kimberly testified that she had a driver's license in the past which was revoked
because of parking fines. Kimberly testified that she had not driven a car in the past year.
Kimberly reported that a friend named Dan drove her and Joshua to the hospital when
Joshua was hurt. On the night Joshua was injured, Kimberly was at a parenting class.
The next morning, Dan drove her and Joshua to the hospital. Kimberly testified that at
that time this incident occurred, she and Joshua were staying at the home of a man named
Steve because the rooms she had arranged to rent in Dan's home had not yet been vacated
by the prior tenant.
In addition to witness testimony, the juvenile court admitted into evidence an
Attachment Study and a Psychological Evaluation that had been done for Kimberly and
Nicholas. Nicholas' counsel relied on these reports to support the Agency's request that
5

visits be confined to Southern California. Counsel for Nicholas underscored that such a
restriction would be less burdensome for Nicholas and would give visitation the
consistency and predictability Nicholas wanted and needed. However, Nicholas's
counsel did not support the Agency's request that visits be supervised because the
Attachment Study indicated that Kimberly was appropriate with Nicholas and
demonstrated parenting knowledge and responsibilities.
At the close of the May 9 hearing, the juvenile court made the following rulings:
The Agency's concern that Kimberly had been driving without a license was "misplaced"
and, in any event, would not warrant a change in visitation. However, Kimberly had
"willfully frustrated" the Agency's attempt to run a background check on Steve and had
moved into that home without assuring that it was safe. Joshua had been injured while
staying at that home and there were allegations that Kimberly's neglect resulted in that
serious injury. Therefore, the court ordered that Kimberly's visits with Nicholas would
be limited to two supervised weekend visits per month in Southern California.
III.
DISCUSSION
A.
The Placement With Thomas
Kimberly's first argument is that the April 4 order, the April 20 order, and the
May 9 order, must all be reversed to the extent they continue the placement of Nicholas
with Thomas.
The Agency argues this court can and should ignore Kimberly's objection to the
continuing placement orders because, in the Agency's view, this court should not "restate
what it has already decided" in Nicholas I and Nicholas II. We reject the Agency's
argument for two reasons.
First, the orders at issue in this case are appealable orders. "A `subsequent order'
after a declaration of dependency in juvenile court proceedings (Welf. & Inst. Code,
� 300 et seq.) is appealable as an order after judgment. [Citations.] (Eisenberg, et al.
Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2001) � 2:163, p. 2-78.1;
see also Welf. & Inst. Code, � 395; Wanda B. v. Superior Court (1996) 41 Cal.App.4th
6

1391, 1395.) Therefore, we are not comfortable simply ignoring Kimberly's challenge to
these appealable orders.
Second, the appealed orders (all of which were made before we filed our opinion
in Nicholas I) either implicitly or explicitly implement the juvenile court's conclusion
that Thomas continues to be the presumed father of Nicholas. The Agency is correct that
this court has already decided that the juvenile court erred by finding that the
presumption of natural fatherhood was not rebutted in this case. However, both the
Agency and Thomas have expressed doubt as to the status of our prior holding in light of
the supreme court's orders granting review in Nicholas I and Nicholas II. Therefore, we
conclude Kimberly's argument, although redundant, should be addressed.
Pursuant to our analysis in Nicholas I, which we incorporate by reference and
adopt here (see footnote 1), we find that the presumption that Thomas is the natural father
of Nicholas has been rebutted in this case. Therefore, we will reverse each of the
appealed orders to the limited extent they continue to implement the juvenile court's
conclusion that Thomas is Nicholas's presumed father. However, we address two
important issues which we hope will provide guidance to Kimberly's appellate counsel as
this case continues.
First, as we expressly advised in Nicholas II, this court is a court of review, and
we will not "address an issue that has not been litigated in the court below." (Nicholas II,
supra, at p. 3.) Therefore, we summarily reject Kimberly's specific request that we hold
that Thomas is precluded from becoming a foster parent for Nicholas by Welfare and
Institutions Code section 361.4 (section 361.4) because he has a prior felony conviction
for domestic violence. We also decline to address Kimberly's general claim that
Nicholas cannot be placed with Thomas at all. Our holding in this appeal, consistent with
our prior opinions in this case, is that the presumption that Thomas is the natural father of
Nicholas has been rebutted. We have previously declined and continue to decline to
7

decide whether the placement of Nicholas with Thomas is proper under any other ground.
That is a question that has not been litigated in the court below.4
Our second observation pertains to a statement Kimberly's counsel made at oral
argument before this court. Counsel stated she will have to appeal every juvenile court
order which expressly or implicitly continues the placement of Nicholas with Thomas in
order to preserve her client's objection to the juvenile court's finding that Thomas is the
presumed father of Nicholas.5 We are truly puzzled by this statement. In Nicholas I,
Kimberly appealed the juvenile court's finding that the presumption that Thomas is
Nicholas's father was not rebutted. The Agency agreed with Kimberly on this issue as
did this court in Nicholas I and Nicholas II, and as we do again today. The issue is now
pending before the Supreme Court of this state. No further appeal is necessary to
preserve this precise legal question.
B.
Visitation
Kimberly argues that the juvenile court's April 20 order temporarily modifying
her visitation was erroneous because (a) the modification was made without notice to her
and (b) there was no substantial evidence to support the modification. Kimberly also
argues that the court's May 9 order, which made the temporary modification permanent,
is also not supported by substantial evidence.
The April 20 order was improper. At the time it was issued, there was no evidence
before the juvenile court about Joshua's alleged injury. Comments by Agency counsel
about the incident, which Kimberly's counsel disputed, were not evidence. (See County
of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1426.) Furthermore, Kimberly was
entitled to notice prior to a modification of her visitation. (Cf. In re Lance V. (2001) 90
Cal.App.4th 668, 675-677.)

4
Kimberly contends that she raised her section 361.4 argument in the lower court and argues the trial court
erroneously declined to rule on that issue. We disagree. When the orders at issue in this appeal were made, the
placement of Nicholas was supported by the court's conclusion that Thomas was the presumed father of Nicholas. It
was not required to supply an alternative ground for its ruling.
5
At oral argument, the parties represented that the juvenile court has stayed proceedings in this case.
However, it may well be necessary to lift that stay before the Supreme Court issues decisions in Nicholas I and
Nicholas II. (See Code Civ. Proc., � 917.7; In re Natasha A. (1996) 42 Cal.App.4th 28, 38.)
8

Although the juvenile court acted improperly, its error was harmless. Contrary to
her contentions on appeal, Kimberly did have notice of the Agency's request to modify
the visitation order and the opportunity to present evidence and be heard at the May 9
hearing where the court made its temporary order permanent. Furthermore, the
temporary order was in place for less than one month before a proper hearing was held.
Kimberly has not demonstrated that she was damaged in any way during that brief
period.6
In contrast to the April 20 order, the May 9 order was entered after the court heard
evidence relevant to issues pertaining visitation. Kimberly contends that evidence does
not support the court's rulings that visits with Nicholas (1) had to be supervised and (2)
had to occur in Southern California.
Evidence of a need for supervision was not overwhelming by any means. Indeed,
the juvenile court conceded that the Agency's concern about Kimberly's driving was not
an adequate ground for modifying her visitation. However, there was evidence that
Kimberly may have been dishonest or deceptive with the Agency about her residence and
about the places where she was spending time while Nicholas was with her. We need not
decide whether that evidence was sufficient to support the supervision restriction because
subsequent events have rendered this issue moot.
This court has granted the Agency's request to take judicial notice of an August 3,
2001, order issued by the juvenile court at the continued 12-month review hearing in this
case. In that order, the court vacated the supervised visitation order and reinstated its
previous order for unsupervised visits to occur on alternating weekends. Therefore,
Kimberly's complaint about the supervision restriction is moot.
It is unclear from the language of the August 3, 2001, order whether the restriction
limiting visits to Southern California is still in place. At oral argument, the Agency

6
We reject Kimberly's contention that the visitation order could only be modified pursuant to a Welfare and
Institutions Code section 388 petition. The orders at issue in this appeal were made pursuant to the 12-month status
review. (See Welf. & Inst. Code, � 366.21.) Reunification services, including visitation, were the proper subject of
that review. (Ibid.) We agree with Kimberly that she was entitled to written notice of the Agency's
recommendation that the visitation order be modified. (� 366.21, subd. (b).) But, the April 20 order was adequate
notice of that recommendation.
9

conceded the order was unclear. If we accept Kimberly's contention that the geographic
restriction still applies, we need not reach the issue whether substantial evidence supports
it. In contrast to the supervision restriction, the restriction limiting visits to Southern
California is an extension of and a means of further implementing the juvenile court's
erroneous conclusion that Nicholas is residing with his presumed father. As we have
consistently maintained, the trial court is in the best position to determine the effect of
our conclusion that the presumption of natural fatherhood has been rebutted in this case.
Therefore, if the geographic visitation restriction is still in place, the court must
reconsider it in light of our conclusion that Thomas is not the presumed father of
Nicholas.
IV.
DISPOSITION
For the reasons set forth in our prior opinions in this case (see footnote 1) we
reverse the three orders challenged in this appeal to the extent they continue the
placement of Nicholas with Thomas on the erroneous ground that Thomas is the
presumed father of Nicholas. We also reverse the May 9 order to the extent it limits
visits between Kimberly and Nicholas to Southern California. This case is remanded to
the trial court for further proceedings consistent with this opinion.
_________________________
Haerle, J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
10