Opinion
2d Juv. No. B195476
4-24-2007
In re ANGELICA M., a Person Coming Under the Juvenile Court Law. SANTA BARBARA COUNTY CHILD PROTECTIVE SERVICES, Plaintiff and Respondent, v. DEBORAH D., Defendant and Appellant.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant. Stephen Shane Stark, County Counsel, Laura S. Ornelaz, Deputy Counsel Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Deborah D. appeals a judgment of the juvenile court terminating its jurisdiction over her daughter Angelica, granting sole legal and physical custody of Angelica to her father, and awarding reasonable supervised visitation. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 20, 2005, Santa Barbara County Child Protective Services ("CPS") filed a petition on behalf of Angelica M. and her half-siblings. CPS alleged that Deborah D. suffers from mental illness and drug abuse, and is frequently under the influence of prescribed pain medication. CPS alleged that Angelicas father, Lawrence M., has a long criminal history of drug abuse, spousal battery, and other crimes, and had thrown a rock at Angelicas half-sibling, Raymond. (Welf. & Inst. Code, § 300, subds. (b), (g), & (j).)
All further statutory references are to the Welfare and Institutions Code unless stated otherwise.
The juvenile court ordered that Raymond be detained and CPS placed him in a foster home. Angelica and her two half-siblings remained with Deborah D. Lawrence M. then moved from the family home.
The juvenile court later sustained the allegations of the dependency petition and among other things, ordered CPS to provide family maintenance services to Deborah D. and Lawrence M. The family maintenance services plan required Deborah D. and Lawrence M. to participate in a psychological evaluation, remain drug and alcohol-free, maintain a stable and suitable residence, obtain individual counseling, attend parent education classes, complete an out-patient drug treatment program, and randomly test for drug use.
By the December 22, 2005, review hearing, Deborah D. had made little progress in her family maintenance services plan. Lawrence M. completed parent education classes, participated in 12-step meetings, tested negative for drug use, and was nearing completion of "drug court." The juvenile court ordered that the parents receive an additional six months of family maintenance services.
By the May 8, 2006, review hearing, Deborah D. had partially completed her family services plan, but continued her use of opiate medication for medical conditions. Lawrence M. was then residing with a girlfriend who had a significant criminal history of drug use and was on parole. Nevertheless, CPS requested that the juvenile court dismiss the dependency petition, terminate the dependencies, return Raymond to the home of Deborah D. with his half-siblings, and allow Lawrence M. reasonable visitation with Angelica.
The juvenile court denied the CPS request to dismiss the dependency petition and terminate the dependencies. Instead, it ordered an additional six months of family maintenance services.
On August 11, 2006, Angelicas attorney filed a petition pursuant to section 388, asserting changed circumstances and requesting a change of placement to Lawrence M. The petition alleged that Deborah D. had not complied with her family services plan, did not monitor Angelicas homework assignments, and had not made suitable sleeping arrangements for Angelica. In contrast, Lawrence M. had completed "drug court", and was visiting with Angelica successfully for extended overnight visits. The CPS social worker stated in a declaration that "Angelica has a functioning parent who has presented certificates of completion of drug court and who has full-time employment and a stable home."
The juvenile court granted the section 388 petition and ordered that Deborah D. receive unsupervised visitation with Angelica every other weekend. In September, 2006, the juvenile court removed two of Angelicas half-siblings from Deborah D.s care. Thereafter, Deborah D.s visits with Angelica became supervised.
The appellate record does not contain information concerning the removal of Angelicas half-siblings from the home.
CPS then recommended that the juvenile court dismiss the dependency petition concerning Angelica, terminate the dependency, and conclude family maintenance services to Lawrence M. After a contested hearing, the juvenile court terminated dependency jurisdiction and granted physical and legal custody of Angelica to Lawrence M. (§ 364 ["exit order" upon termination of dependency jurisdiction].) It also ordered "reasonable supervised visitations" to Deborah D. The court ordered that Lawrence M. arrange and provide the transportation for the visits.
Deborah D. appeals and contends that: 1) the juvenile court erred by delegating its judicial authority regarding visitation, and 2) the juvenile court erred by denying joint legal custody of Angelica.
DISCUSSION
I.
Deborah D. argues that the supervised visitation order is an improper delegation of judicial authority because the order allows Lawrence M. the discretion to determine visitation. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505 [juvenile court may not delegate power to determine visitation to dependent child, his therapist, or the social services agency]; In re S.H. (2003) 111 Cal.App.4th 310, 317 [juvenile court alone determines visitation and it may not delegate its power to another].) She asserts that the juvenile courts failure to order a minimum number of visits renders the visitation illusory.
The visitation order states: "Father to arrange reasonable supervised visitations between Angelica and her mother, and also regular visitations between Angelica and her siblings." At the hearing, the juvenile court judge stated: "The mother is entitled to visitation. . . . [¶] If she wants specific visitation, I suppose that would not be an unreasonable request. . . . [¶] Well lodge the order with the family law court. They can go to mediation and try and work it out. The family law judge would set up a specific visitation schedule if they cant work it out . . . ."
We do not interpret the order as an improper delegation of visitation to the discretion of Lawrence M. The juvenile court stated that Deborah D. was permitted to have reasonable visitation with Angelica, but that it must be supervised and transportation must be provided by Lawrence M. The order does not vest Lawrence M. with discretion to determine visitation; it requires only that he provide transportation and supervision to the reasonable visitation by Deborah D. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214 [visitation that is "facilitated" by therapist does not vest therapist with discretion to determine visitation].) The order is proper.
II.
Deborah D. asserts that the trial court abused its discretion by denying joint legal custody of Angelica. (Fam. Code, § 3003 ["Joint legal custody means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."].) She argues that there is insufficient evidence that it is in Angelicas best interest that Lawrence M. have sole legal and physical custody. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 [juvenile court determines custody based upon best interests of dependent child].) Deborah D. adds that there is no evidence that she abused or neglected Angelica.
Section 362.4 authorizes the juvenile court to make custody and visitation orders upon the termination of dependency jurisdiction. (In re Jennifer R., supra, 14 Cal.App.4th 704, 712.) The orders are transferred to the family law court and are effective until changed by that court. (Ibid.) The presumption of parental fitness underlying custody law in the family court does not apply to dependency proceedings. (Ibid.) "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." (Ibid.)
The order of the juvenile court is in the best interests of Angelica, and is supported by sufficient evidence. (In re Jennifer R., supra, 14 Cal.App.4th 704, 706.) Lawrence M. fulfilled the requirements of his family maintenance services plan, obtained a stable home and employment, and actively participated in Angelicas schooling and outside activities. Deborah D. had not completed her family maintenance services plan and did not respond to Angelicas telephone calls after September, 2006. Angelica stated that she enjoyed living with her father, liked her new school and friends, and enjoyed her ballet classes. Angelica received "straight As" in school and her therapist described her as "happy, friendly and energetic." "But just because custody with neither parent was held to pose any danger to the child does not mean that both parents are equally entitled to half custody." (In re John W. (1996) 41 Cal.App.4th 961, 974 [juvenile court determines best interests of child in "exit order"].)
The judgment is affirmed.
We concur:
YEGAN, J.
COFFEE, J.