Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. Nos. JD06938, JD19721
Bamattre-Manoukian, Acting P.J.
J.M., mother of the two children at issue here, appeals from a juvenile court judgment terminating its jurisdiction over the family, dismissing dependency, awarding custody of the children to their father, and allowing mother supervised visitation. Mother contends that the court’s order terminating jurisdiction and dismissing dependency was not supported by substantial evidence, and that the court abused its discretion by failing to order family and individual therapy as part of its custody and visitation orders. As we find that the record supports the juvenile court’s orders, and therefore that mother has not shown an abuse of discretion, we will affirm the judgment.
BACKGROUND
On April 3, 2009, the children, 15-year-old H.M. and 12-year-old T.M., were removed from mother’s custody in Lake County due in part to allegations that mother had a history of domestic violence and of abusing marijuana and methamphetamine, and that she had been providing the children with marijuana. The children were placed together in a foster home. On April 7, 2009, the Lake County Department of Social Services filed petitions under Welfare and Institutions Code section 300, subdivisions (b) [failure to protect] and (g) [no provision for support] as to the children. The social worker’s report for the jurisdiction hearing stated that the children’s father lived in Santa Clara; that he had been granted custody of the children following an earlier dependency proceeding regarding the children that began in 1996, when mother failed reunification services; but that mother claimed she regained custody by default after termination of those dependency proceedings when she petitioned the family court to regain custody and the father failed to appear.
All further statutory references are to the Welfare and Institutions Code.
A contested jurisdiction hearing was held in May 2009, which the father and children attended but mother did not, although mother was represented by counsel. Following the hearing, the juvenile court sustained the allegations in the section 300 petitions as to mother, and set the matter for disposition. The social worker’s report for the disposition hearing recommended that the children be placed with their father with family reunification services, and that no services be provided mother. The disposition hearing was held on June 1, 2009. The court found that section 361.5, subdivision (b)(10), applied, and denied mother’s request for reunification services. Finding that “[v]isitation between the children and the mother is detrimental to the children, ” the court suspended mother’s visitation. The court granted the father custody of the children with reunification services, and transferred jurisdiction of the matter to Santa Clara County. The children were to remain in foster care in Lake County until the end of the school year. Mother appealed the disposition orders, and Division 4 of the First District Court of Appeal affirmed the orders in a nonpublished decision. (In re H.M. (Apr. 7, 2010, A125746).)
“Reunification services need not be provided to a parent or guardian described in this subdivision when the court finds, by clear and convincing evidence, any of the following: [¶]... [¶] (10) That the court ordered termination of reunification serves for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 and that parent or guardian is the same parent or guardian described in subdivision (a) and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian.” (§ 361.5, subd. (b)(10).)
The matters were transferred from Lake County to Santa Clara County on June 12, 2009. The files were received by the Santa Clara County court on July 17, 2009. The Department of Family and Children’s Services (the Department) filed an Acceptance of Transfer Report on July 31, 2009, recommending that transfer of the cases be accepted. The report stated that the children remained in foster care in Lake County, and their father was attempting to obtain suitable housing for himself, the children, and his ill mother. The father was his mother’s care giver and was paid and provided medical insurance through Home Support Services. He had no other permanent employment, but had “some side jobs” caring for two other adults and was doing some construction work. The children had spent a week beginning on July 5, 2009, with him and he reported that the visit went well. The father’s case plan required him to participate in a parenting class, and counseling, both individual and with the girls, and to obtain appropriate housing. H.M. reported that she was ready to move to Santa Clara County, but T.M. reported that she did not want to leave Lake County and her friends. Mother had refused to release the children’s personal belongings to them, and the Lake County social worker was attempting to get them from mother’s storage locker.
At a hearing on July 31, 2009, the father informed the court that he had found a two-bedroom apartment, and that he was eager to get the children placed in his care so that they could start school in Santa Clara County. He also stated that the children had not yet been able to get their personal belongings from mother’s storage locker. The court accepted the transfer-in from Lake County, and set the matter for an interim review on August 17, 2009, in order to give the social worker time to assess the cases for family maintenance services. The court also recommended to the father that he “work with the stepfather informally” to try to get the children’s belongings for them, while finding that mother’s actions were “nothing but spite.”
Mother was not present at the August 17, 2009 hearing. The matter was continued to August 19, 2009. The social worker’s report for the continued hearing stated that the father’s apartment was clean and appropriate and that the father had agreed to set up appointments for counseling services for the children. The children still had not obtained their belongings from mother’s storage locker, but they were tentatively scheduled to move to Santa Clara County on August 21, 2009. The social worker recommended that the children be placed with their father with family maintenance services.
Mother was not present at the continued hearing. The Department and the father submitted the matter on the social worker’s report. Counsel for the children stated that T.M. reported that she did not want to move so far away from her mother and friends, but that she would make the move. The court adopted the social worker’s recommendations, and set an interim review hearing for September 22, 2009, stating, “Court will consider whether dismissal is appropriate at that time.”
The social worker’s report for the September 22, 2009 hearing stated that the children moved in with their father on August 21, 2009. The children were enrolled in school and were on a waiting list for individual therapy. T.M. had made some friends at school, which seemed to help her with her transition. The social worker recommended that the court dismiss the dependency for both children.
Mother was not present at the September 22, 2009 hearing. H.M. was present but T.M. chose to go to school. The Department submitted the matter on the social worker’s report, recommending that the court grant the father full custody of the children with supervised visits for mother. Father requested that the visitation order be for a minimum of supervised visitation once a month in Santa Clara County, Lake County, or at a half-way point. Counsel for the children requested that the dependency be left open until after H.M.’s 16th birthday in November 2009, so that H.M. could participate in the Independent Living Program (ILP). Counsel stated that both children were happy to be living with their father, and that T.M. reported that she would rather live with her father than with a foster family in Lake County.
The court ruled in relevant part as follows: “I have to tell you, [father], this is not a typical case for this court where, you know, we place children with an out-of-custody parent and we’re ready to dismiss so quickly. It certainly is testament to your desire to provide for your daughters and I don’t necessarily think it’s easy because of what your girls have been through, and I know they probably have some difficult emotions around their mom and their relationship with their mom, it’s just not easy, you know, but the law really wants to make sure we have at least one good parent to do the job and clearly you can do that. And I congratulate you for that. [¶] I know you’ve had to make some big changes to accommodate the girls in your home.... [B]ut you did it, you’re doing it well. And the court is pleased today to adopt the recommendations attached to dismiss the case. [¶] I appreciate, H[.], that you’d like to do ILP. That in itself is not a reason for the Court to keep this case open. You know, this court’s job is to intervene when necessary and then to leave families alone, to get out of your lives and let you be a family. So I don’t think that the ILP issue is sufficient for the Court to keep the case open. [¶] So today I will terminate the jurisdiction and will dismiss the dependency.... [I]n terms of a visitation order that it be once – a minimum of once a month here in Santa Clara County for two hours, supervised by an agency to be paid for by the children’s mother, [¶] I will give [the father] the option of taking the children to Lake County and having visits with their mother there or anywhere in between and the supervisor will be at his discretion. I’m aware that it may be impossible for the children’s mother to come up with money for visitation through a professional agency. And if there’s some other option and [the father] is comfortable, you know coming up – finding another supervisor, and I know the kids would appreciate a trip to Lake County, it sounds like they have lots of friends there.”
The court’s final judgments, which included the custody and visitation orders, were filed September 29, 2009. (See § 302, subd. (d).) Mother filed a notice of appeal on November 4, 2009.
DISCUSSION
Forfeiture
Mother acknowledges that an appellate court has discretion to not consider a challenge to a juvenile court ruling if an objection could have been but was not made in that court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) Nevertheless, she “urges this Court to exercise its discretion to evaluate the merits of her claim that substantial evidence did not support the termination of jurisdiction and dismissal of dependency in regard to the statutorily-mandated necessity of continued juvenile court supervision.” The Department contends that “[t]here is no valid reason to disregard the forfeiture rule here to allow the mother to challenge the juvenile court’s decision. The mother concedes that she did not appear at the September 22, 2009, hearing, and she lodged no objection to the visitation orders entered by the court when it dismissed the dependency case.”
“It is true that, as the Department contends, a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. [Citation.] [¶] Dependency matters are not exempt from this rule. [Citations.] [¶] But application of the forfeiture rule is not automatic. [Citations.]... Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters.... Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]” (In re S.B., supra, 32 Cal.4th at p. 1293, fn. omitted.)
In our view, this is a proper case in which to reach the merits of mother’s claims. The children were placed with their father and dependency was dismissed. For that reason, an appellate decision on the merits will not imperil the children’s interest in permanency and stability. (In re S.B., supra, 32 Cal.4th at pp. 1291, 1294 [appeal from post-guardianship visitation order; no forfeiture]; cf., In re Anthony P. (1995) 39 Cal.App.4th 635, 636-637, 640 [appeal from termination of parental rights; forfeiture].) Accordingly, we will address mother’s claims.
Orders Terminating Jurisdiction and Dismissing Dependency
Mother contends that there is not substantial evidence to support the juvenile court’s termination of jurisdiction and dismissal of dependency. She argues that the social worker’s report “did not mention father’s compliance with the case plan orders that the juvenile court made regarding his participation in counseling or psychotherapy.... Nor were there any representations to the juvenile court by any party that father had complied with these orders.” “Despite the fact that there was no evidence that these orders had been complied with, [the court] adopted the recommendations by the department to dismiss the case. In doing so, it failed to comply with section 364, subdivision (c).” “Mother was aggrieved by the juvenile court not assuring that these basic family maintenance case plan orders were not initially complied with [sic] before dismissing the case.”
“After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.” (§ 364, subd. (c).)
The Department contends that the juvenile court exercised sound discretion in dismissing the dependency. “There was no evidence before the court to suggest that the girls would not be safe in the father’s care. The mother did not participate in any of the hearings in Santa Clara County and did not object to the custody and visitation orders issued by the juvenile court.” “In short, the court had no reason to determine that continued supervision was necessary, which is the legal standard. (§ 364.)”
The juvenile court’s decision to terminate dependency jurisdiction after placing the child with a nonoffending noncustodial parent is reviewed for an abuse of discretion. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134-1135; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300 (Bridget A.).) When a decision is “committed to the sound discretion of the juvenile court, ... the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) To warrant reversal, the appellant must show that “ ‘ “the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]” (Ibid.)
“[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. [Citations.] Broad deference must be shown to the trial judge. The reviewing court should interfere only ‘ “if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he [or she] did.” [Citations.]’ [Citation.]” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded on other grounds by statute, as stated in Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032.)
In this case, the children’s father was a nonoffending noncustodial parent who requested custody of the children. The children had been in their father’s custody for one month by the time of the September 22, 2009 hearing, and both children were enrolled in school. They both reported that they were happy living with their father, and T.M. specifically reported that, although she had not wanted to move so far away from her mother and friends in Lake County, she would rather live with her father than with a foster family in Lake County. In addition, the social worker’s report stated that the children were on a waiting list for individual therapy. Although there was no evidence that father had participated in family or individual counseling as earlier ordered, there was also no evidence that the conditions justifying the initial assumption of jurisdiction under section 300 still existed. (See § 364, subd. (c).) On this record, the court properly found that there was no need for continued court supervision. Mother has not established that the court abused its discretion when it terminated its jurisdiction over the children. (In re Austin P., supra, 118 Cal.App.4th at p. 1135.)
The Custody and Visitation Orders
Mother further contends that “the juvenile court abused its discretion in failing to make orders protecting the [children] in its final custody and visitation orders.” “By failing to insure that any family therapy was ordered as part of the final custody and visitation orders, or indeed any individual therapy for the minors, it abused its discretion because it did not make orders establishing ongoing protections for the minors as a condition of visitation and termination of dependency. This was particularly egregious as father had not complied with any of the requirements of the family maintenance case plan.”
The Department contends that “there was no evidence that the children’s counseling was required for their protection in the care of their father. Furthermore, the claim that the mother was prejudiced by the lack of counseling for the children is not supported by the facts.”
“When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor’s attainment of the age of 18 years, and... an order has been entered with regard to the custody of that minor, the juvenile court... may issue... an order determining the custody of, or visitation with, the child.” (§ 362.4; see also § 302, subd. (d).) We review any such so-called “exit” order for an abuse of discretion, and may not disturb the order unless the court’s decision is arbitrary, capricious, or patently absurd. (Bridget A., supra, 148 Cal.App.4th at p. 300.)
A juvenile court may, when terminating its dependency jurisdiction, issue an order conditioning visitation on the visiting parent’s participation in a counseling program. (In re Chantal S. (1996) 13 Cal.4th 196, 200.) Before doing so, however, the court must find that the order is necessary for the ongoing protection of the child. (Id. at p. 212.) In this case, the court did not condition mother’s visitation on mother’s participation in a counseling program, but it did require that mother’s visitation be supervised. Given the prior Lake County court’s finding that mother’s visitation with the children was detrimental to the children, we cannot say that the court abused its discretion in requiring supervised visitation. However, there was nothing in the record to suggest that the children’s or father’s participation in a counseling program was necessary for the ongoing protection of the children while in father’s custody. The children were doing well and were happy in their father’s care. Their visitation with mother would be supervised. And, there was evidence in the record that the children were on a waiting list for individual counseling. Accordingly, we also cannot say that the court abused its discretion in not including an order requiring the father’s and/or the children’s participation in counseling as part of its exit orders.
DISPOSITION
The final judgments of September 29, 2009, are affirmed.
WE CONCUR: Mihara, J., duffy, J.