Opinion
B312341
06-20-2022
In re Cedric I., a Person Coming Under the Juvenile Court Law. v. ELIZABETH I., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, Nos. 21CCJP01275, 21CCJP01275A Lisa A. Brackelmanns, Judge Pro Tempore. Reversed and remanded in part with directions; affirmed in part.
Suzanne M. Davidson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, Tracey Dodds, Deputy County Counsel, for Plaintiff and Respondent.
COLLINS, J.
INTRODUCTION
Appellant Elizabeth I. (mother) asserts that the juvenile court erred in the exit order (Welf. & Inst. Code, § 362.4 ) it issued upon termination of jurisdiction over mother's teenage son, C. When the juvenile court terminates jurisdiction over a child, it may order counseling or other programs as part of its exit order. However, it may not condition future modification of that order upon the completion of counseling and other programs; such changes are within the province of the family court. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 (Cole Y.).) Mother asserts the juvenile court violated this rule by conditioning any future change in visitation on mother's completion of drug tests and other programs. Respondent Los Angeles County Department of Children and Family Services (DCFS) disagrees, contending that the juvenile court's recommendations that mother complete certain programs did not limit the family court's power to make any future changes to the visitation order. We agree with DCFS's interpretation of the order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother also contends the juvenile court erred in ordering that the monitor for mother's visitation must be approved by DCFS, since the family's case was closed and DCFS was no longer working with the family. We agree that this condition was erroneous, and therefore reverse and remand for correction of this portion of the order.
FACTUAL AND PROCEDURAL BACKGROUND
Fifteen-year-old C. came to the attention of DCFS in February 2021, after a reporter stated that mother provided C. with alcohol and marijuana; took C. to a bar; used drugs while caring for C.; and left C. alone to care for an aging grandparent, who died while C. was alone with him. C., who lived with father and had sporadic visits with mother, confirmed that mother had provided him with alcohol and marijuana, had taken him to parties in which cocaine was being used, and left him alone for days at a time to care for the dying grandparent. C. also said mother suffers from depression and anxiety, and other family members discussed mother's erratic moods.
DCFS filed a juvenile dependency petition under section 300, subdivision (b)(1), alleging in three counts that mother provided C. with alcohol and marijuana, and took him to a party where drugs were being used (count b-1); that mother had a history of alcohol abuse and was under the influence while caring for C. on numerous occasions (count b-2); and that mother's mental and emotional problems and failure to take prescribed medications endangered C.'s safety (count b-3). On May 6, 2021, the court sustained the petition as alleged. Mother does not challenge the jurisdictional findings on appeal.
After the juvenile court made the jurisdictional findings at the May 6 hearing, it turned to disposition. Counsel for C. requested that juvenile court jurisdiction be terminated with an order that C. remain in father's custody. Counsel for DCFS stated that the department would prefer to keep the case open, but if the court was inclined to terminate jurisdiction, it could "give mother something to try [to] change in family court." Counsel for DCFS continued, "But as for the monitored visits, just asking for subsidies [sic] program with testing and aftercare; and a 12-step program if the court deems appropriate to sponsor; individual [counseling], which she's already in; and then lastly just asking for mental health eval and take all prescribed medications." Counsel for DCFS also asked that father not be the monitor for mother's visits.
The court stated that father and mother would have joint legal custody of C., physical custody to father, and monitored visitation for mother. Mother's counsel then interrupted the court, and said she wanted to be heard "regarding a case plan on the 206," presumably referring to form JV-206, which explains reasons for requiring supervised visitation. Mother's counsel argued that a drug and alcohol program would not be "narrowly tailored," and "we should start with testing, perhaps a few tests. And if mother tests negative [sic] or misses any of them, then perhaps a full drug and alcohol program would be appropriate." The court asked C.'s counsel if "ten consecutive tests" would be appropriate; C.'s counsel said yes, but asked that visitation remain monitored.
Counsel for DCFS pointed out, "[I]t's a closed case. So it doesn't really make sense to do ten consecutive drug tests, if any missed or dirty. That's just really the mother doing on her own accord since the department's not involved." Mother's counsel offered, "Your honor, the court can make that order and allow mother to present to the family court bench officer that she has ten consecutive tests. Obviously, if the bench officer finds that the paperwork doesn't add up or she missed a test, then that's up to that bench officer. But I don't think that it would be improper." The court stated, "I understand your point . . . . And she's going to have to show that court that she has ten consecutive clean tests or show them that she's done a full drug and alcohol program, if she tests dirty or misses a test. I'm going to keep it that way." The court also said it would "keep the mental health evaluation," because "I really do think that she needs to have a psychiatric evaluation and take all prescribed medications." The court asked counsel for DCFS if there was anything else, and counsel for DCFS stated, "I don't really know what 'consecutive' means. If we just leave it up to the mother, there's no real way to prove consecutive." The court responded, "I'm going to make it specific. It has to be done consecutive weekly tests. So if she skips a week, then that wouldn't be consecutive."
The court entered a written order on May 27, 2021, using the mandatory juvenile court forms. On form JV-200, "Custody Order," the court checked the box stating that visitation with mother was "as stated on form JV-205." The court also checked the box for item 13, "Other findings and orders"; it left the section blank, but checked the box "continued on the attached form JV-206."
Form JV-205, "Visitation (Parenting Time) Order," stated that mother's visitation was to be for a "minimum of 6 hours of monitored visits per week with a DCFS approved monitor, father not to monitor visits, visits in a neutral setting." The court also checked boxes stating that "supervised visitation" was to continue until "further order of the superior court," for the reasons stated on form JV-206.
Form JV-206, "Reasons for No or Supervised Visitation," stated that mother "was ordered to have . . . only supervised visitation" with C. because she "has not completed . . . [d]rug abuse treatment program with random testing" and "[i]ndividual counseling." The court also checked the "other" box, and stated, "10 consecutive drug weekly drug [sic] tests, if any missed or dirty, then full substance abuse program. [Mother] is to submit to mental health evaluation and take all prescribed medications." Notably, form JV-206 includes this statement printed near the bottom of the page: "Completion of one of the programs above might, but need not, constitute a significant change of circumstances for purposes of modifying this final custody order. (Welf. & Inst. Code, § 302(d).)"
DISCUSSION
On appeal, mother asserts two points of error: first, that the juvenile court exceeded its authority in requiring mother to complete drug tests andother programs, and second, that the court erred in ordering visits to be monitored by a DCFS-approved monitor. We consider these contentions in turn.
"When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court." (In re Roger S. (1992) 4 Cal.App.4th 25, 30.) We review a section 362.4 exit order for abuse of discretion, and do not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (In re M.R. (2017) 7 Cal.App.5th 886, 902.)
"If no action is filed or pending relating to the custody of the minor in the superior court of any county, the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides." (§ 362.4, subd. (c).)
A. The order was not conditional
Mother asserts that the juvenile court "exceeded its authority by conditioning the family court's ability to modify the exit order upon mother's completion of 10 consecutive weekly drug tests and other programs." DCFS asserts that the juvenile court imposed no such "condition," rather, the court merely stated its rationale in ordering monitored visitation.
A juvenile court may order counseling or other programs as part of an exit order, and may issue an order "conditioning custody or visitation on a parent's participation in a counseling program." (In re Chantal S. (1996) 13 Cal.4th 196, 204, citing sections 362.4 and 362, subd. (c); see also Cole Y., supra, 233 Cal.App.4th at p. 1456 ["juvenile courts may require participation in counseling and other programs in an exit order"].) However, the juvenile court may not "condition the family court's modification of an exit order upon the completion of counseling and other programs." (Cole Y., 233 Cal.App.4th at p. 1456.) Under section 302, subdivision (d), an exit order issued by the juvenile court may be modified only if the family court "finds that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child."
In Cole Y., for example, the juvenile court issued an exit order that required "Father to complete a drug program and to participate in a parenting program and individual counseling. In referring to the family court custody order, the juvenile court stated, 'And in order to modify the court's orders, . . . Father will have to complete . . . a full drug program with weekly testing, a parenting program and individual counseling.'" (Cole Y., supra, 233 Cal.App.4th at p. 1451.) The Court of Appeal held that by conditioning any future change in custody or visitation on proof that the father had completed certain programs and counseling, the juvenile court violated section 302, subdivision (d). (Id. at p. 1455.) The appellate court explained, "Under section 302, subdivision (d), the decision to modify an exit order was, and is, within the province of the family court, and then only upon a finding of 'significant change of circumstances' and that the modification is in 'the best interests of the child.' The juvenile court, thus, did not have authority to condition the family court's modification of the exit order upon Father's completion of drug and parenting programs and counseling." (Id. at p. 1456.)
Mother asserts that this case is like Cole Y. in that the juvenile court "condition[ed] the family court's modification of mother's exit order upon her completion of 10 consecutive weekly drug tests and other programs. Like Cole Y., in making its exit order, the juvenile court indicated mother was going to have to show the family court she completed the programs in order to modify the custody order."
No such condition existed here. At the hearing, when discussing how to craft the exit order, counsel for DCFS suggested that the juvenile court "give mother something to try [to] change in family court." After the court mentioned drug testing and counsel for DCFS noted that the department would no longer be working with mother on a case plan, mother's counsel suggested that mother could follow the juvenile court's recommendations nevertheless, which would "allow mother to present to the family court bench officer that she has ten consecutive tests." On form JV-205, the juvenile court stated that mother's supervised visitation would continue until "further order of the superior court"; the juvenile court did not attempt to place any limitations on future changes. The court's statements about mother drug testing and taking all prescribed medications were on form JV-206, "Reasons for No or Supervised Visitation," and did not suggest that the family court was restricted in any way from changing custody or visitation. Thus, the juvenile court, pursuant to mother's request, offered guidance as to how mother might show "a significant change of circumstances." The juvenile court did not suggest the family court would be bound by the juvenile court's statements.
The fact that mother specifically requested that the court include this information, yet now contends it constituted error, suggests either invited error or forfeiture of mother's contentions on appeal. The parties did not address either issue in their briefing. We exercise our discretion to address the issue even if it has been forfeited. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.) In addition, we find no error on this point, invited or otherwise.
Crafting an effective exit order requires some finesse. "'The orders need to provide specific direction to the parents and other parties to facilitate compliance and reduce the potential for conflict. . . . [¶] Juvenile final custody orders also need to provide sufficient detail, and use language familiar to the family law bench and bar, to permit the family court to enforce them if a dispute does arise or to modify or terminate the orders if circumstances change significantly and modification would be in the best interest of the child. The information included in the juvenile court order must address the circumstances that led to the juvenile court's child custody and parenting time orders to enable a family court to determine whether circumstances have changed to a degree that justifies considering whether the requested modification is in the best interests of the child. The child custody orders need to serve these functions without disclosing juvenile case information that should remain confidential, because juvenile court child custody orders, including attachments, are not themselves confidential. (§ 362.4.)'" (In re Anna T. (2020) 55 Cal.App.5th 870, 878-879, quoting Aug. 18, 2015 report by the Judicial Council's Family and Juvenile Law Advisory Committee, pp. 3-4.)
Here, the juvenile court listed its recommendations on form JV-206, giving mother and the family court guidance as to what might constitute "a significant change of circumstances" in C.'s best interests. (§ 302, subd. (d).) But the juvenile court's order cannot be fairly construed as limiting the family court's authority to modify it. The juvenile court order "does not tell the family court what to do. It tells [mother] what to do." (In re D.B. (2020) 48 Cal.App.5th 613, 627.) The family court remains free to modify or terminate the exit order based on its own findings of changed circumstances and C.'s best interests. (See Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1164.) The order was not conditional, and did not violate section 302, subdivision (d).
Even if the order were susceptible to more than one interpretation, we would construe it in such a way to make it lawful, operative, reasonable and capable of being carried into effect. (See In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 989.)
B. Requirement of a DCFS-approved monitor
Mother also contends the juvenile court erred in stating that the monitor for mother's visits must be approved by DCFS. She asserts that this provision of the order is erroneous because the "visitation order cannot be effectuated absent juvenile court jurisdiction." She argues that she is "unable to obtain a visitation monitor approved by the department in accordance with the exit order because the juvenile court no longer has jurisdiction in this case." DCFS contends that "the order may be implemented and enforced without juvenile court intervention," and reversal is not required because if mother has "a problem securing her monitored visitation, she can always ask [for] relief from the family law court." Mother asserts that she should not have to "navigate on her own through the family court to seek relief."
We agree with mother that the court's order was erroneous. There was no indication in the record that DCFS would continue working with the family after the juvenile court terminated jurisdiction, and there was no basis for the court to require DCFS to approve monitors for mother's visitation. We presume the inclusion of this language, which is commonly used in pending juvenile court cases, was simply an oversight by the juvenile court. However, the record does not reveal what the juvenile court intended with respect to securing monitors for mother's visits without DCFS involvement. We therefore remand the case for correction of the order. (In re A.C. (2011) 197 Cal.App.4th 796, 800; In re T.H. (2010) 190 Cal.App.4th 1119, 1124.)
DISPOSITION
The portion of the exit order requiring the monitor for mother's visits to be approved by DCFS is reversed. The matter is remanded with directions to revise this portion of the order. In all other respects, the order is affirmed.
We concur: MANELLA, P. J. WILLHITE, J.