Opinion
C089168
02-03-2020
In re J.L., a Person Coming Under the Juvenile Court Law. SAN JOAQUIN COUNTY HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. G.L., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. STKJVDP20180000134)
G.L., mother of the minor J.L. (minor), appeals from the juvenile court's orders dismissing dependency jurisdiction, awarding custody of the minor to X.L. (father), and providing for supervised visitation between mother and the minor. (Welf. & Inst. Code, §§ 300, 395.) She contends: (1) the court abused its discretion by applying the wrong legal test when issuing the so-called "exit orders" regarding custody and visitation; (2) the court abused its discretion by ordering supervised visitation for mother because the court's order was based on insufficient evidence; and (3) the court abused its discretion in awarding father sole legal custody of the minor because the court did not articulate the basis for its decision and failed to consider what custody arrangement would be in the minor's best interest. We affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
The minor first came to the attention of the San Joaquin County Human Services Agency (Agency) on April 5, 2018, when Child Protective Services (CPS) asked mother whether she had taken the five-month-old minor to a doctor because the minor had recently vomited and her immunization record needed to be updated. Mother stated she did not have time to take the minor to a doctor, "she did not love the minor," and she "should have given the minor away" because "the minor was a burden." Mother threatened to run away with the minor or give the minor away to CPS or someone who wanted her. Mother, who was originally from China but was living in the United States under political asylum, claimed the minor's father, who was also originally from China but was living in San Francisco, had been paying for mother's room and board until he ended their relationship in February 2018 and told mother he would stop paying her living expenses after April 30, 2018. Mother stated, "I freakin don't want this baby anymore" because "it was a result of rape" by father before they became a couple. She also claimed she had been sexually assaulted by a friend of father, but she did not report the rape "because of my reputation," referring to herself as a "celebrity or something."
Mother stated she felt the minor was a "burden" and hindered her from finishing her studies. She was unable to care for the minor due to stressors in her life, including that she would be homeless at the end of the month when her unemployment benefits ran out and she would soon have no source of income. Mother stated she had no support system because her family was in China and father, from whom she was estranged, was no longer willing to help her financially.
Mother told the social worker she went to San Joaquin County Mental Health Services the prior month because she was suffering from depression and had "bad thoughts about the baby," including, "throwing the baby out of the window." She claimed she was not suicidal and stated she was seeing a counselor and had been prescribed medication by her doctor. She stated she needed the Agency to take custody of the minor and she was seriously considering putting the minor up for adoption but needed time to think things through. Mother voluntarily gave up custody of the minor to the social worker, who admitted the minor into a children's shelter.
On April 9, 2018, the Agency filed a dependency petition pursuant to section 300, subdivisions (b) and (g), alleging failure to protect and failure to provide support.
On April 10, 2018, the court ordered the minor detained and ordered supervised visits for mother. Father made his first appearance at a hearing the following day, and the court ordered supervised visits for father as well.
Jurisdictional Hearing
Mother submitted to jurisdiction and, on April 24, 2018, the court found true the allegations in the petition as to her. In a subsequent hearing, father submitted on amended allegations in the petition as to him. The court found true the amended allegations as to father and found him to be the presumed father of the minor. The court ordered a psychological evaluation for mother.
Disposition Report
According to the Agency's June 19, 2018 disposition report, mother reported she had no history of mental illness but had experienced a high level of stress and anxiety when father "abandoned" her and refused to help her. Mother stated her doctor diagnosed her with postpartum depression but that she was compliant with her treatment and medication and had been "cleared."
Mother gave varying statements regarding possible placement of the minor with father. She first indicated she did not feel comfortable with the minor being placed with father because father told her he would take the minor to China and mother would never see the minor again. The next day, however, mother stated she would be willing to give father "50/50 custody" as she felt father could provide a good home for the minor. In yet another conversation, mother stated she believed father was "preparing a home for [the minor] and for me and I know that when this is all done, we will be able to put this past us and we will be able to have a good relationship for [the minor]." Mother reportedly believed father wanted to have a relationship with her, despite the fact father had made clear to mother that he wanted no contact with her. The Agency noted mother needed to undergo a psychological evaluation and participate in ongoing counseling to address her mental health issues and to ensure the services were adequate and appropriate to keep the minor safe in mother's care.
Father was adamant, from the beginning of the case, that he wanted absolutely no contact with mother. He stated he was afraid of mother and the allegations she might make up against him, and he maintained he never took advantage of mother or sexually assaulted her. Father stated he would like to have sole custody of the minor, noting he was financially stable and able to care for the minor and the paternal grandmother could help care for the minor while he was at work.
The Agency recommended the minor be placed with father, who was a nonoffending parent and who did not directly contribute to the minor's removal and detention. The report noted father had attended every court hearing and all scheduled visitations with the minor since the minor's detention, was gainfully employed, and had adequate housing for the minor. Father was reportedly appropriate with the minor during visits, had no criminal history in the United States, was attentive to the minor's needs, and wanted to be her primary caregiver. Father showed no signs of mental illness or the need for a mental health evaluation. The report also noted that, while mother made statements that father sexually assaulted her at the beginning of their relationship, there was no corroborating evidence to substantiate her claim and there were no criminal charges pending.
The report recommended services for mother, including parenting education classes, individual counseling, and a psychological evaluation. Mother's case plan service objectives included compliance with all court orders; maintaining stable and suitable housing for mother and the minor; monitoring the minor's health, safety, and well-being; compliance with medical and psychological treatment; and consistent, appropriate, and adequate parenting of the minor.
Dispositional Hearing
At the June 19, 2018 dispositional hearing, the court ordered the minor placed with father with continued visitation for mother. The court subsequently denied mother's section 388 petition seeking to modify the June 19, 2018 order for lack of new evidence or a change of circumstances.
On July 24, 2018, the Agency requested suspension of mother's visitation and issuance of a restraining order on behalf of father due to mother's troubling behaviors, including filing false police reports against father, alleging father and the social worker were sexually involved with one another, alleging the social worker sexually assaulted mother, and appearing at father's home with the police. After expressing concern about mother's conduct, the court suspended mother's visitation with he minor, ordered mother to have no contact with father, and admonished mother against filing any further restraining orders in family court and against making false reports to the police.
On August 10, 2018, mother agreed to drop all restraining orders, including the one against father. The court ordered the no-contact/no-harassment orders previously made remain in full force and effect, and again ordered mother not to contact or harass father, the minor, or the paternal grandmother.
Mother's supervised visitation was reinstated on September 11, 2018.
Status Review Report
The Agency's status review report, filed on December 21, 2018, stated mother completed parenting education and 20 individual counseling sessions, and successfully met her treatment goals by consistently demonstrating she had overcome her past issues with depression. Mother completed a psychological evaluation with results within normal limits and no findings suggestive of a psychological personality disorder. Mother had consistent visitation and was appropriate and engaged with the minor.
Father reportedly started individual counseling. He continued to make the minor available to mother for all visits but expressed concern for the minor while she was in mother's care.
The Agency recommended both parents receive six additional months of family maintenance services. The Agency requested discretion to begin overnight visits between mother and the minor, and further requested a 60-day review to consider dismissal of the dependency case.
Six-month Review Hearing
At the January 15, 2019 six-month review hearing, the court adopted the findings and orders recommended by the Agency, continued the minor as a dependent, found both parents' progress in services was "excellent" and placement was no longer necessary or appropriate, and determined a permanent plan of returning the minor to father's home was appropriate.
Contested Review Hearing
At the contested review hearing on March 20, 2019, social worker Michael Blalock testified that, during a supervised visit between mother and the minor, Blalock observed mother lying on the floor on her back, not watching or attending to the minor. When he went to talk with mother, she brought up the issue of being raped by father, and about wanting to give up because she was feeling overwhelmed and was worried father would fight her on every step of the custody arrangement. Mother also commented that having the minor might ruin her career and her life. Blalock recommended mother talk with her therapist. Mother gave Blalock a handwritten document and told him she wanted to give up her rights to the minor, although she later recanted.
Blalock was informed by the person who transported the minor between father and mother for visits (the godmother) that the minor became ill and vomited following the December 20, 2018 visit and was being taken to the hospital. Blalock testified about an e-mail he received from social worker Charlie Foo stating mother believed there were Chinese spies and that father was somehow connected to them. Mother claimed she knew where the spies were. Mother also told Foo one of her jobs was as a psychic. Blalock testified that all those pieces of information caused him concern regarding mother's mental health.
Blalock testified regarding an e-mail from Blalock's supervisor that, on February 22, 2019, mother was "spinning," which Blalock assumed meant she was talking about things that "didn't really have any meaning," including talking about having been raped by father and raving about the minor's diet. According to Blalock, mother would "spin out of control" during visits and had done so three times, despite having completed individual counseling. Mother sent Blalock several e-mails on February 21, 2019, about "food, domestic violence, [father] is raping her again." Mother also discussed getting a domestic violence restraining order against father so that father would not be able to have custody of the minor.
Blalock testified father's case plan consisted of individual counseling and maintaining his residence. Father completed his case plan. Mother completed her case plan, except for extended and overnight visits with the minor, but was still having episodes of spinning out of control. Blalock confirmed that, in addition to the e-mails he received from mother regarding being raped, mother talked to Foo about "bizarre things." Blalock further confirmed mother's behavior caused him concern. To his knowledge, mother was not taking any medication for psychological issues and was not seeing a psychologist or a psychiatrist. Nonetheless, Blalock stated that, given all the classes mother had taken and the counseling she completed, extended or overnight visits would be appropriate. Blalock had no concerns regarding the care the minor received while in father's home.
The court found father was the noncustodial, nonoffending parent; awarded legal and physical custody of the minor to him, with mother to have supervised visits; and terminated dependency jurisdiction.
Mother filed a timely notice of appeal on March 28, 2019.
On April 24, 2019, the juvenile court issued its written custody order and final judgment.
DISCUSSION
I
Custody Exit Orders
Mother contends the juvenile court abused its discretion in making its custody exit orders because it failed to consider what custody arrangement would be in the minor's best interest and there was insufficient evidence to support denial of custody to mother. The claim lacks merit.
Section 361.2, subdivision (a), provides that the juvenile court shall place the minor with the noncustodial parent who desires to assume custody "unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." Under section 361.2, subdivision (b), the juvenile court has two options relevant here: (1) the court may order that the noncustodial parent become the minor's legal and physical custodian and terminate dependency jurisdiction (§ 361.2, subd. (b)(1)), as the court did here, or (2) the court may order that the noncustodial parent assume custody subject to the court's jurisdiction or supervision (§ 361.2, subds. (b)(2), (3)).
We apply the deferential substantial evidence standard of review to the juvenile court's findings under section 361.2. (In re John M. (2006) 141 Cal.App.4th 1564, 1569-1570.)
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation." (In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.) In making an exit order, the juvenile court must look to the best interests of the child under all the circumstances. (In re John W. (1996) 41 Cal.App.4th 961, 973 (John W.))
A juvenile court's decision to terminate dependency jurisdiction and to issue exit orders pursuant to section 362.4 is reviewed for abuse of discretion and may not be disturbed unless the court's determination was arbitrary, capricious, or patently absurd. (In re M.R. (2017) 7 Cal.App.5th 886, 902; In re Stephanie M. (1994) 7 Cal.4th 295, 318.) " ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' [Citations.]" (In re Stephanie M., at p. 319.)
Here, the record does not support mother's claim that the court abused its discretion or that there was insufficient evidence to support the custody order.
The court found father was the noncustodial, nonoffending parent, he followed through with his case plan, he provided ongoing medical care for the minor, and the minor was in no physical danger while in father's custody. The court further found the reasons that brought the case to dependency court "have been addressed by the father in a positive fashion." On the other hand, the court found that while "the major components of both case plans [had] been accomplished," mother "had some serious issues the last 90 days" as "outlined pretty strongly in the arguments and evidence that has been presented," including the statements of and documentation from the social workers that suggested mother remained in denial about the events that led up to removal of the minor.
The court's findings were supported by the testimony at the hearing. Social worker Blalock testified mother told him that having the minor might ruin her career and her life. That statement was consistent with mother's statements at the inception of the dependency proceedings when mother stated, "I freakin don't want this baby anymore" because "it was a result of rape" by father and the minor was a "burden" and hindered her from finishing her studies. Blalock also testified mother gave him a handwritten document and told him she wanted to give up her rights to the minor, although she later recanted. Again, that sentiment was consistent with her initial desire to give the minor away or put the minor up for adoption. Blalock testified he had concerns about mother's mental health based, in part, on an e-mail he received from social worker Foo stating mother believed there were Chinese spies, she knew where they were, and she believed father was somehow connected to them. He also had concerns based on his own experience of mother "spin[ning] out of control" three times during visits despite having completed her individual counseling, as well as e-mails he received from mother in February 2019 that father was "raping her again."
The court's findings were also supported by the evidence in the record. Based on the Agency's reports, despite having completed individual counseling, parenting education, and a psychological evaluation, and in contrast to the conclusion of the psychological evaluator that there was no finding suggestive of a psychological personality disorder as of August 9, 2018, mother struggled with issues that resulted in "erratic" behavior such as following father, filing false police reports saying father sexually assaulted her, showing up at father's home with police claiming father sexually assaulted her, claiming the social worker was having sex with father and sexually assaulted mother, and attempting to obtain restraining orders against father, the paternal grandmother, and others.
The testimony and the evidence in the record demonstrated that, while mother made significant strides in some areas and completed the case plan elements required of her, she nonetheless exhibited behaviors that raised concerns about whether she benefitted from the services and about her ability to properly and adequately care for the minor.
Mother claims the court failed to consider the minor's best interests in making its custody exit order that it was required to do pursuant to Family Code section 3020. Section 3020 provides in relevant part: "The Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child." (Fam. Code, § 3020, subd. (b).) Mother acknowledges there is no joint custody presumption applicable in juvenile dependency proceedings but argues that, pursuant to Family Code section 3020, subdivision (b), the court was required to consider the Legislative preference for shared parental rights and responsibilities where, as here, the child is not at risk. We are not persuaded.
While there is legal authority providing application of a statute outside the Welfare and Institutions Code is not necessarily barred from dependency proceedings (see In re Claudia E. (2008) 163 Cal.App.4th 627, 636; In re Chantal S. (1996) 13 Cal.4th 196, 206-209 (Chantal S.).), mother's premise that the juvenile court was "required to" consider the Legislative preference for shared parental rights contained in Family Code section 3020 when making its custody exit orders does not find support in the cases cited by mother or in any other authority. Indeed, none of the authority on which mother relies (including In re Mark B. (2007) 149 Cal.App.4th 61, decided by this court) makes any mention of Family Code section 3020. In any event, case law and the Welfare and Institutions Code already compel the juvenile court to "look at the best interests of the child" in making its exit orders (see John W., supra, 41 Cal.App.4th at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712) and "look to the totality of a child's circumstances when making decisions regarding the child." (Chantal S., at p. 201.)
Mother also argues that, even if the court was not required to consider Family Code section 3020, it was still required to consider the minor's best interests, which it did not do. We disagree. The juvenile court's consideration of the minor's best interests is implicit in both the court's statements on the record and the resulting order. In making its order, the court noted father provided ongoing medical care for the minor and the minor appeared to be healthy and well-nourished. The court opined the minor was in no physical danger while in father's custody, there was no risk to the minor while the paternal grandmother was caring for the minor in father's absence, and the minor was not in any distress when transported to the hospital by the godmother. Moreover, the court expressed concern that, despite having accomplished the major components of her case plan, mother "appears as though she is still in a stressful, denial state" and had not appropriately addressed the issues that led to removal of the minor, whereas father addressed the issues "in a positive fashion." The court's oral and written orders provided that mother maintain contact with the minor, but that visitation be supervised due to mother's lack of progress in individual counseling.
Mother argues the court did not find the minor would be at substantial risk of harm if placed in mother's care. The court was not required to make such a finding. (See In re Maya L. (2014) 232 Cal.App.4th 81, 100-101 [the juvenile court is not required to return the minor to the previously custodial parent in the absence of evidence establishing that doing so would create a substantial risk of harm to the minor; rather, the court "shall determine whether supervision is still necessary" and, if not, transfer permanent custody to the noncustodial parent subject to appropriate exit orders].) Pursuant to section 361.2, subdivision (a), placement of the minor with the noncustodial parent who desires to assume custody is proper "unless [the juvenile court] finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." The court complied with those provisions here.
Mother claims the court's order placing the minor with father was based on a finding mother suffered from untreated mental illness that posed a risk of harm to the minor and was therefore not supported by substantial evidence. As we previously discussed at length and concluded above, the court's findings were supported by social worker Blalock's testimony at the hearing and evidence in the record establishing that, despite having completed individual counseling, parenting education, and a psychological evaluation, mother continued to struggle with issues that resulted in "erratic" behavior and caused concerns about her ability to properly and adequately care for the minor.
In light of our conclusion the court did not err in making its custody exit orders, we need not reach mother's claim that reversal is required for the juvenile court to apply the "correct legal test" or her claim of prejudicial error.
II
Visitation
Mother contends the court abused its discretion in ordering that visitation between mother and the minor be supervised because the finding on which the court based the order was not supported by substantial evidence. She claims the court's finding -- that mother had not made substantial progress in individual counseling -- conflicted with its finding mother had accomplished the major components of her case plan and with the evidence mother was engaged and progressing well in therapy in September 2018 and had completed 20 individual counseling sessions. The claim lacks merit.
Section 362.4 authorizes a juvenile court to issue visitation orders when it terminates jurisdiction. (See § 362.4, subd. (a); Chantal S., supra, 13 Cal.4th at pp. 202-203; In re Armando L. (2016) 1 Cal.App.5th 606, 616.) Supervised visitation is warranted where unsupervised visits would jeopardize the minor's safety. (See § 362.1, subd. (a)(1)(A) & (B).) The court has broad discretion in fashioning visitation orders, and its determination will not be disturbed on review absent a clear abuse of discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.)
Under the circumstances of this case, as discussed at length in part I of this opinion, the juvenile court acknowledged mother accomplished the major components of her case plan but remained concerned her behavior continued to raise issues about her ability to properly and safely care for the minor. The testimony of social worker Blalock and the reports in the record established that, notwithstanding having engaged in a significant number of individual counseling sessions, mother continued to express that the minor might interfere with her career and her life, she wanted to give up her rights to the minor; she believed father was connected to Chinese spies; and on several occasions she would "spin out of control" during visits and in e-mails, talking erratically and claiming father was "raping her again." Therefore, the court did not abuse its discretion in requiring that mother's visits with the minor be supervised.
III
Legal Custody
Mother contends the court abused its discretion in awarding sole legal custody of the minor to father because the court failed to articulate any basis for not permitting mother to share in the right and responsibility of making decisions related to the minor's health and welfare. She argues, without any citation to authority, the court was required "to articulate a separate basis specifically related to its conclusion to award father sole legal custody." To the extent this observation, made in passing and without citation to authority, is intended to constitute an argument, it must be deemed forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in appellate brief must be supported by citation of authority]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [lack of authority or analysis constitutes forfeiture].) In any event, as previously discussed in part I of this opinion, the court's custody exit order is supported by substantial evidence.
DISPOSITION
The juvenile court's orders are affirmed.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
ROBIE, J.