Opinion
A131455
11-15-2011
In re M.M., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.M., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. HJ09012630)
The mother of minor child M.M. appeals from a judgment of the Alameda County Superior Court, Juvenile Division, awarding the father sole physical and legal custody of the child. We affirm.
BACKGROUND
In April 2009, mother was arrested for attempted burglary and put in jail. At that time, M.M. was five years old. Her parents were unmarried, not romantically involved, and living apart. Responsibility for M.M. fell to the child's maternal aunt and maternal grandparents, who were living together in a home in Fremont. On May 12, 2009, however, police arrested the aunt for several drug-related offenses. With the grandparents out of town, an emergency response worker delivered M.M. into protective custody.
On May 14, 2009, the Alameda County Social Services Agency (Agency) filed a juvenile dependency petition under Welfare and Institutions Code section 300 on behalf of M.M. The petition alleged the parents' failure to supervise and protect M.M. under subdivision (b) and lack of provision for M.M.'s support under subdivision (g). The maternal grandparents and father, living in Arizona, separately sought to have M.M. in their care pending resolution of the petition, but the juvenile court ordered M.M. detained and placed in shelter care.
On June 4, 2009, the court held a hearing on the petition and found its allegations, as orally amended, true. Mother was no longer incarcerated, and the juvenile court allowed her to care for M.M., so long as the aunt did not reside at the same residence. M.M., however, would remain a dependent of the court pending future review hearings.
The amended petition reflected mother's release from jail and contained other minor edits not relevant here.
Mother was arrested again on October 30, 2009, and detained without bail. On November 20, 2009, the Agency filed a supplemental dependency petition under Welfare and Institutions Code section 387. The juvenile court took custody from mother and vested it with the Agency, though it allowed the Agency to release M.M. to the maternal grandparents. After a hearing on the supplemental petition, the court sustained it, retained M.M. as a dependent of the court and reaffirmed the Agency's custody, but placed M.M. with her father, whose home was recently approved for the child, instead of the grandparents.
On April 28, 2010, mother returned from jail again. Pursuant to a June 2010 order, father continued to have responsibility for M.M.'s care, but mother was permitted unrestricted visits with M.M. at the maternal grandparents' home.
On July 30, 2010, while M.M. was visiting her mother, witnesses observed mother stealing items from a parked car. When mother realized she was being watched, she ran across the parking lot and got into her truck, where she had left M.M. with the windows rolled up. The witnesses then parked their car so it blocked mother from backing out of her spot and attempted to confront her. To avoid the confrontation, mother drove over the concrete curb at the front of the parking spot, struck a support post, and continued toward her residence. The police were waiting when she arrived. When mother asked one officer " 'Would I be stealing with my daughter with me?' " he answered he had arrested her twice before for thefts when she had M.M. in tow. The police, in front of M.M., arrested mother for grand theft and violation of her probation conditions. While searching mother's room, police found methamphetamines, credit cards belonging to others, and additional potentially stolen items.
On November 22, 2010, the Agency filed a status review report recommending dismissal of the dependency action, termination of the juvenile court's jurisdiction, and placement of M.M. with her father in Arizona. Though the Agency recommended sole physical custody to father, it asked the court to grant joint legal custody. The Agency's recommendations were based on the comparative situations of mother and father. Mother had an unresolved methamphetamine addiction and ongoing encounters with law enforcement that left her incarcerated for the time being. She also was not participating in counseling the family court had ordered. Father, on the other hand, was participating in his court-ordered programs, could provide a stable environment, and had a good relationship with many of M.M.'s maternal relatives. The Agency was "greatly concerned that [mother] cannot be a stable parent" and has shown she is "unable to make appropriate parenting decisions regarding the care of [M.M.]"
Such reports are generally competent and admissible proof in a dependency proceeding. (In re Malinda S. (1990) 51 Cal.3d 368, 375-382; In re Lucero L. (2000) 22 Cal.4th 1227, 1240-1242; In re Keyonie R. (1996) 42 Cal.App.4th 1569, 1572-1573; In re Jonique W. (1994) 26 Cal.App.4th 685, 692-693.)
The parties attempted to resolve the dependency action through mediation. Although all agreed father should have sole physical custody, father also sought sole legal custody while mother sought joint legal custody. The parties appeared before the court on January 20, 2011. Mother requested further mediation. Father wished to submit the issue of legal custody by argument without a hearing. The trial court heard argument, considered the matter submitted, and awarded sole legal custody to father. After announcing its ruling orally, counsel for mother asked the court to provide reasons for its ruling, purportedly under Family Code section 3082. The court responded: "Well, it's based on her history." On further prompting, the court stated:
Well, the best interest of the child based on the mother's history, the documentation in the report, the distance between both Arizona and California, the fact that for a child that age to be moved from one parent to another and have a potential fight over who has custody, particularly with her going to California or Arizona, and particularly with the mother's history, unfortunate as it is, it's disruptive emotionally to the child's bonding with the father. It would be detrimental to [her]. [Her] bonding with the father is primary now.No one objected to the adequacy of the trial court's stated reasons, and the hearing concluded. The minute order for the hearing records these reasons as pertaining to both "legal and physical custody."
On January 21, 2011, the family court entered judgment awarding sole physical and sole legal custody to father. Mother filed a timely notice of appeal on March 10, 2011.
DISCUSSION
Mother asserts the juvenile court abused its discretion by not awarding joint legal custody. Legal custody, as distinguished from physical custody, means "the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Cf. Fam. Code, §§ 3003, 3006 & Fam. Code, §§ 3004, 3007.)
We review a custody order under the deferential abuse of discretion standard and may not disturb the order unless the court exceeded the limits of its discretion by making an arbitrary, capricious, or patently absurd determination. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) " ' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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." ' " (In re Stephanie M., supra, at pp. 318-319.) A juvenile court's primary consideration in deciding custody is the best interests of the child. (In re Chantal S. (1996) 13 Cal.4th 196, 206.)
Mother faults the juvenile court for not crediting evidence that she and father successfully made joint decisions regarding M.M.'s visits of family members during the dependency proceedings. But it was not an abuse of discretion for the court to focus, instead, on mother's ongoing irresponsible behavior and failure to make sound decisions, which often came to light when M.M. visited with her. (See People ex rel. Harris v. Black Hawk Tobacco, Inc. (2011) 197 Cal.App.4th 1561, 1567 [" ' "In determining whether there has been such an abuse, we cannot reweigh evidence." ' "].)
Mother also contends the court's stated reasons for awarding father sole legal custody were impermissibly related to the uncontested issue of physical custody. She claims "there was no evidence before the court, and the court did not expressly reason, that Mother's participation in important decisions relating to [M.M.'s] welfare would not be in the minor's best interests." The trial court, however, committed no error.
To begin with, mother was not entitled to a statement of reasons in connection with the court's custody decision. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 713 [the Welfare and Institutions Code "does not require a specific statement of reasons be given when making a custody order"].) Below, mother told the juvenile court Family Code section 3082 required a statement of reasons. However, that Family Code section, formerly Civil Code section 4600.5, is not applicable in juvenile dependency proceedings. (In re Jennifer R., at pp. 711, 713.) Even if Family Code section 3082 applied, Mother's request for a statement of reasons, which she made only after the matter was submitted, was untimely. (See In re Marriage of Buser (1987) 190 Cal.App.3d 639, 643 [applying the rules of Code of Civil Procedure section 632 regarding statements of decision to the predecessor's Family Code section 3082].) In addition, though mother requested a statement of reasons and then prompted the court to provide a more detailed statement, she made no objection to the adequacy of the statement and the court's stated reasons, and she has therefore forfeited the objection. It is "unproductive to deprive a trial court of the opportunity to correct . . . a purported defect [in its statement] by allowing a litigant to raise the claimed error for the first time on appeal." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138 ["it would be unfair to allow counsel to lull the trial court and opposing counsel into believing the statement of decision was acceptable, and thereafter to take advantage of an error on appeal although it could have been corrected at trial"].)
Mother does not mention Family Code section 3082 in her briefs on appeal.
Even considering the merits of mother's contention that the juvenile court's statement of reasons shows an abuse of discretion, we conclude there was none. For instance, the court emphasized mother's history of poor judgment, the distance between the parents, and the child's age, all of which pertain to the issue of whether sole or joint legal custody would be appropriate. It also relied on documentation provided by the Agency which bluntly stated mother's behavior showed "she is unable to make appropriate parenting decisions regarding the care of [M.M.]." Thus, the juvenile court identified an imminently reasonable basis for its decision granting sole legal custody to father.
As mother observes, the court also made reference to the negative impact on M.M. of being moved from one parent to another and that M.M. had bonded with father, assessments that pertain more to physical custody than to legal custody. We first note mother asked for a statement of reasons at the last minute while the hearing was wrapping up, and the court may have thought mother was requesting a statement on custody, generally, and thus stated reasons supporting both the physical and legal custody rulings embraced by the judgment. In fact, the trial court's written minutes state the reasons apply to both legal and physical custody. But even if the juvenile court erred in considering factors pertaining to physical custody in its analysis of legal custody, such error is harmless here. Reversal is justified " 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (In re J.S. (2011) 196 Cal.App.4th 1069, 1078; see generally Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Mother makes no argument the court's asserted error was prejudicial, even though, as the appellant, it was her burden to demonstrate prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [" 'The burden is on the appellant in every case to show that the claimed error is prejudicial . . . .' "].) Further, having reviewed the record fully, we discern no prejudice from any such asserted error.
DISPOSITION
The judgment is affirmed.
Banke, J. We concur: Margulies, Acting P. J. Dondero, J.