Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK78611. Elizabeth Kim, Referee.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Frederick Klink, Deputy County Counsel, for Plaintiff and Respondent.
Lori Siegel, under appointment by the Court of Appeal, for Minors (Respondents).
CHANEY, J.
J.S. (Father) appeals from juvenile court orders terminating dependency jurisdiction and awarding the children’s mother sole legal and physical custody of the three children and ordering monitored visitation for him. Father contends that the juvenile court abused its discretion in denying him joint legal custody and denying him unmonitored visitation. We disagree and affirm.
BACKGROUND
In July 2009, when this family came to the attention of the Los Angeles Department of Children and Family Services (DCFS), Father and F.S. (Mother) were separated with divorce proceedings pending. Father and Mother had separated in October 2008. They had joint legal custody of their three boys (ages 9, 6 and 2 years old), and Mother had physical custody. The family law court had ordered four-hour unmonitored visits for Father, three days per week.
Mother is not a party to this appeal.
Two incidents of domestic violence between Father and his girlfriend Mayra, which occurred when the children were visiting Father, led to the children’s detention by DCFS in the summer of 2009. On July 17, 2009, Mayra became upset with Father because he had bought a toy for the boys. When Father and the boys returned home from the store, Father and Mayra went into a different room than the boys, and argued. The two oldest boys, D.S. and O.S., later reported to a social worker that they heard Father slap Mayra while Father and Mayra were in the other room. The police were called. When officers arrived, Mayra denied that Father had slapped her. The officers did not prepare a report or arrest anyone.
A DCFS social worker responded to a referral made by Mother, and met with Father on July 17, 2009, the same day as the incident. Father admitted that he and Mayra had “engage[d] in a verbal dispute in the presence of the children.” D.S. and O.S. told the social worker that Father had “verbally and physically argue[d] with his girlfriend, ” and they were “afraid of a domestic dispute between [F]ather and [Mayra] happening again.” After being counseled by the social worker about “the severity of exposing children to domestic violence, ” Father signed a safety plan “in which he agreed to refrain from domestic violence and agreed that his girlfriend... w[ould] not be present during visits with his children.” The “duration of the [safety] plan” was set at one month, with an “end date” of August 17, 2009. DCFS closed the referral.
Two months later, on September 24, 2009, Father told a dependency investigator that he “pushed [Mayra] on the bed” during the July 17, 2009 argument. On October 1, 2009, Mayra explained to the investigator that the reason she called the police on July 17 was that Father had pushed her.
On August 18, 2009, DCFS learned about another incident between Father and Mayra which had occurred the day before (August 17) in the boys’ presence. During an argument, Mayra hit Father on his chest and back with her hands.
On August 20, 2009, DCFS detained the children from Father and released them to Mother, a “non-offending” parent. Mother informed a social worker about an incident of domestic violence between her and Father, which occurred in January 2009, after they were separated. The incident arose from prior discussions between Father and Mother regarding distribution of the refund from their joint tax return. Father had requested that Mother give him $3,000 out of the refund, and Mother had initially agreed. Mother changed her mind after she used some of the refund to pay off their joint debt. She then decided to give Father only $1,000. When she told Father, he became upset. He went to Mother’s home when the children were present. He picked up a tricycle and threw it at the television. Then he “grabbed the television and threw it down towards the floor, ” breaking both the television and a china cabinet. According to Mother and the eldest boy, D.S., Father pushed Mother down. The children were scared. Mother called the police. The officers who responded did not prepare a report or arrest anyone. As a result of this incident, Mother enrolled herself and her boys in therapy.
Mother reported to the social worker that “the children have been emotionally effected [sic] by the incident [on August 17, 2009] and do not wish to visit with father.” According to DCFS’s detention report: “Mother stated, ‘I noticed that my children have been timid and afraid since they returned from their visit with their father. I don’t want my children to go through this type of abuse anymore.’ Mother stated that the children have lost their appetite, cry for no reason, and have been having trouble sleeping since Monday, 8/17/09.” D.S. told the social worker that he had not been hungry in the few days since the August 17 incident, and was afraid to visit Father. He feared that Mayra might “accidentally hit him [when] she hits Father.” D.S. also reported that his youngest brother, S.S., cried while Father and Mayra argued. O.S. told the social worker that he had “lost his appetite, ” felt scared, could not sleep and “cried several times since the [August 17] incident.” O.S. also reported that S.S. cried while Father and Mayra argued.
On August 25, 2009, DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (a) and (b), alleging Father and Mayra’s “history of domestic violence in the children’s presence, ” specifically the July 17 and August 17, 2009 incidents, as well as the children’s exposure to “a violent confrontation” between Father and Mother on January 21, 2009.
Further statutory references are to the Welfare and Institutions Code.
At the August 25, 2009 detention hearing, Father submitted to detention and monitored visitation. The juvenile court ordered the children released to Mother, with monitored visitation for Father. Father’s visits were not to be monitored by Mother and not to be with Mayra present. The court also ordered family maintenance services.
In the jurisdiction/disposition report, prepared on or about October 2, 2009, DCFS explained that there had been no visits between the children and Father since the August 17, 2009 incident, because the children stated that “they fear[ed] their father” and did not want to visit with him.
At a hearing on October 7, 2009, Father submitted on the petition as amended. The juvenile court sustained the following allegations under section 300, subdivision (b): “b-1 [¶] The children [D.D., O.S and S.S]’s father, [J.S.] and father’s female companion [Mayra] have a history of domestic violence in the children’s presence. On or about 07/17/09, the father pushed the female companion. On 08/17/09, the female companion struck the father’s chest and back with the female companion’s hands. Such violent conduct on the part of the father and the female companion endangers the children’s physical and emotional health and safety and places the children at risk of severe physical and emotional harm, damage and danger”; “b-2 [¶] On 01/21/09, the children [D.D., O.S. and S.S.] were exposed to a violent confrontation between the mother, [F.S.] and father, [J.S.] in which the father threw a tricycle, broke a television and a cabinet, and pushed the mother. Such violent conduct on the part of the father and against the mother in the children’s presence endangers the children’s physical and emotional health and safety and places the children at risk of physical and emotional harm, damage and danger.”
In September 2009, D.S. and O.S. informed a dependency investigator that Father would hit them with his hand and a belt. Father admitted that he had spanked the children with an open hand and hit them with a belt, but stated that he had not “physically disciplined the children in over a year.” In the jurisdiction/disposition report, dated October 2, 2009, DCFS stated that it intended to file a first amended petition based on these allegations. It did not. The juvenile court was not asked to consider allegations of physical abuse or make findings on this issue.
The juvenile court ordered Father to attend parent education, domestic violence counseling and individual counseling to address anger management. The court also ordered monitored visitation for Father and granted DCFS discretion to liberalize the visitation. Mother submitted to the court’s jurisdiction even though she was non-offending. The court ordered her to complete programs as well. The court asked DCFS to address in its progress report the “possibility of termination of jurisdiction.”
In an interim review report, prepared on or about December 31, 2009, DCFS stated that Father enrolled in anger management classes on December 10, 2009, but had not provided proof of enrollment in domestic violence counseling or parenting classes. DCFS also reported that Father had not provided Mother with any financial assistance for the children since October 2008. Father began having monitored visits with the children on December 11, 2009, with his sister as the monitor. He was scheduled to have one, three-hour visit per week. On December 24, 2009, the children reported that the visits with Father “were going well.” At a hearing on January 6, 2010, the children’s counsel informed the juvenile court that the children were “enjoying visits with the father.”
In a status review report, prepared on or about April 14, 2010, DCFS stated that Father was discharged from his employment at a factory on February 16, 2010 “for unknown reasons.” On March 3, 2010 Father was discharged from his anger management program. He had only attended two classes, on December 12 and 30, 2009, and did not respond to the program’s attempts to contact him by phone to inquire about his participation. Father still had not provided DCFS with proof of enrollment in domestic violence counseling or parenting classes. When the social worker tried to reach Father by phone to get an update on the status of his programs, Father did not return the call. Father was continuing to visit with the children once a week for three hours. DCFS had not liberalized the visitation due to Father’s noncompliance with his case plan.
DCFS also reported that on March 30, 2010, at about 11:00 p.m., Father knocked on the children’s bedroom window at Mother’s home, and requested permission to sleep in the home that night. Apparently Father and Mayra had had “a domestic dispute.” Mother did not allow Father to come in. The following day, Father came back and asked to sleep in Mother’s living room. Mother again refused. Mother informed the social worker that D.S. cried because he was worried that Father did not have a place to sleep. Mother “was concerned because father was disrupting the peace in her home.”
DCFS recommended that the juvenile court terminate Father’s reunification services at the April 19, 2010 status review hearing. At that hearing, Father’s counsel argued that Father was trying to comply with the court’s orders, but had not been able to pay for classes because he lost his job. The court ordered further reunification services for Father. Father requested that the court increase his visitation from three to six hours per week. The children’s counsel stated that the boys wanted to spend more time with Father. DCFS had no objection to increased visitation so long as Father’s sister had been approved as a monitor. The court granted DCFS discretion to increase Father’s visitation to six hours per week if an approved monitor was available to supervise.
In an interim review report, prepared on or about July 13, 2010, DCFS stated that Father was employed but still had not provided DCFS with proof of enrollment in any of the court-ordered programs. DCFS tried to contact Father by phone to inquire about the status of his enrollment, but his cell phone was no longer in service. A social worker assigned to another dependency case involving Mayra and her daughter told the social worker on Father’s case that Father was claiming that the “court had told him at the 4/19/10 hearing that there was no need for him to complete his classes and that he was still allowed to see his children.” This other social worker also reported that Father and Mayra had been living together for about five months, were expecting a baby and “that there continued to be constant arguments and disputes between [them].”
DCFS also reported that on July 13, 2010, Father appeared at Mother’s home “for an unauthorized visit with [the] children.” A family preservation program case manager was there visiting with Mother at the time Father arrived. Father told the case manager that Mother had agreed to monitor the visit. The case manager called the social worker and was informed that Mother was not permitted to monitor Father’s visits. Mother told the social worker that she had not agreed to monitor the visit.
DCFS recommended that the juvenile court terminated Father’s reunification services at the July 19, 2010 review hearing. At that hearing, Father presented DCFS with proof of his enrollment in parenting, anger management and domestic violence programs. Father’s counsel stated that Father was not attending programs previously because he could not afford to pay for them, not because he believed he was not required to attend. The court ordered further reunification services for Father and granted DCFS discretion to liberalize Father’s visits “as he continues to progress in his therapy.”
In a status review report, prepared on or about October 14, 2010, DCFS stated that Father had been attending “general counseling, parent education classes, domestic violence, and anger management classes” since his enrollment on July 9, 2010. Father’s counselor at his programs informed the social worker that Father had missed a total of three sessions since his enrollment “due to sickness, birth of new child, and because he was still at work.” As the DCFS social worker stated in her report, when the counselor informed Father that the missed classes would be reported to DCFS, Father told her that he would pay for the missed classes “so they wouldn’t be reflected on his attendance.” The counselor responded that she could not accept such a payment. The counselor also told the social worker that Father arrived on time for his sessions, but appeared to be unmotivated, tired and distracted. DCFS reported that Father was “compliant” in his other case with Mayra in which he was receiving voluntary family maintenance services, and had been permitted to live with her and her four-year-old daughter.
Father later asserted that he had offered to pay for the missed time; he did not offer to pay so that the counselor would lie about his attendance, as DCFS argued to the court.
DCFS also provided an update on Father’s visitation. He was having three-hour monitored visits with the children on Saturdays and Sundays. On October 3, 2010, Father arrived at Mother’s home to pick up the children, but he was not with the monitor (his sister). He told Mother that he was going to pick up his sister after he left Mother’s home with the children. He did not. Mother contacted Father’s sister and the social worker about the unauthorized unmonitored visit. The social worker was unable to contact Father because he did not have a working cell phone. When Father returned to his home with the children, his sister called Mother. Mother immediately picked up the children and informed Father that the remainder of his visit had been suspended by the social worker.
DCFS’s report also addressed Mother’s concern that Father had agreed to purchase, but failed to deliver a $120 computer cable that would enable their eldest son to complete his “online” homework assignments. Mother could not afford to buy the cable. When the social worker asked Father about it, Father claimed Mother told him D.S. no longer needed it. Mother confirmed that D.S. still needed it, and asserted that Father was ignoring her request.
DCFS recommended that the juvenile court terminate jurisdiction at the October 18, 2010 hearing, and grant Father monitored visitation. DCFS was not opposed to unmonitored visitation after Father completed his court-ordered programs. At the hearing, Father requested that the court keep the case open so that he could finish his programs. He informed the court that he had purchased the cable cord for D.S. He also argued that he should have joint legal custody and unmonitored visitation. DCFS was not opposed to Father’s request for joint legal custody. Mother and minors’ counsel were in favor of termination of the court’s jurisdiction. Minors’ counsel agreed with DCFS that Father’s visits should remain monitored.
The juvenile court requested a supplemental report on Father’s progress in his programs to enable the court to determine whether it would grant unmonitored visitation in its exit order, upon termination of jurisdiction. The court also commented: “Father is requesting joint custody. Nobody seems to have a problem with that.”
DCFS prepared the supplemental report on or about October 20, 2010, with an update on Father’s progress in his programs. Father’s counselor told the social worker that Father had missed another session, his fourth, and had not called to notify her in advance. The counselor also reported that Father was upset with her and told her that “the information that she was reporting to [the social worker] was getting him in trouble in court and could possibly jeopardize his visits with his children.” The counselor stated that she “need[ed] more time to make a better assessment about father.” She wanted to conduct a session with both Father and Mother before she made a recommendation. She also stated she would not write a letter recommending “unmonitored visits or joint custody if father was being dishonest during sessions.”
DCFS also reported on concerns expressed by Father’s sister, the person who monitored his visits. She informed the social worker that Father told their aunt the court had granted him unmonitored day visits with his children. The social worker confirmed that Father’s visits were still monitored. Father’s sister also explained that she had asked Father and Mayra to move out of her home because they did not buy groceries or clean up after themselves. DCFS expressed concern in its report about Father’s “carelessness and lack of home responsibility.”
DCFS also reported on Mother’s concerns. She questioned why the juvenile court would grant joint custody when Father had not supported the children financially since he and Mother separated. She also commented that Father had not seen to the children’s emotional, medical or educational needs since that time. She asserted that Father relied on his sister to drive him to visits and to buy food for the children during the visits. Mother was not opposed to unmonitored day visits for Father to begin after he completed his court-ordered programs.
Due to concerns about Father’s “honesty and responsibility to care for his children, ” DCFS recommended that Father’s visits remain monitored. DCFS also recommended that the juvenile court “continue the hearing for receipt of another progress letter from [Father’s counselor] for an assessment between father and mother with recommendation of father’s visits and custody of children.”
On October 22, 2010, DCFS submitted to the juvenile court a letter from Father’s program, stating in part that Father “has missed 4 sessions due to economic challenges, but has accepted his responsibility to be consistent. His overall attendance and participation has been satisfactory.” The letter also states that Father “would benefit from family therapy, pending recommendation of individual therapist to obtain the skills required to build positive relationships with his children.” DCFS also submitted its recommendation that the juvenile court terminate jurisdiction with an exit order granting Father unmonitored day weekend visits with the children.
On November 2, 2010, the parties went to mediation in an attempt to reach agreement on a family law exit order. The matter did not settle at mediation.
At a contested review hearing on November 3, 2010, Father requested that the juvenile court award joint legal custody, physical custody to Mother and unmonitored day visits for Father in its family law order. DCFS, Mother and minors’ counsel requested that Father’s visits be monitored. The court inquired about the recommendation DCFS had submitted on October 22, 2010, regarding unmonitored visitation for Father. DCFS explained that it had consulted with minors’ counsel and agreed that it would make a recommendation for monitored visitation. The children did not want unmonitored visits with Father and Father had not completed his court-ordered programs. Minors’ counsel requested that Mother be awarded sole legal and physical custody of the children.
The juvenile court terminated jurisdiction and issued an order granting sole legal and physical custody to Mother and monitored visitation for Father. The court stated that it was ordering monitored visitation because Father had not completed or made substantial progress in his court-ordered programs.
DISCUSSION
Father contends that the juvenile court abused its discretion in terminating jurisdiction and awarding sole legal custody to Mother and ordering monitored visitation for him. He does not challenge the court’s award of sole physical custody to Mother. DCFS asks this court to uphold the order for monitored visitation, but takes no position on the issue of legal custody. Minors argue that the juvenile court properly awarded sole legal custody to Mother and ordered monitored visitation for Father. None of the respondents dispute Father’s assertion that his appeal is not moot.
Under section 362.4, “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 proceedings for dissolution of marriage... of the minor’s parents... are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue... an order determining the custody of, or visitation with, the child.” This statute vests the juvenile court with broad discretionary authority to make custody and visitation orders when terminating dependency jurisdiction. (In re Chantal S. (1996) 13 Cal.4th 196, 203-204; In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) Such “exit orders, ” as they are commonly called, remain in effect until modified or terminated by the family law court. (In re John W. (1996) 41 Cal.App.4th 961, 970.)
The juvenile court’s primary consideration in deciding custody and visitation is the best interests of the child. (In re Chantal S., supra, 13 Cal.4th at p. 206; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) The juvenile court is not restrained by “any preferences or presumptions” in fashioning exit orders under section 362.4, and no specific finding is required to restrict visitation or alter custody arrangements. (In re Jennifer R., supra, 14 Cal.App.4th at pp. 712-713; In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) Rather, the court “must look to the totality of a child’s circumstances” and issue orders that are in the child’s best interests. (In re Chantal S., supra, 13 Cal.4th at p. 201; In re Roger S., supra, 4 Cal.App.4th at pp. 30-31.)
We review the juvenile court’s decision to terminate dependency jurisdiction and to issue an exit order for abuse of discretion. (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.’ [Citation.]” (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
Before addressing the merits of the juvenile court’s decision, Father argues that he “was deprived of an opportunity to present relevant evidence regarding the juvenile court’s custody order.” He points out that his counselor was not prepared to make a recommendation about custody or visitation at the time the court issued its exit order. He also maintains that DCFS “did not meet its burden of providing the court with a full report as to the current circumstances of [Father]” and, therefore, the “court based its decision on stale reports that inaccurately reflected [Father]’s current progress in his programs.” These arguments have no merit.
By the time of the juvenile court’s November 3, 2010 hearing, DCFS had presented the court with all information available about Father’s progress in his court-ordered programs. Father did not enroll in all of the required programs until July 9, 2010, although the court had made the disposition case plan at an October 7, 2009 hearing. Despite the lack of a recommendation from his counselor, Father did not request at the November 3 hearing that the juvenile court retain jurisdiction or provide him an opportunity to present additional information. Instead, Father suggested terms for the exit order. He has forfeited any claim that the juvenile court made the exit order based on inadequate information. In any event, the most pertinent fact about Father’s progress in his programs is that he had not yet completed them.
As set forth above, Father attended two anger management classes in December 2009, before he was discharged from that program. He did not enroll in a domestic violence or parenting program, or re-enroll in anger management until July 9, 2010.
The juvenile court did not exceed the bounds of reason in awarding sole legal custody to Mother. The record before the court demonstrated that the children were thriving under Mother’s care. There is no evidence that Father had seen to his children’s financial, medical, educational or emotional needs since his separation from Mother. The record raises questions about Father’s judgment and veracity (attempting to have unauthorized, unmonitored visits with the children; claiming that he was not required to have a monitor or complete court-ordered programs; informing the social worker that his son no longer needed the computer cord he had agreed to purchase). Despite being offered more than a year of reunification services, Father had not completed his programs. The October 22, 2010 letter from the Single Parents of Power program, and the communications from Father’s counselor to the social worker indicate that Father still had substantial work to do in therapy to achieve the goals of the program.
Similarly, the juvenile court did not abuse its discretion in ordering monitored visitation for Father. His two oldest children, who were then 10 and 8, did not want unmonitored visits with him. He had not yet completed his anger management, domestic violence and parenting programs. DCFS raised questions about his responsibility during visits. Not only did Father take the children on an unauthorized and unmonitored visit, but he could not be contacted during that visit by Mother or the social worker because he did not have a working cell phone. Father’s sister, who monitored his visits, took care of the children’s needs during visits, such as providing them with food. Father’s sister had asked him and Mayra to move out of her home because they did not purchase their own groceries.
In considering the totality of the circumstances, and evaluating the children’s best interests, the juvenile court did not abuse its discretion in awarding sole legal custody to Mother and ordering monitored visitation for Father. The juvenile court’s orders do not forever bar Father from sharing legal custody with Mother or from having unmonitored visits with his children. He may seek a modification of these orders in the family law court if his circumstances change and warrant such a modification. (§ 362.4; In re Chantal S., supra, 13 Cal.4th at pp. 212-213.)
DISPOSITION
The orders are affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.