Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Los Angeles County, No. CK75590, Daniel Zeke Zeidler, Judge.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
ASHMANN-GERST, J.
Appellant E.M. (mother) appeals from a juvenile court order awarding sole custody of I.M. (the minor) to G.S. (father) and terminating jurisdiction under Welfare and Institutions Code section 361.2. She assigns the following errors: (1) The juvenile court erred by terminating jurisdiction in lieu of retaining jurisdiction and awarding mother reunification services; (2) she was denied adequate notice prior to the juvenile court’s order awarding sole custody of the minor to father and terminating jurisdiction; (3) the juvenile court erred in terminating jurisdiction before analyzing whether continued supervision was in the minor’s best interest; and (4) it is not in the minor’s best interest to grant father sole legal custody.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Because we find no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal concerns the minor (born Apr. 1997). At the time of the relevant events, the minor was living with mother, his stepfather, L.P., and two half-siblings, who are the biological children of mother and L.P.
Initiation of Dependency Proceedings
This case came to the attention of the Department of Children and Family Services (DCFS) after a referral from a hospital social worker. Mother was at the hospital because her daughter started having seizures and required medical treatment. While at the hospital, mother and L.P. engaged in a verbal dispute. In particular, L.P. blamed mother for their daughter having been hospitalized.
According to the hospital physician, the child went to the hospital “due to seizures presenting with fever, vomiting and non responsive episodes x 1 day.” Following her treatment, she was “doing well” and would be “discharged in a few days.”
Sometime after the dispute, mother was talking to a friend at the hospital about L.P. when a nurse entered the room. She asked mother if she needed help. Mother replied that she needed family counseling. The nurse asked the hospital social worker to speak with mother.
Mother had a brief conversation with the hospital social worker about her history. The hospital social worker asked mother if she wanted some resources or referrals; mother indicated that she did. The hospital social worker then made a referral to DCFS regarding emotional abuse by L.P.
According to DCFS’s detention report, mother had disclosed to the hospital social worker that she was a victim of a long history of domestic violence. In fact, there had been an incident a few weeks prior, on November 17, 2008, which the children witnessed. Mother also informed the hospital social worker that she had resided in shelters before, and that she and the children were afraid of L.P. Finally, the detention report noted that mother had advised the hospital social worker that she had changed the locks to her home on December 7, 2008, and that L.P. threatened to kill her for changing the locks.
The DCFS social worker arrived at the hospital and interviewed mother. She informed the social worker that she had been in a relationship with L.P. for over seven years, and that the first incident of domestic violence was in 2002.
In 2003, L.P. was convicted of committing corporal injury to a spouse or cohabitant (Pen. Code, § 273.5). Although he was ordered to complete anger management counseling, he did not comply. That same year, mother moved into a domestic violence shelter.
Over the next few years, mother and L.P. resumed their relationship. Mother stated that the last time L.P. physically assaulted her was in 2005. She confirmed that since 2005, he had been verbally abusive toward her.
The DCFS social worker interviewed the minor as well. He stated that he had seen L.P. hit mother with his fist, but not since his sister was about two years old. He indicated that mother and L.P. “are always arguing” and that L.P. calls mother derogatory names. The minor’s six-year old half-brother, J.M., “stated that [L.P.] is always hitting on mother.” He reiterated the minor’s comment that L.P. calls mother derogatory names. Both boys stated that L.P. never hit them.
Regarding L.P.’s criminal history and L.P. and mother’s history of domestic violence, DCFS learned that L.P. had been arrested in June 2007 and sentenced to 16 months in prison for being a felon in possession of a gun. Following his release, he moved back in with mother in May 2008. By August 2008, mother told him to move out of the home. She did, however, allow him to continue visiting the children on a daily basis. During that time, L.P. suspected that mother was having an affair with another man and, in October 2008, destroyed her computer.
One month later, on November 17, 2008, mother told L.P. that she was no longer going to be in a relationship with him and did not have feelings for him anymore; but, he could continue to visit the children. L.P. became upset and grabbed her around the neck. Mother pulled away and told him to leave the house.
The most recent incident occurred at the hospital on December 6, 2008, and ultimately led to DCFS involvement. As mentioned above, L.P. blamed mother for their daughter being admitted to the hospital. While L.P. remained at the hospital visiting their daughter, mother left to change the locks on the doors at the house, to keep L.P. out of the home. When he found out that the locks had been changed, he called mother and threatened to kill her.
The DCFS social worker spoke with father by telephone. He stated that the minor had informed him that L.P. hit mother. On one occasion, father confronted L.P. and asked him not to hit mother anymore. Father stated that he never hit mother and that he wanted custody of the minor. Regarding his criminal history, he advised the social worker that he had an arrest for burglary in 1995. Finally, he informed the social worker that he was willing to comply with DCFS recommendations.
Deputy Nunez of the Compton Sheriff’s office also spoke with mother and the DCFS social worker. He reported that he had completed an emergency protective order, which was set to expire on December 12, 2008. He also stated that mother was very cooperative and had agreed to file a restraining order against L.P.
As a result of the foregoing, the minor and his half-brother were detained and placed in foster care.
On December 10, 2008, DCFS filed a petition under section 300, subdivisions (a), (b), and (g), on behalf of the minor. In essence, the petition alleged that mother and the minor’s stepfather, L.P., had a history of domestic violence in which L.P. was the perpetrator and mother failed to protect the minor. Father was not named in the petition as an offending party.
The petition was also filed on behalf of the minor’s two half-siblings. They are not mentioned in mother’s appellate brief.
Detention Hearing
At the detention hearing, the juvenile court found that a prima facie showing had been made that the three children were persons described by section 300, that substantial danger exited to their physical or mental health, and that no reasonable means existed to prevent danger absent removal. It denied mother’s request that the children be returned to her care, commenting: “There are cases where... [DCFS] is able... to leave... the kids with the mother from day one. There are cases that come in where I’m able to release to the mother. This is... a case [of] seven years of ongoing domestic violence. Mother already went to a shelter two years ago. Mother already changed the locks once and let him back to having access. She let him move back in, but asked him to move out but continued to let him keep having daily access. [¶] The level of the mother’s failure to protect is amazing. It’s clear that the domestic violence has an impact on the children because [the minor] even complains to [father] that the mother[] was being hit by [L.P.]”
Family reunification services were ordered. Furthermore, the juvenile court granted DCFS discretion to release the minor to father.
Prerelease Investigation Reports
In its December 12, 2008, interim review report, DCFS reported that the matter was currently on calendar for a prerelease investigation of father and other relatives for placement of the children. DCFS noted that it was in the minor’s best interest to be placed in a safe environment, preferably with a relative. It was mother’s wish for the minor to be placed with her but, in the event he could not be placed with her, she wanted him placed “with family.” Father had stated that he wanted the minor in his care. “‘I believe that a child needs a father and a mother, but feel[] that a child needs his mother more when [he is] young.... I would feel safer for him if he were with me.... want him with me now.’”
Father reported that he has known the minor all of his life. According to father, he has a great relationship with his son and they spend a lot of time together. They visit one another regularly; in fact, the minor has been in father’s care for a few weeks at a time. He stated that he wanted the minor to reside in his home.
Father indicated that he is able to provide a safe and secure environment for the minor. He represented that his home is equipped with the basic necessities for caring for the minor. DCFS inspected the home where father resides with his mother, and confirmed that the home was appropriate, safe, and had adequate food.
Moreover, father agreed to never use corporal punishment. And, he is financially able and willing to provide for the minor.
Furthermore, father advised DCFS that he and mother have a good relationship. He is able to protect the minor and would contact the police if necessary. He stated that he wants the minor to reunite with mother, and he would comply with DCFS to assist with reunification. He agreed to facilitate implementation of all elements of the case plan.
DCFS recommended that the minor not be released to father so that it could further investigate father’s previous drug usage and criminal history. It recommended that the minor remain suitably placed in foster care.
In a subsequent prerelease investigation report, DCFS again set forth a summary of its assessment of father’s home. And, DCFS again reported father’s belief that mother “is an excellent parent” and that he does not want to take custody from her; however, he would take custody of the minor while he has to be away from mother because he does not want his son in foster care. Father has “no problem” caring for minor. Again, while the home was appropriate, DCFS had concerns about father’s criminal history.
Prerelease Investigation Hearing
On December 12, 2008, the parties appeared in the juvenile court. First, the juvenile court indicated that mother was no longer requesting a restraining order against L.P. Then, the juvenile court announced its tentative decision to release the minor to father. Mother submitted on the release. Her counsel stated: “[S]he does not feel that [father poses] a risk and she would be in agreement with [the minor] being with his father.”
The juvenile court then ordered the minor released to father. DCFS was ordered to provide family maintenance services and family reunification services.
Jurisdiction/Disposition Hearing
Prior to the jurisdiction/disposition hearing, mother was served with notice of hearing on petition. In that document, mother was advised of her rights, including her right to present evidence. The notice also provides: “At the hearing on the petition, the court may receive evidence and determine whether the allegations are true. If any of the allegations are found true, the court may proceed to disposition, declare the child(ren) to be a dependent child(ren) of the juvenile court, remove custody from the parents or guardians, and make orders regarding placement, visitation and services.”
At the hearing on January 21, 2009, the juvenile court sustained count B-1 as amended: “[Mother] and [L.P.]... have a history of engaging in domestic violence in the presence of the children, in which [L.P.] has struck the mother and threatened to kill her. Further [L.P.] violated a prior restraining order by having contact with the mother. The mother failed to protect the children in that the mother allowed [L.P.] to live in the home and have unrestricted access to the children. Such conduct by the parents places the children at risk of harm.” The minor was ordered to remain released to father; his half-siblings were ordered to remain detained. The disposition hearing was set for contest by mother, who sought to have the children returned to her custody.
Supplemental Reports and Contested Disposition Hearing
In an interim review report dated March 5, 2009, DCFS reported that it was unable to provide mother with unmonitored visitation of her children “due to her lack of progress in her Court ordered programs.” She had attended orientation for the Women’s Shelter of Long Beach (WSLB) program, but further assessment for enrollment was required. Based upon mother’s lack of progress, DCFS could not recommend that the children be returned home to mother.
A March 13, 2009, letter from WSLB confirmed mother’s participation in a one-session orientation, a one-session individual intake, and two sessions of a support group.
At the onset of the disposition hearing, the juvenile court noted that the recommendation for the minor was to remain in father’s home with family maintenance services for father and family reunification services for mother.
Mother testified at the hearing. She testified about the domestic violence inflicted by L.P. and stated that she had no intention of getting back together with him. She also stated that, at this point, she did not feel that he was a danger to her or to the children.
Regarding counseling, mother testified that she had attended three group domestic violence classes. She had not attended any individual counseling sessions.
Finally, mother stated that if the children were returned to her care, she would not allow L.P. to have contact with them if that is what the juvenile court ordered. And, if L.P. became abusive to her and the children were present, she indicated that she would remove herself from the situation.
Following mother’s testimony, mother requested that the children be released to her. The juvenile court then issued its ruling, placing the minor in father’s home. It terminated jurisdiction over the minor with a custody order, granting father legal and physical custody of the minor. Mother was awarded monitored visitation at least weekly by a mutually agreed upon monitor. The juvenile court denied mother reunification services “because [the minor] is with the father and the things she would need to make substantial progress to get unmonitored visits would be the same things as the case plan for the siblings.”
Mother’s appeal
Judgment was entered, and mother timely filed a notice of appeal from the “Dispositional Order removing children from my care.”
Although mother’s notice of appeal suggests that she is challenging the juvenile court’s order removing all three children from her custody and care, her appellate brief only discusses the order as it pertains to the minor.
DISCUSSION
The juvenile court did not abuse its discretion in granting father sole custody of the minor and terminating jurisdiction under section 361.2.
“[W]hen a court assumes jurisdiction of a minor, it must determine ‘whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child.’ If so, the court must place the child with that parent unless it finds that doing so poses a risk of harm to the child. (§ 361.2, subd. (a).)” (In re Janee W. (2006) 140 Cal.App.4th 1444, 1451 (Janee W.).) “If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child.... [¶] (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months.... [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed....” (§ 361.2, subd. (b); see also In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).)
Although it considered former section 361.2, the court in Austin P. set forth the appropriate procedure under these statutory provisions. First, the juvenile court must determine whether it would be detrimental to the child to be placed temporarily in the nonoffending noncustodial parent’s custody. Second, if there is no showing of detriment, the juvenile court must order DCFS to temporarily place the child in that parent’s physical custody. Third, the juvenile court decides if there is a need for ongoing supervision and, if there is no need for ongoing supervision, the court may terminate jurisdiction and grant that parent sole legal and physical custody. (Austin P., supra, 118 Cal.App.4th at p. 1135.) In deciding whether to terminate jurisdiction, the juvenile court must determine whether there is need for continued supervision. (Janee W., supra, 140 Cal.App.4th at p. 1451; Austin P., supra, at p. 1134; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1498, disapproved on another point in In re Chantal S. (1996) 13 Cal.4th 196, 204.) The juvenile court’s discretion in this area “appears very broad,” and the appropriate standard of review is whether there is sufficient evidence to support the juvenile court’s determination that there is no need for continued supervision. (In re Sarah M., supra, at pp. 1495–1496.)
Mother concedes that the juvenile court had discretion to order legal and physical custody of the minor to father and terminate jurisdiction. However, she argues that the juvenile court abused its discretion in making this order because (1) even after the minor was placed with father, the minor indicated that he wanted to be with mother; (2) father indicated that mother was an excellent parent; and (3) mother was participating in counseling.
Mother’s argument is off point. As set forth above, the issue is “whether there is a need for continued supervision.” (Janee W., supra, 140 Cal.App.4th at p. 1451.) Here, there is no evidence or argument that continued supervision of the minor in father’s care is required. Thus, the juvenile court properly exercised its discretion in terminating jurisdiction.
Mother further argues that she was denied adequate notice prior to the juvenile court’s issuance of a custody order and termination of jurisdiction. She claims that had she known that the juvenile court was considering terminating jurisdiction, she would have ensured that more information was presented to assess whether there was a need for continued supervision.
We cannot agree. First, the notice of hearing on the section 300 petition served on mother specifically advised her that the case may proceed to disposition, that the minor could be removed from her custody, and that the juvenile court could “make orders regarding placement, visitation and services.” At the January 21, 2009 hearing, the juvenile court confirmed mother’s understanding of her no contest plea to the section 300 petition, and advised her that her children could be placed outside of her care or that it “could give one parent custody and close the case with a custody order limiting the other parent’s rights.” Then the matter was continued for a contested disposition hearing. Second, by virtue of the plain language of section 361.2, mother and her attorney were on notice that the juvenile court could order that the minor be placed with father and that jurisdiction could be terminated. Under these circumstances, we conclude that mother received adequate notice of the juvenile court’s options.
Mother’s final argument is that it was not in the minor’s best interest for jurisdiction to have been terminated. While at the heart of all juvenile court orders is the best interest of the child, we cannot ignore the plain language of section 361.2, subdivision (b). At the risk of sounding redundant, the question is whether continued juvenile court supervision is required. The answer is easily no.
We conclude with the following comment: The juvenile court’s custody order is not eternal, and mother’s parental rights have not been terminated. Moreover, it appears from the appellate record that mother is taking steps to address the conditions that led to the filing of the section 300 petition in the first place. As mother concedes in her appellate brief, when appropriate, the juvenile court’s custody order may be modified. (See, e.g., §§ 302, subd. (d); 362.4; In re Jennifer R. (1993) 14 Cal.App.4th 704, 714.)
DISPOSITION
The juvenile court’s order is affirmed.
We concur: BOREN, P. J., DOI TODD, J.