Opinion
B310774
07-15-2021
In re JOSHUA D. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOSHUA D., Defendant and Appellant.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 20CCJP00344AB, Daniel Zeke Zeidler, Judge. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
HOFFSTADT, J.
Joshua D. (father) appeals the juvenile court's termination of dependency jurisdiction over his 12-year-old son and 10-year-old daughter. The court's orders are supported by substantial evidence. Accordingly, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and Natalie R. (mother) were once married. Their union produced two children-Joshua D. (born December 2008) and Jaslena D. (born December 2010). Pursuant to a December 2016 family court order, the parents had joint legal custody and mother had sole physical custody of the children except on some weekends and holidays.
Father has two additional children from a subsequent marriage, and mother has one additional child from a subsequent marriage. These other children were not parties to the proceedings below.
Between 2016 and Christmas 2019, Joshua and Jaslena visited their father in accordance with the family court order. When the children would visit, father would drink “a lot of beer” on a daily basis, typically anywhere from one to five beers a day; father would yell at the children more when he was drinking.
Mother dropped off Joshua and Jaslena with father on Christmas Day 2019. Within a few days, Jaslena started to vomit and have diarrhea, and complained of pain and body aches. Over the next several days, her condition worsened-she ran a fever, continued to vomit and have diarrhea, started to mumble incoherently, and even lost the ability to walk, requiring father's new wife (stepmother) to carry Jaslena to and from the bathroom. When Jaslena told father on several occasions that she did not feel well, father shook her by her shoulders, yelled at her that she was “faking it” and “being dramatic, ” and called her a “baby.” Stepmother suggested to father that they take Jaslena to the hospital, but father refused.
It was not until New Year's Day 2020 that father contacted mother to relate that Jaslena was ill. They met at a Starbucks. Father carried Jaslena and placed her in the back seat of mother's car. By then, Jaslena was moaning and her eyes were rolling back in her head. Immediately after placing Jaslena in the car, father got back in his car and drove away.
Mother called 911, and Jaslena was transported to the hospital. She was diagnosed as suffering from pneumococcal meningitis. Father's refusal to seek treatment allowed the ailment to progress to a stage where Jaslena was required to spend 16 days in a hospital, is forever at risk of seizures, and has suffered permanent loss of hearing in her left ear, which has also affected her speech. Had father waited any longer, Jaslena may have died.
When interviewed about the incident, father initially reported that Jaslena fell ill for the first time on New Year's Day, then changed his story and reported that Jaslena had arrived on Christmas Day with a “cough.”
II. Procedural Background
A. Petition
In January 2020, the Los Angeles Department of Children and Family Services (the Department) filed a petition seeking to exert dependency jurisdiction over Jaslena and Joshua on the basis of (1) father's medical neglect of Jaslena, which placed her and Joshua “at risk of serious physical harm” (thereby rendering jurisdiction appropriate under subdivisions (b)(1) and (j) of Welfare and Institutions Code section 300), and (2) father's “history of substance abuse” and “current abuse[]” of alcohol, which rendered him “incapable of providing” the children “with regular care and supervision” (thereby rendering jurisdiction appropriate under subdivision (b)(1) of section 300).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
B. Jurisdiction and disposition
In early March 2020, father entered a plea of no contest to the medical neglect and substance abuse allegations under subdivision (b)(1) of section 300, and the Department dismissed the medical neglect allegation under subdivision (j). The court also removed the children from father, and placed them in the home of mother. The court ordered the Department to provide father with enhancement services, and ordered father to complete a full drug and alcohol program that included drug testing and a 12-step program, to attend parenting classes, and to obtain individual counseling. The court granted father the right to monitored visitation with the children for two-hour visits, to occur a minimum of once per week. The court ordered mother to tend to the health needs of the children.
The court also dismissed the allegations that mother had failed to protect the children.
C. Parents' progress on their case plans and visitation
During the 10 months between the jurisdictional hearing and the Department's status report in January 2021, both parents had fully completed their case plans. The kids were also “safe” in mother's home.
During the same 10-month period, neither Joshua nor Jaslena had any in-person or telephonic visits with father. Both children wanted nothing to do with father: Jaslena was “scared” of visiting father for fear that she would suffer another life-threatening and life-altering injury if left in his care, and Joshua was “really upset” with father for how he treated his younger sister. As a result, they rebuffed the repeated efforts by the Department and mother to facilitate telephonic visitation (since the pandemic made in-person visits impossible). The Department repeatedly told the children that visits were not optional, once called father on speaker phone to insist that they talk with father but the children walked away, and offered to put father's number on their cell phones but they refused. Both children agreed to process their feelings towards father with their therapist, but the mere mention of his name resulted in a change in the children's appearance, causing them to look down and to become withdrawn, dejected and unengaging. Although father accused mother of discouraging visitation, there was no evidence of such discouragement and the children indicated that mother had in the past encouraged visitation with father by offering to buy the children gifts if they visited with him.
At no point did father bring the children's refusal to visit to the juvenile court's attention.
D. Termination of jurisdiction
At a status hearing held on February 2, 2021, the juvenile court found that the “conditions which would justify the initial assumption of [dependency] jurisdiction... no longer existed and are not likely to exist” if juvenile court supervision “is withdrawn.” As a result, the court terminated its jurisdiction over the children and issued an “exit order” granting mother legal and physical custody over both children. The exit order entitled father to monitored visits twice a week for one hour, ordered the children to attend individual therapy and ordered conjoint counseling with father “unless the child[ren's] therapist indicates that it would be detrimental.”
Although a status review hearing is typically held six months after the dispositional hearing (§ 364), due to COVID-19 concerns and court closures, the hearing in this case was held nearly 11 months later.
E. Appeal
Father filed this timely appeal.
DISCUSSION
Father argues that the juvenile court erred in terminating dependency jurisdiction over Joshua and Jaslena. We review this order either for an abuse of discretion (In re Holly H. (2002) 104 Cal.App.4th 1324, 1327 [abuse of discretion]) or for substantial evidence (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1156 (Aurora P.)).
Where, as here, the juvenile court has not removed a child from the parent having physical custody over the child (who, by virtue of the December 2016 family court order, was mother), section 364 provides that the court “shall terminate its jurisdiction” unless the Department or the parent “establishes... that the conditions still exist which would justify initial assumption of [dependency] jurisdiction” or are “likely to exist if [juvenile court] supervision is withdrawn.” (§ 364, subds. (a) & (c); In re T.S. (2020) 52 Cal.App.5th 503, 512-513; In re J.F. (2014) 228 Cal.App.4th 202, 209 [any “conditions” that “would” justify jurisdiction suffice].) By specifying that the court “shall” terminate jurisdiction ‘“unless”' ‘“conditions still exist, ”' section 364 erects a ‘“statutory presumption”' in favor of termination. (Aurora P., supra, 241 Cal.App.4th at p. 1155.) A juvenile court terminating jurisdiction under the statute may also enter an “exit order” fixing custody and visitation. (§ 362.4; In re T.H. (2010) 190 Cal.App.4th 1119, 1122-1123.)
Substantial evidence supports the juvenile court's findings that the conditions that actually justified or might justify dependency jurisdiction no longer exist and are not likely to exist if juvenile court supervision is withdrawn. Here, the conditions that prompted dependency jurisdiction were father's medical neglect of Jaslena and his history and current pattern of alcohol abuse. These conditions no longer warrant the exercise of dependency jurisdiction because father completed his case plan to address those issues, because the children have been safely cared for by mother, and because the exit order granting mother full legal and physical custody of the children ensures that those conditions are unlikely to exist if dependency jurisdiction is withdrawn.
Father does not dispute this analysis. Instead, he argues that the juvenile court was obligated to maintain jurisdiction over Joshua and Jaslena-ostensibly until they reach the age of majority-to help repair his dysfunctional relationship with the children. Specifically, father argues that (1) the juvenile court's dispositional order granting him the right to visit the children during the pendency of the case was “illusory” because the children were effectively allowed to “veto” all visits, and (2) terminating jurisdiction when the children had not been forced to visit with him all but ensures that the children will not participate in the visitation required by the court's “exit order.”
We reject both arguments.
Father is correct that a juvenile court order for visitation that actually or effectively allows a third party-including the children-to decide whether visitation occurs at all is impermissible because it erroneously delegates the power to decide visitation to the third party. (In re S.H. (2003) 111 Cal.App.4th 310, 317-319 (S.H.); In re Julie M. (1999) 69 Cal.App.4th 41, 48-49 (Julie M.).) However, the visitation order in this case does not provide any basis for disturbing the court's order terminating jurisdiction for two reasons. First, the validity-or invalidity-of the visitation portion of the disposition order is irrelevant to the question of whether jurisdiction should be terminated under section 364. As noted above, section 364 is concerned with whether conditions warranting jurisdiction still exist or are likely to exist; it ‘“is not concerned with reunification.'” (Aurora P., supra, 241 Cal.App.4th at p. 1155, quoting In re Pedro Z., Jr. (2010) 190 Cal.App.4th 12, 20.) Because the purpose of visitation is to facilitate reunification (S.H., at p. 317; Julie M., at pp. 49-51), section 364 is also not concerned with visitation. Nor, as father relatedly asserts, is section 364 concerned with the “best interest of the child”; the case he cites for that proposition, In re D.N. (2020) 56 Cal.App.5th 741, 758, deals with how the premature termination of jurisdiction due to conditions that continue to exist might impact “best interest of the child” findings in the future, but that concern is not implicated where, as here, the conditions do not exist and hence there is no danger of premature termination. Second, and even if the validity of the court's visitation order were relevant to the section 364 determination, the court's order is valid. This is a question we review de novo. (In re Taylor (2015) 60 Cal.4th 1019, 1035.) The order certainly was valid on its face, as it did not expressly grant the children a “veto power” over visits. It was also implicitly valid, as the Department repeatedly tried to encourage, cajole, and gently threaten the children to visit and, contrary to what defendant asserts without evidence, mother supported the Department's efforts. Where, as here, a juvenile court's visitation order does not expressly or implicitly grant a “veto power” to a child, the fact that a child refuses to attend visits does not constitute an impermissible delegation of the power to specify visitation, at least without proof that the juvenile court failed to act when the child's refusals were brought to its attention. (In re Sofia M. (2018) 24 Cal.App.5th 1038, 1046.) Here, father never asked the juvenile court to act; his complaint about lack of visitation-as well as his claim that the juvenile court should have ordered conjoint counseling sooner-are raised for the first time on appeal. On these facts, the visitation order was not invalid.
Father finds support for his second argument-namely, that a juvenile court cannot terminate jurisdiction unless it has reason to believe the children will adhere to a posttermination visitation order-in In re Ethan J. (2015) 236 Cal.App.4th 654 (Ethan J.). Ethan J. held that a juvenile court could not terminate dependency jurisdiction in favor of placing a child in a legal guardianship with knowledge that its order for future visitation with the child's parent “will not be honored or enforceable” due to the child's past refusal to visit because the unlikelihood of visitation constitutes an “exceptional circumstance[]” barring the termination of jurisdiction under section 366.3. (Id. at pp. 656, 662.) While Ethan J. arises in a similar factual context to this case, it arises in a wholly different legal context and for this reason is inapt. The juvenile court in this case was applying section 364-not section 366.3-and section 364 has no “exceptional circumstance” exception to the termination of jurisdiction. (Compare § 364 with § 366.3.) More to the point, the considerations about continuing visitation with a parent in the hopes of reunifying a child who is placed in a legal guardianship with a nonparent that animates section 366.3 (Ethan J., at pp. 660-661) are not present in section 364, where the child is by definition placed with a parent and where, as noted above, reunification is irrelevant. What is more, father is not remediless in the event the children refuse to comply with the visitation mandate in the exit order because, in such a circumstance, father is entitled to seek modification of that order in family court. (In re D.B. (2020) 48 Cal.App.5th 613, 628.)
DISPOSITION
The juvenile court order terminating jurisdiction and related exit order are affirmed.
We concur: ASHMANN-GERST, Acting P. J., CHAVEZ, J.