Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. NJ13789, Michael J. Imhoff, Commissioner. Affirmed.
O'ROURKE, J.
In these juvenile court proceedings, K.M. was removed from the custody and care of her biological mother, Erin J., following a disposition hearing. The juvenile court granted custody of K.M. to her noncustodial biological father, Daniel G. At a subsequent review hearing held under Welfare and Institutions Code sections 361.2, subdivision (b)(3) and 366, the court returned K.M. to Erin's custody.
All statutory references are to the Welfare and Institutions Code.
Daniel appeals the order following the review hearing. He argues the court erred by failing to first determine whether K.M. could remain in his care without the court's supervision. Had the court done so and found K.M. could remain in his care, the court should have terminated jurisdiction. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2007, the San Diego County Health and Human Services Agency (the Agency) filed petitions on behalf of then four-year-old K.M. and her half-sibling, A.J. The petition alleged K.M.'s mother, Erin, and stepfather, Ronald J., engaged in domestic violence and that Erin violated a no contact order by allowing Ronald into the home.
A.J. is not subject to this appeal.
Erin completed a paternity questionnaire identifying Daniel as K.M.'s biological father. Erin did not list Daniel as K.M.'s father on her birth certificate. In 2003, a genetic test determined that Daniel was K.M.'s biological father and by a family court order, Daniel was ordered to pay $300 a month in child support. K.M. had never lived with Daniel, but Daniel told Agency social workers that he wanted to have K.M. placed in his care. Daniel lived in North Carolina. The last time Daniel had seen K.M. was in 2005.
In a jurisdiction and disposition report, an Agency social worker reported that the minors did not have any medical concerns, were developmentally on target and they had advance language skills. The children had been detained in foster care. K.M. and A.J. told social workers that they wanted to live with Erin. Erin visited the minors every evening and put them to bed at night. Erin immediately began services, including therapy, at the start of the proceedings. Her therapist opined Erin communicated well with others but sometimes had difficulty standing up for herself. The therapist believed Erin needed to continue working on self-esteem issues and on how to put her children first. Erin also participated in a domestic violence program. After spending two months in foster care, the children moved in with their maternal grandparents.
In April 2008, the court held a jurisdiction and disposition hearing. The court found the allegations in the petitions true and removed K.M. and A.J. from Erin's care. The court ordered that K.M. be placed with Daniel under section 361.2 and that Erin participate in services. Erin's case plan included a domestic violence program, counseling and parenting classes. The court further ordered that Daniel facilitate contact between Erin and K.M.
K.M. did well in Daniel's care but she wanted to return to live with Erin. The North Carolina social worker instructed Daniel to enroll K.M. in therapy to help her adjust in her new placement and to deal with the removal from her mother. Daniel had not placed K.M. in therapy as of September 2008.
The Agency filed a status review report in September 2008. The Agency social worker reported K.M. remained in Daniel's care. The Agency believed that Daniel needed to follow through with counseling for K.M. to address issues relating to her exposure to domestic violence. The social worker noted that K.M. is bonded to Erin and A.J. K.M.'s separation from them creates a conflict when considering placement with Daniel. The social worker reported that Erin acknowledged the damage domestic violence inflicts upon children. Erin actively participated in services, attended therapy sessions and maintained contact with K.M. Erin received support from her therapist in her efforts to file for divorce from Ronald. The Agency recommended six additional months of services for Erin and Daniel.
Erin filed a section 388 modification petition in September 2008. She requested that the court place K.M. in her care. Concerning changed circumstances, Erin alleged she had completed a 26-week domestic violence course, a 12-week parenting class and remained in therapy. As to best interests, Erin argued K.M. was bonded to her and A.J., Daniel was not complying with services, and K.M. had little contact with Daniel before the court placed K.M. with him.
Social worker Mackenzie recommended that K.M. be returned to Erin on the condition that A.J. complete a 60-day stay with Erin in her home. Mackenzie acknowledged that K.M. had formed a relationship with Daniel. However, K.M. had spent most of her life in Erin's care, she had a close relationship with A.J., and she wanted to go home to Erin. The social workers in North Carolina recommended maintaining K.M.'s placement with Daniel and that the court terminate its jurisdiction over K.M.
On September 29, 2008, the court found Erin had made a prima facie showing on her section 388 petition and scheduled an evidentiary hearing on the petition for November 2008. After granting continuances to allow additional time for briefing on the issue concerning the change of K.M.'s custody, the court rescheduled the evidentiary hearing for February 2009. The court also ordered unsupervised and overnight visits between K.M. and Erin. Erin's therapist represented that Erin had ended her relationship with Ronald. Erin requested a no contact order between K.M. and Ronald. Ronald remained in prison, but was scheduled to be released in the near future. The court issued the no contact order.
In February 2009, the court determined that a section 388 petition was not the appropriate method by which to request a change in custody determination. The court found that section 361.2, subdivision (b)(3) and section 366 mandated custody determination issues between parents. The court dismissed the section 388 petition and proceeded to determine which parent should have custody of K.M. by way of section 361.2, subdivision (b)(3). Daniel objected to the court's findings and argued the court should proceed under section 364.
The parties stipulated if Mackenzie were called to testify, she would state that Ronald had been released from prison two months before and that K.M. had started participating in therapy sessions in North Carolina.
At the review hearing, Erin testified she visited K.M. twice, for a total of two weeks, in January 2009. Outside of their visits, Erin spoke to K.M. on a regular basis. K.M. spent time with A.J. and other maternal relatives during her visit to California. Erin believed K.M. shared a close relationship with A.J. A.J. and K.M. lived together since A.J.'s birth up until their removal. K.M. asked about A.J. almost every time she spoke with Erin. K.M. regularly told Erin that she wanted to return to home to live with Erin. K.M. had also told Daniel about her wish to live with Erin. At the end of their last visit, K.M. cried when Erin had to get on the airplane to fly back to California and said, "I don't want you [Erin] to go home."
Erin stated Daniel did not adhere to the telephone schedule or facilitate calls between her and K.M. When Erin called Daniel, he did not answer the telephone. Erin informed the social worker and the social worker's supervisor about Daniel's failure to answer the phone. Erin also expressed concerns about Daniel's methods of discipline and claimed Daniel was too strict with K.M. Erin further testified she had not seen or spoken with Ronald since his release from prison, and that she did not know where he lived. Ronald did have visits with his son, A.J., but she did not transport the boy to see Ronald. Erin had yet to file for divorce from Ronald but stated she did not have plans to reunify with him.
Daniel testified that he believed Erin would return to Ronald and for that reason, K.M. should remain in his care. Daniel admitted that K.M. was sad after Erin's visit with her in North Carolina ended. K.M.'s therapist told Daniel that K.M. did not suffer from any issues other than she missed Erin and her family in California. Concerning his methods of discipline, Daniel stated he would punish K.M. when she did poorly in her kindergarten class. Punishments included time outs, limited television, spanking K.M. with his hand and sending her to bed around 5 p.m. Daniel believed he might be strict but that he was loving toward K.M. and that the two of them shared a close relationship.
After considering the filed reports and testimony, the court ordered K.M.'s placement be restored to Erin. The court acknowledged Daniel had established a relationship with K.M. However, the court had some concerns with Daniel's disciplinary tactics and with Erin's view on her relationship with Ronald. The court noted Erin had made great progress with services and she had not seen Ronald for about two months. Erin's visits with K.M. went well. K.M. wanted to return to Erin's care. The court referenced sections 361.2, subdivision (b)(3) and 361, subdivision (a) in making its order. Daniel timely filed a notice of appeal.
DISCUSSION
Daniel argues the court abused its discretion by ordering that K.M. be returned to Erin's custody. Specifically, he asserts the court failed to determine whether the ongoing supervision of his care of K.M. was necessary. If supervision was not required, then the court should have terminated jurisdiction over the dependency proceedings and granted him custody of K.M. Further, the court abused its discretion because it was in K.M.'s best interests to remain with him and not be returned to Erin.
The Agency asserts that any procedural error committed by the court was harmless and not prejudicial to Daniel. Regardless of whether or not supervision of Daniel should have been terminated, the court was required to determine whether returning K.M. to Erin's custody was in K.M.'s best interest.
A. Standard of Review and Relevant Law
The court initially placed K.M. in Daniel's custody under section 361.2, subdivision (b)(3). The section provides that a court may order a noncustodial parent to assume custody of a minor subject to the supervision of the court. The court may also order reunification services be provided to both parents and schedule a future review hearing, under section 366, to determine which parent, if either, shall have custody of the child. (§ 361.2, subd. (b)(3).)
Section 366 refers to dependent children who have been placed in foster care and not with a noncustodial parent. Thus, the statue must be interpreted in light of considerations given to dependent children who have been placed with a noncustodial parent.
In the event the court finds that a minor can safely be returned to the home of the parent from whose custody the child was originally removed, this establishes that the home of removal is now a safe home. However, the finding does not address which parent, if either, should have custody of the child. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 267.)
In order to determine which parent should have custody of the child, the trial court is to make two inquiries under section 366.21, subdivision (e). The court would have to determine whether the previously noncustodial parent is now ready to assume custody without supervision. (In re Nicholas H., supra, 112 Cal.App.4th at p. 267.) Section 366.21, subdivision (e) states in part that if a minor "had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent...." (Italics added; see § 15 ["shall" is mandatory while "may" is permissive].)
If the court transfers permanent custody to the previously noncustodial parent, the court "shall terminate its jurisdiction over the child." (§ 361.2, subd. (b)(1).) However, "[n]othing in the language of section 366.21[, subdivision] (e) or any other applicable provision requires the juvenile court to award custody to the parent with whom the child has been placed subject to supervision during the proceedings." (In re Nicholas H., supra, 112 Cal.App.4th at p. 267, fn. 5.) Rather, section 361.2, subdivision (b)(3) directs that "at review hearings held pursuant to Section 366" the court must determine "which parent, if either, shall have custody of the child." (Ibid.; In re Nicholas H., at p. 267.) When making a custody determination in any dependency case, the court's overriding consideration must be the minor's best interests. (In re Nicholas H., at p. 268.) "Thus, for example, a finding that neither parent poses any danger to the child does not mean that both are equally entitled to half custody, since joint physical custody may not be in the child's best interests for a variety of reasons. [Citation.] By the same token, a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child." (Ibid.)
A trial court's ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. (In re Michael B. (1992) 8 Cal.App.4th 1698; In re Corey (1964) 230 Cal.App.2d 813, 832.) As one court has stated, when a court has made a custody determination in a dependency proceeding, " 'a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " (In re Geoffrey G. (1979) 98 Cal.App.3d 412, 421; see In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
" '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.' " (Walker v. Superior Court (1991) 53 Cal.3d 257, 272, quoting Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)
B.
Here, the record shows the court initially granted custody of K.M. to Daniel, the noncustodial parent, but continued its jurisdiction and ordered services to both Daniel and Erin. (§ 361.2, subd. (b)(3).) Daniel claims that when court restored custody of K.M. to Erin, the court erred because it did not make specific findings concerning whether supervision of him by the court was still necessary. (§ 366.21, subd. (e).) Daniel argues he provided K.M. with a safe and stable home and did whatever was necessary for K.M.'s benefit. As such, supervision of him by the juvenile court was no longer necessary, custody of K.M. should have been awarded to him, and the court should have terminated its jurisdiction over K.M.
The record shows, and the Agency agrees, that the court did not make specific findings regarding supervision of Daniel by the court. As such, the court erred. However, the error is not prejudicial to Daniel. Even had the court found that Daniel could receive custody of K.M. without supervision, such a finding would not automatically grant custody of K.M. to Daniel and mandate that the court terminate its jurisdiction over K.M. As noted, ante, the court "may" terminate supervision and transfer permanent custody to the noncustodial parent. (§361.21, subd. (e).) Thus, even when a court finds a noncustodial parent can assume custody without being monitored, "the court must still decide which parent should receive custody of the child by considering the best interests of the child." (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.)
Here, that is precisely what the court did. It determined that granting Erin custody of K.M. was in K.M.'s best interests. Erin had made significant progress with her case plan and had not seen Ronald for a few months. She immediately started services at the onset of the dependency and remained in contact with K.M. K.M. had spent most of her life in Erin's care. The social worker reported that K.M. shared a bond with Erin and her half-brother, A.J. While living with Daniel, K.M. stated that she missed her mother and she cried after her last visit with Erin ended. She wanted to go home with Erin. The court observed "there was no difficulty" in transitioning K.M. from Daniel's care to Erin's care, but that there was "great difficulty" transitioning K.M. back to Daniel's care after Erin's visits ended.
Daniel argues the juvenile court did not give enough weight to the assessment generated by North Carolina's social workers recommending that Daniel receive permanent custody of K.M. and that the court terminate jurisdiction because Daniel had provided excellent care and a safe living environment for K.M. However, it is not the role of this court to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or determine where the weight of the evidence lies. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) Rather, we "accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact." (Id. at p. 53.) The court did not abuse its discretion by granting custody of K.M. to Erin.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.