Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. CK32918, Marilyn K. Martinez, Commissioner.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant Nancy J.
Lori A. Fields, under appointment by the Court of Appeal, for Appellant M.J.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Nancy J. (mother) and her daughter, M.J., appeal from a visitation order issued upon termination of juvenile court jurisdiction. The order awarded M.J.’s maternal grandmother, R.J. (grandmother), visitation with M.J. once per month.
Citing Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054, 147 L.Ed.2d 49], mother contends that the juvenile court impermissibly interfered with her right as a parent to make decisions concerning the care, custody and control of her daughter when it ordered M.J. to have monthly overnight visits with grandmother after it granted mother full legal and physical custody of M.J. and terminated its jurisdiction.
M.J. contends that the juvenile court exceeded its jurisdiction when it ordered once a month visitation for her grandmother. In M.J.’s view, the juvenile court’s order is voidable and should be declared void by this court. We affirm the visitation order.
FACTUAL AND PROCEDURAL BACKGROUND
M.J. was born to mother in September 1997. In January 1998, an overwhelmed and frustrated mother telephoned the Department of Children and Family Services (DCFS) to inquire about relinquishing M.J. for adoption. On February 28, 1998, mother took M.J. (then five months old) to the Lakewood Sheriff’s Station where she requested that DCFS take M.J. and provide her with adoptive services. Mother explained that she had been staying with relatives, who could no longer help her. She had spent the night in a shelter. Her reasons for giving up M.J. were not strictly financial. She did not believe she was emotionally prepared to be a mother. M.J. was taken into protective custody and detained in foster care.
On March 1, 1998, mother contacted DCFS and notified a children’s social worker that her family now was supportive and would allow her and M.J. to live with them. When asked about her statement that she was not emotionally able to be a parent, mother avoided the question and suggested that housing had been her main concern. Mother’s request for visitation was denied.
On March 3, 1998, DCFS filed a petition pursuant to Welfare and Institutions Code section 300 on behalf of M.J., alleging that mother failed to continue to provide for M.J. and that the whereabouts of the child’s alleged father, Andrew M., were unknown, as was his ability and interest in parenting the child.
All further statutory references herein are to the Welfare and Institutions Code unless otherwise noted.
Andrew M., whose whereabouts in Tennessee eventually became known, is not a party to this appeal.
At the detention hearing held on March 4, the court released M.J. to mother, ordered mother to attend parenting classes, and ordered DCFS to provide mother and child with family maintenance services. On March 11, 1998, mother declined DCFS’s offer of family preservation services.
On March 19, 1998, mother contacted children’s social worker (CSW) Jose Rojas and asked that M.J. be placed in the home of her grandmother. Mother explained that she “‘needed to get things straightened out.’” Mother retracted her placement request on March 23. CSW Rojas nevertheless went to grandmother’s home on March 24 to conduct an assessment.
On May 8, 1998, DCFS removed M.J. from mother and placed M.J. in shelter care. The removal was prompted by mother’s emotional instability (as evidenced by her three attempts to relinquish M.J.), her failure to comply with court ordered parenting education and her refusal to cooperate with DCFS.
On May 13, 1998, DCFS filed a first amended section 300 petition. At a detention hearing held the same day, the juvenile court dismissed the original petition without prejudice and ordered an Evidence Code section 730 evaluation of mother. It further ordered that M.J. be detained and that M.J.’s care and custody be vested in DCFS pending disposition. The court once again ordered mother to participate in individual counseling designed to address issues of parenting and stability. Over the objection of DCFS, the court ordered that M.J. be released to mother once she obtained a crib for M.J.
The following day, mother contacted CSW Rojas and asked that M.J. be released to her. CSW Rojas verified that mother had obtained a crib for her daughter. As of May 15, 1998, M.J. remained detained in shelter care.
On July 14, 1998, mother pled no contest to the first amended petition. The juvenile court declared M.J. a dependent under subdivisions (b) and (g) of section 300 and ordered M.J. placed with her mother under DCFS supervision. The court ordered DCFS to provide mother and child with family maintenance services. In addition, the court ordered mother to undergo counseling in accordance with the terms of the parties’ mediation agreement. The agreement called for parenting education, individual therapy and psychiatric evaluation for medication if deemed appropriate by the therapist. Mother’s Evidence Code section 730 evaluation by forensic and clinical psychologist Dr. Barry T. Hirsch dated July 10, 1998 revealed a diagnosis of schizophrenia.
Mother was less than successful in sticking to the requirements of her case plan. On July 31, 1998, DCFS almost detained M.J. because mother was not cooperating with family preservation, mother was living in a motel, and it had concerns about M.J. DCFS decided against detaining M.J. as mother’s own maternal grandmother permitted mother to stay with her. By this time, family preservation had closed mother’s case, but it decided to give her another chance and reopened her case on August 5, 1998. Mother agreed to comply with all services and to reside with her maternal grandmother.
All did not go smoothly thereafter. On December 17, 1998, mother’s family preservation terminated because of mother’s lack of compliance and her unknown whereabouts.
At the time of the next judicial review hearing held on January 12, 1999, the whereabouts of mother and M.J. were unknown. At the behest of DCFS, the juvenile court issued a protective custody warrant for M.J. and a bench warrant for mother.
On May 29, 1999, mother was arrested in Tennessee. She refused to give police the exact whereabouts of M.J. but gave police a location that had yet to be verified. The Tennessee police located M.J. on June 8, 1999.
On June 9, 1999, the juvenile court ordered DCFS to go to Memphis, Tennessee and pick up M.J. The court ordered M.J. to be detained in shelter care.
On June 14, 1999, DCFS filed a section 387 petition, alleging that in December 1998 mother failed to comply with court orders and left the state with M.J. without notifying the court or DCFS, thereby endangering M.J. DCFS reported that mother was incarcerated in Tennessee and “reportedly fighting extradition to California.” Mother’s mental health condition was of great concern to DCFS.
On June 15, 1999, the juvenile court placed M.J. in the temporary custody of DCFS. It further ordered M.J. to be detained in shelter care and gave DCFS discretion to release minor to grandmother. DCFS placed M.J. in grandmother’s home on June 22, 1999.
On July 7, 1999, mother contacted DCFS and informed it that she had returned to Los Angeles on June 29 and was in custody at the Inglewood Police Station. Mother posted bail, was released on July 4 and was staying with her own maternal grandmother.
According to the DCFS case file, the Inglewood Police Department and the District Attorney’s Office, through its specialized child abduction unit, sought to file charges against mother.
On July 13, 1999, the juvenile court removed M.J. from her mother’s custody and terminated its prior home of parent order. The court found that M.J.’s present placement with grandmother was appropriate and that M.J.’s best interests would be promoted by the proposed change of order pursuant to section 387. The court further ordered DCFS to provide mother with family reunification services and to assist her in obtaining appropriate housing. Mother was given monitored visitation with M.J.
At the time of the six-month review hearing (§ 366.21, subd. (e)) on January 13, 2000, M.J. still was living with grandmother. At that hearing, the court changed mother’s visitation to unmonitored.
On February 24, 2004, the court terminated its July 13, 1999 placement order and placed M.J. in the home of mother under the supervision of DCFS. The court found that mother had complied with the case plan. Family maintenance services were to be provided by DCFS.
On March 14, 2000, mother pled guilty to a misdemeanor violation of Penal Code section 278.5, subdivision (a), and was placed on two years’ summary probation on the condition that she reimburse DCFS for the transportation costs incurred in flying to Tennessee to pick up M.J. and returning her to Los Angeles.
On April 27, 2000, the court released M.J. to mother and terminated its jurisdiction over M.J.
Almost six years later, on March 10, 2006, the Los Angeles Superior Court accepted the transfer of a dependency case involving M.J. and her mother that had been initiated in San Bernardino County. M.J. appears to have been placed with her grandmother in November 2005 when juvenile dependency proceedings were instituted in San Bernardino. At the time of the transfer, the disposition already had been concluded in the San Bernardino juvenile court. It had declared M.J. a dependent under section 300, subdivisions (b), (d) and (g), removed her from mother’s custody and placed her in the home of grandmother. In addition, family reunification services had been ordered for mother.
A six-month review hearing (§ 366.21, subd. (e)) was held on July 27, 2006. The court specified that mother was to have at least one monitored visit per week with M.J. In addition, mother was to participate in individual counseling with a licensed clinical therapist.
On December 18, 2006, Dr. Dorothy M. Tucker, mother’s psychotherapist, reported that mother had responded well to therapy and “[t]here are no indications of hallucination, delusions or schizophrenia.” Dr. Tucker opined that mother did not meet the criteria for schizophrenia “and has not displayed any of the symptoms described in a prior evaluation by Dr. Barry Hirsch.” Dr. Tucker further noted that in December 2006, psychiatrist Madeleine Valencerina found no evidence that mother suffered from schizophrenia or needed medication. Rather Dr. Valencerina diagnosed mother as suffering from post traumatic stress disorder. Dr. Tucker recommended reunification for the family, noting that mother’s psychotherapy and psychiatric evaluation do not indicate any serious mental illness.
A status report prepared for a hearing on January 25, 2007 noted that then nine-year-old M.J. “stated that she loves her mother and her grandmother. She wished her mother could live with her and her grandmother.” M.J. further stated that she liked living with her maternal grandmother, who took good care of her and that she wanted to continue living with her. M.J. “suspect[ed] that if she returned to her mother, she would not have further contact with her [grandmother], which would make her sad.”
According to grandmother, mother “has suffered from severe mental health problems for many years. She does not believe that [M.J.] would be safe under mother’s care, where she was exposed to continued abuse and neglect. [Grandmother] stated that she knows her daughter and that [her daughter] would isolate [M.J.] from the family or take her out of state.”
In March 2007, clinical psychologist Ali Ghassemi, reported on two sessions of conjoint therapy with mother and M.J. During these sessions, “[M.J.] was allowed to communicate her feelings regarding reunification with her mother and separation from her grandmother.” M.J. “was able to verbalize her feeling[s] associated with the reunification process, which included both positive and negative affective states.” M.J. “verbalize[d] her thoughts and reactions regarding existence of both positive and negative affective states in reaction to the reunification.” “Conjoint therapy also provided an opportunity for [mother] to identify [M.J.’s] need to be provided with an emotional environment that allows her to continue to love her grandmother and spend reasonable time with her.”
In April 2007, Valerie Wilson-Lindberg, a licensed clinical social worker and M.J.’s individual therapist since July 2006, reported that “[i]n sessions [M.J.] has shown some increase in play that revolves around characters being ‘taken away’. For example: the princess being taken from the castle by intruders. [M.J.] reports that she likes to be with mom but also expresses a desire to be with her maternal grandmother, to whom she is very close. [M.J.’s] play may be indicative of anxiety about losing contact with her grandmother should she reunify with her mother. It is my professional opinion that family counseling and/or conjoint counseling with the client’s mother and grandmother be ordered as there appears to be some unresolved tension in their relationship which may interfere with [M.J.’s] continuing ongoing contact with both.”
In April 2007, Dr. Ghassemi further reported that mother and M.J. had identified positive and negative outcomes of reunification, they agreed that the positive outcomes outnumbered the negative outcomes. The most significant negative aspect identified by M.J. “related to separation from maternal grandmother who acts as [M.J.’s] primary caretaker for the time being. [Mother] also acknowledged this fact and communicated to [M.J.] that her concerns regarding separation from maternal grandmother are not unreasonable or unrealistic. [Mother] encouraged [M.J.] to verbalize her feelings regarding the adjustment in living arrangement, and assured [M.J.] that contact between grandmother-child will be maintained, and [M.J.] would be able to spend reasonable amount of time with her grandmother.” Dr. Ghassemi “agree[d] with Dr. Dorothy Tucker’s assessment that [mother] is not Schizophrenic and she is not a danger to herself or to her daughter.”
On April 30, 2007, in anticipation that mother would be granted overnight visits with M.J. and in light of the therapists’ reports, counsel for DCFS asked the court to make sure that M.J. “understands we’re talking about a transition and not having her lose contact with her grandmother.” Upon inquiry from the court, M.J.’s counsel assured the court that he had discussed the matter with M.J.
After granting mother overnight visits with M.J. from Friday after school until Monday morning, the court held up a copy of the Welfare and Institutions Code and explained to M.J. that his “big law book” required him to try and return her to her mother full time. For now, however, the court explained that it was just going to order overnight visits. “You’re going to live with your grandmother and spend the weekends with your mother.” “When we come back [at a later date], then I will decide if you might be able to live full-time with your mother or not. I don’t know what I will decide in [the future]. But here’s what’s really important: your mother and your grandmother have come to court with you today because they both love you very, very much. And they want to do whatever I order them to do. [¶] If you live with your grandmother, you can still love your mother. If you live with your mother, you can still love your grandmother. Both your mother and your grandmother will stay part of your life.”
On July 18, 2007, the court granted a section 388 petition filed by mother on January 16, 2007. It terminated a January 13, 2007 suitable placement order and placed M.J. in the home of her mother under DCFS supervision on the condition that M.J. continue in individual counseling with her current therapist, that M.J. attend public school or a certified private school (as opposed to being home schooled), that mother maintain a residence approved by DCFS, and that M.J. have regular visits with grandmother every second weekend of the month from Saturday morning through Sunday evening and spend all day with grandmother on the fourth Saturday of the month.
Mother’s section 388 petition is not in the appellate record.
On October 1, 2007, mother made a walk-on request to the juvenile court asking that M.J.’s visits with grandmother be terminated. Mother claimed, among other things, that M.J. did not want to visit her grandmother.
On October 16, 2007, M.J.’s individual therapist Valerie Wilson-Lindberg, reported that she met with M.J. on August 31, 2007 and September 6 and 20, 2007 and with M.J. and mother conjointly on October 14, 2007. When asked, M.J. did not want her mother to participate in sessions. The therapist noted: “With regard to the client’s progress, I observed that [M.J.] appeared to be more reserved in the sessions, to which [mother] brought her. [M.J.] would respond only briefly to questions regarding her experience at home and school. [M.J.] would rarely disclose details about her interaction with her mother and would only state ‘ok’, or ‘alright’ when asked about her new school, friends, new hair style etc. I am somewhat concerned about [M.J.’s] shift in demeanor and more restricted affect as a possible indicator of some discomfort with her current situation. . . . I did not observe [M.J.] to be in any immediate danger, and she appeared adequately cared for when in my presence.”
During a judicial review hearing held on October 18, 2007, mother asked that the case be closed. Counsel for DCFS and M.J. asked that the case remain open. The court stated it was not inclined to close the case but would consider doing so in the future. When counsel for mother asked that visitation be terminated based on the walk on request, the court stated, “I’m inclined to maintain the visitation order that I made recently between [M.J.] and her grandmother.” The court further directed that M.J. continue with counseling until receipt of correspondence by the therapist stating “all the treatment goals have been reached and she is no longer in need of therapy.”
The court noted that it had read and considered M.J.’s individual therapist’s October 16 correspondence and that while mother had complied with the court’s orders, M.J.’s change in demeanor caused it concern. The court then stated: “I am not in a position to resolve the conflict that exists between mother . . . and grandmother . . . . I don’t know if that will ever be resolved. [¶] [M.J.], these two ladies are here because they both love you. You do not have to choose one over the other. I made the decision you’re going to live with your mother. You’re going to visit your grandmother. And if either of them makes it hard for you, I’m going to be mad at them, not you.” The court found that continued jurisdiction was justified.
In a letter dated December 4, 2007, therapist Wilson-Lindberg reported that on November 17 and December 1, she held conjoint counseling sessions with M.J. and mother. According to Ms. Wilson-Lindberg, mother “was able to interact appropriately with [M.J.], engaging in activities that her daughter chose for the two of them. [M.J.] was also more open with regard to activities she has enjoyed with her mother outside of sessions.” The therapist noted that “[a]t this time there appears to be no immediate risk to [M.J.]” and in her “professional opinion that therapy is no longer necessary.”
In an interim review report prepared for a hearing on January 17, 2008, DCFS reported that M.J. continued to live with mother. On January 10, the CSW visited M.J. at school. M.J. was “well groomed and appeared physically healthy.” M.J. “stated she is happy in her mother’s home and wants to remain. She appeared comfortable and candid when talking about her mother . . . and her grandmother . . . . [M.J.] said that her mother takes care of her and supervises her when she is not in school. She goes with her mother while doing errands or to mother’s work, if needed.”
DCFS further reported that “[a]s for her grandmother, [M.J.] stated she enjoys visiting and spending time with her. [M.J.] and her grandmother have an established bond and [M.J.] has expressed her desire to continue with visitation. She and her grandmother usually go out shopping and/or watch movies. . . . When CSW asked if she wanted to continue with the visitations, [M.J.] responded with a genuine ‘yes’. [M.J.] added that she was looking forward to the visit for the coming weekend . . . . CSW inquired if she had told her mother that she did not want to visit with her grandmother. [M.J.] stated she may have told her mother that she wanted to spend time with friends instead of attending the scheduled visit.”
According to grandmother, her relationship with her daughter is “distant but civil. However, their interaction consists of arranging drop off and pick up for the visits. [Grandmother] stated that [mother and M.J.] were invited for holiday gatherings but [mother] did not respond. Also, [M.J.] had a Christmas event at school and [mother] had informed [grandmother] that she was not welcome to attend.”
DCFS further reported that mother was reserved when she spoke to the CSW. When the CSW tried “to discuss mother’s future plans regarding her plans for [M.J.’s] school or visitation with grandmother, mother stated she did not want to make statements on the advice of her attorney. Mother stated she will remain in compliance with court orders and is looking forward to closing the case.”
In DCFS’s view, M.J. had adjusted to living with her mother, and she attended school regularly. Mother had complied with the orders of the court and there presently was “no further child abuse or neglect risk.” In addition, M.J.’s therapist felt M.J. was doing well and terminated counseling. Absent any current safety risk, DCFS recommended termination of M.J.’s case.
At the January 17, 2008 progress report hearing, counsel for DCFS stated, “I do think it’s important that the court order the child continue to have visits with the grandmother. Given the history of this case, I think it’s pretty clear that the mother intends to stop the contact.” When the court inquired if there were any objections, mother’s counsel asked that it be up to her client to arrange visitation. Counsel for DCFS reminded the court that this case involved mental health issues and a kidnapping and stressed that M.J. has a relationship her grandmother with whom she lived for years.
M.J.’s attorney informed the court that he had spoken to M.J. about the issue of visitation. Counsel explained: “She’s indicated to me over the phone on several occasions that she didn’t want visits with her grandmother. It was interfering with her schooling, going to camp.’ [¶] I spoke with her just now at counsel table, and she’s not sure whether she wants to have visits with her grandmother or not.”
Counsel for mother argued that it should be up to mother to decide what is in the best interests of M.J. and whether M.J. should visit grandmother. Counsel further noted that if it becomes a problem, the grandmother can go to court and seek visitation.
In response, the court noted that “[g]enerally speaking, it’s up to the custodial parent. And if I close this case without a visitation order between this child and her grandmother, they’re going to be in court tomorrow or as soon as the grandmother files. And I take into consideration the very long history of this case.”
Counsel for DCFS interjected her belief that “there’s no question that the mother is coaching [M.J.] and that [M.J.] is being put in the middle. I think it’s important that the court let [M.J.] know that this is not her decision. That your Honor is the one responsible for making the decisions.”
The court suggested visitation one weekend per month. When asked if he had another suggestion, counsel for M.J. stated: “Your Honor, my client, I think, is being put in the middle with regards to that request. And I understand it’s very important that she try to voice an opinion, but I think she’s confused and she’s not sure.” The court stated that was okay and that it could make the decision.
The court then stated: “Mother . . . is complying with the court’s orders. She has made substantial progress in addressing the issues which brought her daughter before this court. [¶] [M.J.] has been in counseling, and her counseling goals have been met. [M.J.] is not at risk in her mother’s custody. [¶] The history of the case is that while mother was working on reunification, [M.J.] was very well cared for by her maternal grandmother. The history is also that grandmother . . . and mother . . . have not and do not have a substantially positive relationship. According to the report, they are able to be civil to one another, and that’s good news. [¶] And while case law supports that a parent should have the authority to make decisions as to whether or not a child will visit the grandparent, given the history of this case, I find that it would be detrimental by clear and convincing evidence to sever [M.J.’s] relationship with her maternal grandmother, and I think that there is a substantial likelihood that if I do not make a visitation order, that exactly will occur.”
At this juncture, mother’s attorney interjected, “Just for the record, your Honor, my client says she has no problem with visitation. She just didn’t want it on a specific time which would interfere with their schedule.” The court noted that was “reasonable” and ordered “that [M.J.] have one weekend a month with her maternal grandmother, and that mother has the responsibility to arrange that at a time mutually convenient. [¶] . . . [¶] So what this means . . . once a month [M.J.] will spend the weekend with her grandmother, say, Saturday morning to Sunday early evening, maybe a little later in the summer. And you and your mother will confer as to what is the best weekend that is best to do that.” When mother asked “how long” the court stated, “until your daughter is 18 or you get this modified” in the family law court.
Mother stated that she repeatedly told the social worker that she did not have a problem with her mother having time with M.J. Mother did not want visitation to be court ordered, however, so as to avoid future problems. The court informed mother that while it took that into consideration, it made its decision independent of the social worker. The court further expounded: “It’s my belief, given the history of the case, that [M.J.’s attorney] is right. [M.J.] does not want to be in the middle of this. She does not want to know that her mother and grandmother are talking or not talking to decide whether or not she should have visits. So I am making the decision on her behalf, and I’ve made that decision so she will not be caught in the middle as to whether or not there will be visits. [¶] She’ll continue to live with you. She’ll have the visits with her grandmother once a month. They can be more often if you want them to be, but they shall be at least once a month.” The court then terminated its jurisdiction and closed the case.
Thereafter, the court signed an order specifying that mother had full legal and physical custody of M.J. and that M.J. was to have at least one overnight visit with grandmother from “Saturday AM to Sunday AM (sic).”
DISCUSSION
Mother’s Appeal
Citing Troxel v. Granville, supra, 530 U.S. 57 (Troxel), a plurality opinion, mother contends that the juvenile court’s order requiring M.J. to have at least one overnight visit with grandmother per month impermissibly interfered with her fundamental right as a parent to make decisions concerning the care, custody and control of M.J. Troxel is of no aid to mother. In Troxel, the mother limited the grandparents’ visitation after the children’s father committed suicide. (Id. at pp. 60-61.) The grandparents, in turn, filed a petition seeking visitation under a Washington statute that permitted any person to petition for visitation rights at any time. The nonparental visitation statute also authorized the trial court to grant visitation whenever in its view the visitation would serve the best interests of the child. (Id. at p. 61.)
Troxel held that as applied to the mother and her children, the nonparental visitation statute infringed on “the fundamental right of parents to make decisions concerning the care, custody, and control of their children,” a right guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution. (Troxel, supra, 530 U.S. at p. 66.) More specifically, the application of that statute violated due process, in that it allowed any person to seek visitation at any time and it did not require the trial court to consider or defer to a parent’s belief that visitation was not in the child’s best interests. (Id. at p. 67.)
Troxel acknowledged that there is a presumption that “fit parents act in the best interests of their children.” (Troxel, supra, 530 U.S. at p. 68.) “‘The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.’” (Ibid., quoting Parham v. J. R. (1979) 442 U.S. 584, 602.)
Mother likens herself to the mother in Troxel, who was a fit parent with custody of her children, and claims she is entitled to the benefit of the presumption that “fit parents act in the best interests of their children.” (Troxel, supra, 530 U.S. at p. 68.) Under this presumption, “so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” (Id. at pp. 68-69.)
Troxel did not hold that a parent’s constitutional liberty interest in the care, custody and control of their children is absolute or that grandparents can never obtain an order permitting them to visit with their grandchildren. (In re Marriage of Ross & Kelley (2003) 114 Cal.App.4th 130, 139-140.)
Mother has failed to convince us that she is similarly situated with the mother in Troxel. In Troxel, the mother’s fitness was never in issue. The case was strictly a family law matter instituted by grandparents seeking visitation with their grandchildren under a Washington statute. This case, on the other hand, has its genesis in juvenile court. It is a dependency matter in which mother lost custody of M.J. for a substantial amount of time due to mother’s unfitness to parent.
That the trial court ultimately determined that mother had eliminated the reasons that led to juvenile court jurisdiction and that it was safe for M.J. to return to mother did not preclude the juvenile court from issuing an “exit order” regarding visitation at the time it terminated jurisdiction. The presumption of parental fitness applicable in family law court simply does not apply in dependency proceedings (In re Chantal S. (1996) 13 Cal.4th 196, 206; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) Thus, there was no unconstitutional infringement of mother’s fundamental right to make decisions concerning the care, custody and control of M.J.
As noted in In re John W. (1996) 41 Cal.App.4th 961, “the term ‘exit order’ is not used in the juvenile dependency statutes. Such orders are probably most accurately described as ‘section 362.4 orders’ or ‘termination and custody orders.’” (Id. at p. 970, fn. 13.) Here we use the term “exit order” to describe the visitation order issued upon termination of juvenile court jurisdiction.
M.J.’s form notice of appeal appears to have been filled out by mother, and it is signed by mother and M.J. Most notable is M.J.’s purported statement therein that “I do not want to see [my grandmother].” The position she has taken on appeal is in far contrast to the position of ambivalence and distress she took below.
M.J. contends the juvenile court exceeded its jurisdiction when it ordered monthly visits with her grandmother. She maintains that there is no statutory authority permitting the juvenile court to compel visitation with a grandparent when the court terminates jurisdiction. M.J. claims the visitation order is voidable and asks us to declare it void.
Section 362.4 provides that “[w]hen 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 . . . an order has been entered with regard to 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 statutory provision authorizes the juvenile court to make custody and visitation orders when it terminates its jurisdiction. If there is an ongoing family court matter, the orders will be transferred to the file. If there is not, a new family court file will be opened. Any custody and visitation orders issued by the juvenile court will remain in effect until such time that they are modified or terminated by the family law court. (In re Roger S. (1992) 4 Cal.App.4th 25, 30.)
M.J. argues that section 362.4 only permits the court to issue juvenile court custody and visitation orders as between natural parents at the conclusion of a dependency proceeding. M.J. cites no legal authority for this proposition and we have found none. To the contrary, our research has disclosed two cases that provide authority for issuance of an exit order granting visitation to a nonparent: In re Robin N. (1992) 7 Cal.App.4th 1140 and In re Hirenia C. (1993) 18 Cal.App.4th 504.
In re Robin N., supra, was a dependency matter in which the juvenile court issued an exit order establishing a rotating visitation schedule among a child’s biological mother, biological father, and a de facto parent. (7 Cal.App.4th at p. 1143.) The appellate court upheld the visitation order as to the de facto parent, concluding that the juvenile court had the authority to issue the order under section 362.4. (Id. at p. 1146.)
In In re Hirenia C., supra, the appellate court reversed an order denying appellant standing to participate in dependency proceedings involving Hirenia. It further remanded the matter for an evidentiary hearing to determine appellant’s petition for visitation rights. (18 Cal.App.4th at p. 510.)
When Hirenia was two weeks old, she was placed in the foster home of appellant and her then-partner, Angela Ranaldi. The couple thereafter decided to adopt Hirenia. At the recommendation of a social worker, it was agreed that the adoption would proceed in Ranaldi’s name only. (In re Hirenia C., supra, 18 Cal.App.4th at p. 510.)
After Hirenia was declared a dependent of the juvenile court, appellant moved out of the house she had shared with Ranaldi and Hirenia for five months. During the more than three years that followed, appellant had frequent and continuous contact with Hirenia, who came to know appellant as “‘Mama.’” (In re Hirenia C., supra, 18 Cal.App.4th at pp. 510-511.)
In March 1991, Ranaldi started to limit appellant’s access to Hirenia. In July 1991, Ranaldi disallowed all contact between appellant and Hirenia. By this time, the parental rights of Hirenia’s biological parents had been terminated. Appellant thereafter filed a section 388 petition and a petition for visitation rights. (In re Hirenia C., supra, 18 Cal.App.4th at pp. 511-512.) The court ruled that appellant lacked standing to seek visitation as a de facto parent or as a person with interest in Hirenia. The court further ruled that it would not be in Hirenia’s best interests to entertain appellant’s petition. (Id. at p. 512.)
In reversing the trial court’s order, the Hirenia court concluded that appellant’s visitation petition was authorized by section 388 and it rejected the department’s argument that appellant lacked a sufficient interest in Hirenia to allow her to participate in the proceedings. The court concluded that appellant had alleged facts in her petition establishing her status as Hirenia’s de facto parent and at the very least as a person with interest within the meaning of section 388 and thus had standing to seek visitation. (In re Hirenia C., supra, 18 Cal.App.4th at pp. 514-516.)
The Hirenia court further concluded that the juvenile court abused its discretion in denying appellant’s visitation petition without affording her a hearing (In re Hirenia C., supra, 18 Cal.App.4th at pp. 516-517) and then turn to the question of mootness.
The department moved to dismiss the appeal on the grounds it was moot because Ranaldi had adopted Hirenia and the juvenile court had terminated its jurisdiction over her during the pendency of the appeal. The appellate court disagreed observing that “whether it is in Hirenia’s best interests to have visitation of appellant, and whether appellant was deprived of a substantial right when the juvenile court refused to recognize her as a de facto parent, are still very ‘live’ controversies.” The court further noted that “an additional issue that was tangentially relevant but not yet ripe for review when this appeal was filed, is whether a juvenile court order of visitation with a nonparent may be entered or continued in effect after the dependent child has been adopted by another person.” In light of Hirenia’s adoption, the question was ripe for determination. (In re Hirenia C., supra, 18 Cal.App.4th at pp. 517-518.)
Noting that section 364.2 authorized the juvenile court to enter an enforceable order for visitation in favor of appellant, a nonparent, over the objection of the adoptive parent, the court concluded that remand was required to determine if a visitation award was warranted. (In re Hirenia C., supra, 18 Cal.App.4th at pp. 518-520.) The court then noted that “if on remand the juvenile court finds on the basis of competent evidence that it would be in Hirenia’s best interests to have visitation with appellant, it may enter an order to that effect even as it is closing its file on this matter. Indeed, it would likely be reversible error for the juvenile court to refuse to hear evidence which is relevant to the formulation of an appropriate ‘exit’ order regarding visitation. [Citation.]” (Id. at p. 520.) Hirenia C., like Robin N., thus supports the conclusion that a nonparent can be awarded visitation under section 364.2 upon termination of juvenile court jurisdiction.
In this case, in contrast to Robin N. and Hirenia C., grandmother did not seek or assert de facto parent status below. This is a distinction without import, however. In determining whether to issue a visitation order upon the termination of jurisdiction pursuant to section 364.2, the juvenile court’s ultimate guidepost is the best interests of the child, not the status of the person awarded visitation. (In re John W., supra, 41 Cal.App.4th at pp. 965, 973; accord, In re Kieshia E. (1993) 6 Cal.4th 68, 84.)
Next M.J. contends that once the court found she was not at risk in her mother’s custody and decided to terminate jurisdiction, the court was not authorized to engage in an analysis of what was in her best interests. We disagree. When a juvenile court makes an exit order, “it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount.” (In re John W., supra, 41 Cal.App.4th at pp. 965, 973; accord, In re Kieshia E., supra, 6 Cal.4th at p. 84.) The court thus was required to consider M.J. best interests.
The juvenile court’s decision to issue the visitation order undoubtedly reflects its determination that it was in M.J.’s best interests that she maintain contact with grandmother whom she loved very much and that absent such order mother would not facilitate or allow visitation as she stated she would. The record reveals that M.J. was conflicted. She loved her mother and her grandmother and did not want to hurt either one of them. The juvenile court readily recognized M.J.’s dilemma and assured the child that it was the court’s decision to make. To be sure, “the juvenile court was entitled to establish ongoing protections” for M.J. in the form of visitation with her grandmother as a condition of termination. (In re Chantal S., supra, 13 Cal.4th at p. 212.)
M.J. argues that even if the juvenile court believed that it would be detrimental to her well being if she were not able to see her grandmother, there was no evidence that her relationship with her grandmother would cease if jurisdiction were terminated. We are not convinced.
Although mother on numerous occasions, both in and out of court, stated that she would permit M.J. to visit her grandmother, there unquestionably is an underlying current flowing through the record that suggests that mother and grandmother’s relationship is quite strained and that mother would not allow grandmother to spend time with M.J. It is undoubtedly for this reason that the juvenile court issued its exit order. As aptly observed in the context of proceedings to terminate a guardianship, since “‘a parent’s future potential is undoubtedly revealed in the parent’s past behavior with the child,’” it follows that “prior conduct is relevant in determining the best interests of the child.” (Guardianship of L.V. (2006) 136 Cal.App.4th 481, 496.)
Next, M.J., correctly recognizing that Family Code section 3104 is inapplicable to dependency proceedings (In re Josiah Z. (2005) 36 Cal.4th 664, 678-679; In re Chantal S., supra, 13 Cal.4th at pp. 205-208; In re Jennifer R., supra, 14 Cal.App.4th at p. 711), contends it may be of some assistance to us in resolving this appeal. It is not.
As we observed in Lopez v. Martinez (2000) 85 Cal.App.4th 279, Family Code section 3104 “gives grandparents standing to petition for visitation when a minor’s parents are living separately or one parent has been absent for over a month.” (Id. at pp. 280-281.) Subdivision (f) of Family Code section 3104 creates “a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.”
M.J. maintains that her grandmother would not be able to rebut the presumption set forth in Family Code section 3104 and suggests that the juvenile court should have considered the implications of this presumption or the constitutional ramifications of attempting to control her mother’s parenting choices after termination of jurisdiction. We are not convinced.
In re Chantal S., supra, 13 Cal.4th 196, was a juvenile dependency proceeding in which the juvenile court issued a custody order granting the mother sole custody of the child and issued an exit order conditioning the father’s visitation on his participation in a counseling program. (Id. at p. 202.) The Court of Appeal held that the juvenile court may condition a parent’s visitation on participation in a counseling program and was not bound by the requirements of Family Code section 3190, pertaining to counseling orders issued by the family law court. (Id. at p. 200.) The California Supreme Court affirmed the judgment of the Court of Appeal.
Most notably, after concluding that Family Code section 3190 does not apply to juvenile court orders terminating jurisdiction (In re Chantal S., supra, 13 Cal.4th at p. 208), the Supreme Court rejected the father’s argument that the family law court may later find itself in the position of enforcing a visitation and counseling order that it could not legally have made under section 3190 of the Family Code, stating: “This may be so, but it is of no consequence. Courts are often placed in the position of enforcing orders of other courts, even though the enforcing court could not have made the order in the first instance, or would not have present authority to issue the precise order. [Citations.] If, as we conclude, the order was one that a juvenile court could properly make on termination of its dependency jurisdiction, the fact that the family court would be precluded from making that same order does not render the order unenforceable in the family court.” (Chantal S., supra, at pp. 208-209.) Using similar reasoning, and in light of our holding that the juvenile court had the statutory authority to issue the exit order granting grandmother visitation with M.J., the juvenile court in this case was not required to consider the effects of Family Code section 3104 or whether M.J.’s grandmother would or would not be able to rebut the presumption if she were to have petitioned the family law court for visitation with M.J.
Finally, M.J. argues that if the juvenile court believed that termination of her relationship with her grandmother was so detrimental to her emotional well-being and would occur despite her mother’s representations that she would permit visitation, then it should have not have terminated jurisdiction. Rather, it should have continued to supervise M.J. and her mother. We disagree.
It is clear to us, that the “juvenile court’s determination, that continuation of dependency was at that time unnecessary for [M.J.’s] protection, was . . . premised on the existence” of its exit order. (In re Chantal S., supra, 13 Cal.4th at p. 204.) The court’s visitation order served to allay its concerns and to obviate the need to force M.J. and her mother “to remain indefinitely in the juvenile court dependency system.” (Ibid.)
The order is affirmed.
We concur: WOODS, Acting P. J., ZELON, J.