Opinion
B163302
7-30-2003
In re MYAH F., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. KRYSTAL I., Defendant and Appellant.
Peter Ferrera, under appointment by the Court of Appeal, for Defendant and Appellant. Lloyd W. Pellman, County Counsel, Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
I. INTRODUCTION
Krystal I., the mother of the child, Myah F., appeals from a juvenile court order pursuant to Welfare and Institutions Code section 361.2 terminating jurisdiction and granting sole physical and legal custody to the father, Donald F. Under the terms of the order the mother challenges she was to have the right to monitored visitation until she successfully completed 10 random drug tests. Upon the successful completion of 10 random drug tests, her visitation would become unmonitored. The mother argues the juvenile court abused its discretion in failing to grant joint legal custody and by ordering her to complete drug tests where there was no evidence that she used illegal substances. We affirm the juvenile court order in all respects.
All further statutory references are to the Welfare and Institutions Code.
II. BACKGROUND
On August 23, 2002, the Los Angeles County Department of Children and Family Services ("the department") filed a section 300 petition on behalf of the child, (born in November 1998) and Lola S. (born February 1996). (This appeal does not address any court order regarding Lola, who is referred to only as it pertains to the issues concerning the child.) The petition alleged the mother created a detrimental home environment for the children by residing in a home with no running water, no bath or shower, inadequate food, and a broken window. It was alleged that the home was unsanitary and full of clutter. The mothers conduct endangered and placed at risk the childrens physical and emotional health and safety.
The department reported that the family initially came to the its attention when a referral was received that alleged the general neglect by the mother and the sexual abuse of a one-year old by an unknown perpetrator. The referral stated that the home was a "crack house" and that drugs were being sold from the residence. The children were described as looking malnourished. The referral alleged the one-year-old had been sexually abused by a neighborhood drug user.
The case social worker attempted to make two unannounced visits to the home on August 14, 2002. The first visit was made at approximately 11 a.m. The second attempt was made with law enforcement officers but no one answered. On August 20, 2002, the department received another referral alleging the mother was neglecting the child and Lola. Law enforcement officers responded to the referral, discovered the residence was unfit, and took the two children into custody. The maternal grandmother, Kathy I., who appeared to be mentally unstable, was in the home. A department report related, "The maternal grandmother instructed [the children] not to talk with the officers because the officers were considered strangers." The mother stated that the home belonged to the maternal grandmother.
A police report, which was accompanied by nine photographs, described the home as cluttered and unsanitary. The home was full of boxes with clothes and personal items stacked high. There was no refrigerator and no stove. The only food in the house was on a platter with approximately 10 oranges and 2 cucumbers which was on the floor in the living room. There was no running water except the toilet. There was a twin bed and blankets on the floor where the children slept.
The mother said that the home belonged to the maternal grandmother. The mother claimed the home was cluttered because of the maternal grandmother. The maternal grandmother stated that she did not have a refrigerator because she did not keep perishable food in the home. The mother stated that the child resided with the father most of the time. The mother and the father were not married. Lola resided with her paternal uncle, Tyrone S., most of the time. Lolas father, Jason S., was incarcerated. The mother stated that she lived with an unidentified relative on Alvarado Street. Lola was interviewed by a police officer. A police report states, "[Lola] stated that she lives at the residence with [the child], their mother and grandmother." Lola indicated that she attended an elementary school that was close to the residence. Lola stated that she lived with her uncle, Tyrone, sometimes. Lolas pants were dirty and her hair was matted and uncombed.
The mother denied the allegations of neglect and sexual abuse. Both children were able to identify their private parts and denied sexual abuse. Due to the childs age, the father was told to follow up with the youngsters physician. The mother denied that drugs were being sold from the home or she used narcotics. The mother appeared to be sober. The father was shown photographs of the maternal grandmothers home. The father stated that he had never seen the home so unkempt. The father had observed the residence to be dirty and offered to help clean the home in the past. He believed he provided better care for the child. The father denied knowledge of any drug use by the mother.
The child was released to the father. Lola was placed in the paternal grandmothers home. The mother wanted Lola placed with the paternal uncle, Tyrone, but he had been charged with drug offenses and a weapons violation.
At the detention hearing, on August 23, 2002, the court found that the father, who had signed paternity questionnaires, was the childs presumed father. The court found: a prima facie case for detaining the children had been made and it had been established they were persons described by section 300, subdivision (b); substantial danger existed to their physical and emotional health; there was no reasonable means to protect the children without removal from the mothers home; and reasonable efforts had been made to prevent the removal from the mothers home. The child was released to the father. Lola was placed with her paternal grandparents. Family reunification services were ordered for the child, the father, and for the mother with both children.
On September 17, 2002, the department reported that the child was still with the father. The mother had not contacted the department to be interviewed. The family assessment listed as problems requiring intervention: the report that the maternal grandmothers home was a "crack house"; the mothers homelessness and related mental health issues; the maternal grandmothers mental health; and the possible drug abuse which may have contributed to the mother and maternal grandmothers mental health problems. The department recommended no visits for the mother until she contacted the department to discuss the case plan and assessments could be made about whether she needed treatment for drugs or mental health.
The father wanted to care for the child where they lived with the paternal grandmother. The father stated that he had custodial care of the child until several weeks before the police were called. The father allowed the child to visit with the mother before school started. The department recommended that the father be made the childs custodial parent. The father provided a stable residence and had access to childcare while he is at work.
On October 16, 2002, the department reported the mother was interviewed on September 27, 2002. The mother stated that the police report was "full of lies." The mother claimed to be only visiting the maternal grandmother. The mother stated that there was a kitchen and the water was working. The mother claimed to be visiting with the children at the maternal grandmothers residence when the police arrived. When the subject of the conditions of the maternal grandmothers residence was raised, the mother, according to a department report, responded, "All of that is irrelevant because I am not staying with my mother now." The mother refused to give the department her address. The mother stated that she sometimes lived with a friend but was going to a motel that day. The mother: refused to give a name or address for the friend; did not come back for a bus pass; hung up on the case social worker who advised the mother that family preservation was a program and not just something to provide housing; told the department she had a job with a temporary agency; but she refused to give any information about the agency to the department. The department advised the mother to take parenting classes and gave her referrals. The department recommended that: both children remain where they were placed; the child be placed in the fathers home; the department provide the father with family reunification services; the mother have family reunification services for both children; the mother have monitored visitation after contacting the department; the mother complete a parenting course; and the mother submit to 10 random drug tests as a means to determine whether she is able to provide a safe and stable home for her children.
On November 21, 2002, the department reported that Lolas father, Jason, had contacted the department. He stated that: prior to his incarceration in federal prison, he and his mother had cared for Lola most of the time; someone said that the mother worked for a pimp; the mother did not want a regular job; and he had personally observed the mother smoking marijuana. The mother had not cooperated with the case plan offered to her to reunite with her children. The case plan included counseling, drug testing, transportation, and visitation. The mother had: not utilized any of the referrals; not picked up her bus passes; not moved to a permanent residence; and failed to contact the department with a current address. The department recommended that, if the mother was unable to complete 10 random consecutive clean drug tests, she should attend a substance abuse program which will address her other addictive behaviors.
At the adjudication hearing, the court admitted into evidence the departments reports for September 17 and August 23, 2002. The court sustained an objection to the admissibility of the November 21, 2002, report as untimely. However, the report was received into evidence on a limited basis. The court excluded the statements by Lolas father, Jason, concerning the mothers drug use. The court accepted the following stipulation concerning testimony by Lola: "She would testify that `at the time of the detention I was not living at my maternal grandmothers home, I was living with my aunt, but I dont know for how long."
The mother testified that, at the time of the detention, the children were not living with her. The mother denied living with the maternal grandmother. The mother lived there in June and July 2002 but that was without the two children. The children visited the mother at the maternal grandmothers home but never spent the night. They would spend the night at a neighbors home. When cross-examined, the mother admitted that Lola had spent the night at the maternal grandmothers house. The mother and the father shared custody of the child for two week periods. But for most of 2002, the child had primarily lived with the father. The mother was not aware that Tyrone had been arrested on drug and weapons charges. Nonetheless, the mother would still have allowed Lola to reside with Tyrone.
According to the mother, the police report inaccurately described the condition of the maternal grandmothers home. The mother testified that there was a small refrigerator, a working stove, and food in the maternal grandmothers home. The home was only cluttered in the living room and had running water. The mother testified that she had kept the department informed as to her whereabouts.
After counsel argued, the court sustained the 300 petition as amended to conform to proof that the mother had failed to adequately provide for the children. The court found by clear and convincing evidence that substantial danger existed to the childrens physical and mental health. The children were found to be persons described by section 300, subdivision (b). The court terminated jurisdiction as to the child. The court awarded the father sole legal custody and physical custody of the child. In so doing, the court stated that it had "very significant concerns regarding [the] mothers ability to make appropriate decisions" based on her testimony about Tyrone. The mother was allowed monitored visitation twice a week until she completed 10 consecutive random clean drug tests. If the mother missed a test or if the results were positive for narcotics, the mother was ordered to complete a drug program that included random testing. The mother was ordered to complete a parenting class. The mother filed a timely appeal from the November 21, 2002, order.
III. DISCUSSION
A. The Custody Order
The mother argues the trial court abused its discretion in granting the father sole legal custody of the child. The department has taken no position on this issue but notes only that the mother did not challenge the order insofar as it awards physical custody to the father. The standard of review for a custody order in a dependency proceeding is abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319, 867 P.2d 706; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The Supreme Court explained in Stephanie M.: "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]." [Citations.] . . . 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." [Citations.]" (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
A juvenile court may terminate jurisdiction, when a dependent child is placed with a noncustodial parent and court supervision is no longer necessary. (Cal. Rules of Court, rule 1461(c)(1)(C); In re Sarah M. (1991) 233 Cal. App. 3d 1486, 1495-1496, 285 Cal. Rptr. 374, disapproved on a different point in In re Chantal S. (1996) 13 Cal.4th 196, 204, 913 P.2d 1075.) When the juvenile court terminates jurisdiction, it has the authority to make custody orders. This power includes ordering that the custodial parent have sole legal custody based upon the best interests of the child. (§§ 304 & 362.4 ; In re Jennifer R. (1993) 14 Cal.App.4th 704, 713-714; see In re John W., supra, 41 Cal.App.4th at pp. 971-972.) PAGE CONTAINED FOOTNOTES
Section 304 provides: "After a petition has been filed pursuant to Section 311, and until the time that the petition is dismissed or dependency is terminated, no other division of any superior court may hear proceedings pursuant to Part 2 (commencing with Section 3020) of Division 8 of the Family Code regarding the custody of the child or proceedings under Part 2 (commencing with Section 1500) of Division 4 of the Probate Code, except as otherwise authorized in this code, regarding the establishment of a guardianship for the child. While the child is under the jurisdiction of the juvenile court all issues regarding his or her custody shall be heard by the juvenile court. In deciding issues between the parents or between a parent and a guardian regarding custody of a child who has been adjudicated a dependent of the juvenile court, the juvenile court may review any records that would be available to the domestic relations division of a superior court hearing that matter. The juvenile court, on its own motion, may issue an order as provided for in Section 213.5, or as described in Section 6218 of the Family Code. The Judicial Council shall adopt forms for these restraining orders. These form orders shall not be confidential and shall be enforceable in the same manner as any other order issued pursuant to Division 10 (commencing with Section 6200) of the Family Code.
This section shall not be construed to divest the domestic relations division of a superior court from hearing any issues regarding the custody of a child when that child is no longer a dependent of the juvenile court."
Section 362.4 provides: "When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minors attainment of the age of 18 years, and proceedings for dissolution of marriage, for nullity of marriage, or for legal separation, of the minors parents, or proceedings to establish the paternity of the minor child brought under the Uniform Parentage Act, Part 3 (commencing with Section 7600) of Division 12 of the Family Code, are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, and an order determining the custody of, or visitation with, the child. [P] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. The order of the juvenile court shall be filed in the proceeding for nullity, dissolution, or legal separation, or in the proceeding to establish paternity, at the time the juvenile court terminates its jurisdiction over the minor, and shall become a part thereof. [P] If no action is filed or pending relating to the custody of the minor in the superior court of any county, the juvenile court order may be used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides. The court may direct the parent or the clerk of the juvenile court to transmit the order to the clerk of the superior court of the county in which the order is to be filed. The clerk of the superior court shall, immediately upon receipt, open a file, without a filing fee, and assign a case number. [P] The clerk of the superior court shall, upon the filing of any juvenile court custody order, send by first-class mail a copy of the order with the case number to the juvenile court and to the parents at the address listed on the order. [P] The Judicial Council shall adopt forms for any custody or restraining order issued under this section. These form orders shall not be confidential."
Without abusing its discretion, the trial court could reasonably find that the mother was unready to reunify with the child. There was evidence: the mother had also consistently refused to cooperate with the department in order to reunify with her daughters; the mother refused to drug test, failed to follow through with parenting classes, and did not cooperate by providing a current address; the mother had not demonstrated that she was able to provide either child with a stable home; the mother had allowed the children to live in a home that lacked food, running water (except a toilet), and a refrigerator or stove; the home was extremely cluttered and dirty; the home was also described as a "crack house" where drugs were sold; the mother had also allowed Lola to live in a home where an adult had been charged with a drug offense; the mother wanted Lola placed with that adult when the detention proceedings began; and the mother also testified that even with knowledge of the drug and weapons charges, there was nothing wrong with Lola being placed in such a home. The evidence also showed that the child was in the fathers custody for most of the time prior to the detention and she was doing well in his care. Under these circumstances, the juvenile court did not exceed the bounds of reason in finding sole legal custody should be awarded to the father. It should be noted that should the mothers circumstances change nothing precludes her from seeking joint legal custody in the family law court. (In re John W., supra, 41 Cal.App.4th at pp. 976-977; In re Jennifer R., supra, 14 Cal.App.4th at p. 714; In re Sarah M., supra, 233 Cal. App. 3d at p. 1500.)
B. The Visitation Order
The mother also contends that the trial court abused its discretion in requiring random drug tests prior to having unmonitored visitation with the child. The mother argues there was no evidence that she had abused illegal substances. Upon termination of jurisdiction, a juvenile court is authorized to issue orders so as to minimize, if not eliminate, the dangers of the same risk of physical or mental abuse that led to the dependency adjudication. ( §§ 362.4, 362, subd. (c); In re Chantal S., supra, 13 Cal.4th at p. 204; In re Maribel T. (2002) 96 Cal.App.4th 82, 84, fn. 2.) A custody order concerning visitation which is necessary to eliminate or minimize danger to a child is reviewed for abuse of discretion. (In re Chantal S., supra, 13 Cal.4th at p. 214 [visitation order made contingent upon facilitation of childs therapist upheld because depending upon the circumstances a juvenile court has discretion to simply deny all parental visits]; In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)
In this case, the mother claims the visitation order requiring her to drug test cannot be upheld because there was no competent evidence that she had ever used illegal drugs. As the mother concedes, the initial referral to the department was based on allegations the maternal grandmothers residence was a "crack house." There was also an allegation that drugs were being sold in the home. Initial attempts to investigate the claims were unsuccessful. When the children were ultimately taken into custody, the mother refused to cooperate with the department or to make herself available for testing. The mother consistently refused to contact the department or to comply with the case plan. There was also evidence that the mother had allowed one of the children to reside in a home with a paternal uncle who had been charged with a drug offense. The mother denied knowledge of any drug charge. But even with the knowledge of the drug charge, the mother would have permitted Lola to live in Tyrones residence. Each of these matters were contained in department reports which were received in evidence without objection. Thus, a reasonable inference can be made that drugs were a factor in causing the childrens detention. Further, we cannot ignore the reality that most dependency cases involve to some degree various forms of substance abuse. Certainly, an adjudication order by itself may not warrant drug testing, but under these circumstances, no abuse of discretion occurred. Moreover, we disagree with the mother that the absence of allegations concerning her drug use requires a different result. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1007 [the absence of an allegation of substance abuse by the parent does not preclude order requiring drug test when there is other evidence indicating a substance abuse problem].)
IV. DISPOSITION
The order terminating jurisdiction and granting sole legal and physical custody of the child, Myah F., to the father, Donald F., and requiring the mother to submit to drug tests as specified is affirmed.
We concur: GRIGNON, J., MOSK, J.