Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Los Angeles County Superior Court No. CK59877, Juvenile Division. Zeke Zeidler, Judge.
Leslie A. Barry, under appointment by the Court of Appeal, for Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Frank J. DaVanzo, Principal Deputy County Counsel, for Respondent.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Appellant Patrick D. (father) appeals from a juvenile court order terminating jurisdiction and awarding Veronica T. (mother) sole legal and physical custody of the couple’s three children. In this appeal, father contends that decision lacks sufficient evidentiary support, and must be reversed. We conclude otherwise and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent Department of Children and Family Services (DCFS) initiated this action when it filed a Welfare and Institutions Code section 300 petition in mid-July 2005. (All statutory references are to the Welfare and Institutions Code.) The petition alleged the children Patrick D., Jr. (born October 1997), C.D. (born March 2000), and Jacob D. (born June 2004) were subject to juvenile court jurisdiction because: (1) they had been exposed to multiple violent altercations between father, his girlfriend, and mother; (2) father had a history of substance abuse and had driven the children while under the influence and without putting the children in seat belts or child safety seats; (3) father had emotionally abused the children with threats and aggressive behavior; and (4) father had failed to provide support or basic life necessities for his children. (§ 300, subds. (a), (b), (c) & (g).) The children were detained from father and released to mother’s care. Mother and the children were staying in the home of the children’s maternal grandparents.
DCFS’s detention report stated mother obtained a restraining order against father from the family law court after he and his companion repeatedly sent obscene text messages to and stalked mother, and after father broke into mother’s home, “trashed it,” and set fire to her underwear. Father had made terrorist threats against mother and her parents, and he constantly told the children mother was a “bad mother, who cannot take good care of them.” He told mother he would “destroy her by taking her children away from her, and making them hate her.” The children first came to DCFS’s attention after father alleged the maternal grandfather was sexually abusing his daughter, an allegation the grandfather and C. denied, and that DCFS deemed unfounded. Mother had been with father since she was 15 years old and became pregnant with Patrick. Mother and father never married. Mother’s parents reported that father used to live with them and mother. After he moved out he started using drugs. He was violent, had threatened and terrorized the entire family, and had broken into the maternal grandparents’ home. Patrick was terrified of his father; he wet the bed and had nightmares when he slept at his own home. Father, who had twice weekly visitation with the children, had no driver’s license and was not supposed to transport the children. However, Patrick, C., and their maternal grandfather told DCFS father had driven the children places on many occasions without putting any child in a car seat; father told Patrick to hold his baby brother on his lap. Mother feared for her children’s safety when they were with their father - a professional boxer - because he used drugs (including methamphetamine) and had “serious anger management problems.”
A detention hearing was held on July 11, 2005. Father was found to be the children’s presumed father. The court found DCFS had established a prima facie case for detaining the children under section 300, subdivisions (a), (b), (c), and (g), and that a substantial danger existed to their physical or emotional health if they remained in their father’s care. The detention findings were made solely against father. The children were released to mother, who was given family maintenance services. Father was given monitored visitation and reunification services. Both parents were ordered to participate in a conflict resolution program.
In its August 2005 report for the combined jurisdiction and dispositional hearing, DCFS reported Patrick worried about father because he was mean. He had seen him pull mother’s hair, pretend to punch her, and push her up against the refrigerator. He had dreams about father hitting mother in the face and sometimes wet his bed when he slept at home. Mother told DCFS father had begun being abusive about two and one-half years earlier, when she learned he was having an “affair.” He would scare mother by pulling her hair, yelling at her, and throwing things. Once, in front of C., he had grabbed mother by the neck. C. also saw father hit his brother (C.’s uncle); that scared her. Another time, while mother was driving and Patrick was in the car, father had grabbed her by her ponytail from the backseat. Even after mother got a restraining order, father would call her friends looking for her. He had left threatening messages for mother, “socked” his own brother in the face because he thought he was “picking up on” mother, and broken into a friend’s house to find her. Mother told DCFS that, in connection with obtaining the restraining order, father’s companion had testified father also verbally and physically abused her, including burning her face with a cigarette. Mother had found drug paraphernalia in the family’s home, and suspected father might sometimes have been under the influence when he drove the children. About two years earlier, father had stopped working or contributing to family finances or the children’s support.
Father denied most of the allegations. He admitted having pulled mother’s hair, but denied having engaged in any abusive or threatening behavior. He claimed he and mother never fought in front of the children, although the children became nervous when mother “went off on” father in front of them. He denied having burned his girlfriend’s face on purpose; he said it was an accident, a statement with which his girlfriend concurred. He admitted having hit his brother, whom he said was drunk and “getting close to [mother].” He denied any history of substance abuse, but admitted smoking marijuana about twice a month, although never in front of his children. He denied ever having driven the children while under the influence, or without having them restrained in car seats or safety belts. Father also said he had stopped working at one point to pursue a boxing career. However, he had since “retired” and had been helping pay the family’s bills and to buy clothing and other things for the children. DCFS reported father had a criminal history that included numerous arrests for possession of controlled substances. DCFS reported that father wanted joint or full custody of the children. Patrick and C. wanted to live with their mother and to have visits with father, as long as another adult was present. (One-year-old Jacob was too young to express a preference.) DCFS reported it had investigated father’s allegations of sexual abuse against the maternal grandfather and had concluded they were unfounded. Father submitted to a drug test at the end of July; the test was negative.
In mid-September 2005, the parties participated in a mediation. They reached an agreement; the court adopted the agreement in sustaining the petition, as amended. In its sustained form, the petition alleged father had a history of substance abuse, and that mother and father had exposed the children to incidents of domestic violence. The remaining allegations were dismissed. The dispositional (case) plan provided that the children would continue to live with mother, who would receive family maintenance services. Both parents were ordered to attend group domestic violence counseling, and to obtain individual counseling to address core issues including the impact of domestic violence on children. Mother was to participate in joint therapy with the children, on their therapists’ recommendations. Father was ordered to obtain 10 consecutive random drug and alcohol tests and -- in the event of a missed or dirty test -- to complete a drug and alcohol rehabilitation program. He was given monitored visitation. Once again the court noted it was making its placement findings solely as to father.
Over the course of the next 13 months, the children remained in mother’s care. They lived with her in their maternal grandparents’ home until she got her own place; after that they lived with her and, on occasion, stayed with their grandparents. Mother saw them every day and remained their primary caregiver. Father’s visits, at first inconsistent, became increasingly regular, and he was loving and attentive with his children. Both parents participated in the children’s extracurricular activities, and they were learning how to communicate better with one another about their children, who continued to thrive.
Neither parent fully complied with the case plan. In February 2006, mother began participating in a domestic violence program, and told DCFS “[s]he was surprise[d] at how much she needed it.” However, mother never completed that program or any group counseling program. She had received a promotion and was working harder than ever, and longer hours; she also was studying for a real estate license. Mother also tried to participate in all of her children’s activities, which the children told DCFS was important to them. Mother told DCFS she understood she could benefit from and remained open to domestic violence counseling, but so many commitments put significant constraints on her time, and her children were her first priority. Despite her failure to complete the counseling component of the case plan, DCFS reported mother was unfailingly cooperative and had met many of the plan’s objectives. Specifically, she had shown (1) an ability and willingness to maintain custody of and a stable residence for her children; (2) an interest in the children’s education and physical and emotional well-being; and (3) the ability to maintain appropriate discipline with the children. In addition, DCFS noted an improvement in mother’s mental and emotional health and said she was taking better care of herself, both personally and professionally. She also had developed the ability better to communicate with father, although she limited their contact to discussions about the children. Mother believed this improved communication benefited the children. She told DCFS father had apologized to her for his past behavior, and that he was a “decent” man and “a really good dad,” so “long as he is clean.”
Father also had made some positive improvements. Beginning in December 2005, his visits with the children became increasingly consistent, and he began attending their sporting events, although he did not speak to the children or mother when he was there. Father agreed his communication with mother had improved, and told DCFS “everything [was] cool” between him and mother. He blamed everything that had happened on the drugs he had been taking. Father had turned himself in for outstanding warrants, and had been released from jail in November 2005. He was incarcerated again in September 2006, and was expected to be released in mid-February 2007. At first, father was angry about the juvenile court orders; he claimed to have lost the materials about the drug testing program, and he failed to respond to DCFS’s efforts to contact him or to appear for drug tests. He did take three drug tests between December 2005 and January 2006; each was negative. Father stopped drug testing sometime in 2006. In August 2006, the children’s new social worker (CSW), who had taken over the case in June, asked father why he stopped testing. Father said the former CSW had given him the impression he no longer was required to submit to drug tests. The new CSW investigated and learned father still was obligated to test, but was then unable to contact father by phone and, later, because he was in jail. At various points throughout this proceeding, father did not have a permanent place to live; before March 2006, he often did not respond to DCFS’s efforts to contact him by phone or e-mail. Father did not enroll in any court-ordered program.
The children told DCFS they enjoyed the time they spent with father, and liked having him participate in their sporting activities. DCFS reported they continued to thrive in their home and school environments, and seemed happy and very attached to their mother. The children did not exhibit any worrisome or disruptive behavior; they were effusive, sociable, and proud of their athletic achievements. Mother had taken both Patrick (who had some problems with anger) and C. (who stuttered when excited or nervous) for individual counseling, but their participation was intermittent.
At a review hearing in September 2006, the trial court continued the matter to see whether DCFS recommended termination of reunification services for father given that he had not participated or enrolled in any court-ordered program.
In November 2006, DCFS reported father had begun attending parenting classes in mid-October 2006, but had not yet drug tested as of the date of the report. The CSW had observed a visit between father and the children at the batting cages in late October. The visit went very well. Father had been actively engaged and appropriate with the children.
DCFS reported that mother still had not completed domestic violence counseling, and her participation had been sporadic because of “logistical difficulties” caused by the children’s schedule and her own. However, DCFS said mother had partially complied with the case plan, in that she was “continuing to assure the well being of her children.” Specifically, mother understood the importance of not repeating past destructive behaviors, and she appeared committed to ensuring the safety and happiness of the children, who were her “first priority, always.” Mother also told DCFS that, although she and father had no intention of reviving their relationship, they had moved past the destructiveness and bitterness of their earlier relationship, and got along very well. Mother believed it was important the children maintain a relationship with their father; she thought it would do the children more harm than good to sever that relationship. DCFS recommended mother still go to counseling to address the serious issues that had brought the family to the court’s attention, and asked the court continue family maintenance services. DCFS recommended the court terminate father’s reunification services. The court agreed and on November 13, 2006, it terminated father’s reunification services. The court continued family maintenance services for mother; the court said she needed to participate more consistently in domestic violence counseling. The court continued the matter to May 2007, with a goal of terminating dependency court jurisdiction.
In May 2007, DCFS reported the children were still well cared for by mother, and the two eldest were doing well in school and actively engaged in extracurricular activities. Neither child was in therapy. Both said they were very happy living with their mother. Mother had not completed the court-ordered domestic violence counseling. However, DCFS reported she had a good understanding of domestic violence issues, and an awareness of the cycle of violence, how to avoid future relationships involving domestic violence, and how to ensure her children’s safety. Mother already had satisfied many of the case plan’s objectives, she was a “nurturing mother” with a demonstrated commitment to her children’s well-being, and she had a history of providing for the children. All three children continued to thrive in mother’s care.
DCFS said father also had made some progress. He still had not participated in any domestic violence programs and he had not drug-tested since his reunification services were terminated. However, he had a few unmonitored visits with the children; these went well and the children enjoyed seeing him. But at one of Patrick’s baseball practices, father had tried physically to intimidate mother’s new boyfriend. As a result, DCFS recommended father’s visitation be monitored. DCFS noted father was involved in the children’s lives, but he did not provide any financial support. It recommended the court terminate dependency court jurisdiction, and award sole legal and physical custody to mother, the children’s primary caregiver and the source of their financial support.
At a hearing on May 25, 2007, father introduced evidence that he had completed 13 weeks of a 52-week domestic violence program, and had provided some financial support for the children. He asked the court not to terminate jurisdiction or, if it did, to award him joint legal custody. The trial court declined both requests. The court noted father had not resolved his domestic violence issues. It also noted mother and father disagreed about child-rearing issues, and stated it did not want to force mother to confer or argue with her former batterer about medical or educational decisions regarding the children. Attorneys for mother and the children agreed with DCFS’s recommendation that sole custody be awarded to mother: she should not have to negotiate on matters involving the children, when she and father admittedly disagreed with respect to child-rearing, and he had not resolved his issues of substance abuse, anger management, or his propensity for violence. The trial court found mother had resolved the issues that had brought the children into the dependency system, and the children no longer were at risk. The court terminated jurisdiction, granted mother sole legal and physical custody of the children, and gave father weekly monitored visitation. From that order, father appeals.
DISCUSSION
Father contends the court’s exit order, granting sole legal custody to mother, was erroneous. He argues that, because neither he nor mother complied with the court-ordered case plan, it was arbitrary for DCFS to recommend – and the court to order – that mother be given sole custody. We find no error, and affirm.
Juvenile courts make “exit orders” under section 362.4. It provides that, at the time the court terminates jurisdiction over a dependent child, it also may issue an order determining the custody of, or visitation with, the child. The standard governing the court’s determination when crafting its exit order, as in all determinations in dependency proceedings, is what will best protect the child’s welfare and best interests under the circumstances. (In re John W. (1996) 41 Cal.App.4th 961, 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) We review custody orders for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Under that standard, we will not disturb a juvenile court’s exit order unless the court exceeded the limits of its broad discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.)
We reject father’s unsupported assertion that, because both he and mother were offending parents, the court acted arbitrarily and capriciously by failing to consider the extent to which mother had complied with the case plan in granting her legal custody. The record reflects that, in granting sole legal custody to mother, the court did consider mother’s compliance with the case plan, and it concluded she had addressed and resolved the issues that had brought her children into the dependency system. It is true mother never fully completed a formal program addressing domestic violence, the core issue underlying the programs in which she was ordered to participate. Nevertheless, evidence abounds that -- both before (when she separated from father and got a restraining order to keep him from threatening or hurting her, the children, or her parents) and over the course of this proceeding -- mother developed an increasing awareness and understanding of the insidious nature of domestic violence. She understood the need to move beyond the fear in which she had lived in the past and to avoid destructive behavioral patterns in personal relationships, and the importance of ensuring that both she and her children remained safe from such danger in the future. Moreover, as DCFS frequently noted, mother met many goals of the case plan: at the same time she was making numerous strides in both her personal and professional life, she also consistently demonstrated a willingness and ability to maintain custody of and a stable home for her children; she was completely committed to their education and their physical and emotional well-being and development; and she demonstrated superior parenting skills in her ability to nurture the children while appropriately administering discipline. As a result, the evidence is abundant that the children were thriving. Thus, to the extent mother was an “offending” parent under the petition (see In re Heather A. (1996) 52 Cal.App.4th 183, 194 [allowing domestic violence to occur in a home where children live is a form of neglect]), she plainly had done almost everything within her power, given the constraints on her time -- apart from completing a formal program -- to alleviate the conditions that necessitated dependency court intervention. And she was continuing to make progress on that score.
At the same time, father’s progress, while evident, not only was far less pronounced, he had further to travel. From the inception of this case, it was clear father had a significant amount of work to do to address issues of substance abuse, anger management, and domestic violence. He made some progress on his substance abuse problem, and he had a few negative drug tests. But he never complied with the court’s requirements that he complete 10 consecutive random clean tests or a drug rehabilitation program, even though he blamed the drugs he took for his inappropriate behavior. Nor did he ever make significant strides in his ability to manage anger. Mother and father agreed that, over the course of this proceeding, they had developed better mechanisms for communicating with one another. Even so, as late as May 2007, father was still trying to control mother and engaging in other threatening behavior, as evidenced by his effort physically to intimidate mother’s boyfriend during Patrick’s baseball practice. Indeed, father appears to have completely resisted taking steps to address his anger management or domestic violence problems until after the juvenile court told the parties it was considering terminating jurisdiction. But, by the time of the May 2007 hearing at issue -- almost two years after his children were removed from his care -- father still had completed just 13 weeks of a year-long domestic violence program. The fact that mother’s absence gave father fewer opportunities to try to control or intimidate her does not logically dictate the conclusion that father was necessarily less inclined to do so, and there is evidence he was not. Father correctly points out that one of the most important considerations in the court’s custody determination is whether a parent has shown the capacity to eliminate future risk. (In re Dustin R. (1997) 54 Cal.App.4th 1131, 1143.) However, on this record, we must disagree with father’s assertion that he demonstrated that capacity.
Under these circumstances, the juvenile court found it would be unreasonable to put mother in the difficult position of being forced to negotiate with her former batterer on potentially divisive issues of child-rearing such as medical care and education. That decision was not arbitrary or capricious. The evidence amply supports the court’s finding that jurisdiction could safely be terminated and the children’s best interests would be served by placing them in the sole custody of their mother, where they plainly were at no risk of harm. (See In re Jennifer R., supra, 14 Cal.App.4th at p. 712 [the focus of the juvenile court’s determination in making an exit order is the child’s best interest under all the circumstances, bearing in mind the critical issue of a parent’s ability to protect and care for the child].)
DISPOSITION
The order is affirmed.
We concur: COOPER, P. J. RUBIN, J.