Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley Genser, Judge, Los Angeles County Super. Ct. No. CK64525
Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Respondent Jorge R.
No appearance for Plaintiff and Respondent.
KRIEGLER, J.
Erica J. (mother) appeals from the orders of June 19 and 22, 2007, under Welfare and Institutions Code section 364, terminating the dependency court’s jurisdiction over Ruben R. and Denise R. (the children) and awarding joint legal custody to her and Jorge R. (father). She contends the orders were an abuse of discretion. As the dependency court did not abuse its discretion, we affirm.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Father is the respondent in the appeal. The Department of Children and Family Services (the Department) is not a party in the appeal.
STATEMENT OF FACTS AND PROCEDURE
Ruben was born in December 1993 and Denise was born in June 1995 to mother and father, who were not married. Mother and father ended their relationship in 1996. The children lived with mother until June 2006 and thereafter with father. Mother had a history of drug abuse and a criminal record that includes a conviction for drug possession. She and her friends smoked marijuana in the presence of the children. The family moved frequently, causing the children to miss school. The children’s education suffered greatly.
On July 28, 2006, while mother and the children’s half-sibling, Daisy V., were visiting in the paternal grandparents’ home, the police executed a search warrant and found paternal aunt openly selling drugs from the kitchen. A large quantity of crack cocaine was in plain view in the kitchen, as well as cash and paraphernalia consistent with narcotics sales. The Department took Daisy into protective custody, but the children were allowed to remain in father’s care. A petition to declare the children dependents of the court under section 300 was filed.
Father is not Daisy’s father, and Daisy is not a subject of the appeal.
The children wanted to live with father. Ruben said, “I like my mom but now I’m going to this school. I already spent time with my mom and now I want time with my dad.” Denise said: “I love my mom and I don’t want to break my mom’s heart but I really want to live with my dad. You know I think I do better. If I tell him I have school[,] my dad takes me. My mom sometimes she’ll be lazy and can’t get up and doesn’t take me to school. I love school. Since I’m off track, I go to the library and study about the world, history and how they built Las Vegas.” The children preferred the stability and educational opportunity that father provided and they were no longer tardy for school. Mother continued using drugs.
On December 21, 2006, the children were declared dependents of the court based on sustained allegations under section 300, subdivision (b) that there is a substantial risk the children will suffer serious physical harm or illness as a result of mother’s failure to adequately supervise or protect. The dependency court ordered the children placed in home-of-parent-father under the Department’s supervision, and family maintenance services were ordered. Custody was taken from mother, and family reunification services were ordered for mother. Mother was granted monitored visits, and the children were to have sibling visits with Daisy at least twice a month. Father was ordered to insure that the children attended school regularly, cooperate with visitation orders, and provide six consecutive clean drug tests. Mother was ordered to participate in individual counseling which included drug counseling, parenting, and drug testing. The matter was continued for six months for a hearing under section 364 as to father and section 366.21, subdivision (e) as to mother.
The children continued to do well in father’s home. They presented no significant behavior problems. They attended school regularly. Ruben was still failing most of his subjects but received tutoring and was trying harder. Denise did well in school and also received tutoring. In May 2007, the social worker reported the children were undecided about whether they wanted to return to mother’s home. Father enrolled himself and the children in therapy in April 2007 with Sheree Earle and voluntarily completed a parenting class. All eight of his drug tests were clean. Father substantially complied with providing the children visitation with mother and Daisy.
Mother did not begin to be compliant with drug testing until April 2007. She did not complete individual counseling or a parenting program. She had monitored visits on weekends, but missed four visits without giving prior notice. The children enjoyed their visits with Daisy and mother, yet had trouble adjusting in father’s home afterward.
Earle evaluated father and the children. In a May 22, 2007 report, Earle stated: “[Father] is highly motivated to provide the best possible environment for his children and is passionately dedicated to doing what is in his children’s best interest. [He] is very open to suggestions and direction concerning his children and willing to do whatever it takes to help his children get on track developmentally and flourish psychologically. [¶] Ruben and Denise have come a long way in the six plus months they have spent with their father, a testament to his dedication. [Father] has provided a safe, consistent and stable environment for his children, enabling their healing process to begin. Both children have suffered from their prior upbringing due to their mother’s life style. Mother’s relationship with the children continued to interrupt their healthy development. The weekly mandated visits work against what [father] is trying to do for his children. After each weekly visit the children have to recover from her impact. I would suggest that visits with the mother be optional and local to their current residence. [¶] It is my professional opinion that the children will continue to thrive in the environment provided by [father] and mandated visits with mother only serve to sabotage the children’s progress and healthy development.” Earle also concluded it was “essential that the children keep in contact with their younger [half-sister], Daisy.” In June 2007, Earle concluded father and the children did not need to be in therapy at that time.
At a contested review hearing on June 19, 2007, father requested the dependency court terminate jurisdiction. Father testified he would continue to transport the children for visits with Daisy. At the conclusion of the hearing, the dependency court ordered jurisdiction over the children terminated pursuant to section 364: “Father’s non-offending under the petition. He’s had custody of the children since the arraignment date, so they’ve been in his care for ten-and-a-half months. He’s demonstrated the ability to safely meet the needs of the children. There’s no evidence that he presents any risks to the children, and therefore the court finds no reason to keep jurisdiction open for those children. [¶] Mother’s not in compliance with the reunification plan. She’s participated sporadically in counseling and has missed substantially more tests than she has taken and tested positive back in December or January, and missed almost every test thereafter until April. [¶] . . . [¶] I believe father can care for the children safely without further court intervention. . . . [T]erminating jurisdiction . . . would be in their best interest.”
The dependency court granted joint legal custody to mother and father, and sole physical custody to father with the requirement that “[father] confer with [mother] regarding educational, medical and religious matters. In the event that [mother] and [father] do not agree, [father] to make final decision.” Mother was awarded supervised visitation according to a schedule “to be determined by the parents.” The visitation was to be supervised because she had not completed a drug program and parenting classes. The termination order was stayed for the filing of a family law order containing the terms of the custody and visitation order. In June 22, 2007, the family law order was filed and the stay of the termination order was lifted.
We will refer to these custody and visitation orders as the “exit” orders. (See In re John W. (1996) 41 Cal.App.4th 961, 970.)
This timely appeal of the orders terminating jurisdiction and determining custody followed.
DISCUSSION
The Termination and Custody Orders Were Not An Abuse of Discretion
We review a decision to terminate jurisdiction and issue a custody order for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) When a determination is “committed to the sound discretion of the juvenile court, . . . the trial court’s ruling should not be disturbed on appeal unless an abuse of discretion is clearly established. [Citations.] As one court has stated, when a court has made a custody determination in a dependency proceeding, ‘“a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].”’ [Citations.] And we have recently warned: ‘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. (1994) 7 Cal.4th 295, 318-319.) Where substantial evidence supports the order, there is no abuse of discretion. (In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.) “It is not our function to weigh the credibility of the witnesses or resolve conflicts in the evidence. [Citation.] Rather we must indulge in all reasonable inferences to support the findings of the juvenile court and must review the record in the light most favorable to the juvenile court’s orders.” (Ibid.)
Termination of Jurisdiction
Mother contends the dependency court abused its discretion in terminating jurisdiction because substantial evidence does not support the order. The contention is without merit.
The dependency court terminated jurisdiction under section 364. “If the child has not been removed from the physical custody of his or her parent, the court must schedule a review hearing pursuant to section 364 to be held within six months of the date of the declaration of dependency and every six months thereafter. [Citations.] At the hearing the issue before the court is ‘whether continued supervision is necessary.’ [Citations.] Termination of dependency jurisdiction is required unless the Department establishes the conditions still exist that would justify the court taking jurisdiction of the child or such conditions would exist if jurisdiction were terminated.” (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at pp. 303-304.)
Section 364 provides in pertinent part: “(a) Every hearing in which an order is made placing a child under the supervision of the juvenile court pursuant to Section 300 and in which the child is not removed from the physical custody of his or her parent or guardian shall be continued to a specific future date not to exceed six months after the date of the original dispositional hearing. . . . [¶] . . . [¶] (c) After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn.”
Mother argues that section 361.2, not section 364, provides the applicable standard governing termination of jurisdiction, because the dependency court shifted physical custody of the children from mother to father at disposition. Her argument mischaracterizes the record. Custody was not shifted from mother to father: the children were living with father at the time they were detained from mother’s custody. As the children were not removed from father’s custody, the dependency court properly proceeded under section 364 to determine whether the conditions justifying the initial jurisdiction any longer existed. (See § 364, subds. (a), (c); Bridget A. v. Superior Court, supra, 148 Cal.App.4th at pp. 303-304; In re Nicholas H. (2003) 112 Cal.App.4th 251, 264.)
Under section 361.2: “(a) When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. [¶] (b) If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents. [¶] (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. In determining whether to take the action described in this paragraph, the court shall consider any concerns that have been raised by the child's current caregiver regarding the parent. After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1), (3), or this paragraph. However, nothing in this paragraph shall be interpreted to imply that the court is required to take the action described in this paragraph as a prerequisite to the court taking the action described in either paragraph (1) or paragraph (3). [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child. [¶] (c) The court shall make a finding either in writing or on the record of the basis for its determination under subdivisions (a) and (b).”
Mother argues that the section 361.2 standard is whether there is a need for continued supervision, not whether the conditions justifying the initial taking of jurisdiction still existed. (E.g., Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 316, fn. 19.)
We conclude the dependency court correctly found under section 364 the statutory conditions for jurisdiction no longer existed. The dependency court originally took jurisdiction of the children because mother’s drug use and drug lifestyle harmed the children and placed them at further risk of harm. The children were exposed to drugs and did not regularly attend school. Once mother had no right to physical custody, the children were no longer exposed to this lifestyle and these risks. Father completed a parenting class and was providing a safe, consistent, and stable home where they could begin the healing process. Father’s negative drug tests indicated the environment was drug-free. The children were attending school and receiving the academic help they needed. Father facilitated visits with mother and Daisy. His compliance with the dependency court’s orders, and Earle’s evaluation, indicated he was highly motivated to do what was in the children’s best interest. Based on the foregoing, and the fact that the dependency court’s exit orders awarded sole physical custody to father, there is no evidence the conditions justifying the initial jurisdiction still existed or would exist if jurisdiction were terminated. Thus, substantial evidence supports the order terminating jurisdiction and the order was not an abuse of discretion.
Mother argues that Earle’s evaluation should be disregarded as one-sided, because Earle did not review the reports, which contained information about mother’s progress. The dependency court was well aware, prior to making the orders, that Earle had not reviewed the reports, and, thus took this omission into account in assessing Earle’s opinions. Moreover, Earle evaluated the children’s developmental and psychological needs and progress, as to which she obtained firsthand information from the children and father; she did not purport to evaluate mother’s progress.
The Joint Legal Custody Order
Mother contends the joint legal custody order, which requires father to confer with mother on educational, medical, and religious matters involving the children, and gives the father the right make the final decision in the event he and mother do not agree, was an abuse of discretion, because it is contrary to the definition of joint legal custody in Family Code section 3003 and the children would benefit from mother’s input. The argument does not withstand scrutiny.
The exit orders were issued under section 362.4, which provides in pertinent part: “When the juvenile court terminates its jurisdiction over a [dependent] minor . . . [and] an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court. . . . [¶] 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.”
Mother argues that the order’s limitation on her right to legal custody violates Family Code section 3003, which provides: “‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” However, this definition governs the statutory construction of Division 8 (Custody of Children) of the Family Code. (Fam. Code, § 3000.) It has no authority in dependency cases. (See In re Jennifer R. (1993) 14 Cal.App.4th 704, 711-712.) “Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. [Citations.] Unless otherwise specified, the requirements of the [Family Code] . . . do not apply. [Citations.] Nowhere does the juvenile law with respect to custody determination specify that [the custody provisions of the Family Code] . . . apply to the custody determinations within dependency proceedings.” (Id. at p. 711, fn. omitted; accord, In re Josiah Z. (2005) 36 Cal.4th 664, 678-679.) “The presumption of parental fitness that underlies custody law in the family court just does not apply to dependency cases. Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.” (In re Jennifer R., supra, 14 Cal.App.4th at p. 712; accord, In re Chantal S. (1996) 13 Cal.4th 196, 201.) Mother has pointed to no legal authority which specifies that Family Code section 3003 applies to hobble a dependency court’s exercise of discretion to fashion appropriate exit orders under section 362.4. Thus, under settled law, Family Code section 3003 does not apply.
We reject mother’s argument that the order is an abuse of discretion because the children would benefit from her input in educational, medical, and religious decisions. The order does not deprive mother of the right to give input: father is required to confer with her regarding these decisions. Moreover, as he has sole physical custody, father has the primary knowledge of and involvement in these aspects of the children’s lives. He is responsible for their well-being and dedicated to making decisions based on what is best for them. For her part, mother was not rehabilitated. In these circumstances, it was certainly not beyond the bounds of reason for the dependency court to conclude that father should be given the final say in the event he and mother disagreed.
DISPOSITION
The orders are affirmed.
We concur: TURNER, P. J., ARMSTRONG, J.