Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. CK60743, Jan G. Levine, Juvenile Court Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Lori Siegel, under appointment by the Court of Appeal, for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and William D. Thetford, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
D.H., father of S.H. and Z.H., appeals from the juvenile court order terminating its jurisdiction and awarding physical custody of the boys to their mother, J.H. and visitation to D.H. (Welf. & Inst. Code, § 364). We affirm the order.
All statutory references are to the Welfare and Institutions Code, unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
1. The petition (§ 300)
In February 2006, the Department of Children and Family Services (the Department) received a referral indicating that D.H. was emotionally abusive to his step-daughter, B.D. In its investigation, the Department found that D.H., who has an explosive temper, was verbally abusive and intimidating to the entire family. Sixteen-year-old B.D. moved out of the house because of D.H.’s intimidating and intrusive behavior. B.D. and her boyfriend related that D.H. asked questions about B.D.’s sex life with her boyfriend, inappropriately provided them with pornographic movies and alcohol, and smoked marijuana with them on several occasions. Fearful of D.H., J.H. obtained a restraining order against him.
The Department detained the children and filed a petition. The juvenile court made detention findings concerning D.H. only and released the children to J.H.’s care. The court ordered that D.H.’s contact with the children be supervised.
At the adjudication hearing, the juvenile court declared the children to be described by section 300, subdivisions (b) [failure to protect] and (j) [abuse or neglect of a sibling] based on the petition that alleged that D.H. inappropriately interacted sexually with B.D. by making comments to her boyfriend about intimate details of their sexual activities. D.H. encouraged B.D. to perform oral sex on her boyfriend and exposed the two to sexually explicit videos. As the result of D.H.’s conduct, B.D. feels uncomfortable and sexually threatened to the point that she refuses to continue to reside in the home with her mother and D.H., thus placing the physical and emotional health and safety of B.D. and her half-siblings, S.H. and Z.H. (ages 11 and 4, respectively), at risk. The petition also alleged that D.H. used marijuana in front of B.D. and allowed her to drink alcohol. The petition alleged that J.H. did not take all the necessary steps to protect B.D. Such conduct placed the children at risk.
The juvenile court ordered the Department to provide D.H. with reunification services comprised of individual counseling to address sex abuse issues including sexual and verbal boundary issues, and six random or on-demand drug tests. If D.H. missed a test or tested dirty, he would be required to complete an anger-management program, a drug rehabilitation program, and continue to drug test. The court ordered family maintenance services for J.H. The court ordered monitored visitation for D.H.
Dr. Alfredo Crespo’s psychological evaluation of the family (Evid. Code, § 730), revealed that D.H. was “was . . . defensive in his approach to psychological tests administered to him. He was also very defensive vis-à-vis [Dr. Crespo’s] opinion he used poor judgment in taking it upon himself alone to confront B.D. and [her boyfriend] about his discovery (through surreptitious means) that they were engaging in sex.” Dr. Crespo believed that D.H. was “in the early stages of accepting responsibility for his inappropriate behavior.”
In October 2006, the Department recognized the family’s progress and recommended that D.H.’s visits with the elder son, S.H., be unmonitored outside the family home. In December 2006, the juvenile court allowed S.H. to have overnight visits with D.H.
2. The subsequent petition (§ 342)
In January 2007, the Department received a referral alleging that Z.H. had been the victim of emotional abuse when he witnessed D.H. hitting J.H. J.H. ran out of the house to a neighbor screaming and crying and attracting the attention of most of the neighborhood. Additionally, despite referrals, D.H. had missed a drug test. Although the Department omitted to mention any of D.H.’s other programs, it did reflect that D.H. was maintaining regular visits with S.H. and Z.H. and the children appeared to have a healthy bonded relationship with him. Finding D.H.’s progress in his case plan had been “moderate although incomplete,” the juvenile court continued reunification services.
In March 2007, the Department filed a subsequent petition (§ 342).
The juvenile court reinstituted monitored visits for D.H. and the children. The parents submitted to the subsequent petition alleging that Z.H. was exposed to a violent confrontation between D.H. and J.H. during which J.H. received injuries to her face. The court ordered D.H. to participate in 26 weeks of group domestic violence/anger management counseling, and ordered the family to participate in a supplemental psychological evaluation.
In his second psychological report, Dr. Crespo wrote that D.H.’s request for shared custody appeared unrealistic and was possibly D.H.’s way of getting back at J.H. for divorcing him. Nonetheless, Dr. Crespo found the children to be “relatively unscathed by the dysfunctional family dynamics.”
In June 2007, the Department requested that D.H. have one unmonitored day-visit per week with the children with the exchange of the children to occur inside the police station. The court ordered two such visits and thereafter allowed D.H. visits every other weekend from 7:00 p.m. Friday to 7:00 p.m. Sunday.
3. The 12-month period
In advance of the 12-month review hearing, the Department reported that D.H. had been attending anger management counseling and there were no reports of problems with visits. The children were being safely cared for by J.H. in her home and were no longer at risk of abuse. The Department noted that “Historically the mother has been their primary caregiver and there has never been any allegations nor issues with the mother’s care of the children.” Dr. Crespo indicated, although Z.H. may be at risk with D.H., given that D.H. was abusive to S.H. when S.H. was a toddler, that “father appears to be invested in being a good father to his sons and provided that he remains in treatment, and identifies ways to minimize risk of being accused of abuse,” his visits could remain unmonitored. The Department recommended that the juvenile court terminate its jurisdiction with a written family law order giving J.H. physical custody and granting D.H. weekend visits. Although not opposed to closing the dependency case, D.H. objected to the recommendation and asked the court to appoint a mediator to assist in designing a family-law order satisfactory to both parties. After an unsuccessful mediation, the court scheduled a hearing under section 364.
By the time of the section 364 hearing, D.H. had completed his anger management/domestic violence program and had obtained negative results on six random drug test. The Department noted the concern and affection D.H. had for his sons and his positive interaction with them. The Department’s report also included email messages and letters from J.H. informing the Department that (1) D.H. had inappropriately discussed the court proceedings with S.H. and pressured the child to say that he wanted to live with D.H.; (2) D.H. encouraged a romantic relationship between 11-year-old S.H. and a 14-year-old girl; (3) J.H. believed that D.H. altered S.H.’s psychotropic medication dose; (4) D.H. had threatened J.H. within the previous two weeks; and (5) D.H. had been unemployed for 18 months and told J.H. he chose to remain jobless.
At the close of the contested hearing, the children’s attorney joined with the Department and J.H. in asking that J.H. be awarded sole physical custody and D.H. be allowed visitation. The juvenile court awarded the parents joint legal custody, J.H. sole physical custody, and D.H. visitation on alternate weekends and from 12:00 noon on the Wednesdays following J.H.’s weekends for 31 hours (through Thursday at 8:00 p.m.). The court’s order terminating jurisdiction was stayed until receipt of a family law court order. After the custody order and final judgment were filed, the juvenile court lifted the stay of the order terminating jurisdiction. D.H. filed his appeal.
We grant the Department’s request filed on May 13, 2008, to take judicial notice of the custody order and final judgment issued by the juvenile court on December 21, 2007.
CONTENTIONS
D.H. contends that the juvenile court erred by (1) terminating jurisdiction under section 364 and (2) by failing to order joint physical custody of the boys.
DISCUSSION
1. The juvenile court properly terminated jurisdiction under section 364 .
D.H. contends, while the challenged hearing was held pursuant to section 364 for J.H., that the juvenile court erred in failing to follow section 366.21, subdivisions (e) (for the section 342 petition) and (f) (for the original petition) for him. Under section 364, the court must decide whether D.H. substantially complied with the case plan, whereas under section 366.21, subdivision (e), the court is obligated to return the children to D.H. unless it specifically finds that return would be detrimental to them. The court did not make a detriment finding, D.H. observes, and so the children must be returned to him.
To determine whether section 366.21 or 364 applies, we follow the example of In re N. S. (2002) 97 Cal.App.4th 167 as it is factually similar. There, the juvenile court removed the child from her parents’ custody, placed her with the mother, and ordered the father not to reside in the home. At the six-month review hearing, the court allowed the father to return home without supervision, but continued its jurisdiction of the child. (Id. at p. 170.) On appeal, the father assumed that the court’s ruling terminating jurisdiction was held under section 366.21, subdivision (e). N. S. held, however, where the child was removed from both parents and then returned to the mother’s custody where she remained by the six-month review hearing, that “the court could not have held a review hearing under section 366.21, subdivision (e).” (In re N. S., supra, at p. 171.)
N. S. explained that the court holds a six-month review hearing under section 366.21, subdivision (e) when the “minor has been removed from parental custody and remains out of custody . . . .” (In re N. S., supra, 97 Cal.App.4th at p. 171, italics added, citing Cal. Rules of Court, rule 5.710, formerly rule 1460(a).) By contrast, section 364, subdivision (a) applies to “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 . . . .” Thus, whenever the child is not removed from parental custody, the review hearings are governed by section 364. (In re N. S., supra, at p. 171; accord In re Janee W. (2006) 140 Cal.App.4th 1444, 1450-1451.) As in N. S., the court here removed Z.H. and S.H. from D.H.’s custody, but placed them in J.H.’s custody where they remained at the 12-month review period, and so section 364 governed the hearing.
In re Nicholas H. (2003) 112 Cal.App.4th 251, cited by D.H., is distinguished because there the court made an express finding that the mother was the custodial parent and then removed the child from mother’s home and placed him with the father, the previously noncustodial parent. (Id. at p. 264.)
D.H. argues, even if the hearing for J.H. was held pursuant to section 364, that because the children were removed from his custody, the hearing applicable to him should have been held under section 366.21, subdivision (e). But, the statutes are mutually exclusive: “[I]n any case in which the court has declared a minor a dependent, the court must conduct review hearings under either section 364 or section 366.21. [Citation.] If section 366.21 does not apply, then section 364 must.” (In re N. S., supra, 97 Cal.App.4th at p. 172, italics added, fn. omitted.)
Turning to section 364, it provides in subdivision (c) that: “The court shall terminate its jurisdiction unless the . . . 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. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.”
Implicit in his argument that the juvenile court failed to make the requisite findings under section 366.21, subdivision (e) is D.H.’s contention that the evidence does not support the court’s finding under section 364. We conclude that substantial evidence supports the court’s ruling under section 364, subdivision (c) terminating its jurisdiction. (In re N. S., supra, 97 Cal.App.4th at p. 172.) As D.H. observes, the Department reported in November 2007 that D.H. had complied with and successfully completed his case plan. Certainly, the Department made no effort to prove that the conditions still exist which would justify initial assumption of jurisdiction under section 300. Rather, the social worker reported that visits were incident-free. Indeed, the social worker and the boys’ attorney observed S.H.’s attachment to D.H. and the children’s counsel requested that father share custody of S.H. The court properly found “I don’t think that the children are at risk under the present conditions.” Thus, the conditions which justified the initial assumption of jurisdiction under section 300 no longer exist (§ 364, subd. (c)) and so the court properly terminated its jurisdiction by following the strictures of section 364.
2. The custody/visitation order was not an abuse of discretion.
Section 362.4 authorizes the juvenile court, when terminating its jurisdiction, to make custody and visitation orders that will be transferred to the family court and remain in effect until changed by the family court. (§ 362.4; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712, citing In re Roger S. (1992) 4 Cal.App.4th 25, 30.)
Section 362.4 reads in relevant part: “When 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 proceedings for dissolution of marriage . . . of the minor’s parents . . . are pending in the superior court . . . 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.”
In making such exit orders, the juvenile court’s focus is on the best interests of the child. (See In re Chantal S. (1996) 13 Cal.4th 196, 206.) That court has broad discretion to determine what best serves a child’s interests and such decision will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227-1228.)
In dependency court, “just because custody with neither parent was held to pose any danger to the child does not mean that both parents are equally entitled to half custody.” (In re John W. (1996) 41 Cal.App.4th 961, 974.) When the juvenile court hears a dependency case under section 300, it is handling children who have been abused, abandoned, or neglected and so it stands as parens patriarch, having a special responsibility to those children and considers the totality of a child’s circumstances when making decisions regarding the children. (In re Chantal S., supra, 13 Cal.4th at p. 201, citing In re Roger S., supra, 4 Cal.App.4th at pp. 30-31.) Thus, “ ‘[t]he presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases’ decided in the juvenile court. [Citation.]” (In re Chantal S., supra, at p. 201.) Likewise, the Family Code’s “presumption that joint custody is in the best interest of the minor is inconsistent with the purposes of the juvenile court.” (In re Jennifer R., supra, 14 Cal.App.4th at p. 712, fn. omitted.)
D.H. contends the juvenile court should have granted him joint physical custody and arranged visitation for him on alternating weeks. He argues that while not determinative of best interests, a child’s wishes should be given credence and S.H.’s repeated statements that he wanted to live with D.H. are persuasive, as is the fact that D.H. completed his case plan.
On this record, the exit orders were not an abuse of discretion. The boys had lived with J.H. as their primary caretaker for their entire lives and specifically for the 18 months of the dependency. It was D.H.’s, not J.H.’s, behavior that brought this family into the juvenile court. The court properly considered the fact that D.H.’s behavior triggering the dependency involved inappropriate sexual interactions with B.D. and domestic violence, among other things (cf. Fam. Code, § 3011). Although Dr. Crespo recognized S.H.’s attachment to D.H., the doctor also stated that D.H.’s request for 50 percent custody “appear[s] unrealistic . . . .” Dr. Crespo never recommended that D.H. have custody of the children. The juvenile court did not abuse its discretion in fashioning the custody and visitation orders it did.
Family Code section 3011 reads in part, “In making a determination of the best interest of the child . . . the court shall, among any other factors it finds relevant, consider all of the following: [¶] (a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent . . . against any of the following: [¶] . . . [¶] (2) The other parent.”
D.H. misstates the record when he asserts that S.H. wants to live with D.H. In the paragraph cited by D.H., S.H. states, “ ‘I want to visit my dad forever. I would stay here [with mother] but visit my dad everyday.’ ” (Italics added.)
D.H. next contends that the visitation order meets the requirement of “joint physical custody” under Family Code section 3004, and so he requests remand the case to the juvenile court to rename it so. Section 3004 defines joint physical custody as “mean[ing] that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020.” The juvenile court awarded D.H. custody of the boys (1) every other weekend, (2) from 12:00 noon on Wednesdays to 8:00 p.m. on Thursdays of the weeks he does not have them on the weekend, (3) alternate holidays, and (4) two seven-week periods a year. In short, as D.H. acknowledges, visitation meets the definition of joint physical custody under section 3004.
However, we decline D.H.’s request for remand. As explained, the juvenile court serves an entirely different role than the family law court. It must fashion custody orders while keeping in mind its vulnerable charge. The boys have been thriving in the primary care of J.H. and so there was no reason to change the custody/visitation arrangement that has already proved successful. Furthermore, the section 362.4 exit orders are not the same thing as permanent family law custody and visitation orders. “Juvenile court exit orders – and one must remember that section 362.4 presupposes an ongoing family law case – are in the nature of pendente lite orders in family law.” (In re John W., supra, 41 Cal.App.4th at p. 973, fn. omitted), and may be modified by a party in family court based on the best interest of the child. (In re Jennifer R., supra, 14 Cal.App.4th at p. 714; cf. In re Michelle M. (1992) 8 Cal.App.4th 326, 328.) D.H. may always seek a change of order to grant him 50 percent custody in the family court.
DISPOSITION
The order is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.