Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK69283, Stephen Marpet, Commissioner.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
Y.T. (Father) appeals from an order of the juvenile court regarding his son, S.T., by which the court terminated its jurisdiction over the child, and granted joint legal and physical custody to Father and S.W. (Mother). Father argues on appeal that the juvenile court failed to consider the child’s best interests, and did not have evidence before it to support its order that Father have visits with S.T. on alternate weekends. He further argues that the court’s order regarding extended summer visits for each parent was impermissibly vague. We conclude that Father has not demonstrated any error on appeal. We affirm the judgment.
Mother is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Los Angeles County Department of Children and Family Services (DCFS) filed a Welfare and Institutions Code section 300 petition in July 2007 regarding S.T. (born in March 1999), alleging that the child had been sexually abused by his maternal uncle, and that Mother had failed to protect him from such abuse and had also inflicted physical abuse on the child. S.T. was detained from his parents.
All undesignated statutory references are to the Welfare and Institutions Code.
In August 2007, DCFS filed a first amended section 300 petition which added allegations that the parents were engaged in continuing conflict and an ongoing custody dispute, which created a detrimental home environment for S.T. DCFS further alleged that Father had made disparaging remarks about Mother to the child, and had encouraged him to lie about being sexually abused.
This is the second appeal in this matter. The first appeal resulted in a nonpublished opinion filed on February 2, 2009 (In re S.T., B206587), the details of which are not relevant here.
In the jurisdiction and disposition report filed in September 2007, DCFS noted that in February 2005, a family law court had terminated the parents’ marriage, and awarded them joint legal and physical custody. Mother was granted custody of S.T. from Sunday evening to Friday evening, and Father was awarded custody every weekend, from Friday evening to Sunday evening.
S.T. told the social worker he had not been sexually abused. In the past, four separate child abuse referrals had been made alleging S.T. had been molested by four different people, but all of the referrals were investigated and deemed to be unfounded. Each time, the child had stated that he had been abused, but he would then recant, saying Father had told him to say he was abused.
In October 2007, the juvenile court dismissed the counts alleging sexual abuse by the maternal uncle and physical abuse by Mother. The court sustained the counts alleging that the ongoing conflict and custody dispute between the parents resulted in a detrimental home environment for S.T. The court also sustained the allegation that Father had encouraged the child to lie about being sexually abused. The court released S.T. to Mother for an extended visit. In January 2008, S.T. was ordered to be placed with Mother, and Father was granted monitored visits. The parents were ordered to enroll in parenting classes, individual counseling, and a Parents Beyond Conflict program. S.T. began receiving individual counseling in September 2007.
In April 2008, DCFS recommended that dependency jurisdiction be terminated, and a family law exit order issued, granting physical custody of S.T. to Mother, and joint legal custody to the parents.
Thereafter, Mother apparently interfered with S.T.’s participation in conjoint counseling with Father, saying she could not take him or that he was too sick to attend. When the counseling finally took place, S.T.’s therapist reported that the child appeared happy and comfortable in Father’s presence. DCFS changed its recommendation to unmonitored day visits for Father.
In May 2008, the court ordered that Father’s visits were to remain monitored until Father and S.T. had attended additional conjoint therapy sessions, but the court gave DCFS discretion to liberalize the visits.
By June 2008, Mother had begun cooperating with S.T.’s participation in conjoint counseling, but she reported that S.T.’s behavior was increasingly aggressive and oppositional. S.T.’s therapist reported that the child was having difficulty coping with his parents’ ongoing conflict. The therapist could not easily predict whether an increase in unmonitored visits with Father would lead to additional behavioral problems. She noted, however, that Father’s and S.T.’s interactions were appropriate and loving. At this point, Father was having 10-hour unmonitored visits with S.T.
By September 2008, S.T. and Father were having weekend overnight visits every other weekend. S.T. told the social worker he did not want more frequent visits with Father, although he had told his therapist that he wanted more visits because Father had told him to say that. Mother had transferred S.T. to a private school without informing Father. S.T.’s therapist opined that the lack of trust and poor communication between the parents continued to put the child at risk of emotional harm. However, she did not recommend removing S.T. from Mother’s custody or limiting Father’s visits. S.T. repeatedly stated that he wanted to live with Mother. The child was confused and distressed by his parents’ conflict, and he expressed different desires regarding visitation depending on which parent was present. S.T. had telephone contact with Father on weekdays, but the conversations lasted up to one hour, much longer than S.T. preferred because he wanted more time to play. DCFS recommended termination of dependency jurisdiction, and issuance of a family law order granting Mother sole physical custody, with Friday evening to Sunday evening visits with Father on alternate weekends, and joint legal custody.
In late October 2008, mediation was held, but the parties were unable to agree on the terms of a family law exit order. Father wanted three weekend visits per month, but Mother wanted the alternate weekend visits to continue.
On November 3, 2008, the court ruled that the parents were to share joint legal and joint physical custody, with primary physical custody to Mother. Father was granted unmonitored visits from Friday evening to Sunday evening on alternate weekends. The parents were ordered to divide equally all school holidays. Each parent was granted one 30-day visit during the summer; the parties were ordered to arrange the scheduling of the summer visits between themselves.
The family law exit order was entered on November 12, 2008, and the court terminated its dependency jurisdiction.
This timely appeal followed.
DISCUSSION
I. Consideration of the Child’s Best Interests
Father contends that the juvenile court failed to consider S.T.’s best interests, and failed to consider the totality of the child’s circumstances, when making its custody and visitation orders. Father contends that the court had no evidence before it to support a reduction in Father’s visitation from every weekend, as ordered by the family law court in 2005, to alternate weekends. He points out that S.T.’s therapist and the child’s attorney recommended increased visitation beyond alternate weekends. He contends that “it is apparent from the record that the court was annoyed that the parents had failed to reach an agreement about the terms of the custody orders in mediation,” and “that such annoyance drove the court’s decision making,” with the result that the court “failed to properly consider [S.T.’s] situation when making its visitation orders.” We disagree.
We review a juvenile court’s decision to terminate dependency jurisdiction and to issue a custody, or “exit,” order pursuant to section 362.4 for abuse of discretion, and we are not permitted to disturb the order unless the juvenile court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
The record does not demonstrate that the court’s decision making was driven by annoyance. Rather, the court was encouraging the parties to work together to resolve the custody issues through mediation. The court stated, “[L]et’s hope we wrap up the details. And if we can’t, I am going to make a decision in the afternoon that neither one of you is going to like. I am urging you strongly to settle this matter Monday morning, okay?” Father then asked if the court would permit him to have S.T. for the coming weekend, which was not Father’s regularly scheduled weekend. The court replied, “Again, you are adults. You work it out. I am not making those kinds of decisions, all right? And I assume you are going to start working like adults now dealing with these kinds of issues. I am telling you for the last time, that you won’t be happy, either one of you, if I have to make those decisions on Monday.” When mediation resumed, the parties were unable to come to an agreement. However, the court did not display annoyance, but instead proceeded to patiently hear argument and fully consider each party’s position before making its order. The record fails to support Father’s assertion that the court failed to consider S.T.’s best interests or the totality of the child’s circumstances.
The record does make clear, and Father concedes, that Mother and Father each had positive attributes as parents, but they also both contributed to the conflict and acrimony that caused S.T. confusion and distress, and that prevented them from reaching a compromise regarding custody. Because the parents could not come to an agreement, the court was required to make the decision for them. It did so after considering all of the evidence presented to it regarding S.T.’s best interests.
The juvenile court had ample evidence before it to support its order granting Father visitation on alternate weekends rather than every weekend. Perhaps most notably, S.T. did not want to increase the frequency of his visits with Father; he told the social worker and his therapist he wanted more visits only because Father had compelled him to do so. In addition, as Mother’s counsel argued, if Father had custody for three weekends or more every month, Mother would not have adequate quality time with S.T. She would be relegated to the role of disciplinarian, enforcing homework during the week, and would have little opportunity to engage in enjoyable activities with S.T. on the weekends.
We conclude that the juvenile court engaged in a proper exercise of its discretion, and entered a reasonable custody and visitation order based upon the totality of the child’s circumstances.
II. The Summer Visitation Order Is Not Impermissibly Vague
In addition, Father argues that the order granting each parent an uninterrupted 30-day summer visit was too vague, and that only a more specific order would ensure that his visit takes place. He argues that the order allows Mother to equivocate and thus prevent Father’s summer visitation, and therefore amounts to an implied delegation of judicial power to Mother of the ability to withhold the visitation. We disagree.
There is no delegation of judicial power to Mother. “Under section 362.4, when the juvenile court terminates its jurisdiction over a dependent child, it may enter visitation orders that will be transferred to an existing family court file (In re Roger S. (1992) 4 Cal.App.4th 25, 30), or visitation orders that may be used as the basis for opening a superior court file (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712). Thereafter, the parties may seek the assistance of the superior court to enforce or modify the order. (In re Michelle M. (1992) 8 Cal.App.4th 326, 328.)” (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518.) Accordingly, Mother is not free to simply disregard the juvenile court’s order if she chooses, leaving Father with no recourse. If Mother fails to cooperate with Father in scheduling summer visits, he may bring an action in family court to enforce the visitation order.
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J., SUZUKAWA, J.