Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. DP018196, Jane Shade, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Lelah S. Forrey-Baker, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and Karen L. Christensen and Julie J. Agin, Deputy County Counsel, for Plaintiff and Respondent.
Bryan Patridge for Defendant and Respondent.
No appearance for the Minor.
OPINION
MOORE, J.
Vanessa was declared a dependent child of the juvenile court after Luz C. (the mother) was stopped for driving under the influence with Vanessa in the vehicle. The court placed Vanessa with her father Eduardo O. (the father) and six months later terminated its jurisdiction. At that time the court issued exit orders granting the father sole physical and legal custody. The court also authorized weekly monitored visits for the mother when Vanessa’s therapist says such visits may be resumed without causing further emotional harm to Vanessa. Finding no error, we affirm.
I
FACTUAL AND PROCEDURAL BACKGROUND
Vanessa’s parents are now separated and divorced. When Vanessa was about eight years old, her parents stipulated to attend a mediation session regarding custody and visitation. The family court eventually granted the mother and father joint legal custody, awarded primary physical custody to the mother and granted the father visitation.
On March 1, 2009, the mother was arrested for driving under the influence. (Veh. Code, § 23152, subd. (a).) Her blood-alcohol level was.15 percent at the time, and Vanessa, then 10 years old, was in the back seat of the car.
All references to dates are to the calendar year 2009.
The Orange County Social Services Agency (SSA) filed a juvenile dependency petition (Welf. & Inst. Code, § 300, subd. (b)) on March 5. SSA recommended Vanessa remain with her father. An emergency response social worker told the mother not to contact Vanessa before the hearing. Despite this directive, the mother called Vanessa over to her in the hallway before the detention hearing and told her to lie about how many beers the mother had to drink on the night of the arrest. At the detention hearing, the court ordered monitored visitation for the mother, up to five days a week, and ordered the father not to allow any other contact between Vanessa and her mother unless approved by the court. The mother was ordered not to consume any alcohol for 24 hours before any visit.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
For the next several weeks, the mother, while intoxicated, made numerous unauthorized contacts with Vanessa, many late at night. At times, the mother’s voice was loud and intimidating. Vanessa became visibly upset during these contacts.
An amended petition was filed on April 2. On April 16, the parents pled no contest to count one of the amended petition and the court found true the allegation that the mother drove under the influence with Vanessa in the car on March 1. The court found Vanessa to be a child described under section 300, subdivision (b) and declared her a dependent child under section 360, subdivision (d). The court further found clear and convincing evidence under section 361, subdivision (c)(1) that the mother’s custody of Vanessa would be detrimental to Vanessa’s welfare and ordered Vanessa’s custody to remain with her father under SSA’s supervision. The court approved the case plan for initial services and ordered two monitored visits a week. The six-month review was set for October 7. In the interim, the mother was ordered to participate in an approved anger management group, successfully complete a parenting class and a drug treatment program, submit to drug testing, and participate in a 12-step program such as Alcoholics Anonymous.
On May 19, the mother again called Vanessa while intoxicated. The father told the social worker Vanessa never asks to see her mother and is afraid of her. Vanessa told the social worker that on a scale of one to 10, with 10 being the most afraid, she rated her fear of her mother at an eight. Vanessa said she remembered a time when her aunt told her mother she should not drink and Vanessa’s mother grabbed the aunt by the throat and started fighting. Vanessa said she was uneasy during telephone calls from her mother because she felt she was being interrogated.
On June 1, the social worker met with Vanessa and the father. Vanessa told the social worker she was afraid of her mother even when a monitor was present during visits and wanted to discontinue the visits. Vanessa’s therapist concluded she has been traumatized by the mother’s abuse and was afraid of her mother. The therapist said “undue emotional harm” would occur if visitation continued and diagnosed Vanessa with “Generalized Anxiety Disorder with mild Post Traumatic Stress Disorder symptoms.” On September 11, the court ordered the mother’s visits immediately suspended pending a hearing.
The six-month review was held on October 7. The social worker’s report concluded “the child is safe and well cared for in the home of her father and there are no child protective service issues which would warrant continued supervision by this agency. Therefore, the undersigned is respectfully recommending termination of dependency proceedings with exit orders.” The court found that with Vanessa residing with her father, the condition that justified the initial assumption of jurisdiction no longer existed. The mother agreed the court should terminate its jurisdiction and that the father should have sole physical custody.
The mother urged the court to order joint legal custody, asserting there exists a presumption that both parents have a right to make decisions affecting Vanessa’s health, education, and welfare. The court awarded the father sole legal and physical custody of Vanessa. The court further ordered that “[o]nce visitation has been approved by the therapist, visits to begin at one time per week monitored. The therapist to provide input as to liberalizing or decreasing mother’s visitation with the child.”
II
DISCUSSION
The mother’s only complaint on appeal is that the court erred in granting the father sole legal custody instead of joint legal custody to both parents. She does not contest the termination of dependency jurisdiction at the six-month review or the exit orders granting the father sole physical custody and awarding her weekly monitored visitation when approved by Vanessa’s therapist.
When a juvenile court removes a child from the custody of one parent during a dependency proceeding and places the child with a parent who previously did not have custody, the court may order services provided to both parents, and must determine custody at a review hearing. (§ 361.2, subd. (c).) At the review hearing, “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.” (§ 364, subd. (c).)
Relying upon In re Jennifer R. (1993) 14 Cal.App.4th 704, 713 (Jennifer R.), the mother contends the appropriate standard of review to be applied to a juvenile court’s exit order is whether the order is supported by substantial evidence. However, while the court in Jennifer R. found there was substantial evidence to support the juvenile court’s exit order denying Jennifer’s mother joint legal custody (id. at pp. 706, 713), the issue of the appropriate standard of review was not raised or analyzed by the court. (Id. at p. 706.) As the standard of review was not considered and “[a] decision... is not authority for what it does not consider” (Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 348), we do not deem Jennifer R. as controlling authority regarding to the appropriate standard of review of custody exit orders.
“[T]he juvenile court has broad discretion to make custody orders when it terminates jurisdiction in a dependency case (§ 362.4)....” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) Because of this, “[w]e normally review the 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 [citation] and may not disturb the order unless the court ‘“‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’”’ [Citations.]” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) “‘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.)
Contrary to the mother’s contention, the family law presumption in favor of joint legal custody does not apply in child dependency matters. (Jennifer R., supra, 14 Cal.App.4th at p. 712.) “[I]n making exit orders, the juvenile court must look at the best interests of the child.” (In re John W. (1996) 41 Cal.App.4th 961, 973.) Moreover, “‘[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. (1996) 13 Cal.4th 196, 201.)
The court awarded sole legal custody to the father because it found the order to be in Vanessa’s best interests. The court noted that Vanessa is afraid of her mother, is “unable to sleep at night,” is afraid to be in her room alone for fear her mother will go to the father’s house and take her by force. The court found that Vanessa is concerned about her mother’s drinking and about the yelling, screaming, and physical abuse she endured from her mother and her mother’s ex-boyfriend. The court also noted that the mother told Vanessa that she (mother) would die if Vanessa did not return to live with her, and that as a result, Vanessa felt it would be her fault if her mother dies. The court was also concerned that Vanessa has been diagnosed with a general anxiety disorder and posttraumatic stress symptoms. The record before the court also demonstrates roadblocks the mother set when the father attempted to obtain Vanessa’s Social Security card for medical insurance enrollment, and that one of the mother’s boyfriends had a substantiated allegation of physical abuse to Vanessa.
The mother argues that she should not be cut “out of Vanessa’s life entirely” by awarding the father sole legal custody. The court did not do that. The mother is entitled to visit with Vanessa once visitation no longer poses an emotional threat. The order granting the father sole legal custody may be modified or terminated in the family law case should circumstances change. (In re John W., supra, 41 Cal.App.4th at p. 970; § 362.4)
The juvenile court did not err. There is substantial evidence in the record demonstrating the court did not abuse its discretion when it awarded sole legal custody to the father.
III
DISPOSITION
The order is affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.