Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. JD063194
RIVERA, J.
Antonia G. (Mother) appeals an order dismissing a dependency action as to her son, Willis D., Jr. (Willis), terminating the court’s jurisdiction, and granting sole legal custody of Willis to Willis D., Sr. (Father) and joint physical custody to Mother and Father. On appeal, she contends the juvenile court abused its discretion in awarding Father sole legal custody of Willis. We affirm.
We follow the Rules of Court, rule 8.400(b)(2) and the California Style Manual (4th ed. 2000) §§ 5:9, 5:10 concerning reference to a party by the first name and last initial in all filed documents, court orders, and opinions to protect anonymity. In so doing, we agree with the reasoning of Division Two of this district in In re Edward S. (2009) 173 Cal.App.4th 387, 392, footnote 1, that rule 8.400(b)(2) “is more authoritative than the informal recommendation [of the reporter of Decisions of identifying minors only by their initials]... [and] we have no reason to believe it has failed to adequately protect the anonymity of those to whom it applies. Additionally, we believe the use of initials only would make it increasingly difficult for legal researchers to keep track of and differentiate between and among the growing number of appellate opinions in delinquency, dependency and family law cases, create confusion, and impair the readability of many such opinions.”
I. BACKGROUND
The San Francisco Department of Human Services (the Department) filed a petition pursuant to Welfare and Institutions Code section 300 on May 22, 2006, alleging that Mother had placed Willis at risk of serious physical harm (§ 300, subd. (a)), that she had failed to protect him (§ 300, subd. (b)), that Mother had abused Willis’s siblings (§ 300, subd. (j)), and that Father’s ability to care for Willis was unknown (§ 300, subd. (g)).
All undesignated statutory references are to the Welfare and Institutions Code.
According to the detention/jurisdiction report, two older children of Mother had been removed from her care in another state due to drug related neglect. Mother was being evicted from her apartment due to repeated violations of her lease. In particular, she had blocked a common area with her personal items, refused to cooperate when asked to vacate her apartment for fumigation due to bed bug infestation, and slapped and threatened to kill another tenant. When she was forced to move on March 27, 2006, she threw her seven-month-old baby, E. F., into the air, and the assistant manager of the apartment caught the baby. She had left her three young children unsupervised on several occasions. Edwin F., the father of E. F. and her sister, Felicia, had been evicted as a result of domestic violence. When a social worker told Mother the children had to be removed from her, she initially agreed to bring them to a shelter, but failed to do so.
An August 2006 jurisdiction/disposition report noted that the whereabouts of Mother, Willis, and Felicia were unknown, and that they were probably “somewhere in Oregon.” Father, who did not live with Mother, had been paying child support, and was interested in providing a home for Willis. However, he had refused to participate in a drug assessment or any sort of testing. Father had had a significant problem with alcohol in the past, and still drank “a few beers a day,” and apparently smoked marijuana. He lived in a single small room. Father told the social worker that he did not have custody of Willis, but that he had unsupervised overnight visits from Friday to Saturday. He had no significant relationship with Mother, and reported that Mother spoke abusively to Willis.
Mother returned to San Francisco with Willis and his half-sister in November 2006, and moved into a shelter, Raphael House. In December 2006, the Department recommended that Willis be detained in the care of Father, and the juvenile court so ordered. Mother was granted supervised visitation. On December 19, 2006, the parties agreed in mediation to a temporary schedule under which Willis would be with Mother on unsupervised visits on Thursdays and Fridays, and would be with Father at all other times. The court, however, ordered Mother’s visits with Willis to be supervised.
According to a declaration by Willis’s counsel in connection with a later request, before the unsupervised visits took place Willis’s counsel learned from program staff at Raphael House that Mother’s behavior in the program had deteriorated, she was not properly supervising one of her other children, and she had made statements suggesting she would flee the jurisdiction with her children if she could. Based on this information, according to the declaration, counsel asked to have the visits supervised, and the juvenile court granted the request.
In a report prepared in January 2007 for the jurisdiction/detention hearing, the Department recommended that Willis be declared a dependent child, that he continue to live with Father, that Father receive family maintenance services, and that Mother receive reunification services. The Department recommended that one of Mother’s younger children, Felicia, live with her under supervision, and that E. F. live with a relative.
Felicia’s father, Edwin F., was on parole. He had been most recently arrested on a parole violation in October 2006. He had failed to appear for an appointment with the social worker, and had not responded to the worker’s subsequent messages. Mother said that Edwin was living on the streets.
The report indicated that Mother was doing “sufficiently well” at Raphael House, but that she was not actively working on employment and stable housing. After providing six weeks worth of clean drug tests, she had tested positive for methamphetamine, and admitted having used it with Edwin F., who had recently been released from prison. The social worker told Mother that if she continued to use drugs, Felicia would probably be removed from her care. In late January 2007, Mother voluntarily enrolled in the “Secure Continuous Remote Alcohol Monitoring (SCRAM) program,” and began individual weekly therapy. She had expressed her desire to enter a residential treatment program. She had visited consistently with Willis.
Father was participating sporadically in drug testing. Out of six tests, two had been positive, one for alcohol alone, and one for alcohol and marijuana. Willis was doing well in Father’s care, although he “clearly misse[d] his mother very much.” He was doing “relatively well” in school.
Father had a medical marijuana card. He apparently used marijuana to relieve pain.
The juvenile court took jurisdiction of Willis on January 30, 2007. It sustained allegations that Mother had a history of being in relationships characterized by domestic violence, that Mother might have mental health problems that required assessment and treatment, and that both Mother and Father had substance abuse problems that required assessment and treatment. In February 2007, the juvenile court ordered Willis to live with Father, and ordered reunification services and supervised visitation for Mother. As dismissal requirements for Father, the order required him to complete a substance abuse evaluation and follow all recommendation of the assessor and social worker, participate in random drug testing, and cooperate with visitation planning and scheduling.
The juvenile court struck allegations that Mother had an anger management problem, that she was being evicted, that she had often left Willis alone, that she had failed to provide a clean living environment, that she had failed to benefit from community resources and service programs, that there had been numerous prior referrals to Child Protective Services, that she had kidnapped Willis and taken him out of state, and that she had lost custody of her older children.
A March 2007 progress report indicated that Father’s random drug tests showed he was still drinking alcohol and smoking marijuana regularly. Mother had moved into a residential facility, had completed a substance abuse evaluation, and was randomly drug testing. She was visiting Willis twice a week. In February 2007 her visits were shortened to two hours because by the end of the second hour of the visits, Willis was behaving badly and throwing temper tantrums. Mother had difficulty managing this behavior.
On May 29, 2007, the social worker asked the court to order co-parenting therapy for Mother and Father. According to the social worker, Mother and Father did not trust each other, and their poor communication harmed their ability to raise Willis. The juvenile court granted the request.
In a report prepared for an August 1, 2007 status review hearing, the Department reported that Mother was living in a shelter, that she had made progress in her individual therapy and parenting programs but had not sufficiently addressed her substance abuse, and that she had been seen drinking alcohol on June 1. This incident resulted in her being discharged from her residential treatment program. Father had been randomly drug testing, and had tested negative for alcohol since early March. He attended Alcoholics Anonymous meetings regularly, but was unwilling to enter a more intensive outpatient treatment program. He was attentive to Willis, cared for his needs, took him to school regularly, and enrolled him in speech therapy, play therapy, and tutoring. Willis had a strong bond with Father. Father brought Willis to his visits with Mother. The report noted that although Mother’s personality could be “rough at times” and she needed help in setting limits with her children, she loved them and cared about their well-being. At the hearing, the juvenile court allowed unsupervised visiting at the Department’s discretion. On October 31, 2007, the court ordered a schedule under which Mother would have unsupervised visits with Willis Sunday afternoon through Monday mornings, and three hours on Thursdays.
On November 15, 2007, Mother filed a Request to Change Court Order, seeking to have Willis live with her and visit with Father during Father’s non-working hours. She stated that she had permanent and stable housing, that she was no longer in a relationship with Edwin F., that she had completed an outpatient treatment program and was in a reentry program, that she had been wearing a SCRAM system on her ankle since June 2007, and that her drug tests had been clean. She also said that Father had twisted Willis’s arm and pinched his neck, that he had picked Willis up while intoxicated, and that he frequently arrived hours late to pick Willis up from visits with Mother. According to Mother’s petition, the evening Father picked Willis up while intoxicated, she made a hotline report to the Department because she was concerned about Willis’s safety as he walked with Father from the South of Market area into the Tenderloin area of San Francisco. She made another report after Willis told her Father had pinched his neck and twisted his arm. She also said that Willis was often dressed in dirty clothing and clothing with holes. She also said that Father worked Saturday through Wednesdays from 4:00 p.m. until 11 p.m., that Willis was with a babysitter during that time, and that Willis had to travel on foot through San Francisco at midnight.
Willis’s counsel opposed Mother’s request, and the Department joined the opposition. According to the opposition, the Department had investigated two complaints Mother had made to the hotline, and in each case, the alleged injury had happened during play. Willis said he was not afraid of Father, felt safe with him, and wanted to continue living with Father and spending time with Mother. He also indicated that Mother and Father did not like each other very much. Willis’s counsel’s inquiries indicated that Willis was always clean, well-groomed, and appropriately dressed. As to Father’s intoxication during an exchange, no one but Mother had seen it. Willis’s counsel concluded that Father had done a “noteworthy job” of providing Willis with stability, care, and consistency during the past year; he had sought speech therapy and individual therapy, and the therapist and school principal reported that Father was always appropriate with the child and responsive to them. Willis’s therapist believed Willis should stay in Father’s primary physical care.
An attached letter from Willis’s therapist stated that Father had sought therapy for Willis, had taken him to therapy regularly, and had shown no signs of intoxication or substance abuse. The therapist believed Father was not directly threatening, harming, or abusing Willis, and that “their attachment was a major source of strength” for Willis. She suggested that Willis would be “most helped by an increase in productive communication between his parents” and a slow transition to a shared custody arrangement.
In response, Mother presented evidence that Father had tested positive for alcohol or marijuana once in January 2007, three times in February 2007, and once in May 2007, and that he had not been tested since then. She also provided evidence that she had successfully completed a substance abuse treatment program.
The juvenile court denied Mother’s request to have Willis live with her, finding a change of placement was not in Willis’s best interest. It also ordered the parties to engage in mediation regarding their relationship. At the January 15, 2008 mediation session, the parties agreed not to “put [Willis] in the middle by asking him questions about the other parent” and agreed to discourage him from “tattletaling” on the other parent. They also agreed to deal with each other courteously and to talk with the other parent about any concerns about Willis’s well-being after a visit before calling CPS. Mother was to meet Willis’s teacher, and she would have Willis with her every Friday from 4:00 p.m. until Sunday at 2:00 p.m.
A status review report of January 2008 indicated that Mother had a suitable three-bedroom apartment, that she had complied with her drug tests and was wearing a SCRAM monitoring ankle bracelet, and that she had had no positive results in six months. She continued to receive therapy and had completed a parenting program with Father and an outpatient reentry program. She was consistent in her visits with Willis. She had no contact with Edwin F. and did not plan to continue her relationship with him. Father continued to live in a single room occupancy unit with Willis, but was looking for better housing. He continued to work for a hotel from 4:00 p.m. to midnight, and Willis attended a daycare facility during those times. He was attentive to Willis, cared for him adequately and took him to therapy, and got him to school on time. The two were bonded. He refused to drug test, and Willis’s teacher had smelled alcohol on his breath on one occasion.
The report indicated that Mother still wished to care for Willis while Father was at work, but she and Father continued to disagree about this issue. Father’s opposition was based on “their uncooperative relationship.” Mother and Father had completed six sessions of therapy together. They had been referred for co-parenting therapy. Mother had called to set up an appointment for the therapy, but Father was unwilling to participate.
The report also noted that Mother had made great strides in managing her addictions and meeting the reunification requirements, but that she “can often hurt her relationships with others given her often demanding and trying behavior.” She had agreed to continue to wear the SCRAM bracelet. In light of the fact that Mother and Father had not “had a history of cooperative interaction,” the report suggested that Mother and Father engage in further mediation to decide on a joint arrangement for caring for Willis. The Department recommended that the dependency be dismissed and the court’s jurisdiction terminated, and that Mother and Father share legal and physical custody of Willis.
On January 30, 2008, the juvenile court noted that the parties had agreed to further mediation in March. At the same time, the court dismissed the dependency as to Felicia and awarded Mother full legal and physical custody of her.
A mediation took place on March 18, 2008. At a hearing afterwards, Mother accused Father of “cut[ting] [Willis’s] swimming lessons,” and said, “You don’t care about the child. I hope you rot in hell.” The court set the matter for a contested dismissal hearing to determine legal and physical custody of Willis.
In her trial brief, Willis’s counsel did not recommend shared legal custody, noting that Mother and Father were not cooperating well. They did not communicate effectively with each other; for instance, they had taken Willis to separate medical providers, and Mother was unaware that Father had medical coverage for Willis. Father complained that Mother had been “bad-mouthing” him to Willis’s teacher and other school personnel, and the school had held separate parent-teacher conferences for each parent. As a solution to the question of legal custody, Willis’s counsel suggested that Father be granted sole legal custody, but that Mother be permitted to contact and receive information from his school, that she be allowed to attend school events, that Father be required to inform Mother of Willis’s medical appointments, and the Mother be permitted to speak with his pediatrician to discuss concerns regarding his health. She noted that Willis was “better behaved and respectful in the Father’s care,” and that in Mother’s care, he was “aggressive and [did] not appear to respond to the Mother’s interventions.” Willis’s counsel supported increasing Mother’s time with the child, and suggested a schedule under which he would spend the night with Mother on the nights that Father was working the graveyard shift, rather than having him spend those nights with a babysitter. She suggested that the parents continue to use a police station as the drop-off site “[d]ue to the high level of conflict between the parents.” She noted in conclusion that she had observed that “both parents love their child dearly, but are often unable to separate their distrust and dislike for one another from their parenting of the child. The child has been exposed, and continues to be exposed, to unhealthy and unnecessary conflict between his parents. The child loves both his parents. The child wants to be with each parent without feeling like he must take sides and choose one over the other. The parents must make better efforts to co-parent their child.”
An attached letter from Willis’s therapist indicated that Willis had made great progress in managing his anxiety, and that therapy was currently focused on his difficulty in managing and appropriately expressing frustration, respecting limits and boundaries, and resolving conflict. She said that Willis was “often confused and frustrated by differing adult expectations,” and that the parents’ “difficulty communicating with each other often undermines each of their best efforts in creating the shared structure and parenting practices that will most help [Willis].” She believed that Willis’s symptoms were not caused or exacerbated by his exposure to either parent, but rather by his exposure to their misunderstanding, disagreement, and unresolved conflict. The therapist continued to meet with Willis weekly, and had offered to meet with Mother once a month for collateral meetings. One such meeting had taken place.
In his custody and visitation proposal, Father stated that he would be moving to a two-bedroom apartment, that he was scheduled to begin a criminal justice program at a business college, and that he intended to work part-time while Willis was with Mother. He requested sole legal custody of Willis as recommended by Willis’s counsel. Mother sought joint legal custody.
On July 18, 2008, the juvenile court dismissed the dependency action. It granted sole legal custody of Willis to Father, and joint physical custody to Mother and Father. Under the court’s order, Mother was allowed to contact Willis’s school and receive information regarding his academic performance and school events, to attend and participate in school events, and to speak with Willis’s healthcare providers and relay any concerns about Willis’s health. Father had sole responsibility for making all medical, dental, and therapy appointments, and taking Willis to the appointments, and was required to inform Mother of the appointments. The order set a schedule for Willis’s time with each parent. Pursuant to the parties’ agreement, any change in custody would be governed by the “significant change in circumstances” standard for the first nine months, and by the “Best Interests of the Child” standard thereafter. Mother appealed from this order.
II. DISCUSSION
Mother contends the juvenile court abused its discretion in awarding sole legal custody to Father. When terminating its jurisdiction over a dependent child before the child is 18 years old, the juvenile court “may issue... an order determining the custody of, or visitation with, the child.” (§ 362.4.) The juvenile court bases its custody determination on the best interests of the child, and there is no presumption that joint custody is in the child’s best interest. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; In re Chantal S. (1996) 13 Cal.4th 196, 206; In re John W. (1996) 41 Cal.App.4th 961, 971-972.) As explained in In re Nicholas H. (2003) 112 Cal.App.4th 251: “When making a custody determination in any dependency case, the court’s focus and primary consideration must always be the best interests of the child. [Citations.] Furthermore, the court is not restrained by ‘any preferences or presumptions.’ [Citations.] Thus, for example, a finding that neither parent poses any danger to the child does not mean that both are equally entitled to half custody, since joint physical custody may not be in the child’s best interests for a variety of reasons. [Citation.] By the same token, a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child.” (Id. at p. 268.) In making its determinations, “[t]he juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child’s circumstances....” (In re Chantal S., supra, 13 Cal.4th at p. 201.)
“We 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 (In re Stephanie M. (1994) 7 Cal.4th 295, 318) 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.)
Under either the abuse of discretion standard or the substantial evidence standard (see In re Jennifer R., supra, 14 Cal.App.4th at p. 706 [reviewing order granting sole legal custody to minor’s father for substantial evidence]), our conclusions would be the same. (See In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [“The practical differences between the two standards of review are not significant”].)
We see no abuse of discretion in the juvenile court’s custody determinations. Willis had been living with Father for nearly the entire dependency. Father had taken him regularly to school and therapy, and he had made good progress in therapy. There was evidence that Father had done a “noteworthy job” providing Willis with stability, care, and consistency, that Father was always appropriate with Willis and responsive to his therapist and principal, and that the two had a strong bond that was a “a major source of strength” for Willis. Despite the evidence that Father had refused to submit to drug and alcohol testing, that he had earlier had positive tests, and that a teacher smelled alcohol on his breath one morning, he appears to have provided a safe and stable home for Willis.
Moreover, there was ample evidence that the parents had a great deal of conflict in their relationship, that they did not communicate well, that they had not successfully cooperated in making decisions about Willis’s care, and that Willis was harmed by his exposure to their conflict. This conflict was even brought into the courtroom, when Mother told Father during a hearing, “I hope you rot in hell.” Indeed, based on the parents’ conflict, Willis’s counsel recommended that Father have sole legal custody of Willis. In light of the parents’ difficulty in communicating and cooperating and of the evidence that Father had cared for Willis responsibly, the juvenile court could reasonably conclude that Willis’s interests would not be best served by joint legal custody, and that it was appropriate for Father to assume sole legal custody, with its attendant responsibilities for making decisions about Willis’s health, education, and welfare. (See Fam. Code, § 3006.)
In reaching this conclusion, we do not minimize the commendable progress Mother has made during the course of these dependency proceedings. We also acknowledge the evidence that she has, to the extent possible, attended to Willis’s academic needs by attending parent-teacher conferences and enrolling him in enrichment activities. Nevertheless, the trial court could reasonably conclude that it would be in Willis’s best interests to award sole legal custody to Father, while granting the parents joint physical custody.
III. DISPOSITION
The order appealed from is affirmed.
We concur: RUVOLO, P.J., REARDON, J.