Opinion
B314197
09-02-2022
In re C.F., a Person Coming Under the Juvenile Court Law. v. A.F., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Keiter Appellate Law and Mitchell Keiter for Defendant and Appellant. Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21CCJP01413A. Philip L. Soto, Judge. Affirmed.
Keiter Appellate Law and Mitchell Keiter for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
LUI, P. J.
In this juvenile dependency appeal, A.F. (mother) challenges the juvenile court's disposition order placing her 10-year-old daughter, C.F. (daughter), with both mother and daughter's father, T.F. (father). Mother makes one argument on appeal. She argues the juvenile court committed reversible error because it failed to apply Family Code section 3044 (section 3044), which creates a rebuttable presumption in family court that awarding custody to a parent who has perpetrated domestic violence within the previous five years is detrimental to the child's best interests. Mother claims the juvenile court should have applied section 3044 because, at the time of the disposition hearing, a domestic violence restraining order was in place protecting mother and daughter from father. Mother asks us to reject the decision of In re C.M. (2019) 38 Cal.App.5th 101, in which our colleagues in Division Five held section 3044 does not apply in dependency cases. We decline to split from Division Five in this case. We affirm.
BACKGROUND
Because this case presents a purely legal issue and parents consented to the juvenile court taking jurisdiction over daughter, we recite the factual background only briefly.
1. The Family and Previous Dependency Proceedings
Mother and father do not live together and, in late 2020 were in the process of divorcing. Mother has a criminal history including arrests for spousal abuse and a conviction for fighting in public. Father does not have a criminal history.
It is unclear from the record whether their divorce is final.
Prior to the instant proceedings, the family had been involved in an earlier dependency case. In that case, the juvenile court declared daughter a dependent of the court because of domestic violence between mother and father and their "high conflict" marriage. In October 2018, the juvenile court terminated its jurisdiction in the earlier case and entered a custody order granting sole physical custody to father, joint legal custody to father and mother, and monitored visits for mother.
2. Restraining Order
In February 2021, a family law court filed a domestic violence restraining order protecting mother and daughter from father (restraining order). As a result of the restraining order, mother was granted temporary custody of daughter. Mother requested the restraining order after she alleged father was physically aggressive with her while he was removing her belongings from his home. The restraining order was scheduled to expire on August 4, 2021, six months after it was issued.
3. Current Dependency Proceedings
Days before the restraining order was issued, daughter was hospitalized and placed on a psychiatric hold due to aggressive behavior toward others. During daughter's stay in the hospital, mother made it difficult for doctors to treat daughter. As a result, a referral was made to the Los Angeles County Department of Children and Family Services (Department).
Consequently, Department social workers met with and interviewed daughter and her parents, as well as others who were familiar with the family. Department social workers learned of, and witnessed some of, daughter's extreme and aggressive behaviors. Daughter had three psychiatric hospitalizations over the course of four months and was inclined to make false accusations against her parents. Daughter was described as very bright but struggled with social and emotional skills and refused to take prescribed medication. Some of mother's therapists believed daughter was not safe with mother. One therapist reported "mother is mentally ill and should not have [daughter] in her custody" and daughter "is not safe with mother." Other therapists and service providers expressed no concerns regarding mother's care for daughter. The Department reported "[m]other's own mental health instability is a continued issue for [daughter]" and that daughter was "at high risk of harm due to the conduct of mother." It was reported mother took little if any responsibility for the family's situation. Father believed mother had mental health issues, which impacted daughter's mental health. Father wanted to reunify with daughter. Since the restraining order had issued, father had completed an anger management class, had attended 47 sessions of a domestic violence batterers' program, and was willing to participate in court-ordered services in order to reunify with daughter.
In March 2021, the Department filed a Welfare and Institutions Code section 300 petition on behalf of daughter (petition). The petition alleged daughter was at risk of serious physical harm due to her severe mental and emotional problems, her parents' limited ability to care and supervise her, mother's failure to ensure daughter's consistent participation in psychological services, mother's interference with daughter's care, mother's own mental and emotional problems, father's failure to protect daughter, and mother and father's history of domestic violence.
The detention hearing was held in April 2021. The Department did not seek detention of daughter. Instead, in light of daughter's mental health needs, the Department recommended mother retain custody of daughter and, recognizing "the current Family Law Restraining Order," recommended "visitation and custody for the father." The juvenile court placed daughter with mother under Department supervision. Although the court did not detain daughter from either parent, the court ordered father could not have custody of daughter unless the restraining order was modified to allow contact between father and daughter. The juvenile court noted, "Even though I'm going to say the word, 'non-detained,' in dependency right now, whatever other court orders are being made in family law or any other court, will remain. I'm not changing any of those orders right now."
A combined adjudication and disposition hearing was held on May 27, 2021. The juvenile court amended the petition so that only one count remained, namely count b-1, which alleged daughter had severe mental and emotional problems, mother was unable to provide appropriate care and supervision, and father knew of mother's limited ability to provide care for daughter and failed to protect daughter. Mother and father each entered a plea of no contest. The court sustained count b-1 and declared daughter a dependent of the court.
As to daughter's placement, the court found there were "reasonable services available to prevent removal" and ordered daughter released to mother and father under Department supervision. At the hearing, the juvenile court explained daughter would "live predominantly with the mother. That's her primary residence, but it's on the books as, 'HOP, Home of Parents mother and father.' [¶] . . . [¶] With regards to custody, all I'm going to say is this: Custody is to be determined by the parents. So long as the child is safe, whatever agreement you folks come up with is fine with the court. If there is an issue, then the social workers will bring it to the court's attention." The court's minute order from the hearing states, "Custody to be determined by the parents."
At the hearing, the court expressed its concern for daughter and for ensuring her needs were met. The court stated daughter was "desperately in need of mental health services-let [me] reemphasize this. Reading the reports that I read in preparation for the trial, I can't think of any other ten-year-old child who needs as much mental health services as this girl. So we want to see all of the appropriate services be given in all of the most effective and efficient ways possible." The court also noted, "[T]his is not a family law court" and explained, "We have a split of 50/50 right now. If that doesn't work out, we can remove from one parent and give to the other parent entirely; or, depending on what happens factually in the future, I can remove from both parents. Both parents could lose custody of a child in dependency unlike in family law.... [¶] So this is very fluid. Just because it's a 50/50 split today does not mean it's going to end up a 50/50 split before we close this out. Everybody has got to do what they promise to do and make sure that this child is safe. And if this child is not, I've got to do what I promised to do to obey the law and remove from a parent or parents to make sure that the child is safe."
No one objected to the court's May 27 findings and orders.
4. Appeal
Mother appealed the juvenile court's May 27, 2021 placement order.
5. Post-appeal Proceedings
In March 2022, while the instant appeal was pending, the juvenile court terminated its jurisdiction. Mother appealed that order, which appeal is currently pending (No. B319475). We asked the parties to brief whether, as a result of the juvenile court's order terminating its jurisdiction below, mother's instant appeal was moot. (In re Rashad D. (2021) 63 Cal.App.5th 156, 165.) Mother argued the instant appeal is not moot because she has appealed the court's March 2022 order terminating jurisdiction. The Department did not file a response. We agree with mother. The juvenile court's order terminating jurisdiction is not final because mother's appeal from that order remains pending. Therefore, the instant appeal is not moot. (Ibid.)
DISCUSSION
Mother makes one argument on appeal. She contends the juvenile court committed reversible error because it did not apply or follow Family Code section 3044 when making its placement order at the disposition hearing. She asserts we must reverse and remand so the juvenile court "can properly consider section 3044." Mother's appeal presents a purely legal issue-i.e., whether section 3044 applies in dependency cases. We review issues such as this involving statutory interpretation and application under the de novo standard of review. (In re C.M., supra, 38 Cal.App.5th at p. 108.)
1. Legal Background
"Although both juvenile and family courts have authority to make orders regarding custody and visitation, the two courts operate under separate statutory schemes and serve distinct purposes." (In re C.M., supra, 38 Cal.App.5th at p. 108.)" 'Dependency proceedings are governed by the Welfare and Institutions Code, rather than the Civil Code or the Family Code.' [Citation.] When a juvenile court makes custody and visitation orders, it does so pursuant to its authority under the Welfare and Institutions Code, guided by the totality of the circumstances in issuing orders that are in the child's best interests." (In re C.M., supra, 38 Cal.App.5th at p. 109.) "The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)
The provision at issue here, section 3044, is part of the Family Code. It creates a rebuttable presumption "that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence [within the previous five years] is detrimental to the best interest of the child [as described in Family Code sections 3011 and 3020]." (Fam. Code, § 3044, subd. (a).) A party may overcome that rebuttable presumption by demonstrating by a preponderance of the evidence that custody of the child by the perpetrator is in the best interest of the child and that, on balance, certain additional factors support rebutting the presumption in favor of the perpetrator. (Fam. Code, § 3044, subd. (b).) Those additional factors include, for example, the successful completion by the perpetrator of a batterer's treatment program and, if appropriate, successful completion of a parenting class or drug abuse counseling program. (Fam. Code, § 3044, subd. (b)(2).) When a court determines a party has overcome the section 3044 presumption, the court must state its reasons and make specific findings. (Fam. Code, § 3044, subd. (f).)
Section 3044 "is part of an overall scheme set forth in the Family Code to govern various considerations that impact custody decisions under the best interests of the child standard, including whether any protective or restraining orders are in effect, or whether there have been findings that domestic violence has occurred, in which case 'special considerations come into play under the Family Code.'" (In re C.M., supra, 38 Cal.App.5th at p. 109.) Section 3044 is found in part 2 ("Right to Custody of Minor Child") of division 8 ("Custody of Children") of the Family Code. Family Code section 3021 makes part 2-within which section 3044 falls-"applicable to custody disputes only within specified proceedings, including: proceedings for dissolution or nullity of marriage; proceedings for legal separation; actions by a spouse under Family Code section 3120 for exclusive custody of the children of a marriage; proceedings under the Uniform Parentage Act (Fam. Code, § 7600 et seq.); actions by the district attorney for enforcement of support; and proceedings brought under the Domestic Violence Prevention Act. (Fam. Code, § 3021.)" (In re C.M., supra, 38 Cal.App.5th at pp. 109-110.) Family Code section 3021 does not list any proceedings under the Welfare and Institutions Code.
2. Forfeiture
As an initial matter, we note no one mentioned section 3044 below, let alone argued the juvenile court should apply it to the case at hand. "[T]he forfeiture doctrine applies in dependency cases and the failure to object to a disposition order on a specific ground generally forfeits a parent's right to pursue that issue on appeal." (In re Anthony Q. (2016) 5 Cal.App.5th 336, 345.) However, "when the appeal involves an important and purely legal issue subject to our independent review, as it does here, we have discretion to entertain the challenge to the juvenile court's order notwithstanding the parent's failure to object on that basis in the juvenile court." (Ibid.)
In a footnote, mother argues she properly can raise the issue on appeal because application of section 3044 was required as a matter of law and, therefore, "counsel need not formally request its application." Mother relies on family law cases for this proposition. The Department did not address forfeiture in its respondent's brief on appeal.
Because mother's appeal raises a purely legal issue, we exercise our discretion to consider her challenge to the juvenile court's placement order.
3. The juvenile court was not required to apply section 3044.
In In re C.M., Division Five of this district addressed the same question presented here and concluded section 3044 does not apply to dependency cases. (38 Cal.App.5th at pp. 104, 110.) Division Five held, "[S]ection 3044, and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under [Welfare and Institutions Code] section 300 et seq." (Id. at p. 104.) The court explained "the juvenile court is not bound to follow Family Code provisions regarding custody determinations. 'Although both the family court and the juvenile court focus on the best interests of the child[,] significant differences exist. In juvenile dependency proceedings the child is involved in the court proceedings because he or she has been abused or neglected. Custody orders are not made until the child has been declared a dependent of the court and in many cases, . . . the child has been removed from the parents upon clear and convincing evidence of danger. The issue of the parents' ability to protect and care for the child is the central issue. 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.' [Citation.] We see no basis to depart from the sound reasoning of the cases that conclude Family Code provisions are inapplicable in dependency cases unless expressly stated." (In re C.M., supra, 38 Cal.App.5th at p. 110.) Division Five held, "Part 2 [of the Family Code and, therefore, section 3044,] is not applicable to custody decisions made in dependency proceedings under the Welfare and Institutions Code." (In re C.M., supra, 38 Cal.App.5th at p. 110.)
Mother asks us not to follow Division Five's decision In re C.M., supra, 38 Cal.App.5th 101, arguing the case was wrongly decided. Specifically, mother states Division Five erroneously failed to consider case law that states non-Welfare and Institutions Code provisions (such as section 3044) may apply in dependency cases when they are consistent with the purposes of dependency law. Mother claims section 3044 is consistent with and, in fact," 'affirmatively furthers'" the overall purposes of dependency law because that section promotes the best interests of the child. According to mother, "If C.M. had addressed whether section 3044 is consistent with the purpose of dependency law, it would have concluded that it is."
We decline to depart from the precedent of In re C.M. in this case. As mother correctly notes, In re C.M. does not consider whether section 3044 is consistent with the purposes of dependency law. However, even if we assume section 3044 is consistent with dependency law, mother cites no authority that the juvenile court is mandated to apply such a provision or that the juvenile court's failure to do so is per se reversible error. Additionally, despite touting the importance of considering the dependent child's best interests, mother does not argue the juvenile court failed to consider daughter's best interests or that the court's order is contrary to daughter's best interests. And no such objection was made below. In fact, the record reveals the juvenile court repeatedly noted its obligation to protect daughter's best interests, and ample evidence supports a conclusion that it did so. Similarly, mother does not argue the court's placement order would have been any different had it applied section 3044. In effect, mother claims the juvenile court committed per se reversible error simply by failing to apply section 3044. We decline to create a split of authority in our own district based on this academic argument.
DISPOSITION
The May 27, 2021 order is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.