Opinion
B323523
04-19-2024
In re AIDAN M. et al., Persons Coming Under the Juvenile Court Law. v. ANDRE M., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner and Respondent,
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Deputy County Counsel, for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. 22CCJP01236A-B, Jean M. Nelson, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jane Kwon, Deputy County Counsel, for Petitioner and Respondent.
MARTINEZ, J.
INTRODUCTION
Andre M., the father of Aidan (born 2005) and Kaelyn (born 2008), appeals the juvenile court's custody order pursuant to Welfare and Institutions Code section 362.4.
Undesignated statutory references are to the Welfare and Institutions Code.
In 2022 the Los Angeles County Department of Children and Family Services (the Department) filed a petition alleging Andre physically and emotionally abused Aidan, endangering Kaelyn. The petition alleged the children's mother, Desiree M., failed to protect Aidan and Kaelyn from this abuse.
The juvenile court detained both children from Andre and referred Andre to services, including individual counseling and parenting classes. After Andre failed to complete the services, the juvenile court sustained the allegations against Andre, struck the allegations against Desiree, and terminated its jurisdiction, awarding full legal and physical custody to Desiree.
Andre appeals from this custody determination arguing the court should have imposed joint legal custody. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Andre and Desiree are the parents of Aidan and Kaelyn. After their divorce, Andre and Desiree shared legal and physical custody of the children pursuant to a family court order. At the time the dependency petition was filed in 2022, Aidan was 16 years old and Kaelyn was 13.
A. The Dependency Petition
On February 18, 2022 the Department received a referral alleging Andre physically abused Aidan, and Kaelyn was at risk of harm from abuse. Aidan reported to police on February 17 that his "father choked him and slapped him . . . because [he] did not walk his sister home from school." According to the police report, Andre "was in a rage" upon learning that Aidan was with his friends instead. When Andre picked up Aidan by car, he screamed and cursed at Aidan and "elbowed him in the chest two times with his right elbow causing [Aidan] to thrash his body and head back into the car seat violently. []Andre then used his left hand and choked []Aidan for approximately two seconds before letting go and slapping him two times on the right side of his face with an open left hand. []Aidan stated he put his hands up to defend himself and heard" Andre yell, "'I'll . . . kill you, I'm gon[n]a put a bullet in your head!'"
Aidan also described past abuse. Aidan reported that "three weeks ago [Andre] got angry at him for an unknown reason and 'Head Butted,' him. []Aidan also mentioned that when he was thirteen, []Andre put a gun to his face and told him he would kill him." Aidan stated "he is terrified" of Andre, that "Andre owns firearms," and Aidan "believes [Andre] is capable of killing him."
On February 19 Desiree took Aidan to urgent care, where he was diagnosed with "a contusion" from a "general assault." On February 22 and 23 Aidan was interviewed at home and physically examined at a hospital for suspected child physical abuse and neglect. Aidan reported to the social worker: "'My dad slaps me, but it really depends on his mood to how he will discipline me. He has back[-]handed me, choked me and put a gun to my head. He has also hit me with a belt, but that was when I was 13.'" Kaelyn confirmed, "'My dad yells at me, but for Aid[a]n he yells and he hits him with his hands open and closed.... I have seen my dad choke Aid[a]n[;] that was when he was in the 8th grade.'" Based on these interviews and a physical examination by a nurse practitioner, the medical evaluation concluded Aidan was physically abused.
Following up on the referral, a social worker from the Department interviewed Aidan and Kaelyn on February 22. Aidan confirmed Andre had physically abused and threatened him with a firearm, and he further reported Andre called him "derogatory names." Kaelyn denied any physical abuse from Andre but disclosed Andre had called her names like when she wore a swimsuit around him. Aidan and Kaelyn reported Andre had unsecured firearms in his home and there was a bullet hole in the ceiling of Andre's home. Both children stated they did not feel safe with Andre and no longer wanted to have scheduled visits with him.
The Department also interviewed both parents about the allegations. Desiree confirmed her knowledge of Andre's physical assault of Aidan on February 17. She reported "she was aware that [Andre] makes derogatory statements towards children Kaelyn and Aidan." Desiree denied any history of domestic violence with Andre, but reported Andre "enters [her] residence without her permission, when she continuously asks him not to," and in the past they had "struggle[d] with the door" when Andre insisted on entering.
Andre admitted "he slapped . . . Aidan's hand with his right hand" and "hit" Aidan "on the right side of his head," but denied choking, elbowing, head-butting, or threatening to kill Aidan. Andre denied "using derogatory names towards [the] children," firing a bullet into his ceiling, or "having any other firearms in [his] residence" besides "BB guns." Andre indicated willingness to enroll in a parenting class.
On April 1, 2022 the Department filed a dependency petition against Andre and Desiree under section 300, subdivisions (a), (b)(1), and (c). The petition alleged Andre physically and emotionally abused Aidan, Kaelyn was at risk due to the abuse, and Desiree failed to protect Aidan and Kaelyn from this harm.
Section 300 was amended effective January 1, 2023. (Stats. 2022, ch. 832, § 1.) The amendments do not impact our analysis.
After a detention hearing, Aidan and Kaelyn were detained from Andre on March 30, 2022 and released to Desiree. The juvenile court ordered "a cooling off period between minors and father," pausing visitation with Andre until Aidan and Kaelyn requested otherwise.
B. Andre Receives Services But Fails To Progress
As ordered by the juvenile court, the Department provided Andre with referrals to low cost and no cost services and programs. Andre enrolled in parenting classes on May 31, 2022 and started individual counseling on May 19, but he declined to let the Department speak with his therapist to confirm his attendance and treatment goals. As of June 15, Andre had attended "3 out of 12" parenting classes. By August 22, Andre had become "uncooperative with the Department and appear[ed] to have changed his number" without informing the Department. Andre also failed to respond to contact letters from the Department. For this reason, the Department was "not aware if father continues to participate in individual counseling or any programs."
C. The Department's Jurisdiction and Disposition Reports
Before the jurisdiction and disposition hearing, the Department submitted a report on May 16, 2022, an addendum report on June 30, and an interim report on August 22. The first report included an interview with Andre, who denied any physical abuse of Aidan on February 17 except a slap "right above his ear." Andre commented, "[It] hurts me to have to hit my kids. I hit Aidan maybe 4 times in his entire life. The first time was at 10[;] I cried. I don't want to be a father that has to physically hit their kid or intimidate through physical violence because they mess up." Andre expressed differences with Desiree's parenting style, stating "he believes the children would rather be home with mother than with [Andre] because he disciplines and has structure and guidance." Andre also voiced concern that "my kids have missed a substantial amount of school," noting Aidan "missed 36 days and [is] still getting notices."
The addendum report included photos of three BB guns found in Andre's home, with descriptions of each by the children. Aidan and Kaelyn stated Andre also had a "real handgun" in the home that was not depicted in the photos. Andre denied possessing a handgun.
The interim report incorporated new interviews with Aidan, Kaelyn, and Desiree. Aidan explained "that due to father's name-calling and how he would treat him, he experienced anxiety, depression, and aggression.... [T]o this day he gets anxiety in front of people because he feels like people are thinking what his father would say to him." Aidan reported feeling "more independent" since not speaking to his father. Desiree described difficulties in co-parenting with Andre on issues such as Aidan's desire to pierce his ears and wear his hair long, and Kaelyn's desire to cut her hair or wear a bikini. Desiree stated, "I tried to co-parent and talk to Andre [about these issues] . . . and tried to be respectful. I didn't want [the children] to get in trouble [because] they didn't ask him." Desiree further commented that "a reason that I left [Andre]" was because he was "emotionally abusive towards me and I didn't know he would be like that towards the kids."
The interim report did not include any new interview with Andre because, as noted above, the Department could not reach him.
The Department's addendum and interim reports recommended Desiree receive sole legal and physical custody of Aidan and Kaelyn.
D. The Juvenile Court's Exit Order Terminating Andre's Legal and Physical Custody
At a combined jurisdiction and disposition hearing on August 29, 2022 the juvenile court declared Aidan and Kaelyn dependents of the court and sustained the allegations against Andre, with the exception of one subcount alleging Andre's failure to protect the children from his "mental and emotional problems." The juvenile court found "both Kaelyn and Aidan are credible. Their statements are consistent over time.... Kaelyn's statements certainly corroborate Aidan's, that he was the focus of father's physical abuse, and I think that explains the emotional struggles Aidan has and his suffering from low self-esteem." The court determined, "[F]ather has not done enough services to show real change. He is not accepting responsibility for much of what I am sustaining, so that means the problems exist today still, and I don't find the father's statements credible."
The court struck Desiree from the petition after hearing from Aidan and Kaelyn's attorney that the children "hadn't disclosed . . . any of the abuse they had [experienced] from the father to the mother."
As to the disposition, the juvenile court determined, "I do not find there is clear and convincing evidence to remove from mother. She shall retain physical custody. Continuance in the home of father is contrary to the children's welfare. The evidence is clear and convincing that there is or would be a substantial danger to the children if returned [to] home of father and there are no reasonable means by which their physical or emotional health can be protected without removing from the father." The court based its findings on "the facts found to be true in the sustained petition, my jurisdiction findings, the fact that father has not made much progress and has not accepted responsibility, and the fact that he does own firearms and other things that are projectile in nature, which poses a physical risk, and he is an ongoing emotional risk to his children."
Finally, the court found "that continued jurisdiction is no longer necessary as mother is able to keep the children safe and they are old enough to . . . protect themselves and stay away from father if they choose. So I'm terminating jurisdiction with a juvenile custody order that will provide mother having sole physical, sole legal custody. I believe the legal custody is appropriate as father has not made any progress in programs that is significant, and he and the mother do not get along." Aidan and Kaelyn's counsel represented that "both my clients indicated this custody arrangement is their desire." The court ordered monitored visits with Andre at a minimum of once a week and terminated its jurisdiction.
Andre filed a timely appeal.
DISCUSSION
Andre's sole contention on appeal is that the juvenile court erred in granting sole legal custody of Aidan and Kaelyn to Desiree.
A. Relevant Law and Standard of Review
"[S]ection 362.4 authorizes the juvenile court, when terminating jurisdiction over a dependent child, to issue a custody and visitation order," commonly known as an "'exit order.'" (In re Anna T. (2020) 55 Cal.App.5th 870, 871 [fn. omitted].) "When making a custody determination under section 362.4, 'the court's focus and primary consideration must always be the best interests of the child.'" (In re T.S. (2020) 52 Cal.App.5th 503, 513; accord, In re J.M. (2023) 89 Cal.App.5th 95, 113-114.) Accordingly, the juvenile court has "'broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case,'" and "[w]e review the juvenile court's exit orders for an abuse of that discretion." (In re J.M., at pp. 112-113; accord, In re N.M. (2023) 88 Cal.App.5th 1090, 1094.) When applying the deferential abuse of discretion standard, "'the trial court's findings of fact are reviewed for substantial evidence . . . and its application of the law to the facts is reversible only if arbitrary and capricious.'" (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
B. The Juvenile Court Did Not Abuse Its Discretion by Granting Desiree Sole Legal Custody
Andre argues the juvenile court should have granted shared legal custody because "[t]he parents could get along for the purpose of joint legal custody" and it was "unreasonable" for him to lose legal custody. He expresses a desire to be involved with decisions regarding Aidan and Kaelyn's health and education, especially given his concern with the children's frequent absences from school. (See Cal. Fam. Code, § 3003 ["'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child."].)
We conclude the juvenile court did not abuse its discretion in denying Andre legal custody. In juvenile court, there is no presumption that joint legal custody will serve a child's best interests. (See In re Chantal S. (1996) 13 Cal.4th 196, 206 [the juvenile court is not "required to presume that joint legal and physical custody [is] in the best interest of a minor"]; In re Jennifer R. (1993) 14 Cal.App.4th 704, 711-713 ["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"].) Instead, the juvenile court "must look to the totality of a child's circumstances when making decisions regarding the child." (In re Chantal S., at p. 201.)
Considering the evidence before the juvenile court, the court did not abuse its discretion by determining sole legal custody with Desiree was in the children's best interests. First, the juvenile court found that Andre had not made any "significant" progress in the court-ordered services. Andre argues "there had been no programs ordered" and he was "voluntarily attending parenting classes" and engaged "in individual counseling." However, the court ordered Andre to be referred to "low cost/no cost" programs and specifically continued the jurisdiction and disposition hearing twice to receive "update[s]" on Andre's progress. The Department further "explained to [Andre] . . . the requirement to complete the necessary court-ordered programs in order to reunify with the children." But Andre declined to report his progress in counseling to the Department and ultimately fell out of contact with the Department. These facts justified the juvenile court's decision not to grant joint legal custody. (See In re Maya L. (2014) 232 Cal.App.4th 81, 103 [affirming sole legal custody to father where mother was uncooperative with the Department]; In re Jennifer R., supra, 14 Cal.App.4th at p. 713 [affirming sole legal custody with father where mother "did not follow through on [program] referrals" and "fail[ed] to make progress in overcoming the problems leading to [the child's] removal"].)
Andre also argues the court arbitrarily decided the parents could not get along, when there was "no domestic violence" between the parents and they had "managed to parent the children without any major problems" during their separation of 13 years. However, there was also evidence before the juvenile court that Desiree was unaware of Andre's "disciplinary" abuse of Aidan before the incident on February 17, that Desiree experienced "emotional[] abus[e]" from Andre, and Andre and Desiree had strongly disagreed with each other's parenting decisions about the children's appearance and dating behavior. The juvenile court credited Desiree's statements over those of Andre. Indeed, the court was entitled "'to assess the credibility of the various witnesses, to weigh the evidence[, and] to resolve the conflicts in the evidence'" according to the evidence before it. (See In re Mickel O. (2011) 197 Cal.App.4th 586, 615 [a reviewing court has no power "'to weigh the evidence . . . or to resolve conflicts in the evidence'"].)
There was additional evidence before the court supporting its determination that sole legal custody with Desiree was in the children's best interests. The record contains evidence that Aidan and Kaelyn were "doing well in mother's care and [we a]re happier and more comfortable" without contact with Andre. Moreover, Aidan and Kaelyn's counsel agreed with the Department that Desiree should receive sole legal and physical custody. (See In re Maya L., supra, 232 Cal.App.4th at p. 103 [affirming sole legal custody with father based on "overwhelming evidence that father provided excellent care for [child]," the Department "consistently reported it had no concerns regarding father's ability to care for the child," and the Department and child's counsel "repeatedly recommended" father receive legal custody].)
The court's finding that Andre "is not accepting responsibility" for the abuse further supported its decision to award sole legal custody to Desiree. (See In re Maya L., at p. 104 [affirming sole legal custody with father where "mother continues to minimize her role in these events [of the case] and deflect blame" and "the court concluded that she was not credible"].) Finally, the sustained allegations in the petition and the court's monitored visitation order also supported the custody determination. After sustaining the allegations against Andre, the juvenile court determined Andre was a "physical risk" and "an ongoing emotional risk to his children."
As to Andre's contention the juvenile court's order was unreasonable, we note that the court allowed monitored visitation with Andre in a public setting, with a therapeutic setting available upon the children's request. Moreover, as the court explained to Andre, he could seek modification of the order in the future by the family court (upon a showing of significant changed circumstances and best interests of the child under § 302, subd. (d)), including "by participating in a parenting class, anger management, and individual counseling to address his anger, safe parenting and the presence of firearm and other projectile devices around children, and he needs to accept responsibility." (See In re Jennifer R., supra, 14 Cal.App.4th at p. 713 [affirming sole legal custody award where "the court's order indicates continuing concerns about [appealing parent's] ability to protect and care for [the child] in any but the most limited circumstances of supervised visits"].) In sum, the juvenile court did not abuse its discretion by awarding sole legal custody to Desiree.
DISPOSITION
The juvenile court's section 362.4 custody order awarding Desiree sole legal custody is affirmed.
We concur: SEGAL, Acting P. J. FEUER, J.