Opinion
B318812
01-19-2024
In re ADRIAN S., a Person Coming Under the Juvenile Court Law. v. JOSE S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 21CCJP02045 Robin R. Kesler, Juvenile Court Referee. Reversed.
Anne E. Fragasso, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, and Jessica Buckelew, Deputy County Counsel, for Plaintiff and Respondent.
FEUER, J.
Jose S. (Father) appeals from the final custody and visitation order entered by the juvenile court when it terminated jurisdiction over his three-year-old son, Adrian S. The custody order awarded sole legal and physical custody of Adrian to his mother, Graciela C. (Mother), with monitored visitation for Father for four hours each weekend. Father contends the juvenile court abused its discretion in making its custody and visitation order based on the presumption in Family Code section 3044 instead of considering Adrian's best interest. We agree and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Referral and Investigation
On March 21, 2021 the Los Angeles County Department of Children and Family Services (Department) received a referral alleging Father and Mother had engaged in a physical altercation in the presence of then-two-year-old Adrian. According to the referral, Father contacted the police claiming Mother and a male relative had "beat him up." Father told the responding police officers that the incident occurred while he was at Mother's home to drop off Adrian after a weekend visit. According to Father's version of events, Father called Mother when he arrived, and she came outside to take Adrian out of Father's vehicle. Mother reached inside the vehicle and began going through Father's belongings in the center console. She then hit Father in the face repeatedly with both fists and called her nephew, Luis G., over to the car. Luis reached into the car and punched Father repeatedly. Luis then pulled Father out of the car. Father fell to the ground, and Luis kicked him in the head approximately five times. An unknown woman took Father's keys out of the ignition. Adrian was in the car during the altercation. Police officers noted a contusion on the side of Father's head and scratches on his head, arms and knee. The police report stated Mother was "extremely uncooperative" and did not provide a statement regarding the incident. Mother was arrested.
During an interview with a Department social worker a few days later, Mother explained she and Father had an informal custody arrangement in which Adrian lived with her during the week with visitation for Father on weekends. Father typically picked Adrian up on Friday mornings and returned him on Sunday evenings. Mother's account of the March 21 altercation differed substantially from Father's account. Mother stated she had just arrived home from dinner when Father called and said he was outside with Adrian. Mother asked her adult son Raymond's girlfriend, Giselle S., to go downstairs and retrieve Adrian from Father's car. Mother watched through the window as Giselle reached into the car to take Adrian out of his car seat. Father stepped on the gas pedal and drove the car forward while Giselle was reaching into the car. Mother was angry that Father was endangering both Giselle and Adrian. Mother ran downstairs and tried to get Adrian out of his car seat. Father began calling her names and pulled her by the hair. Mother tried to fight Father off, but he would not let go of her hair. Luis and a neighbor came to the car and tried to help Mother. Father again stepped on the gas pedal, moving the car forward. When the neighbor reached into the car to take the keys out of the ignition, Father bit the neighbor on the arm. Father got out of the vehicle, still calling Mother names. Luis tried to protect Mother, and Father hit Luis, who hit Father back. Father called the police and told them Mother had initiated the fight.
Mother told the social worker she did not make a statement to the police officers because they told her that if both parents were arrested, then Adrian would be taken away. In interviews with the social worker, Giselle and Mother's neighbor corroborated Mother's version of the incident. The neighbor tried to tell the police Father was lying about the incident, but the officers still arrested Mother.
Father provided the social worker with an account of the events that was substantially similar to what he had told the police officers. Father admitted he had punched Luis but claimed it was in self-defense. Father denied biting the neighbor. He also denied stepping on the gas pedal during the altercation. He explained the car had not been in park and he had his foot on the brake. He believed he had momentarily taken his foot off the brake during the fight, but he had no intention of injuring anyone.
Mother reported Father had always been controlling of her. She provided the Department with numerous text messages from Father in which he called Mother names. Although they were no longer in a relationship, Father repeatedly called Mother at work or showed up while she was working "to cause issues and argue." Mother was fired from her previous job due to Father's behavior. Father still called Mother at her current job, and he showed up at her workplace. Father harassed one of Mother's coworkers because Father believed Mother and the coworker were dating. The coworker confirmed that Father called and came to the workplace, where he confronted the coworker about dating Mother (although the coworker and Mother were not in a relationship). Raymond, Giselle, Mother's teenage daughter, Mother's neighbor, and Mother's sister each told the social worker that Father often called Mother names and attempted to start arguments with her.
The social worker concluded Father minimized his role in the domestic violence incident, claiming he had acted in selfdefense and blaming the altercation entirely on Mother. He also did not appear to understand the detrimental impact domestic violence has on children.
B. The Petition and Detention
On May 3, 2021 the Department filed a petition under Welfare and Institutions Code section 300, subdivision (a) and former subdivision (b)(1), asserting allegations under both subdivisions that Mother and Father had a history of engaging in violent altercations in Adrian's presence. The petition alleged that during the March 21, 2021 visitation exchange, while Mother attempted to retrieve Adrian from Father's car, Father pulled Mother's hair and Mother struck Father, resulting in Mother's arrest. The petition also alleged Father called Mother demeaning and derogatory names on numerous occasions.
The Legislature amended section 300, effective January 1, 2023, in part by revising subdivision (b)(1) to specify in separate subparagraphs ways in which a child may come within the jurisdiction of the juvenile court due to the failure or inability of the child's parent or guardian to adequately supervise or care for the child. Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Mother has two teenage children who were also the subjects of the May 3, 2021 petition. Father is not the father of those children, and this appeal does not concern them.
Adrian was detained from Father and released to Mother. The juvenile court ordered monitored visitation for Father for a minimum of six hours per week and gave the Department discretion to liberalize visits. The court also granted Father's and Mother's requests for mutual temporary restraining orders.
C. The Jurisdiction and Disposition Report
The July 1, 2021 jurisdiction and disposition report stated Father and Mother had ongoing verbal and text message altercations in which they both made threatening and disrespectful statements. Father made many disparaging remarks to Mother and appeared preoccupied with whether she was dating other men. According to the social worker, the March 2021 altercation was an escalation of the ongoing disrespectful communication.
Mother told the social worker she did not have any concerns about Father as a parent and did not believe he would hurt Adrian. She claimed there had not been any prior incidents of domestic violence with Father, although she admitted he had on one occasion pushed her out of the home during a fight. Father had been jealous and controlling even after their relationship ended. Mother acknowledged she had mishandled the March 2021 altercation. She felt the main issue facing the family was Father's disrespect toward her, and she wanted to learn how to communicate better with him.
The Department reported Father's visits with Adrian had been going well. The visits took place for three hours on Saturdays and Sundays, monitored by members of Father's family. Because of the temporary restraining order, visitation exchanges occurred at the police station.
D. The Jurisdiction and Disposition Hearing
At the July 15, 2021 jurisdiction and disposition hearing, the juvenile court sustained the allegations in the petition. Proceeding to disposition, the court declared Adrian a dependent of the court and ordered that Mother would retain physical custody. The court ordered Father to have monitored visits with Adrian for a minimum of six hours per week with the Department having discretion to liberalize visitation. The court also ordered Father to participate in individual counseling to address case issues, including domestic violence and parenting. Finally, the juvenile court granted Father's and Mother's requests for restraining orders, each expiring in July 2024.
E. The Status Review Report and Section 364 Review Hearing The Department's January 7, 2022 status review report (§ 364) stated Adrian was thriving and shared a strong bond with both Father and Mother, who were attentive and caring toward him. Father had failed to enroll in individual counseling (the only requirement of his case plan). Father stated he had been unable to enroll in counseling due to his work schedule and commute.
Father and Mother had been abiding by the restraining orders, and there were no altercations between them during this period of supervision. Father had two-hour monitored visits on Saturdays and Sundays. Father's relatives conducted visitation exchanges at the police station and monitored Father's visits. Mother stated the visits seemed to go well and Adrian appeared happy after visiting with Father.
Mother and Father did not object to sharing custody of Adrian. They each stated they would continue to abide by the restraining orders, and they recognized the negative effects that their physical altercations had on Adrian. The Department concluded the risk level in the parents' homes was moderate and recommended terminating jurisdiction with an order for joint legal and joint physical custody of Adrian.
In a last minute information for the court filed on February 3, 2022, the Department explained that as of January 6, 2022 it had changed Father's visits to unmonitored because Father no longer posed a safety risk to Adrian and Adrian appeared to have a "great bond" with Father. Father also had significant support from his family with whom he lived. The paternal grandmother stated Father would continue to have his visits with Adrian in her home monitored by her and her daughter. However, on January 21 the Department reinstated monitored visits for Father because Father had not enrolled in individual counseling as required by his case plan. After discussing the case plan with Father, the Department concluded Father "is not willing or accepting of [Department] involvement and does not plan to comply with service[s]." The Department therefore changed its recommendation from joint custody to sole legal and sole physical custody to Mother with monitored visits for Father. However, the Department did not state there was any increased risk to Adrian based on Father's behavior since the prior report.
At the February 8, 2022 section 364 review hearing (continued at the request of minor's counsel), Father requested joint legal and physical custody of Adrian and primary residence with Mother. Counsel for Father argued the Department's recommendation was not based on any conduct by Father or risk to Adrian, but appeared to be a punishment for Father's failure to enroll in counseling. Mother requested sole physical custody of Adrian but did not object to joint legal custody and unmonitored visitation for Father. Mother's counsel noted Mother had a good relationship with Father's parents and was able to communicate with them about Adrian. Adrian's counsel joined in Mother's arguments and stated she believed the Department had articulated sufficient reasons for its prior decision to allow unmonitored visits. The Department noted that even though it liberalized Father's visits to be unmonitored, Father's family was always present for the visits.
After hearing argument, the juvenile court stated Father's behavior during the March 2021 altercation was "quite concerning," especially given that Father stepped on the gas pedal even before Mother reached the vehicle. Further, the Department's decision to allow unmonitored visitation "[did] not make any sense." Even if visits had been going well, the court continued, "that doesn't resolve the issue that Father has in regards to his willingness to put his child and others at risk." The court also noted Father had failed to enroll in individual counseling. Finally, the court stated, "I do have domestic violence. There is a presumption that it should be sole legal custody."
The juvenile court terminated jurisdiction and awarded sole legal and sole physical custody of Adrian to Mother with monitored visitation for Father. The court stayed its order pending receipt of a juvenile custody order, which was entered on February 15, 2022. Father timely appealed from the court's termination order and juvenile custody order.
DISCUSSION
A. Governing Law and Standard of Review
When the juvenile court terminates jurisdiction, "'section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court.'" (In re Chantal S. (1996) 13 Cal.4th 196, 203; accord, In re J.T. (2014) 228 Cal.App.4th 953, 960.) When making a juvenile court custody order pursuant to section 362.4, "it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount." (In re John W. (1996) 41 Cal.App.4th 961, 965; accord; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) "Unlike in family court, '"[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.]' [Citation.] When the juvenile court makes custody or visitation orders as it terminates dependency jurisdiction, it does so as a court with 'a special responsibility to the child as parens patriate and [it] must look to the totality of a child's circumstances when making decisions regarding the child.'" (In re J.T. at p. 963.)
We review custody and visitation orders for an abuse of discretion. (In re J.P. (2019) 37 Cal.App.5th 1111, 1119; In re S.H. (2011) 197 Cal.App.4th 1542, 1557-1558 ["dependency law affords the juvenile court great discretion in deciding issues relating to parent-child visitation, which discretion we will not disturb on appeal unless the juvenile court has exceeded the bounds of reason"].) "[W]hen a court has made a custody determination in a dependency proceeding, '"a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination."'" (In re Stephanie M. (1994) 7 Cal.4th 295, 318; accord, In re Maya L. (2014) 232 Cal.App.4th 81, 102.) A decision based on an error of law constitutes an abuse of discretion. (In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1215; In re Autumn K. (2013) 221 Cal.App.4th 674, 709.)
B. The Juvenile Court Abused Its Discretion in Making Its Custody Order
Father contends the juvenile court abused its discretion in ordering Mother to have sole legal custody and restricting Father to monitored visitation because the court erroneously applied the presumption found in Family Code section 3044 instead of considering Adrian's best interest. We agree the court abused its discretion.
Family Code section 3044, subdivision (a) provides, "[T]here is 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 is detrimental to the best interest of the child .... This presumption may only be rebutted by a preponderance of the evidence." However, because dependency proceedings are governed by the Welfare and Institutions Code, and not the Family Code, the juvenile court is "guided by the totality of the circumstances in issuing orders that are in the child's best interests," not the statutory preferences and presumptions that apply to family law proceedings. (In re C.M. (2019) 38 Cal.App.5th 101, 109-110; accord, In re J.T., supra, 228 Cal.App.4th at p. 963; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)
We agree with Father that the juvenile court improperly relied on the family law presumption for sole legal custody under Family Code section 3044 in making its custody determination,without addressing Adrian's best interests or considering the totality of the circumstances. While the court stated it believed Father's behavior had been dangerous, it did not consider the year of positive visits or Father's ability to abide by the restraining order. Even if the court's concerns about Father's behavior and his failure to enroll in counseling would have supported an order for monitored visitation, it is far from clear the court's concerns would support a finding that joint legal custody was not in Adrian's best interests. Indeed, the Department recommended joint legal custody earlier in the case, and the factual circumstances underlying that recommendation were unchanged.
The Department does not address this argument in its respondent's brief, instead arguing the court acted within its discretion in making its custody and visitation orders.
Because the juvenile court's custody order was based on an error of law, it was an abuse of discretion. In addition, because the juvenile court cannot determine visitation rights without first making a custody order, the visitation order must be vacated as well.
DISPOSITION
The juvenile court's custody and visitation orders are reversed. The matter is remanded to the juvenile court for a new section 364 review hearing at which the court must consider the family's present circumstances and Adrian's best interests in making its final orders.
We concur: SEGAL, Acting P. J., MARTINEZ, J.