Opinion
B317771
01-30-2023
In re K.W., a Person Coming Under the Juvenile Court Law. v. S.W., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 20CCJP06477A, Mary E. Kelly, Judge. Affirmed.
David M. Yorton, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. 1
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel for Plaintiff and Respondent.
EDMON, P. J.
S.W. (mother) appeals from a final custody order granting Eugene G. (father) sole legal and physical custody of their son, K. Mother contends the juvenile court abused its discretion by denying her request for joint legal custody because she never interfered with father's ability to make decisions in K.'s best interests. We find no abuse of discretion, and thus we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Petition and detention.
K. was born in January 2008. Mother and father were not married, and father was K.'s primary caretaker from the time he was about one year old. When these proceedings began, father had sole physical custody of K.
Father may also have had full legal custody of K., although this is not clear from the record. Notes from a 2015 referral indicate that the Los Angeles Superior Court granted father sole legal and physical custody of K. on November 24, 2015, but the 2015 order is not part of the present appellate record.
In 2019, father and K. were involved in a voluntary family maintenance case after father tested positive for cocaine. The case was closed in September 2019.
On December 4, 2020, father and K. were involved in a rollover car accident. Neither father nor K. was injured, but a breathalyzer test showed father's blood alcohol level exceeded .10 2 percent. Father was arrested for felony driving under the influence, and K. was released to a cousin, Victoria M.
Mother had been diagnosed with schizophrenia and bipolar disorder and was living in a transitional home where she received medication and mental health counseling. She had been hospitalized several times. Her therapist reported that mother heard voices in one ear, and although she was taking medication and improving, it was not known if she would ever be able to care for K.
Mother had a history of reporting child abuse by father. In 2013, mother reported that father used drugs in front of K.; in 2014, she said she peeked through a window and saw father molesting K.; and in 2020, mother reported that father was her own father and had molested her when she was a teenager. These reports were investigated and closed as unfounded or inconclusive. In the present case, mother told a children's social worker (CSW) that father had kidnapped K. and threatened to kill him. She also said she suspected father of physically or sexually abusing K., but when asked why, she said only that father did not answer his phone and was" 'not acting right.' "
DCFS filed a juvenile dependency petition on December 8, 2020. It alleged, pursuant to Welfare and Institutions Codesection 300, subdivision (b), that mother had been diagnosed with bipolar disorder and schizophrenia and had a history of auditory hallucinations, which endangered K.'s health and safety (count b-1), and father had a history of alcohol and cocaine use, tested 3 positive for cocaine in February 2019 and November 2020, and tested positive for alcohol in February and August 2019.
All subsequent statutory references are to the Welfare and Institutions Code.
On December 11, 2020, the juvenile court ordered K. detained from mother and father and placed in shelter care under DCFS supervision. Father was granted unmonitored visits, contingent on his participation in random drug and alcohol testing. Mother was granted monitored visits.
II. Adjudication and disposition.
Father said mother began having mental health issues when K. was about a year old. Father had been K.'s primary caregiver since that time and had obtained a court order giving him sole physical custody. Father admitted to a history of cocaine and alcohol use, and he said he had consumed four shots of tequila on the day of the accident.
Mother was convicted in 2016 of throwing an object at a train and obstructing a police officer. She was confined to Patton State Hospital for four months in 2016 and then served time in prison. She was released in November 2019, and currently was receiving psychiatric services through the diversion program and the Department of Mental Health. Her probation officer said mother was in compliance with the terms of her probation. K. said he had not had much contact with mother because" 'she wasn't around too much.' "
The CSW reported in March 2021 that mother was able to maintain a conversation and eye contact, but had difficulty recalling information relating to her probation, current living situation, and mental health diagnosis. Mother called K. daily and had monitored visits for an hour each week. During one telephone call, mother told K. not to"' listen to the voices,'" which K. did not understand. 4
In June 2021, DCFS reported that father had been testing negative for alcohol and drugs and was participating in substance abuse treatment and parenting training. Father said that he had" 'removed the person that he was using with and the individual [was] no longer in his life.'" Mother was doing well in her program, was medication-compliant, and was participating in psychiatric and therapeutic services. DCFS recommended that the court permit father to have unmonitored overnight visits with K.
On June 29, 2021, the court sustained the allegations of the petition and ordered K. placed with father under DCFS supervision. Both parents were ordered to participate in drug/alcohol programs for a minimum of six months, submit to weekly drug testing, engage in individual counseling, and complete parenting classes. Mother was granted monitored visits with K.
III. Six-month review hearing; termination of juvenile court jurisdiction.
In December 2021, DCFS reported that father was fully compliant with his case plan and had consistently tested negative for drugs and alcohol. Mother had not complied with her case plan and was not in regular contact with DCFS. The CSW noted that when she did speak to mother by telephone, mother appeared disoriented, rambling, and confused. K. told the CSW that he loved his mother and wanted to continue bonding with her, but "would rather take it much slower and continue with telephone calls and in the future begin visiting with mother." DCFS therefore recommended that the case be terminated with a family law order granting father full legal and physical custody, and granting mother monitored visits. 5
At the December 28, 2021 hearing, mother's counsel objected to termination of jurisdiction and sought additional time for mother to complete her case plan. In the alternative, counsel requested joint legal and physical custody, or joint legal custody with unsupervised visitation for mother.
Father's counsel asked that the case be closed and that father be granted sole legal and physical custody. K.'s counsel joined father's request, noting that father had made tremendous progress, and K. appeared safe in his care. Although K. had regular phone calls with mother, he had not had in-person visits with her and he wished things to remain as they were.
The court found that there was not a continued need for juvenile court jurisdiction because K. "is with a fit and willing parent who has completed all of his court ordered case plan, and the child is safe with him." The court denied mother's request for unmonitored visitation, noting that she had not completed her case plan. For the same reason, it was "[not] appropriate to have joint legal custody, given mother's lack of compliance in programs." The court therefore granted father sole legal and physical custody, and granted mother weekly monitored visits.
The court entered a written custody order on January 4, 2022. Mother timely appealed.
DISCUSSION
Mother's sole contention on appeal is that the juvenile court erred in granting father sole legal custody. For the reasons that follow, we find no abuse of discretion, and thus we will affirm.
" 'When the juvenile court terminates its jurisdiction over a dependent child, 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 6 superior court.'" (In re Chantal S. (1996) 13 Cal.4th 196, 203; § 362.4.) We review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody order pursuant to section 362.4 for an abuse of discretion "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].'" '" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
It is well-established that the family law presumption favoring joint custody does not apply to juvenile court custody orders entered upon termination of jurisdiction. (In re Chantal S., supra, 13 Cal.4th at p. 206; In re Jennifer R. (1993) 14 Cal.App.4th 704, 711-713.) To the contrary," '[w]hen 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." [Citation.] 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.]' ([In re Nicholas H. (2003) 112 Cal.App.4th 251], 268.)" (In re Maya L. (2014) 232 Cal.App.4th 81, 102-103.)
The juvenile court did not abuse its discretion by concluding that granting father sole legal custody of K. was in K.'s best interests. Mother suffered from severe mental illness that impaired her ability to live independently. Even when mother was appropriately medicated, she continued to experience auditory hallucinations, and her therapist was uncertain whether mother would ever be able to safely care for K. Further, although 7 mother had complied with the terms of her criminal probation by engaging in mental health services, she had not completed any part of her case plan during the 12 months K. was under court supervision.
There were, moreover, significant reasons to lack confidence that mother could co-parent with father in K.'s best interests. At various times, mother had accused father of kidnapping K., physically or sexually abusing K., and threatening to kill K. Mother appeared unwilling or unable to stay in regular contact with the CSW, and when they did speak, she was disoriented, rambling, and confused. Further, mother had not been a regular part of K.'s life for many years, and although K. loved mother and wanted her to be part of his life, nothing in the record suggests that mother had enough familiarity with K.'s medical history and education to make decisions in K.'s best interests. Under these circumstances, the juvenile court did not abuse its discretion by granting father sole legal custody of K. 8
DISPOSITION
The custody order granting father sole legal and physical custody is affirmed.
We concur: LAVIN, J., RICHARDSON (ANNE K.), J. [*] 9
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.