Opinion
B317350
06-06-2023
In re I.E., A Person Coming Under the Juvenile Court Law. v. V.E., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant. Dawn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 21LJJP00481A Stephanie M. Davis, Judge Pro Tempore. Affirmed.
The Law Office of Richard L. Knight and Richard L. Knight, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.
CURREY, ACTING P. J.
INTRODUCTION
V.E. (father) appeals from the juvenile court's exit order relating to his daughter, I.E., under Welfare and Institutions Code section 362.4, subdivision (a)(1). In particular, father contends the juvenile court abused its discretion when it issued a custody and visitation order permitting father only monitored visits with I.E. and awarding sole legal custody to Y.G. (mother).Because we disagree with father's contentions, we affirm in all respects.
All further undesignated statutory references are to the Welfare and Institutions Code.
Mother is not a party to this appeal.
BACKGROUND
Father and mother are the parents of I.E., who was born in February 2015. At the time the underlying dependency case was initiated, I.E. resided in a home with mother. Pursuant to a family law order, I.E. would visit father every other weekend. Father resided in a home with his two younger children and his wife, Rosemary.
On September 20, 2021, the Department of Children and Family Services (Department) received a referral alleging Rosemary physically abused I.E. I.E. had scratches on her left cheek and a burn on her right ear. The reporting party alleged this was not the first time I.E. had returned from visits with her father with injuries.
The next day, the Department interviewed I.E. I.E. had marks on her right ear and a faint scratch on the left side of her face. When asked about the scratch on her face, I.E. reported Rosemary scratched her at church on purpose. I.E. also reported Rosemary had burned her ear with an iron while ironing her hair. At the time, they were in the living room and father was in the kitchen.
In an interview with the Department on September 21, 2022, father claimed mother had made up the allegations against Rosemary. Father also claimed he supervised I.E. at all times when she was in his home. He further reported I.E. had told him she scratched her own face at church. When asked about the burn on I.E.'s ear, father said he did not know how it had happened and denied that Rosemary ironed I.E.'s hair. Because mother had not allowed father to see I.E. for three months after a prior Department investigation, father refused to bypass his upcoming weekend visit with I.E.
In an interview with the Department the next day, Rosemary also claimed mother was "making up false allegations[.]" Like father, Rosemary claimed I.E. admitted she scratched her own face. Rosemary denied she ever ironed I.E.'s hair and denied seeing the burn on I.E.'s ear.
On September 23, 2021, the juvenile court granted the Department's request for a removal order. Four days later, the Department filed a section 300 petition under subdivision (b)(1), alleging I.E. was at risk based on Rosemary physically abusing her and father's failure to protect her.
A week later at the detention hearing, the juvenile court detained I.E. from father and released her to mother. The court ordered no contact between Rosemary and I.E. and ordered monitored visits for father. The court further ordered I.E to undergo a forensic interview.
In its December 2021 adjudication report, the Department reported a Los Angeles County Deputy Sherriff had interviewed I.E. in February 2021 based on a prior allegation of Rosemary physically abusing I.E. When speaking to the Deputy, I.E. became teary-eyed, and quivered when speaking about the physical abuse. I.E. described an incident where she threw up after Rosemary forced her to eat cold tuna with beans (Rosemary fed her own children cereal). When Rosemary saw the vomit, she became angry and slapped I.E.'s nose and mouth causing her to bleed from her nose. Rosemary then grabbed I.E. by her hair and pulled her out of her chair, scratching her on the neck in the process. I.E. claimed father worked during the weekends and was rarely home. Consequently, Rosemary mainly looked after I.E. when she visited father. The Department closed the February investigation when father agreed he would be responsible for taking care of I.E. and he would not leave her alone with Rosemary.
When the Deputy spoke to I.E. again in September 2021, he observed I.E. had four marks down the length of her ear, a fading linear scratch on her face, and healing burn marks on her right ear. I.E. described how Rosemary burned her using a hot iron. I.E. also described how Rosemary "'scratched [her] with her long nails.'"
I.E. underwent a forensic interview in October 2021. In the interview, I.E. reported an incident where Rosemary pushed her and caused her to fall down and bleed from her nose and lips. During another incident, Rosemary scratched I.E.'s face, burned her ear, and then told her not to tell father about the abuse. When I.E. told father about the abuse, father told her not to lie.
In an October 2021 interview with the Department, mother stated I.E. had told her Rosemary hit her. Moreover, mother observed I.E. had a cut under her swollen lips and a burn mark on her ear. In an interview with the Department the same day, I.E. said she wanted to see father, but did not want to see Rosemary. I.E. again said Rosemary hit her and threw her on the floor causing her nose and lips to bleed while father was at work. I.E. said she was afraid of Rosemary.
In father's November 2021 interview with the Department, he again claimed I.E. told him she had scratched herself. He also again denied that Rosemary used a flat iron on I.E.'s hair. Regarding the February 2021 incident, father stated the allegations were "'lies'" and that I.E. "'had anger towards [Rosemary]" because I.E. was "used to being the only child." According to father, I.E. was lying and did not "know what [was] really [ ] going on.'" Father claimed he "would never date anybody that treats [I.E.] differently." Father added, "'[w]e miss [I.E.]. I just want our names to be cleared . . . I want our home to be like it used to be. No more having anyone come and question us. We would have fun and [I.E.] was happy here.'"
In Rosemary's November 2021 interview with the Department, she claimed I.E. had told her church teacher she scratched herself. Rosemary again denied she ever physically abused I.E.
In a last-minute information report received by the court in December 2021, the Department reported it received February 2021 medical records from I.E.'s pediatrician. The records indicated I.E. said she was hit on the nose by Rosemary. The medical records also indicated mother had observed bruises on the left side of I.E.'s face. Finally, I.E. had told mother she did not want to go to father's home.
At the December 16, 2021 adjudication hearing, the juvenile court sustained the allegations, as amended by interlineation, as follows: "b-1: On or about 09/19/2021, [I.E.'s] father['s], [ ] female companion, Rosemary [ ], physically abused [I.E.] [making] marks [on I.E.]'s ear. [Rosemary] scratched [I.E.]'s face. In February 2021, [Rosemary] struck [I.E.]'s face, [causing] swelling and bleeding to the lip. [Rosemary] grabbed [I.E.] by [her] hair, pulled [her], and scratched [her] neck. On prior occasions, [Rosemary] struck [I.E.]. Such physical abuse was excessive and caused [I.E.] unreasonable pain and suffering. The father failed to protect [I.E.] when he knew of [Rosemary]'s physical abuse of [I.E.]. [F]ather allowed [Rosemary] to have unlimited access to [I.E.]. Such physical abuse of [I.E.] by [Rosemary], and [ ] father's failure to protect [I.E.], endangers [I.E.]'s physical health and safety, and places [I.E.] at substantial risk of serious physical harm, damage, danger[,] physical abuse and failure to protect." The court found I.E.'s statements were consistent and believable and there was no basis for I.E. to make up the allegations. The court also found it did not seem I.E. was coached by anyone. Moreover, the court found Rosemary had targeted I.E, and "the abuse had been ongoing for at least a year."
Turning to disposition, the juvenile court denied father's counsel's request for unmonitored visitation, explaining it would be inappropriate "because the father has indicated he doesn't believe that [Rosemary] has abused [I.E.]. So the court really has no trust that he would not allow [Rosemary] and [I.E.] to be together."
The juvenile court found there was clear and convincing evidence that there was a substantial risk to I.E. if she were returned to father. Additionally, the court found there were no reasonable means by which I.E. could be protected without removing her from father's custody. The court found continued supervision was unnecessary, so it terminated dependency court jurisdiction over I.E. The exit order granted sole legal and physical custody of I.E. to mother and monitored visits minimally three hours weekly to father. Rosemary was to have "no contact" with I.E. The juvenile court ordered father to have monitored visits because "he needs to complete . . . a developmentally appropriate parenting program and individual counseling to address case issues, including age-appropriate discipline, protective parenting, and co-parenting."
On December 17, 2021, the juvenile court entered a juvenile custody order giving mother sole legal and physical custody with monitored visits for father and terminated jurisdiction.
Father timely appealed.
DISCUSSION
I. Governing Legal Principles
Section 362.4 governs the termination of juvenile court jurisdiction and related orders. The statute authorizes a juvenile court to make custody and visitation orders upon terminating dependency jurisdiction over a child. (§ 362.4, subd. (a).) These exit orders remain in effect until modified or terminated by a subsequent order of the superior court. (§ 362.4, subd. (b); see also Cal. Rules of Court, rule 5.700.)
"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, quoting In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 (Nicholas H.).) "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 (Chantal S.).) Because juvenile dependency proceedings arise when children are subject to or at risk of abuse or neglect, "[t]he presumption of parental fitness that underlies custody law in the family court just does not apply.... 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." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 (Jennifer R.); accord Chantal S., supra, 13 Cal.4th at p. 206.)
"[T]he juvenile court has broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case (§ 362.4)." (Nicholas H., supra, 112 Cal.App.4th at p. 265, fn. 4.) We review the juvenile court's exit orders for abuse of that discretion. (See, e.g., In re Maya L. (2014) 232 Cal.App.4th 81, 102; Jennifer R., supra, 14 Cal.App.4th at p. 711; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318 ["[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.'""].)
II. Analysis
a. Visitation Order
First, father contends the juvenile court erred when it denied him unmonitored visits because there was no evidence the visits would jeopardize I.E.'s physical safety and emotional wellbeing. In support of his argument, father argues there was no evidence he ever physically abused I.E. or evidence that he posed any threat to I.E.'s physical or emotional well-being.
The juvenile court did not abuse its discretion. It was not unreasonable for the juvenile court to doubt I.E.'s safety in father's care. As noted above, father repeatedly failed to protect I.E. from Rosemary's abuse. After the initial reported abuse in February 2021 and his claim that he would not leave I.E. alone with Rosemary, father continued to leave I.E. in Rosemary's care. Moreover, when I.E. told father about the abuse, father told her not to lie. In sum, father did not believe Rosemary abused I.E. and thus did not take any steps to protect his daughter from Rosemary.
The question on appeal is not whether the juvenile court could have reasonably reached a different conclusion on the facts before it. Rather, we can declare an abuse of discretion only if the record shows the court made a patently absurd determination in carrying out its protective role and assessing the child's best interests. (Chantal S., supra, 13 Cal.4th at p. 206; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) On this record, it was not patently absurd for the court to deny father's request for unmonitored visits.
b. Custody Order
Second, father contends the juvenile court abused its discretion when it issued an exit order denying him joint legal custody of I.E. We disagree.
The court sustained the amended petition alleging I.E. was at risk because father failed to protect her from Rosemary's physical abuse, and that despite his knowledge of the abuse, he allowed Rosemary to have unlimited access to I.E. The court found the physical abuse had been ongoing in father's home for at least a year. Father repeats his argument that he never directly did anything to I.E. Father also adds that Rosemary never did anything to harm I.E. in front of him. Father, however, ignores the evidence that the court considered, namely that he repeatedly claimed I.E. was lying about the abuse. As a result of his belief that mother was coaching I.E. to lie about the abuse, he repeatedly left I.E. alone in Rosemary's care. He failed to protect his daughter or accept his responsibility to do so. (See In re Maya L., supra, 232 Cal.App.4th at p. 104 [joint custody would not be in the child's best interest in part because of the mother's "ongoing refusal to accept responsibility for any wrongdoing"].) Here, the court's ruling granting mother sole legal custody of I.E. appropriately considered the totality of the circumstances and fell within the court's broad discretion. (See In re C.M. (2019) 38 Cal.App.5th 101, 109.)
DISPOSITION
The juvenile court's order is affirmed.
We concur: COLLINS, J., DAUM, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to Article VI, section 6, of the California Constitution.