Opinion
B297843
02-13-2020
In re AVIANA L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CORINA L., Defendant and Appellant.
Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18LJJP00413A) APPEAL from an order of the Superior Court of Los Angeles County, Nancy Ramirez, Judge. Affirmed in part, reversed in part, and remanded with directions. Gina Zaragoza, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Appellant Corina L. (mother) appeals the exit order issued by the juvenile court upon the termination of dependency jurisdiction over her daughter, Aviana L. (minor, born 2018). (Welf. & Inst. Code, § 362.4.) We agree with mother that the juvenile court improperly delegated its authority by permitting mother overnight visits "as arranged by the parents." We therefore reverse the visitation component of the exit order and remand to the juvenile court to clarify the minimum frequency and duration of mother's overnight visits. We otherwise affirm the order, including its award of full physical custody to minor's father (father).
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father is not a party to this appeal.
BACKGROUND
I. Minor Becomes a Dependent of the Court
In September 2018, mother pled no contest to an amended dependency petition filed by the Los Angeles County Department of Children and Family Services (DCFS). The petition alleged that mother and father had "a history of engaging in violent altercations" and, in May 2018, mother struck father with her fists while he held then three-month-old minor. Mother then took minor from father "by forcibly grabbing [minor's] upper body."
The juvenile court sustained the count and declared minor a dependent of the court under section 300, subdivision (b)(1) (failure to protect). Minor was removed from mother and released to father under DCFS supervision. The court ordered DCFS to provide family maintenance services. Mother was ordered to attend a certified batterer intervention program and developmentally appropriate parenting classes; undergo a psychological assessment; take all prescribed psychotropic medications; and participate in individual counseling to address issues including anger management and domestic violence. Mother was granted monitored visitation, with DCFS discretion to liberalize.
In pertinent part, section 300, subdivision (b)(1), extends the juvenile court's jurisdiction to a "child [who] has suffered, or there is a substantial risk that the child will suffer, serious physical harm . . . , as a result of the failure or inability of his or her parent . . . to adequately supervise or protect the child . . . ."
II. Mother's Compliance with the Case Plan
By mid-November 2018, mother had completed 12 domestic violence group therapy sessions and 10 parenting classes. Mother had also attended six individual counseling sessions. At the end of November 2018, DCFS liberalized mother's visits with minor from monitored to unmonitored, with a plan to incrementally increase the length of the visits and proceed to overnight visits.
A new DCFS social worker was assigned to minor's dependency case on December 10, 2018. A week later, the new social worker informed mother that the domestic violence program that she had completed was for victims and that she was required to complete a domestic violence program for perpetrators instead. By the end of December 2018, mother had enrolled in the appropriate domestic violence program.
According to the status report filed by DCFS in February 2019, mother had completed her parenting classes, attended individual therapy and psychiatry appointments, and consistently visited with minor. The social worker opined that mother had "shown great effort" and lamented that mother had initially enrolled in and attended the incorrect domestic violence program, which "push[ed] her progress back by a couple months." Mother was commended for quickly enrolling in the appropriate program once she was made aware.
In mid-April 2019, DCFS confirmed that mother had completed 13 out of 26 sessions of the appropriate domestic violence program. The social worker assessed mother's home, finding it "appropriately furnished and free of any obvious safety hazards[,]" and had no concerns related to mother's interaction with minor. DCFS recommended that the juvenile court terminate jurisdiction and enter an order giving mother and father joint legal custody of minor, father full physical custody, and mother unmonitored overnight visits.
III. Contested Section 364 Status Review Hearing
The juvenile court held a contested section 364 status review hearing on April 29, 2019, during which mother sought joint physical custody of minor. Mother's counsel informed the juvenile court that mother did not object to father retaining primary care of minor and was amenable to participating in family mediation to determine visitation and exchange issues. According to mother's counsel, mother and father had met and discussed "what type of exchange system and allocation of time if the court were to order home of parents and decide the matter be closed." The meeting, however, "was not successful in resolving exchange times."
Father did not object to sharing joint legal custody with mother but believed that he should have sole physical custody. Father's counsel noted that mother had thus far only had limited visitation with minor, including one overnight visit, and therefore joint physical custody would be "a huge leap" not in minor's best interest. Regarding cooperation between mother and father, father's counsel argued, "Whether [mother and father] were able to reach an agreement regarding custody is not an indication that [they] are not going to be able to talk and be cooperative with each other. Even if they don't agree, they can be am[]icable with each other."
The juvenile court found that its jurisdiction was no longer necessary and therefore terminated jurisdiction "pending receipt of a juvenile custody order providing joint legal custody[] [and] sole physical custody to father." The court recognized mother's "great efforts in complying with the court's orders and completing some of her program[s] . . . ." The court explained that it would follow DCFS's recommendation regarding joint legal custody and sole physical custody to father because "this was a domestic violence case and mother [was] still in the process of completing her domestic violence program."
Regarding visitation, father's proposal was a minimum of nine hours per week for mother with a minimum of two overnight visits per month "or as otherwise agreed on by the parents." Mother's proposal was for "the matter [to] be referred to the family law mediator for a schedule that both parents can understand and live with." Father's counsel objected to mediation, arguing that "when [mother] set [the section 364 hearing] for contest [she] could have requested mediation and . . . failed to do so."
The juvenile court stated that it would order a "minimum of nine hours per week [and] overnight visits as arranged by the parents." The court further stated, "the visits are to be as mutually agreed upon by the parents."
IV. Termination of Jurisdiction and Exit Order
The stay on the termination of jurisdiction was lifted on April 30, 2019.
The exit order entered by the juvenile court and filed on May 7, 2019, granted legal custody to mother and father, physical custody to father, and primary residence with father. Regarding visitation, the exit order provided: "Mother is to have unmonitored visitation at a minimum of [nine] hours per week. Mother shall have overnights as arranged by the parents. The parents can modify mother's visitation by mutual agreement between the mother and father." The exit order instructed that a violation of the order could result in "civil or criminal penalties or both."
V. Appeal
Mother timely appealed the exit order.
DISCUSSION
On appeal, mother challenges the award of sole physical custody of minor to father and the terms of the visitation component of the exit order. We find no abuse of the juvenile court's discretion regarding its custody determination. However, because the visitation terms are vague and constitute an improper delegation of judicial authority, we reverse and remand that part of the order. I. Section 362.4 Exit Order
Section 362.4 "empowers the juvenile court, if it terminates its jurisdiction over a dependent minor, to issue 'an order determining the custody of, or visitation with, the child.' (§ 362.4, subd. (a).) If there is a pending marital or paternity proceeding relating to the child, the custody order will be transferred to the existing family court file. (See id., subd. (b).) Otherwise, the order may be used to open a new file in the superior court of the county in which the parent who has been given custody resides. (See id., subd. (c).) The order shall continue 'until modified or terminated by a subsequent order of the superior court.' (Id., subd. (b).)" (In re C.W. (2019) 33 Cal.App.5th 835, 862-863 (C.W.).) "An order entered pursuant to section 362.4 is commonly referred to as an 'exit order.' [Citation.]" (In re Nicholas H. (2003) 112 Cal.App.4th 251, 269 (Nicholas H.).)
II. Standard of Review
We review an exit order for abuse of discretion. (C.W., supra, 33 Cal.App.5th at p. 863; see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 ["The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test"].) "An abuse of discretion occurs when the [juvenile] court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. [Citation.]" (In re Leticia S. (2001) 92 Cal.App.4th 378, 381.) A court can also abuse its discretion by committing legal error. (See In re Charlisse C. (2008) 45 Cal.4th 145, 161.) III. Awarding Father Sole Physical Custody of Minor Was Not an Abuse of the Juvenile Court's Discretion.
Although mother states that the juvenile court abused its discretion by denying her request for joint physical custody of minor, specific arguments in support of this position are difficult to discern from her briefs. Given mother's failure to present cogent legal authority or argument, we deem the issue forfeited. (See People v. Stanley (1995) 10 Cal.4th 764, 793 [a court may treat as waived a point in a brief made without reasoned argument or authority].)
Forfeiture aside, to the extent mother argues that the juvenile court should have granted her joint physical custody because DCFS delayed liberalizing her visitation and informing mother that she was enrolled in the wrong domestic violence program, mother's argument misses the mark.
"When making a custody determination in any dependency case, the [juvenile] 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.]" (Nicholas H., supra, 112 Cal.App.4th at p. 268.)
It cannot be said that it was arbitrary, capricious, or patently absurd to award mother joint legal custody of minor but to deny her physical custody. The juvenile court explicitly recognized the "great efforts" exhibited by mother "in complying with the court's orders[.]" However, given that dependency jurisdiction had been exercised because of mother's domestic violence toward father, which caused minor to suffer, or be at substantial risk of suffering, serious physical harm (§ 300, subd. (b)(1)), the fact that mother had not yet completed the appropriate domestic violence program for batterers was a reasonable, nonarbitrary basis for the juvenile court to conclude that awarding her physical custody was not in minor's best interests.
Moreover, notwithstanding one overnight visit with mother, minor had resided with father for nearly a year by the time of the section 364 hearing. The juvenile court could reasonably infer that awarding sole physical custody to father provided stability and continuity for minor, thus serving her best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 ["In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity"].)
Our conclusion would not change even if mother's noncompletion of the domestic violence program was partly attributable to DCFS or if visitation should have been liberalized earlier. The juvenile court's paramount concern in determining custody is the best interests of the child based on the totality of the circumstances (Nicholas H., supra, 112 Cal.App.4th at p. 268)—not fairness to parents. Mother's deflection of responsibility does not alter her noncompletion of the proper domestic violence program and the extent of her previous visitation. Nor does mother allege a violation of her right to due process in this regard.
As DCFS recognizes, upon her completion of the proper domestic violence program, mother could have a basis to seek a modification of the custody arrangement. An exit custody order issued by a juvenile court may be modified in a family court proceeding provided "there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." (§ 302, subd. (d); see also C.W., supra, 33 Cal.App.5th at p. 865, fn. 28.) Although mother argues that she will face a high burden to modify the order, "[n]othing about the burden of obtaining modifications to the juvenile court's orders from the family court . . . demonstrates that the orders are themselves erroneous." (In re M.R. (2017) 7 Cal.App.5th 886, 903.)
Based on the record before us, we do not find an abuse of the juvenile court's "broad discretion to make custody orders" upon terminating jurisdiction. (Nicholas H., supra, 112 Cal.App.4th at p. 265, fn. 4.) IV. The Visitation Order Constituted an Improper Delegation of Judicial Authority.
The visitation component of the exit order provides mother a minimum of nine hours of unmonitored visitation per week and "overnights as arranged by the parents." Mother argues that these terms are vague and constitute an improper delegation of judicial authority. We agree.
DCFS argues that mother failed to object to the visitation order on these grounds below and therefore forfeited her challenge on appeal. We exercise our discretion to excuse any forfeiture of this issue because our review will "add certainty and stability to [minor's] visitation." (In re S.B. (2004) 32 Cal.4th 1287, 1294; see also id. at p. 1293 ["an appellate court's discretion to consider forfeited claims extends to dependency cases"].)
"The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court and may not be delegated to nonjudicial officials or private parties, including the parents themselves. [Citations.] The rule of nondelegation applies to exit orders issued when the dependency jurisdiction is terminated. [Citations.]" (In re Armando L. (2016) 1 Cal.App.5th 606, 616; accord, In re T.H. (2010) 190 Cal.App.4th 1119, 1123 (T.H.).)
"Once visitation is ordered, the court may delegate responsibility for managing details such as the time, place and manner of visits, none of which affect a parent's defined right to see his or her child. [Citations.] However, the visitation order must give some indication of how often visitation should occur. [Citations.] A court may not abdicate its discretion to determine whether visitation will occur to a third party. [Citations.]" (In re E.T. (2013) 217 Cal.App.4th 426, 439 (E.T.).)
In T.H., supra, 190 Cal.App.4th at p. 1122, the juvenile court awarded full physical custody of two children to their mother upon the termination of dependency jurisdiction and "ordered that [their] father have supervised visitation 'to be determined by the parents[.]'" The Court of Appeal reversed the visitation order (id. at p. 1125), holding that conditioning father's visitation "upon the 'agreement of the parents[]'" was "more than simply a delegation of the authority to set the 'time, place and manner' of the visitation—it effectively delegate[d] to [the] mother the power to determine whether visitation w[ould] occur at all. [Citations.]" (Id. at p. 1123.)
Here, although the exit order sets a minimum number of hours per week for mother's visitation with minor and states that "[m]other shall have overnights" (italics added), it fails to set the frequency of the overnight visits. It is also unclear whether the overnight visits count toward the nine-hour weekly visitation minimum or are in addition to it. Thus, the exit order delegates more than just the ministerial details of the visits. It creates the potential for father to technically comply with the order but still impede mother's right to visitation by agreeing to a minimal number of overnight visits or by agreeing to overnight visits in lieu of meaningful daytime visits.
We conclude that the juvenile court improperly delegated its authority and "abused its discretion by framing its order in a way that gave [father] an effective veto power over [mother's] right" to visitation. (T.H., supra, 190 Cal.App.4th at p. 1124; see also In re James R. (2007) 153 Cal.App.4th 413, 434-435 ["an improper delegation of judicial power over visitation will necessarily be found to constitute an abuse of discretion"].)
We do not reach mother's contention that the juvenile court also abused its discretion by denying her request for mediation to craft a visitation arrangement.
Upon remand, "[g]iven that the family's circumstances may well have changed since . . . dependency [jurisdiction] was terminated, the [juvenile] court should consider any relevant evidence proffered by the parties regarding the terms of the visitation order. [Citations.]" (T.H., supra, 190 Cal.App.4th at p. 1124.)
DISPOSITION
The visitation component of the exit order is reversed; we otherwise affirm the order. On remand, the juvenile court shall specify the frequency and duration of mother's overnight visits.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, Acting P. J.
ASHMANN-GERST We concur: /s/_________, J.
CHAVEZ /s/_________, J.
HOFFSTADT