Opinion
B298306
08-20-2020
In re JONAH T., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. RACHEL O., Defendant and Appellant.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DK22456A) APPEAL from an order of the Superior Court of Los Angeles County, Nichelle L. Blackwell, Juvenile Court Referee. Affirmed. Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Tarkian & Associates and Arezoo Pichvai for Plaintiff and Respondent.
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Rachel O., mother of now-14-year-old Jonah T., appeals the juvenile court's order granting joint legal and physical custody of Jonah to her and to Jonah's father, Michael T. Rachel contends the court applied an incorrect legal standard in making its custody order, erroneously utilizing a presumption of parental fitness that required her to prove Michael, the offending parent, was unfit, rather than determining what was in the child's best interests. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Detention of Jonah
Rachel and Michael had a brief relationship in 2005 during which Rachel became pregnant with Jonah. The couple never cohabitated and was never married. Prior to the initiation of this dependency proceeding in 2017, Rachel and Michael had joint legal and physical custody of Jonah pursuant to a 2009 family court judgment. Jonah generally spent Monday through Wednesday or Thursday with Michael and the remainder of the week with Rachel.
On March 17, 2017 Jonah told Rachel that Michael had been regularly "reach[ing] out to tickle his penis and scrotum." Rachel immediately reported the behavior.
A social worker from the Los Angeles County Department of Children and Family Services (Department) interviewed Jonah on March 18, 2017. Jonah stated, "My dad will reach out and touch my penis and tickle my balls. He does this when I am naked and/or when I am getting dressed. My dad will just go up to me and do it." Jonah said the touching had been occurring three to four times per week "for a while." When Jonah told Michael to stop touching him, Michael laughed. In a subsequent interview a few days later Jonah reported the inappropriate touching had gone on as long as he could remember. He said Michael would come into his room when he was undressing to take a shower, would tickle him all over his body and kiss him on his face. Jonah also stated Michael was playful but yelled frequently and had once been ejected from one of Jonah's basketball games because of his outbursts. According to Jonah, Michael had hit or pushed Jonah as punishment on several occasions beginning in 2015.
On March 19, 2017 two police officers interviewed Jonah. Jonah's responses were consistent with what he had told his mother and the social worker. He added that Michael had on more than one occasion put his hand under Jonah's pants and rubbed his buttocks while they were watching television. The officers reported that Jonah was cooperative during the interview, in good spirits and showed no signs of self-harm.
According to Rachel, in the days after making the report Jonah was "scared to death" and did not want to go back to Michael's house. Rachel also told the social worker that Jonah had become increasingly aggressive during the prior two years and had recently begun wetting the bed and been in a fight at school. On March 21, 2017 Rachel, on Jonah's behalf, obtained a temporary restraining order against Michael.
The Department social worker met with Michael and his attorney on March 22, 2018. Michael was cooperative and stated he was in shock over Jonah's allegations. Michael denied tickling Jonah's genitals or touching him inappropriately. Michael said he and Jonah would play and roughhouse, during which Michael would tickle Jonah "over his clothes all over his body," but Michael would stop when Jonah told him to.
Michael informed the social worker that Jonah had reported the alleged abuse to Rachel on the same day he learned where he was accepted to middle school. Jonah had a "meltdown" that day and had called Michael very upset that Rachel had taken his telephone away. Michael suggested the abuse allegations could have been a product of Jonah's meltdown or Rachel's manipulation of Jonah so he would attend the middle school she preferred.
A forensic interview was conducted of Jonah on March 28, 2017 during which Jonah's account of Michael's behavior was consistent with his prior statements. Jonah told the examiner Michael never asked Jonah to perform sexual acts or to touch him, nor was there any apparent sexual gratification on Michael's part during these incidents. Jonah said he did not know Michael's actions were wrong until Rachel told him they were. Jonah also said he had felt suicidal a few weeks earlier because he was not getting along with his friends and his dad had been yelling at him.
On March 31, 2017 the investigating police officers conducted a pretext telephone call: They supervised Jonah making a telephone call to Michael in an attempt to elicit a confession or admission from him. Michael denied any wrongdoing and repeatedly told Jonah he wanted to discuss the allegations in person with Jonah's mother and stepmother present. The police investigation was ultimately closed after the district attorney declined to bring charges against Michael.
On April 13, 2017 the Department filed a petition to declare Jonah a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) (nonaccidental infliction of serious physical harm), (b) (failure to protect) and (d) (sexual abuse). The petition alleged Michael had physically abused Jonah by hitting and pushing him and had sexually abused Jonah by fondling his penis, scrotum and buttocks.
Statutory references are to this code.
Michael had been a party to a prior dependency case involving his daughter Grace T., Jonah's younger half-sister. The petition in that case was filed in October 2014 and alleged Michael had a history of domestic violence against his wife, Gina T. The petition was sustained pursuant to section 300, subdivisions (a) and (b). Jurisdiction was terminated in May 2015, and Grace was returned to her parents' custody. Jonah was not involved in that proceeding. At the time this matter was initiated, Michael and Gina were separated.
At the detention hearing on April 13, 2017 the court ordered Jonah detained from Michael and released to Rachel. The court denied the request for a restraining order but ordered Michael to stay away from Jonah except during monitored visitation in a therapeutic setting. The court ordered family maintenance services be provided to Rachel and enhancement services for Michael.
2. The Jurisdiction/Disposition Report
During an interview with the social worker on May 4, 2017, Jonah stated Michael "lies about everything" and "gets angry a lot." Michael had only punched Jonah once a few years earlier when Jonah had not been listening. During another incident Michael grabbed Jonah by the shirt and pushed him, causing Jonah to hit his head on a table and hurt his hand. Jonah reported being angry at Michael for not admitting what he had done. Jonah said he did not want to have contact with Michael.
Rachel told the social worker she had regularly questioned Jonah about inappropriate touching since he was very young because it was a "huge fear" of hers.
Jonah's court-ordered therapy had not commenced as of May 25, 2017. Rachel reported she was in the process of locating an individual therapist who took Medi-Cal because she did not want to use Michael's insurance. Rachel had also rejected the conjoint therapist chosen by Michael because his office was too far from her home.
3. The Jurisdiction/Disposition Hearing
The jurisdiction/disposition hearing was held on May 25, 2017. The Department, joined by Rachel, requested the court sustain the petition as alleged. Jonah's counsel argued the allegations regarding physical abuse and inappropriate discipline should be sustained as pleaded, but as to the sexual abuse allegations, counsel stated he would "submit that to the court insofar as how it would comply with the Penal Code requirements." Michael's counsel requested dismissal of the sexual abuse allegations. While Michael contended he had not physically abused Jonah, he did not dispute the court's assumption of jurisdiction based on inappropriate discipline.
The juvenile court dismissed the physical abuse allegation (§ 300, subd. (a)) and the sexual abuse allegations (§ 300, subds (a), (d)). As to the latter allegations the court stated it had watched the video recording of Jonah's forensic interview and reviewed the record. The court found Michael and Jonah had a history of engaging in "horseplay with one another: wrestling, roughhousing, and things of that nature. Jonah is getting to a point where he's a teenager and wants to be independent. . . . He feels like he's being treated like a kid still." The court also found it likely Rachel's own anxiety regarding sexual abuse and her animosity toward Michael had "leaked into Jonah's thinking" and "implanted in his head" the belief he had been sexually abused.
The court sustained an interlineated version of the allegation of inappropriate discipline pursuant to section 300, subdivision (b). Michael, Rachel and Jonah were each ordered to attend individual counseling. Jonah and Michael were also ordered to attend conjoint therapy once per week. The court granted Jonah's counsel's request that conjoint therapy not begin until Jonah had a chance to make progress in his individual therapy. Michael was granted visitation once per week during conjoint therapy; however, the Department was given discretion to liberalize the monitored visits, at which time they were to occur a minimum of six hours per week.
The juvenile court dismissed a subsequently filed petition regarding Grace that was based solely on the allegations related to Jonah.
4. The First Section 364 Review Hearing
In an interim review report dated August 10, 2017 the Department stated Jonah attended two sessions of individual therapy in May and June 2017 with a therapist chosen by Rachel. However, after reviewing the therapist's qualifications and speaking with her about the case the Department declined to approve her as Jonah's individual therapist. The Department identified another therapist to conduct both the individual and conjoint sessions, but that therapist withdrew from the case before conducting any sessions with Jonah because Michael and Rachel could not agree on who would pay for the therapy.
A third therapist was approved by the Department, and Jonah had his first appointment on July 20, 2017. Jonah later told the social worker the therapist was rude to Rachel and was "more on dad's side, not mine or my mom's." Jonah stated he did not want to continue seeing that therapist. Nevertheless, Jonah attended approximately eight sessions with the therapist between July and November 2017. The therapist reported Jonah had not discussed the allegations against Michael. Jonah told the therapist unequivocally that he never wanted to see his father again.
The Department opined Jonah's resistance to engaging in individual therapy could be an attempt to delay conjoint therapy with Michael. The Department also expressed concern Rachel "may be influencing Jonah as evidenced by Jonah mimicking similar arguments made by Mother." The Department further reported, "Mother appears to support and empower Jonah's decision not to have contact with Father believing that she is acting in Jonah's best interest. . . . [M]other also does not appear to accept the Court's ruling and holds on to the belief that Father sexually abused Jonah."
The Department reported Michael had begun individual therapy immediately after the petition in this case was filed. He attended weekly sessions for a total of 24 sessions between April and November 2017. In a letter to the Department Michael's therapist stated Michael loved Jonah and would do anything required to reunite with him. However, the therapist noted Michael believed "he did no wrong, but is punished anyway by having his son excluded from his life."
At the time of the initial section 364 review hearing Jonah and Michael had not started conjoint therapy nor had they had any visits.
The review hearing was held on November 22, 2017. The Department recommended the court order continued family maintenance services for Rachel and enhancement services for Michael. Jonah's counsel requested Jonah be permitted to find a new therapist before commencing conjoint therapy with Michael. The court granted the request over Michael's objection. The court also ordered the Department to identify a therapist to conduct conjoint sessions for Jonah and Michael to take place once a week for up to two hours.
5. The Second Section 364 Review Hearing
In December 2017 Michael and Jonah began having monitored one-hour visits in the Department's offices. A total of 10 visits took place between December 20, 2017 and April 24, 2018. Prior to almost every visit Jonah told the social worker he did not want to see his father, and he engaged minimally during visits, answering questions with one-word answers or refusing to speak at all. Jonah repeatedly told Michael he was angry at what Michael had done and that Michael had lied about it. Michael was reportedly patient with Jonah, listened to his concerns and tried to engage him in conversation. Toward the end of many visits Jonah's demeanor softened somewhat, and he would talk to Michael about basketball or his half-sister. On a few occasions the two even laughed together.
Michael and Jonah began conjoint therapy on February 15, 2018 and had a total of 10 sessions between that date and May 17, 2018. In a letter to the social worker the conjoint therapist, Renee Leff, reported that Michael "stated several times that he understands that what he mistakenly thought was play was not play to Jonah, and that touching Jonah would never happen again. Jonah remained silent and unresponsive during his father's words." During subsequent sessions, Leff reported, Jonah spoke to his father minimally, typically answering questions with one-word answers. Leff stated, Jonah "has continued to make statements that he does not want to be in conjoint therapy and does not want a relationship with his father. However, near the end of the sessions, almost always, Jonah becomes engaged in conversation with his father." On one occasion Jonah ran out of a session while Michael was discussing a "case-related issue," and he refused to return. Jonah refused to attend the subsequent two conjoint therapy sessions. Overall, Leff stated she had observed "no indication that [Michael] poses a risk of safety to [Jonah]."
Jonah began individual therapy with a third therapist, Shawn Brinkley, on November 28, 2017; and he attended weekly sessions almost every week between then and May 2018. In a letter to the social worker Brinkley reported that Jonah initially presented "with a sad and irritable affect, which has now escalated to a sometimes mildly defiant exhibition." Regardless of the court's dismissal of the sexual abuse allegations, Brinkley stated, "Jonah perceives there to have been a violation so prevalent as to merit his adamant desire to completely distance himself from his father and warranting anger to the point of a marked change in his characteristic behaviors of cooperation, academic excellence, jovial mood, pleasant demeanor, conscientious obedient son to a sad, often listless, at times combative, irritable distrustful, suspicious, and at times quietly defiant boy." Brinkley continued, "Jonah has expressed in our sessions his discomfort in the presence of his father and his strong, undeniable desire not to participate in the court ordered visits and conjoint therapy sessions." Brinkley opined Jonah's visits and conjoint therapy with Michael had undermined Jonah's own therapeutic progress.
The in-home outreach counsellor who had been working with Jonah and Rachel noted Jonah became defiant and anxious after he had begun visitation with Michael. Similarly, the family preservation program coordinator stated Jonah needed more time to progress in individual therapy before beginning conjoint therapy or visitation. As of late February 2018 the Department reported, "[A]ll treatment providers working with Mother and Jonah are adamantly against Father and Jonah having visits until 'Jonah has healed' and believe[] that conjoint therapy should not be occurring."
Michael continued individual therapy during this period of review. In a letter to the Department his therapist opined Michael was not a threat to Jonah and should be permitted "unimpeded parental access to his son." The therapist stated Michael "spent 18 months patiently paying for a crime that never happened and tangentially also pays the penalty in the artificiality of monitored parent/child visits."
In a last minute information dated May 21, 2018 the Department reported its discovery Michael had hired a private investigator to surveil Rachel and Jonah. On May 8, 2018 Rachel and Jonah had noticed someone following them. Rachel immediately called the police and informed the Department. The social worker told Michael about the situation, and he admitted he had hired the investigator approximately eight weeks earlier. He stated he was concerned for Jonah's safety because Jonah spent a large amount of time with three male friends of Rachel. Rachel reportedly paid these friends to drive Jonah to and from his therapy sessions, and Jonah spent time at these men's apartments after school and on weekends. Michael said he was concerned because he did not know these individuals. Michael also expressed his belief that Rachel and Jonah did not reside at the apartment where she purported to live, but actually lived with her boyfriend. In addition, Michael was concerned that Jonah often arrived at school late and had excessive absences.
Jonah refused to attend his visit with Michael the week following discovery of the investigator.
The Department recommended the court provide an additional six months of supervision "for Jonah to continue to work on definitions of abuse and his relationship with his Father."
The review hearing was held on May 23, 2018. Jonah's attorney requested a moratorium on conjoint therapy. He stated Jonah felt violated by Michael's use of a private investigator and Jonah was not ready for conjoint therapy. The juvenile court declined the request to cease conjoint therapy, found continued jurisdiction was necessary and ordered continuation of services for both parents.
6. The Third Section 364 Review Hearing
Jonah and Michael's conjoint therapy was inconsistent during this review period. During June and July 2018 Jonah was driven to therapy but refused to get out of the car on three occasions. On July 23, 2018 the Department agreed to temporarily suspend conjoint therapy. The sessions resumed on August 30, 2018, and Jonah attended five sessions between then and October 10, 2018. Leff reported Jonah was more cooperative during these sessions, and he appeared less angry and hostile. Jonah generally participated in conversations by sharing his thoughts and feelings.
Visitation between Jonah and Michael was likewise inconsistent during this period. In June and July there were two instances when Jonah was driven to the visit but refused to get out of the car. On two other occasions Jonah met the social worker in the lobby of the Department's office and stated he did not want to see Michael. The social worker encouraged Jonah at length to come to the visitation room; and he ultimately, albeit begrudgingly, acquiesced. In a report dated July 24, 2018 the Department stated, "Jonah's attitude towards the visits is disrespectful, cavalier and entitled with little concern for consequences." The social worker also reported Rachel was present during these conversations between Jonah and the social worker, but Rachel "did not participate in the conversation[s] or make any efforts to direct Jonah to visit with Father." Even when the social worker asked Rachel for assistance in convincing Jonah to attend the visit, she refused.
In August 2018 the Department liberalized Michael's visits to be unmonitored. Jonah continued to tell the social worker he did not want to see Michael; however, the social worker reported Jonah appeared more relaxed and less resentful. In mid-October visits were further liberalized to include an eight-hour visit during the day on Saturdays. The social worker again reported Jonah appeared calmer and less aggressive when discussing these visits.
Jonah continued weekly therapy sessions with Brinkley, who reported he had shown progress and begun sharing his feelings. Jonah had told Brinkley he still did not forgive his father and did not want to be forced to interact with him. Brinkley stated forcing Jonah to interact with Michael before he felt ready could ultimately undermine their reunification.
In its July 24, 2018 report the Department expressed concern Rachel was "thwarting or interfering with any reunification process." Not only had Rachel failed to assist the social worker in convincing Jonah to attend visits but also her cooperation generally was "minimal, almost passive-aggressive, and/or she procrastinates." Rachel had not given the Department requested information regarding her boyfriend's home, where she appeared to spend more than half of her time with Jonah; she had rejected the therapist suggested for court-ordered coparenting therapy with Michael and had tried to use an unapproved therapist; and she repeatedly failed to timely respond to the Department's telephone calls and emails. In particular, the Department reiterated its concern that, despite the court's dismissal of the physical and sexual abuse allegations, Rachel "has continued to maintain her own conclusion that Jonah was harmed by Father. This then leaves [the Department] in a position to question Mother's motives and what underlying issues, if any, are driving her behavior, her resistance to reunification, and unwillingness to support and work with Jonah to repair his relationship with his Father."
In a supplemental report dated October 29, 2018 the Department stated Rachel continued to be uncooperative and unresponsive. Rachel had failed to provide information regarding her employment. She also repeatedly failed to respond to the Department's requests for visits with her and Jonah, which led to visits with Jonah being conducted at his school.
In the October 29, 2018 report the Department stated there were no safety risks to Jonah from Michael and recommended the juvenile court enter a home-of-parents order, allowing Rachel and Michael to reestablish the custody arrangement in place prior to the court's involvement. The Department also recommended the court continue to order services be provided to Rachel and Michael.
The parties appeared for the review hearing on November 16, 2018. Rachel requested a continuance because she had retained new counsel. The juvenile court granted the request and set the matter for a contested hearing on February 20, 2019.
In a letter dated January 22, 2019 Leff reported Jonah and Michael had attended seven therapy sessions since October 2018. Leff continued to state Jonah did not appear afraid of Michael. However, she stated, "since my last report, Jonah has withdrawn from all normal communication with his father and me. He says nothing and avoids all eye contact." Leff suggested Jonah's regression in behavior could be a result of his learning Leff had written a positive report of their previous sessions. Nevertheless, Leff opined conjoint therapy was beneficial to Jonah because he had the opportunity "to experience a loyal and caring father."
Brinkley reported Jonah was making progress in therapy. However, Jonah continued to tell Brinkley he did not want to visit with Michael.
Between November 2018 and February 2019 Jonah generally continued to visit Michael three days per week, including a five-hour visit on Saturdays. There were two visits that Jonah refused to attend and two additional visits where Jonah refused to get out of the car to meet Michael. Michael reported he had some positive visits and interactions with Jonah, but often Jonah engaged with him minimally during visits unless he wanted something. During one visit in February 2019 Jonah, Grace and Michael went to out to lunch; Jonah was talking and everything appeared normal. However, once they arrived at Michael's house, Jonah refused to get out of the car. Jonah claimed Michael yelled at him although Michael denied any yelling. Jonah then cancelled the next few visits.
Jonah continued to tell the social worker he did not want to visit Michael because he felt uncomfortable, but Jonah was unable to provide a reason for his discomfort. The social worker reported Jonah was uncommunicative during their visits and would not make eye contact.
In a report dated February 13, 2019 the Department expressed concern that court involvement may be exacerbating the stress and conflict in the family. The Department stated, "[S]ince Jonah was released into the full-time care of Mother, it appears to have created an opportunity for underlying custody and parental conflict to surface. Communication between Mother and Father appears to be nearly non-existent which has heightened the conflict and made co-parenting difficult." On the other hand, the Department explained, the prior custody order was specific and effective, allowing the parents to have minimal contact. The Department also expressed concern that attending multiple therapy appointments, visits with the social worker, court appearances and imposed visits with Michael have caused Jonah undue stress; he had repeatedly reported feeling overwhelmed and resentful at being forced to participate in these activities. Accordingly, the Department recommended the juvenile court terminate jurisdiction and grant joint legal and physical custody to Rachel and Michael in accordance with the prior family court order.
The parties appeared for the contested review hearing on February 20, 2019. Rachel and Jonah requested a continuance because Brinkley was unavailable to testify. The juvenile court granted the continuance over the objections of Michael and the Department and set the contested hearing for April 11, 2019. The court also ordered that Michael was to have two overnight visits for two nights each week prior to the next hearing.
7. The Continued Review Hearing
In a last minute information for the court dated April 3, 2019 the Department reported Jonah had attended all visits since the last hearing, including two overnight visits. Michael reported Jonah had cancelled one of the overnight visits but made it up at a later date. Jonah was still not fully engaging with Michael during visits. During the second overnight visit Jonah discovered Michael had set up a video camera in Jonah's bedroom. Michael told the social worker it was for protection because there were workers in the home. He stated he would move the camera if it made Jonah uncomfortable. The Department recommended that the court terminate its jurisdiction, award Rachel and Michael joint legal and physical custody of Jonah, "and that all prior orders as outlined in the Family Law Order filed on 10/09/2009 be reinstated and placed in full force and effect."
The contested review hearing was held over three days in April 2019. Jonah, Michael, Brinkley and Leff testified. Brinkley testified Jonah had told her he was angry he was being forced to see his father. Brinkley believed the visits were not in Jonah's best interest because they perpetuated the idea in Jonah's mind that his wishes were being ignored. She opined forcing Jonah to see Michael could cause his anger to continue, his school work to suffer, and it could "get to the point of rebellion."
Leff testified there had been initial progress in Jonah's attitude in conjoint therapy followed by some regression in the fall of 2018; however, she said he had more recently attended sessions and listened actively even if he did not participate in the conversation. She said it appeared Jonah was less hostile toward Michael as their contact increased. She did not think continued visitation was harmful to Jonah. To the contrary, she believed Jonah needed more positive experiences with his father.
Jonah testified in chambers. He said he did not trust Michael and did not feel comfortable around him. He felt Michael did not have appropriate boundaries. As examples, Jonah explained Michael came to his basketball games even though Jonah did not want him there; Michael hired a private investigator to follow Jonah; and Michael put cameras in Jonah's bedroom. Jonah said he had thought about suicide as recently as five months earlier. Jonah said he was angry his father had not apologized to him and felt like his father did not love him.
Michael testified he had apologized to Jonah numerous times during their conjoint therapy sessions, as well as during visits. Specifically, he apologized to Jonah for having once slapped and hit him. Regarding the camera in Jonah's room, Michael said he had always had cameras in every room of the house for the family's protection. He testified he had hired the private investigator because he was concerned about Jonah's safety with Rachel's friends whom Michael did not know. He was also concerned because Jonah's grades were declining and he had missed a lot of school. Michael said he loved Jonah and wanted to be a role model for him.
Proceeding to argument, all parties agreed the court should terminate jurisdiction but had differing positions regarding custody. Rachel's counsel requested the court grant full custody to Rachel and order a period of two to three months during which Michael was to have no contact with Jonah so that Jonah could have time to heal. Michael's attorney requested the court order custody to revert to the prior family court order of joint legal and physical custody and order the continuation of conjoint therapy for Michael and Jonah, as well as conjoint therapy for Michael and Rachel regarding coparenting issues. Jonah's attorney requested sole legal and physical custody be awarded to Rachel. The Department urged the court to follow the recommendation in its April 3, 2019 last minute information for joint legal and physical custody.
The juvenile court terminated jurisdiction and awarded joint legal and physical custody to Rachel and Michael pursuant to the terms of the prior family court order. The court ordered Jonah to continue individual counseling and conjoint counseling with Michael and ordered Michael and Rachel to participate in coparenting counseling.
DISCUSSION
1. Governing Law and Standard of Review
When terminating its jurisdiction over a child who has been declared a dependent child of the court, section 362.4 authorizes the juvenile court to issue a custody and visitation order (commonly referred to as an "exit order") that becomes part of the relevant family law file (§ 362.4, subd. (a)) and remains in effect in the family law proceeding "until modified or terminated by a subsequent order." (§ 362.4, subd. (b).)
Section 362.4, subdivision (a), provides, in part, "If the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years, and . . . an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child."
When making a custody determination under 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 ["[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"].) This determination is made without reference to any preferences or presumptions ordinarily applicable in family court. (See In re John W., at p. 972 ["presumption of parental fitness 'that underlies custody law in the family court just does not apply to dependency cases'"]; see also In re C.M. (2019) 38 Cal.App.5th 101, 108 ["[a]lthough both juvenile and family courts have authority to make orders regarding custody and visitation, the two courts operate under separate statutory schemes and serve distinct purposes"]; In re J.T. (2014) 228 Cal.App.4th 953, 961 ["due to the separate and distinct purposes of the juvenile and family courts, many Family Code provisions do not apply in dependency proceedings"].)
We review an exit order for abuse of discretion. We "may not disturb the order unless the court '"'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.'"'" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301; accord, In re M.R. (2017) 7 Cal.App.5th 886, 902.)
2. The Juvenile Court Did Not Abuse Its Discretion by Ordering Joint Legal and Physical Custody
Rachel argues the juvenile court applied an incorrect legal standard to the custody determination, improperly adopting a presumption of parental fitness as to Michael. In support Rachel cites the court's observation during the hearing that, "I don't believe that mother's counsel or minor's counsel has presented sufficient evidence to show that the father has not engaged in the services or has [not] learned anything." Rachel argues this statement demonstrates the court, rather than determine the custody arrangement that would be in Jonah's best interests, erroneously placed the burden on Rachel and Jonah to prove joint physical custody would be detrimental to the child.
The record is devoid of evidence the juvenile court misapplied the law or failed to consider Jonah's best interests. While the court did not explicitly state it was applying a "best interests" analysis, we presume the court was aware of, and followed, applicable law. (See In re Julian R. (2009) 47 Cal.4th 487, 498-499.) Moreover, the court's detailed explanation of the reasons for its ruling at the conclusion of the hearing demonstrated it had taken the totality of circumstances into account in determining the custody arrangement that would be in Jonah's best interests.
For example, the court considered Brinkley's testimony that spending time with Michael could have negative effects on Jonah, such as causing him to rebel and do poorly in school. The court found, however, Jonah had been rebellious throughout the case by not following court orders. Further, the court stated Jonah's declining grades could be explained by factors other than the emotional stress of seeing his father, such as his recent change in schools; the fact that he broke his leg twice in one year, impacting his ability to attend school, play basketball and see his friends; plus the time needed to attend various court-ordered appointments. The court weighed any potential detriment, which may or may not have been caused by visits with Michael, against Leff's testimony that contact between Jonah and Michael was improving their relationship.
The court also found there was no evidence Michael posed any threat to Jonah's safety. Michael had followed all court orders and clearly demonstrated he wanted to reunify with his son so that he could be a role model for him. Further, Jonah had lived with Michael 50 percent of the time for most of his life and had been thriving: He excelled at basketball and did well in school. There was minimal evidence of any tension in Jonah's relationship with Michael until the allegations in this case, which the court found were either not substantiated or were mitigated through services during pendency of the court's jurisdiction. The court also noted Michael and Rachel's acrimonious relationship likely influenced Jonah to disengage with one or both parents. As the Department had suggested, awarding joint custody could stabilize the parents' relationship and allow Jonah to interact with Michael under more normal circumstances. In light of these considerations, there was a reasonable basis for the court to conclude awarding Michael joint custody would facilitate a beneficial relationship between Michael and Jonah that would advance Jonah's best interest.
Rachel's reliance on the court's single statement that Rachel and Jonah had not presented evidence Michael had failed to engage in services does not change this analysis. In context, it is clear the court properly considered Michael's engagement in court-ordered services as only one of many relevant factors in determining Jonah's best interests. (See In re Nicholas H., supra, 112 Cal.App.4th at p. 268 ["a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child"].)
In sum, there is no evidence the juvenile court applied an incorrect legal standard. Further, the court's finding it was in Jonah's best interests to award joint legal and physical custody was well within its discretion. If there is a significant change in circumstances and it is in Jonah's best interests, Rachel may seek a modification of the custody order in family law proceedings. (§§ 302, subd. (d), 362.4, subd. (b).)
DISPOSITION
The order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.