Opinion
B229444
09-27-2011
In re I. D., A Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A. P., Defendant and Appellant.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
(Los Angeles County Super. Ct. No. CK83921)
APPEAL from a judgment of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Reversed and remanded with directions.
Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
In this dependency matter, the child, I.D. (child), was declared dependent due to domestic violence between her mother, A.P. (mother), and her mother's boyfriend, James T. (James). The child was placed in the home of her non-offending father, Kirby B. (father), in Las Vegas. The dependency court gave father full legal and physical custody of the child, and allowed mother monitored visitation. The court then terminated its jurisdiction over the child. Mother appeals, arguing that the dependency court erred in terminating jurisdiction. Under the unique facts of this case, we conclude the dependency court's termination of jurisdiction constituted an abuse of discretion. We therefore reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The child was born in May, 2004. At the time, mother was 19 years old, and had already begun a relationship with James. Mother and father had engaged in a brief "fling," and lost touch after she told him that she was pregnant. Father was not completely absent from the child's life, however. Although he lives in Las Vegas, he eventually reconnected with mother and began visiting the child every six weeks. He has spoken with the child every week on the telephone, and has provided for the child whenever mother asked for something specific, like shoes.
Mother and James have lived together on-and-off since mother was eight months pregnant with the child, although their relationship was marred by domestic violence. When James would drink, which he did frequently, he would become extremely violent toward mother. He has hit, kicked, choked, and dragged her, causing many physical injuries. While mother sometimes sought assistance in the immediate aftermath of an attack, she would always return to James.
The child has a younger half-brother, J.T. (brother), who was born to mother and James in 2007. Although brother was declared dependent, no issue regarding him is raised in this appeal. Although James never intentionally directed violence toward the child or her brother, the children were often present when abuse occurred, and were sometimes caught in the crossfire. Police were called on several occasions. Mother believed the children were not in danger from James; indeed, she often left the children in James's care when she was at work. However, mother never left the children alone with James when he was drunk.
For example, one night in 2006, when the child was approximately 20 months old, mother and the child were sleeping in the same bed when James began to argue with mother. The fight escalated and James pulled mother off the bed by her hair. He punched and kicked her repeatedly, then began choking her. The child had fallen off the bed during the struggle; she crawled on mother's stomach and started crying, "Mommy, Mommy." James then pulled mother toward the kitchen and continued the fight. James grabbed an open gallon of bleach and splashed mother with it; the child was sitting on the ground nearby, crying.
The instant dependency matter was initiated as the result of an altercation of August 14, 2010, when mother was again pregnant with James's child. After James had come home extremely drunk at 3:00 in the morning, mother made James leave the apartment when she left for work a few hours later. At 7:45 that morning, James telephoned mother at work, demanding entry into the apartment to obtain his belongings. James told mother that he had kicked in her door and broken her windows in an attempt to gain entry. Mother left work, picking up brother on the way home. Mother and James argued, and the argument turned violent. James grabbed mother by her hair and dragged her down the stairs from her upper-floor apartment. During the attack, mother received a telephone call from her sister and told her sister what was happening. Her sister and her sister's friends drove over and immediately attacked James. Mother told them to stop hitting James because she still loved him. The police were called, and James was arrested for domestic violence. Mother did not want James to go to jail and told police she did not want their assistance. Officers made a referral to the Department of Children and Family Services (Department).
That child, J.P. (sister), would ultimately be born in November, 2010. Sister would also be the subject of a dependency proceeding. No issue regarding her is raised in this appeal.
James was so drunk that, on the way to the bathroom, he defecated on the apartment floor.
James called the police when he was being beaten by mother's sister's friends.
On August 20, 2010, a children's social worker visited mother, who said she had been hoping the Department would not come. Mother lied to the social worker, saying that James did not live in her home. The social worker attempted to explain the emotional harm that children can suffer from domestic violence between adults in the home; mother did not accept this. Mother said she had no intention of obtaining a restraining order against James; she said that no one else would ever want her and she did not want to be alone. Mother ultimately agreed not to let James into the home and to enroll in counseling.
Mother had been a dependent child, herself, due to physical abuse.
On August 30, 2010, however, mother reported to the social worker that she did not need counseling, and did not understand how the Department could ask her not to talk to the father of her children. By this time, James had pleaded guilty to misdemeanor spousal abuse, receiving a probationary sentence. A three-year protective order issued. Mother was required by the Department to attend a "Team Decision Meeting" on September 1, 2010.
The conviction was three days after the arrest; other counts were dismissed.
At the meeting, mother was still resistant to services. She said she was not fearful of James and that he had never abused the children. The Department detained the children. At the meeting, mother told the Department of father's identity. Father's aunt was a certified foster parent, so both children were detained in her home.
She had previously given the Department the wrong name.
On September 7, 2010, the Department filed a petition to declare child and brother dependent, due to the physical abuse in the home and mother's failure to protect the children. As to father, it was alleged that he failed to provide the necessities for child. A detention hearing was held. Father appeared, and was declared the biological father of child. The court found a prima facie case to detain the children, but commented that, if the court were permitted to dismiss allegations at a detention hearing due to a lack of a prima facie showing, it would dismiss the allegations against father. At the hearing, counsel for the child noted that child was "very attached to" father, even though he had only recently become part of her life. The court concurred, commenting that when the child came into the courtroom, she immediately walked over and sat on his lap. The court released the child to father, with the stipulation that she remain in California. Father therefore made arrangements for the child to stay with his aunt.Mother was granted weekly visitation with child.
The court reasoned that since father believed the child was being provided for by mother, there had been no failure on his part. The court was concerned that father may have known that mother and James were fighting and did nothing to protect the child, but noted that such failure to protect allegations were not made against father.
As father's aunt was a licensed foster parent, brother was also detained in her home.
The next day, mother immediately enrolled in individual counseling, group counseling for survivors of partner violence, and parenting class. Over the next month, mother started to understand that her children were being harmed by the domestic violence that characterized her relationship with James, even though they were not physically victimized. Mother showed significant progress in her therapy, and demonstrated a desire to make changes in her life to do the best thing for herself and her children. Mother visited regularly with both of her children, and wanted to reunify with them.
Father also visited regularly with child. Although he lives in Las Vegas, he travelled to Los Angeles every weekend to visit the child. In anticipation of child being released to his custody, father prepared a bedroom for her in his home, found a school for her, and added her to his medical insurance. Father reported to the Department (and the Department subsequently reported to the court) that he was willing to transport the child to see her mother for visits if the child were allowed to go to Las Vegas with him. The Department recommended that the child be allowed to go to Las Vegas and live with father, and that jurisdiction over her be terminated.
An adjudication and disposition hearing was held on October 14, 2010. The Department amended the petition to allege that father was non-offending. Mother entered a plea of no contest. The court found the amended petition true and declared the two children dependent. The court asked, "does anyone have any objection to releasing [the child] to the father at this time, now, that he's nonoffending under the petition?" As there was no objection, the child was released to her father, conditioned on father's continued cooperation with the Department. The court proceeded to hold a contested disposition hearing; mother's counsel agreed that the only contested issue was whether the court should retain jurisdiction over the child.
James, who continued to deny any violence toward mother, submitted on the Department's evidence.
After the court made this ruling, child's counsel volunteered that the child "indicated that she would like to continue living with the great aunt." The court responded that this was something that the child and the aunt needed to talk about. Later in the hearing, counsel explained that the child wanted to stay with the aunt in order to remain with her brother and hopefully reunify with her mother.
Mother testified on her own behalf. She explained that she is not entertaining any idea of ever reconciling with James. She testified that she has learned that her children always come first. She testified that she is close to both of her children, and that she wants reunification services with both children in the hopes of proving that she is a good mother and getting them back. Specifically as to the child, she testified that she wants to share custody with father; mother conceded that the child is happy when she is with father, and mother does not want to take that relationship away from child.
The court then made its order terminating jurisdiction over the child. The court granted father legal and physical custody. Mother was granted monitored visits at least twice per week, two hours per visit. The monitor was to be mutually agreed upon, but was not to be father. Mother was not granted reunification services with child. Mother was, however, granted reunification services with brother, so her counseling and parenting class would continue. Indeed, the court acknowledged that, in order to obtain liberalized visits with the child, mother would have to demonstrate substantial progress in the same programs that are part of her reunification services with brother. When counsel for the children asked that the order also include sibling visits, the court stated that father would be ordered to attempt to facilitate sibling visits.
After mother testified, the court asked mother's counsel if there were any more witnesses. Counsel replied, "No, just argument." The court asked counsel for the Department if she had any rebuttal evidence; she replied that she did not. The court immediately issued its ruling, without hearing argument.
The court then stated, "I understand that the child may end up in Las Vegas, that's why everyone keeps saying, your honor, your honor, your honor, your honor, if she goes to Vegas she can't have twice a week visits, monitored by someone that they choose." Mother's counsel then suggested joint custody over child, and the court rejected that argument, without returning to its discussion of why it ordered twice weekly visits for a child who may be moved to Las Vegas.
When a dependency court terminates jurisdiction, its custody and visitation order shall be filed in any pending family law proceedings. If no such proceedings exist, the dependency court's order may be used to initiate such proceedings in the county in which the parent who has been given custody resides. (Welf. & Inst. Code, § 362.4.) The court stayed its order regarding the child, to November 22, 2010, apparently to allow its order to be filed in family court. However, no family court proceeding was instituted.
The minute order reads that the matter is continued for "lifting of stay on termination of jurisdiction[/]receipt of family law custody order."
The parties did not, and do not, address whether a family law proceeding could have been commenced in superior court in California, given that custody of the child was granted to a parent who lived in Nevada.
Prior to the November 22, 2010 hearing, mother gave birth to sister, another child of James's. Sister was immediately detained. Mother stated that she had not had contact with James since the August 14, 2010 incident, nor had he attempted to contact her. Mother continued progressing with her therapy, although further participation was still recommended.
At the November 22, 2010 hearing, father was not present, although his counsel appeared. The court had before it a form "Custody Order - Juvenile - Final Judgment," which set forth its orders regarding the child from the October 14, 2010 disposition hearing. As the court prepared to sign the order, mother's counsel asked to address the court, stating that "the proposed order does not accurately reflect the court orders of October 14th." Mother's counsel explained that after the hearing she tried to work out a visitation schedule. She stated, "Father lives in Las Vegas. Mother lives here. I thought the more fair thing would be every other weekend, father has to bring the child back." When the court stated, "No," mother's counsel continued, "I think that is unfair and unethical, to allow the mother to continually . . . go up there." The court explained that mother's conduct was the reason the child had been declared dependent, and that mother "has the right to visit the child at least twice per week and she can go and do that." The court went on to state that when the mother completed her therapy and classes "she can get herself unmonitored visits and even work towards custody. [¶] For now the father - the father should not have to be transporting the child back and forth for the visits when the child is in the system because of mom's actions and has monitored visits because of mom's actions." The court signed and filed the order. It did not set a specific visitation schedule for mother, but simply indicated that she was entitled to monitored visits at least twice per week, two hours per visit, in a schedule to be determined by the parents.
The court had clearly stated at the October 14, 2010 disposition hearing that mother would receive visitation twice per week, two hours per visit. Mother had not given notice that she would challenge this order at the November 22, 2010 hearing.
Mother filed a timely notice of appeal.
ISSUES ON APPEAL
On appeal, mother challenges both the dependency court's custody/visitation order, and the court's decision to terminate jurisdiction. Mother argues: (1) that the court's custody/visitation order would eliminate any ongoing contact between her and child, and erode her relationship with child; and (2) that the termination of jurisdiction deprives her of any realistic forum in which to obtain liberalized visitation and/or custody, as she would be required to institute family law proceedings in Nevada. We reject mother's first contention, but accept the second.
DISCUSSION
1. The Dependency Court's Custody/Visitation Order Was Proper
Welfare and Institutions Code section 361.2, subdivision (a) provides, "When a court orders removal of a child pursuant to [an adjudication of dependency], the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child."
Preliminarily, we note that the dependency court did not err in placing the child in father's custody. The statute indicates that if the non-custodial parent desires to assume custody, the court shall place the child with that parent, unless there is a finding of detriment. Here, father desired custody, there were no allegations of detriment, and no party objected when the court asked if there were any objections to releasing the child to his care.
Even if the court terminates jurisdiction when placing a child with the previously non-custodial parent, the court may provide "reasonable visitation" for the other parent. (Welf. & Inst. Code, § 361.2, subd. (b)(1).) In making its order, the court is guided by the best interests of the child. (In re John W. (1996) 41 Cal.App.4th 961, 973.) In this case, mother argues that the court erred because it failed to consider the best interests of the child in setting the terms of its visitation order. Mother argues that the best interests of the child required visitation to be set, not in two hour blocks twice per week, but, instead, on a schedule where the child "would spend some time in Los Angeles, such as weekends at her aunt's house, where she could then spend time with her brother and her mother."
We disagree. First, we note that mother made no objection to the twice weekly visitation order until November 22, 2010 - one month after the order had been entered (although it was stayed), and without giving any notice to father that she sought a different visitation schedule. Second, while it is clearly in mother's best interests that father transport the child to Los Angeles on weekends, there is no evidence that it is in the child's best interest that he do so. Common sense suggests that the visiting parent should regularly make the long car trips, rather than the young child. Father drove to Los Angeles every week to visit the child after she had been detained in Los Angeles; there was no evidence that mother was unable to drive to Las Vegas to visit the child when she was moved there. Mother was granted twice-weekly visitation; given that the court had only her counsel's belated representation that the visitation schedule would be unworkable, we simply cannot conclude that the court's visitation order was not in the child's best interests.
Mother's brief discusses the difficulty of taking full advantage of the visitation order when she had two other children in Los Angeles and a job. Other than evidence indicating that mother works 32 hours per week and has to clock in at 6:00 a.m., there is no evidence regarding her work schedule or how it leaves her no time to visit the child in Las Vegas. We also note that, while mother has two other young children, both of those children have been detained out of her home. While mother clearly wishes to
2. The Court Should Have Retained Jurisdiction Under the Circumstances of This Case
When a dependency court places a child with a previously non-custodial parent, the court has two choices: (1) it may terminate jurisdiction, leaving any modification of its custody/visitation order to the family court; or (2) it may retain jurisdiction, in which case, the dependency court would consider any future modifications to its custody/visitation order. (Welf. & Inst. Code, § 361.2, subd. (b).) Mother argues that the dependency court erred in terminating jurisdiction as its continued jurisdiction would be necessary to resolve modification requests.
A third option, retaining jurisdiction until a home study is completed, is not at issue in this case.
In determining whether to terminate jurisdiction, the dependency court must determine whether there is a need for continued supervision. (In re Karla C. (2010) 186 Cal.App.4th 1236, 1245.) "While placement of the child with the formerly noncustodial parent may not be detrimental, there may be some concern that: this parent will turn around and relinquish the child to the other parent after the termination order; or this new custodial parent may need services. Also, the formerly noncustodial parent may not want long-term custody. Alternatively, the court may anticipate that spend time visiting those children, and completing her therapy so that she can reunify with all of her children, she does not, at present, have child care obligations. with the appropriate reunification services, the child will be able to return to the home of the original custodial parent. It is also possible that . . . the court may see a need to provide services short of reunification for the child's best interests. Thus, supervision may be appropriate in lieu of or before terminating jurisdiction." (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496-1497, emphasis added.)
The decision to terminate dependency jurisdiction is reviewed for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) We may not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious or patently absurd determination. (Ibid.)
In this case, mother argues an abuse of discretion because continued supervision was required on several bases. We need not address the bulk of these arguments, as we conclude the trial court erred in not retaining jurisdiction in order to provide mother a dependency court forum in which to seek modification of its custody/visitation order.
Several of these arguments are quickly rejected. For example, mother argues that the Department needed to monitor the child's transition to father's house as father had previously had little contact with child. Mother never raised this issue below, and it did not appear from the record that the child had any difficulty relating to father. Additionally, mother suggests that continued supervision is necessary because the visitation order provided that mother's visits were to be monitored by an agreed-upon monitor, and father could prevent all visits by failing to agree to a monitor. As there is no suggestion in the record that father would unreasonably deny approval of a legitimate monitor, the fact that the parents were required to agree on a monitor does not alone mandate continued supervision.
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To better understand our conclusion in this case, a brief understanding of the difference between dependency court and family court is necessary. " 'The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children. In that setting, parents are presumed to be fit and capable of raising their children. [Citation.] The juvenile court, by contrast, provides the state a forum to "restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians." [Citation.]' [Citation.]" (In re Karla C., supra, 186 Cal.App.4th at pp. 1265-1266.) "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.)
There is a strong public interest in leaving family law disputes in family courts. The dependency system should not be used to subsidize private child custody disputes. (In re John W., supra, 41 Cal.App.4th at p. 969.) "The juvenile courts must not become a battleground by which family law war is waged by other means. It is common knowledge that the resources of local government social service agencies are stretched thin; in the juvenile dependency context those resources are manifestly intended to be directed at neglected and genuinely abused children. [¶] Moreover, the misuse of the juvenile dependency system to litigate custody battles is not only unfair to taxpayers, but to litigants as well." (Id. at p. 975.) This is so because, in the dependency system, a parent is not only litigating against the other parent, but a government adversary as well. (Ibid.)However, "parents in juvenile court often have greater opportunity and ability, compared with those in family court, to litigate custody or visitation orders . . . ." (In re Chantal S., supra, 13 Cal.4th at p. 210.) This is so because, in dependency court, a parent has a right to noticed, contested hearings, and appointed counsel. (Ibid.)
In this case, a termination of jurisdiction meant that any attempt to modify the court's custody/visitation order would be litigated in family court in Nevada. If the trial court had retained jurisdiction, however, any attempt to modify the order would be litigated in dependency court. Considering all of the facts and circumstances of this case, requiring mother to litigate such issues in Nevada family court constituted an abuse of discretion.
The following facts, as of the time the dependency court entered its order, were undisputed: (1) although the child was declared dependent due, in part, to mother's conduct, mother was herself a victim of domestic violence and never intentionally harmed the child; (2) mother had a close relationship with the child; (3) mother lost custody of the child due to a finding of dependency, not due to a private custody dispute with father; (4) mother was involved in therapy, and was developing an understanding of how the domestic violence in her home had impacted the child; (5) mother had ceased contact with James, and no longer intended to let him back into her life; (6) if mother continued progressing in her therapy and classes, she would have a legitimate basis to seek modification of the visitation order, and, ultimately, the custody order; (7) as mother had two other children in the dependency system, the dependency court would continue to monitor her progress in her required programs; (8) if mother completed her required programs, it was likely that mother would seek modification of the court's visitation orders with respect to all of her children (the two that were still before the dependency court as well as the child); (9) if the dependency court terminated jurisdiction, and mother sought to modify all of the court's visitation orders after completing her programs, mother would be required to retain counsel, in Nevada, to bring a family court action (with respect to the child), while simultaneously seeking a similar modification in dependency court in California (with respect to mother's other two children); (10) if the dependency court retained jurisdiction, the state would not be put to any additional expense, as it was already providing mother services, and counsel, with respect to her other two children; and (11) father's previous conduct reflected an ability to continue litigating this matter, as necessary, in dependency court in California.
In sum, it was apparent that, barring unforeseen circumstances, mother would seek a modification of the court's custody/visitation order as she progressed in her therapy. By terminating its jurisdiction, the court deprived mother of the opportunity to make that motion in a forum which was not only geographically accessible, but would be hearing a similar motion with respect to mother's other children at the same time. Retaining jurisdiction would not be subsidizing a private custody dispute, but permitting mother to bring a legitimate request to modify a dependency court order limiting her access to the child in the very court that had entered the order. We do not mean to imply that, in all situations in which a court makes a custody/visitation order when transferring custody to a previously non-custodial parent, it must retain jurisdiction in order to entitle the parent who lost custody to seek to modify that order. However, in this situation, when the parent is likely to seek modification of the custody/visitation order, the alternative forum is in a different state, and proceedings in the dependency court are continuing with respect to other children, the failure to retain jurisdiction in order to resolve modification requests constitutes an abuse of discretion. We therefore will reverse.
DISPOSITION
The judgment terminating jurisdiction is reversed and the matter is remanded to the dependency court for further proceedings consistent with this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J. WE CONCUR:
KLEIN, P. J.
KITCHING, J.