Opinion
B231435
01-26-2012
In re T. G., Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. N. E., Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK81994)
KLEIN, P. J. KITCHING, J. ALDRICH, J.
N. E., father of eight-year-old T. G. (T.), appeals from the exit order the juvenile court issued when terminating its jurisdiction over the child. Father contends there is no evidence to support the order limiting his contact with T. to two, monitored, one-hour visits per month based on father's failure to surrender T.'s passport. We affirm.
T.'s mother Julia G. is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
This is the second time that T.'s dependency has been before this court. We recite the pertinent background information from our previous opinion, DCFS v. N. E. (Sept. 26, 2011, B228720) [nonpub. opn.]). The juvenile court sustained a petition finding true the allegations, among others, that father placed the child in an endangering and detrimental situation by engaging in an altercation with an Bruce M., who was driving a vehicle while father and T. were passengers. Father repeatedly struck Bruce M. and grabbed the steering wheel, causing the vehicle to swerve. Bruce M. threatened to kill T., father, and himself. Further, father knew Bruce M. had severe emotional problems and was medicated at the time he was driving. The court also sustained the allegation that father has demonstrated numerous mental and emotional problems, including grandiose delusions, impaired attention and concentration, labile mood, volatile behavior and affect. Because of these problems, father is unable to provide regular care for the child and placed T. at risk of physical and emotional harm and damage. (Welf. & Inst. Code, § 300, subd. (b).) By per curiam opinion, this court affirmed the juvenile court's order sustaining the petition and taking jurisdiction of the child, based on our determination that the record contained substantial evidence supporting the petition's allegations.
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
As a case plan, the juvenile court ordered that mother have sole legal and physical custody of T., and granted father monitored visits of one to two hours per week. Father announced in court that he wanted to take T. to Chicago or Egypt. Finding father to be a flight risk, the court ordered him not to visit or remove T. from school and to turn over T.'s passport to the Department of Children and Family Services (the Department). Father admits that he "did not surrender the passport." In December 2010, the court again ordered father to turn over T.'s passport, warning that if father did not do so within the two weeks, "his visits will terminate." Visits were terminated. Father justified his violation of the court order by explaining that the passport had expired in 2010 and it might be located in Chicago.
Father made repeated telephone calls to mother, demanding T. and warning mother to "watch her back." Father also "exhibit[ed] volatile and abus[ive] and dangerous behavior in and outside the courtroom which has resulted in him being tazered and escorted out by sheriff deputies." Father was violent toward mother in the past resulting in his arrest for spousal abuse. Believing father capable of carrying out his threats to harm her and to take T., mother was afraid. The Department also reminded the court that in August 2010 it had ordered father to stay away from the Department's offices and employees, and had ordered that father only contact the court through his attorney. Father ignored these orders, continuing to call the Department and the social worker on a nearly daily basis through November 2010. On November 30, 2010, the juvenile court signed a three-year order restraining father from harassing, threatening, following, molesting, or contacting mother, her boyfriend, or T., or coming within 100 yards from them. The order also directed father to "immediately turn over minor's passport to this court."
Throughout the six months after the juvenile court took jurisdiction, father made repeated calls to the Child Abuse Hotline alleging that mother had been on suicide watch at a Lakewood area hospital, that she suffers from schizophrenia, impulse control and bipolar disorder, her boyfriend smokes crack cocaine, that the maternal aunt smokes crystal meth, and that T. was dying. These calls triggered unannounced visits by the Department and police to mother's house and to T.'s school. These authorities found the allegations to be unfounded. By March 2011, the Lakewood Police indicated that it received multiple calls from the same caller making the same false allegations that were made to the Child Abuse Hotline. The social worker was "extremely concerned" that the ensuing investigations, which pulled the child out of bed or school, were potentially "traumatizing to minor [T.]."
Father did not participate in any court-ordered counseling or drug testing.
Father's visits with T. were likewise filled with drama and tension. Father insisted on discussing the case with T., speaking negatively to the child about mother and her family, and promising to take T. with him at the end of the visits. Father also inspected the child's body for cuts or marks and appeared obsessed with T.'s diet, forcing the child to eat even if he was not hungry. Father repeatedly clipped T.'s finger and toe nails even though the child complained that he did not like having his nails cut, and that the clipping was hurting him.
Not solely focused on T. during visits, father was also aggressive toward the visitation monitor, putting his face close to the monitor's, and swearing at and calling the monitor disparaging names in front of the child. Father even assaulted the visitation monitor. Father's behavior during visits scared and confused the child.
In December 2010 and in February 2011, the Department expressed its increasing concern about father's behavior "becoming more and more unstable," "to the point of extreme safety issues for the child and staff who monitor father's visits." Father was increasingly verbally abusive and physically threatening toward the visitation monitor, in front of T.
The court ordered that father cease to "undress child, cut his nails, play recordings on visits, say that he will take child with him, discuss with child where he will live[,] ask anything [about] mother or anyone in her home[,] make disparaging remarks about mother[.]" The court warned that if father violated this directive, it would cut visits back to twice per month. When the visitation monitor explained to T. in January 2011 that visits would cease if father violated rules, the child did not appear upset that he might no longer visit with father.
Father did not control his behavior even in court. At a hearing on February 1, 2011, the court warned father that the first time his behavior escalated, the bailiff would escort him out of the courtroom. Father responded that his child was being put in danger by "the torture and the abuse that you've done . . . ." The court ordered father put out of the courtroom, at which point father called the court "a racist piece of garbage. You're a racist garbage and so are you. . . . [¶] . . . Fucking piece of shit." Father was promptly removed from the courtroom.
Meanwhile, T. liked living with his mother, where he felt safe. He wanted to stay with mother. He found mother's boyfriend nice. He described his mother as a good cook and explained he had plenty to eat. The child appeared clean, healthy, and appropriately dressed for the weather. T. repeatedly told the social worker that he did not want to talk to father on the telephone and did not want to live with father again, stating, " 'no, I want to stay with my mom.' " T. explained that when father yelled, it made him feel " 'scared.' " Another time he described his reaction to father's behavior during visits as " 'scared, really scared, and sad.' " When father asked T. whether the child missed him, T. responded by shrugging his shoulders. The child told his attorney that he would like to see his father but he wanted the visits to "be shorter" and go "faster."
Mother filed a section 388 petition seeking to terminate juvenile court jurisdiction, award her sole legal and physical custody of T., and grant father visits with a professional monitor at father's expense. The petition was based on father's difficult behavior described above.
The juvenile court granted mother's section 388 petition finding it promoted the best interest of the child. The court then terminated its jurisdiction. In its exit order, the court granted mother sole physical custody of the child and granted father visits, for one hour during the second and fourth week of the month, monitored by a professional paid for by father. Finding father was a flight risk because he had violated or threatened to violate a custody or visitation order in the past, and violated the court's order to surrender T.'s passport to the court, and finding that father has a history of domestic violence, child abuse, noncooperation with mother, and family or emotional ties outside California, the court forbid father from applying for a passport or other document for T. Father's appeal ensued.
CONTENTIONS
Father contends there is no evidence to support the visitation portion of the exit order and no evidence to support the court's order limiting visits because father failed to surrender T.'s passport.
DISCUSSION
When the juvenile court terminates jurisdiction in a dependency case (§ 364, subd. (c)), it may issue an order for custody of and visitation with the children. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 202-203; see also In re John W. (1996) 41 Cal.App.4th 961, 970, fn. 13 [explaining the term " 'exit order' "].) Such orders are commonly referred to as "exit orders" and remain in effect until modified by a family law court. (In re John W., supra, at p. 970.)
Section 362.4 reads, "When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court . . . and proceedings for dissolution of marriage . . . of the minor's parents . . . are pending in the superior court . . . or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code, and an order determining the custody of, or visitation with, the child."
In making exit orders, the juvenile court's focus is on the best interests of the child (In re Chantal S., supra, 13 Cal.4th at p. 206), in the context of the particular facts and circumstances of the case. (In re John W., supra, 41 Cal.App.4th at pp. 965, 973.) The court has broad discretion to determine what best serves a child's interests and such decision will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.) Contrary to father's assumption that the standard of review is sufficiency of the evidence, we review the juvenile court's custody and visitation order for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We may not disturb that order unless the court " ' " 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " ' [Citations.]" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.) However, a custody and visitation order lacking any reasonable basis in the record would be an abuse of discretion. (Cf. In Jennifer R. (1993) 14 Cal.App.4th 704, 711-713 [applying both abuse of discretion and insufficiency of the evidence standards of review].)
Father contends the visitation order contained in the juvenile court's exit order is not supported by substantial evidence. Stated differently, father contends there is no evidence to support the order limiting his visitation to twice a month. Not so.
Visits between father and T. were marked by tension and caused T. distress. Father interrogated the child about the people the child loves: mother, her boyfriend, and her family. He interrogated the child about his diet, fingernails, hygiene, and health. Father made T. eat even when he was not hungry, and would not stop clipping T.'s nails when the child complained the clipping hurt. Not only does father ignore court orders to refrain from this behavior, but he persists in acting argumentatively, abusively, aggressively, and physically toward the visitation monitors in front of T., which conduct scares and saddens the child. Moreover, father has made no showing he has undergone court-ordered counseling or drug testing. Thus, his behavior spills over into his conduct in court, and toward the entire Department, such that the juvenile court issued restraining orders against father and had to have him removed from the courtroom. Rather than attempting to control this troublesome and difficult behavior, father's conduct worsened and so visits with T. were halted because father did not heed the juvenile court's warnings. Even if there were some positive interactions between father and T., the child has repeatedly stated, although he would like to visit his father, that he does not want to live with father and he even wants the visits to be shorter and go faster. The particular facts of this case amply demonstrate that it is manifestly in T.'s best interest that father have limited, supervised contact with the child, with the result the visitation component of the exit order was not an abuse of discretion.
Father also argues that the evidence does not support the juvenile court order limiting his visitation "based on Father's failure to turn over T.'s passport[.]" Father is wrong. The juvenile court had substantial evidence that father is a flight risk. Father represented in open court that he would take the child out of California. Father also frequently told T. that the child was coming to live with father in New York, Chicago, or Egypt. For six months, father has flouted the court's repeated orders to turn over the child's passport. Thus, the court had no choice but to require that father's visits be monitored. Indeed, on this record, it would have been a manifest abuse of discretion were the court to have allowed father unsupervised contact with this child.
We observe that father has not been prejudiced by, nor have his fundamental rights been affected by, the juvenile court's order terminating jurisdiction. Custody orders are modifiable. Section 362.4 provides that "Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court."
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS