Opinion
G061679
07-20-2023
In re H.M., a Person Coming Under the Juvenile Court Law. v. A.S., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent. Elizabeth C. Alexander for Respondent A.M. Leslie A. Barry for the Minor.
NOT TO BE PUBLISHED
Order Filed Date 8/11/23
Appeal from an order of the Superior Court of Orange County, No. 17DP0280 Douglas Hatchimonji, Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
Elizabeth C. Alexander for Respondent A.M.
Leslie A. Barry for the Minor.
ORDER MODIFYING OPINION AND DENYING REHEARENT
It is ordered that the opinion filed herein on July 20, 2023, be modified as follows:
On page 36, under the DISCUSSION section, the last sentence of the first paragraph beginning with" If, as in the present case, reunification services were not ordered under section 361.5, subdivision (b)(4), (5), or (6)," is deleted and the following is inserted as a new paragraph in its place:
California Rules of Court, rule 5.570(h)(1)(C) reads, in part, "If the request is to modify . . . any orders related to custody or visitation of the child for whom reunification services were not ordered under section 361.5(b)(4), (5), or (6), the petitioner must show by clear and convincing evidence that the proposed change is in the best interests of the child." Here, reunification services were not ordered under section 361.5(b)(4), (5), or (6) and Mother's section 388 petitions sought to modify custody and visitation orders. Mother's section 388 petitions also sought to remove H.M. from his home, and California Rules of Court, rule 5.570(h)(1)(A) reads, "If the request is for the removal of the child from the child's home, the petitioner must show by clear and convincing evidence that the grounds for removal in section 361(c) exist." Our conclusions are the same under either rule.
On page 41, the following is inserted at the beginning of the first full paragraph:
Mother argues that continued placement with Father would create a substantial danger to H.M.'s emotional well-being (§ 361, subd. (c)(1)) and would place H.M. at risk of suffering severe emotional damage in the form of "extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward" Mother and social workers. (§ 361, subd. (c)(3).)
There is no change in the judgment.
The petition for rehearing is DENIED.
OPINION
SANCHEZ, J.
INTRODUCTION
H.M., who was born in April 2006, was taken into protective custody over six years ago, in March 2017, after he tested positive for benzodiazepine. The source of the benzodiazepine has never been determined, but that issue long ago ceased to be the concern of the dependency proceedings. Ever since custody of H.M. was vested with his father, A.M. (Father), at the dispositional hearing in 2017, the primary concerns of the dependency case have become H.M.'s increasing alienation from H.M.'s mother, A.S. (Mother), and Father's role in causing that alienation.
In fact, while in Father's custody, H.M. has become so completely alienated from Mother that he refuses to visit her, claims he wants never to see her again, and considers her "dead" to him. During the course of this long and difficult dependency case, the juvenile court has issued countless orders and the Orange County Social Services Agency (SSA) has undertaken monumental efforts to repair the relationship between H.M. and Mother. All failed, in no small part due to Father's obstructionist actions. Although Father bears some responsibility for H.M.'s alienation from Mother, H.M. is closely bonded to him. H.M. wants desperately for the dependency case to end and to continue living in Nevada with Father, Father's wife (Stepmother), and his siblings. H.M. is physically safe and healthy in Father's custody and is receiving appropriate care for his cystic fibrosis. The seemingly endless dependency case was causing H.M. to suffer emotionally, and, after five years of dependency jurisdiction, H.M.'s relationship with Mother had grown worse, not better. SSA said there were no other services it could offer and recommended ending the dependency case. Minor's counsel agreed.
Those were the facts before the juvenile court in August 2022 when, after a lengthy evidentiary hearing, the court ruled on Mother's two petitions under Welfare and Institutions Code section 388 to remove H.M. from Father's custody and decided, in connection with a review hearing under section 364, whether to terminate dependency court jurisdiction. The court, in a forceful, candid, and judicious statement of decision, denied Mother's petitions to remove H.M. from Father's custody and terminated dependency court jurisdiction. The court issued exit orders granting Father sole legal custody and Mother and Father joint physical custody of H.M. The juvenile court did not order visitation with Mother but granted H.M. the discretion to decide whether to visit her. Mother appealed.
Statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
We affirm the order denying removal of H.M. and terminating dependency court jurisdiction. The juvenile court acknowledged that the dependency system's family reunification goals had not been met, court orders designed to repair H.M.'s relationship with Mother had failed, Father had taken actions to "frustrate, manipulate, delay and defeat" those orders, and Father bore "a measure of responsibility" for H.M.'s alienation from Mother. Yet the court also recognized, correctly so, that the focus of the dependency system was the best interests of H.M., not on punishing Father, and concluded H.M.'s best interests would be served by denying Mother's petitions for removal and terminating dependency court jurisdiction. In reaching that conclusion, the court found the detriment H.M. likely would suffer if removed from Father's custody was "substantial, longstanding and likely irreparable" and outweighed the detriment H.M. would suffer from his continued alienation from Mother. The record supports the juvenile court's findings.
The juvenile court also concluded that conditions no longer existed that would justify dependency court jurisdiction, court supervision was no longer necessary, and the dependency case not only had failed to improve H.M.'s relations with Mother but was causing him emotional harm. Substantial evidence supports those conclusions as well as the court's decision not to order visitation. Forcing H.M. to visit Mother would be detrimental to him, and the record establishes almost conclusively that H.M., who is now 17 years old, would not visit Mother even if visitation was ordered.
The juvenile court's orders are not easy to accept in light of Father's behavior and role in alienating H.M. from Mother: As the juvenile court remarked, "it is certainly galling to close the case and give Father the 'win.'" The court's orders must be heartbreaking for Mother, who faces the prospect of never seeing H.M. again. But the juvenile court had to make difficult choices from among the available options, none of which was entirely satisfactory, much less ideal. The juvenile court correctly exercised its discretion in choosing among the options it had by making H.M.'s best interests the primary consideration and resisting the temptation to punish Father or to keep the case open to "bludgeon compliance with orders."
In a related appeal, and incorporated herein, Case No. G061361 (In re H.M. IV), Mother is appealing from an order declaring a mistrial on her two petitions to remove H.M. from Father's custody, her motion for a contempt citation against Father, and her motion for a contempt citation against SSA.
Mother and Father's marital dissolution and these dependency proceedings have been the source of four nonpublished opinions: In re Marriage of A.M.S. and A.C.M., Jr. (May 20, 2016, G051533); In re H.M. (May 18, 2018, G055484) (H.M. I); In re H.M. (July 16, 2018, G055754) (H.M. II); and In re H.M. (Aug. 2, 2019, G057128) (H.M. III). Here, as in H.M. IV, we take judicial notice of the opinions listed above. (Evid. Code, §§ 452, subd. (d); 459, subds. (a), (b) &(c).) On our own motion and for good cause, we have ordered the record on appeal for the instant matter incorporate by reference the records on appeal in H.M. I, H.M. II, Case No. G058566, and H.M. IV (which in turn incorporated by reference the records on appeal in H.M. III and Case No. G058378).
FACTS AND PROCEDURAL HISTORY
I. FACTS AND PROCEDURAL HISTORY TO MARCH 2022
The facts and procedural history to March 2022 are recounted in our opinion in H.M. IV and in our prior opinions in In re Marriage of A.M.S. and A.C.M., H.M. I, H.M. II., and H.M. III. As we have done in our opinion in H.M. IV, we refer to Mother's two section 388 petitions to remove H.M. from Father's custody together as Mother's section 388 removal petitions, Father's section 388 petition requesting termination of dependency proceedings that was filed in March 2022 as Father's section 388 petition to terminate dependency jurisdiction, Father section 388 petition requesting that he be allowed to move to Nevada with H.M. as Father's move-away petition, Mother's second amended motion for a citation for contempt against Father as Mother's second amended contempt motion, Mother's motion for a citation for contempt against the director of SSA and social worker Ovieda as Mother's motion for contempt against SSA.
II. FACTS: MARCH THROUGH JUNE 2022
This section presents the facts from March through June 2022, when the retrial commenced. The facts are taken from SSA Addendum Report No. 26 dated April 27, 2022 (AR No. 26) and Addendum Report No. 27 (AR No. 27) dated June 9, 2022. We relate the contents of AR No. 26 and AR No. 27 by topic.
SSA also submitted Addendum Report No. 22 on June 7, 2022. We do not cover that report because it was not received into evidence during the retrial.
A. SSA Recommendation
SSA recommended that dependency proceedings be terminated with exit orders. Father had become more forthcoming about H.M.'s care and had provided information from which SSA assessed H.M.'s health, well-being, and safety. There appeared to be no risk of danger to H.M. while in Father's care: Father was keeping H.M. physically safe and healthy, provided for H.M.'s basic needs, and was making sure H.M. attended all of his medical and dental appointments, "[b]y all traditional accounts (i.e. medical, mental health, etc.), it appears [H.M.] is thriving in [Father's] care."
B. H.M.'s Physical Health and Well-Being
H.M. appeared to be in good health. In March 2022, Father's counsel provided SSA with records and pulmonary function reports for H.M. for visits in August and December 2021 and March 2022, dental progress notes for a visit in October 2021, and a letter from H.M.'s pediatrician from January 2022 stating that H.M. could not travel due to anxiety for being exposed to COVID-19 and having cystic fibrosis, and he was medically fragile. H.M. was seen every three months by his cystic fibrosis team in Nevada. A Public Health Nurse (PHN) reported that H.M.'s pulmonary functions appeared to be above normal and was not concerned about H.M.'s medical reports.
Father reported that he took H.M. to his scheduled medical visits every three months as well as his dental visits. In June 2022, Father reported that H.M.'s medical condition was "'better than ever.'" Father refused to sign releases for SSA to speak with H.M.'s medical providers to verify information and instead referred SSA to the information he had provided through his attorney.
In June 2022, H.M. reported that Father and Stepmother made sure he kept up with his doctor and specialist appointments. The last time H.M. had been to a specialist appointment was "a couple weeks or a month ago" and there were no concerns for his health. He always took his medication and was able to manage his medication and treatments on his own. H.M. felt safe at home with Father.
C. H.M.'s Emotional Health
During a compliance contact on May 17, 2022, Father reported that H.M. was struggling and stressed out about going to California for court, and this stress was causing H.M. to experience anxiety, have trouble sleeping, and, at times, act "moody." H.M.'s therapist, Fred Lubin, was available on an as-needed basis, and H.M. had seen Lubin a few times over the past month or so to help him manage his stress.
In June 2022, H.M. told social service worker Marcella Salzle (SSW Salzle) that he did not believe he needed counseling, but Father was supportive of him seeing a therapist when he was having a "'hard time.'" On June 3, 2022, after H.M. had testified, Father reported that H.M. was struggling emotionally due to the trial. Father stated "he provides support to [H.M.] by empathizing with him and letting him know he is loved and supported . . . [Father] denied that [H.M. had] reached a point" at which he might harm himself or others.
Father wanted H.M. to have a normal childhood for the two years he had left before turning 18 years old. Father wanted the case to be closed due to the stress it caused H.M. and the effect it could have on H.M.'s health as a child with cystic fibrosis.
D. H.M.'s Education
H.M. had good attendance at school. H.M.'s report card from December 2021, showed he had above average grades. In June 2022, Father reported H.M. again had above average grades for the year.
E. Compliance Contacts
Social service worker Robert Gomez (SSW Gomez) conducted a video compliance contact with Father and H.M. on March 24, 2022. Also present were Father's counsel, H.M's counsel, and county counsel. Father stated that H.M. was "absolutely thriving" and was seen every three months by his cystic fibrosis team in Nevada.
On April 4, 2022, senior social services supervisor Brooke Lundy conducted a video compliance contact with Father and H.M. Father, H.M., Father's counsel, H.M.'s counsel, and county counsel attended. Father confirmed the medical and dental information provided at the last compliance contact. After Father and his counsel logged off, H.M. reported he was "'[g]ood'" then stated: "'I don't want to talk. I'm done with everything. I don't want to talk. C'ya.'" H.M. then ended the call.
SSW Marcella Salzle conducted a video compliance contact call on May 17, 2022. H.M. turned on the camera and appeared healthy. He also immediately stated: "I don't have anything to say. I'm just done with all of this so, yeah," and signed off. SSW Salzle then interviewed Father, with Father's counsel, and county counsel present. Father, who was pleasant and open to speaking, stated H.M. was doing great under the circumstances but was stressed about traveling to California for court.
On June 3, 2022, SSW Salzle conducted an in-person compliance contact with H.M. after he testified in court. H.M. was polite and cooperative. He reported his health was "'great . . . In perfect condition.'" On the same day, SSW Salzle conducted an in-person compliance contact with Father at court. SSW Salzle asked Father to provide photos of the H.M.'s medication but he refused to do so. Father stated that H.M. always had the medications he needed and there were no concerns with obtaining refills.
F. H.M.'s Visits and Relationship with Mother
For all intents and purposes, H.M. had ended his relationship with Mother. He continued to state he did not want anything to do with Mother: He refused to visit her and had not shown up for a visit since December 2021. H.M. did not show up to video visits scheduled on April 5 and 19, May 3, and June 1, 2022, and he did not respond to social workers' e-mails, text messages, or voice messages sent before or during the video visits to remind him to log on. H.M. admitted knowing the date and time of the visits, that visits were on his case plan, and that he had received SSA's e-mails regarding the visits. The only reason for missing visits was that he did not want to visit Mother. When offered an in-person visit with Mother while he was in California, H.M. stated, "'absolutely not.'"
Father denied alienating H.M. from Mother. Father was not willing to tell H.M. he had to see Mother because Father wanted to maintain a bond with his son. Father stated he did not get involved in H.M.'s visitation with Mother and supported whatever H.M. chose to do. When Father was asked whether he did anything to encourage H.M.'s relationship with Mother, he stated: "Not anymore, he's a young man now. I'm going to do anything to support what he wants. [Mother] is not something he wants to talk about. I'm his dad and his biggest support so I don't want to jeopardize my relationship with him by getting into that."
G. Mother's Status
SSA was unable to confirm whether Mother was participating in any of her services. On March 17, 2022, county counsel informed SSW Gomez that Mother was on a hospital hold. SSW Gomez asked Mother whether the reports that she had been hospitalized were accurate and if so, to provide details. SSW Gomez also asked about any updates on her medications, whether any appointments had been scheduled, if there were any changes in therapy, and any other updates for the upcoming SSA report. Mother did not respond to these questions.
Mother complained several times that SSA was not doing its job, that is, making H.M. attend video visits with her, making Father provide medical and school releases of information, preventing H.M. from living in Nevada, and removing H.M. from Father's care. Mother refused to believe that H.M.'s text messages and e-mail messages stating he did not want to visit her actually came from H.M., even after SSW Gomez told her that H.M. had said that directly to him. Mother also expressed concern that new social workers would not know what H.M. looked like and would not be able to tell whether H.M. or his brother was appearing for compliance contacts.
In June 2022, after the retrial had begun, Mother again expressed frustration that H.M. did not want to visit her. She believed the failure to visit constituted abuse and therefore H.M. should be removed from Father's care.
III. RETRIAL
A. Witnesses and Exhibits
The retrial on Mother's section 388 removal petitions, Mother's second amended contempt motion, Mother's motion for contempt against SSA, Father's move-away petition, Father's section 388 petition to terminate dependency jurisdiction, and the section 364 review were conducted for 18 days from June 2, 2022, through August 4, 2022. H.M., Mother, Stepmother, SSW Gomez, and SSW Salzle testified.
Exhibits received into evidence included the two SSA interim review reports dated, respectively, March 4 and April 29, 2019, a status review report dated May 22, 2019, and 27 addendum reports (including AR No. 26 and AR No. 27) bearing dates starting with June 24, 2019, and ending with June 9, 2022. Also received into evidence were three Evidence Code section 730 Psychological Reports prepared by Dr. Gerardo Canul-one report filed on February 20, 2019, a second filed on June 15, 2022, and the third filed on April 29, 2019. The juvenile court took judicial notice of our opinions in In re Marriage of A.M.S. and A.C.M., H.M. I, H.M. II., and H.M. III.
B. H.M.'s Testimony
H.M. testified as follows:
H.M. had been living in his Nevada home, off and on, for about four years. He lived with Father, Stepmother (whom H.M. referred to as his "mom"), two brothers, and one sister. H.M. loved living in his home with his family. He had enough to eat and clean clothes; he was never left alone for long periods of time, or overnight; no one in his home ever physically hurt, abused, or disciplined him. He felt safe there.
H.M. had attended school in person for part of the year. H.M. preferred attending school in person rather than online: Learning was easier, and he had friends at school. His friends were an important part of his life. He had recently obtained his driving permit, and his "dad and mom" were teaching him how to drive.
H.M. described his health over the previous year as "Amazing. Hundred Percent." He performed his own cystic fibrosis regimen, which included medication, a nebulizer, and a vest. Father and Stepmother made sure he completed the regimen. H.M. had no restrictions due to his cystic fibrosis. He had not recently been hospitalized overnight.
In the few years before the COVID-19 lockdowns in March 2020, H.M. and Father traveled "back and forth" between Nevada and their house in California. Father had to sell the house in California because he was unable to pay for it as he "couldn't work." After that, H.M. and Father lived in "parking lots and trailers and wherever [they] could." H.M. described the situation as "horrible." He could not see his family or go home. During that time period, he did his cystic fibrosis regimen wherever he could, for instance, he might plug in his vest at a store. School was "just on the computer" and was not "very great." After the court temporarily authorized H.M. to stay in Nevada, his everyday life changed to "Amazing, million times better."
H.M. experienced anxiety while testifying, before court, during court, while thinking about court, and during anything involved with court or Mother (whom he referred to by her first name). H.M. stated, "Worrying about getting taken away and put in boys' homes and taken away from your family . . . [is] stuff you shouldn't have to worry about." Anxiety made breathing difficult and meant he had to do extra treatments for cystic fibrosis. Meetings with social workers also caused H.M. anxiety. When SSA visited his home for a court-ordered in-person compliance visit, and called for police backup, H.M. panicked and could not breath and as a consequence had to undergo more treatments.
At this point in H.M.'s testimony, Mother stated, "He's making gestures." The court ordered a break. After the break, the court told H.M. that the court makes credibility determinations based not only on what a witness says, but also on the way the witness behaves and answers questions. The court stated the inability to behave in an appropriate manner tells the court a lot about whether it should believe the witness. Later in his testimony, H.M. explained his hand gesture was made in response to Mother "being a clown." H.M. said, "My dad didn't even do anything, and she's trying to snitch on him and get him in trouble and made herself look like an idiot."
When testimony resumed, H.M. said he did not believe there were supposed to be any police at the compliance visit. H.M. was not aware the social worker wanted to talk to him; he believed he was supposed to step outside, so "they" could see he was alive, and then "they" would go.
H.M. had stopped visiting Mother. His appearance in court was the first he had seen her for some time. When asked how he felt about that, H.M. replied, "feel like I don't want to see her." When visits were in person, he would run to get away from her. Visits with Mother made H.M. feel angry, fed up, anxious, stressed, and nervous. When he had video visits with Mother, he would join for "like two seconds," ignore whatever she was saying, tell Mother he was not staying and he did not like her, and leave. H.M. ignored e-mails with links to video visits with Mother and did not log on because he was "[m]oving on and tired of it." When asked if he would agree to any future scheduled contact with Mother, H.M. said, "no, of course not."
When H.M. was living in California, Father used to take away playing baseball or something if he did not go to visits. H.M. still would not go. H.M. had taken charge of visitation with Mother and did not talk to Father about the matter. Father did not know whether or not H.M. attended visits with Mother and did not threaten H.M. with consequences if he did not attend them. Father and Stepmother let H.M. control his relationship with Mother and would be "fine with it" if he wanted to see her.
H.M. did not want letters or gifts from Mother. He wanted no further contact with her: "She's dead to me." When asked why, H.M. launched into a lengthy, vitriolic denunciation. Mother was trying to take him away from Father and put Father in jail. According to H.M. Mother had made up "tons" of lies and was "clearly crazy." H.M. had seen her pour hot water on herself and cut her finger, so she could tell people she did it for him. She once promised to buy him a batman toy if he would tell child protective services that Father had bit him "and stuff like that." Mother had sent child protective services to his school. Whenever H.M. stayed with Mother he would get sick. She always had him on medicine. He threw up blood at Mother's home. When Mother "poisoned" him, she was "talking to the wall . . . babbling like a zombie." H.M. said, "I have a million reasons why I don't want anything to do with her," and "[u]ntil the end of time, will I ever want to talk - have anything to do with her." He concluded: "I do not want anything to do with [Mother]. I want to move on with my life, never look back."
H.M. described the incident giving rise to the dependency case as, "when [Mother] poisoned me." H.M. was confident that Father was not the source of the benzodiazepine found in H.M.'s system. Father and Stepmother never told him that Mother had poisoned him; he formed that belief on his own based on a series of events.
H.M. found no truth to the allegation that he had been alienated from Mother. Father never said anything negative about Mother and had never made comments that influenced H.M.'s decision to not want a visit with her. His negative memories of Mother were based on his own experiences. H.M. never had positive interactions with Mother. He had learned about Mother wanting to take him away from Father and put him in a boys' home from the court reports. He never felt pressured to say bad things about Mother; she herself had given him reasons to say bad things about her. Of Mother, H.M. said, "[t]here's nothing good about her."
H.M. had nobody whom he trusted to talk to about Mother. When H.M. complained to Father about Mother, Father was not allowed to respond and would say something such as, "we'll get through it." H.M. was not allowed to talk with Father about his feelings about Mother since that would be considered alienation. H.M. did talk with therapist, Lubin, about his issues with Mother. After the compliance visit at which law enforcement was present, H.M. was seeing his therapist about once a month. However, H.M. testified, "no therapist is going to do anything for me" and "I don't want to talk to some stranger." H.M. did not believe he needed therapy; it was "useless."
H.M. recalled conjoint therapy sessions with two therapists, Gail York and Dr. Kenneth Meyer, as being "horrible." The problem was not the therapists, but Mother, whom H.M. claimed would not answer his questions or address the issues of interest to him. In conjoint therapy, Mother was not interested in correcting herself or growing; she just made excuses for why she had not done anything wrong and had no responsibility for the case, and she was just the victim. None of the therapy had helped him. He was not willing to attend therapy again.
H.M. wanted the dependency case to close and to remain with Father only. "I do not want anything to do with [Mother]. I want to move on with my life, never look back. I want to spend my last two . . . years as a kid and not have anything to do with court visits, therapy. I want to be free. I want to, like, just move on and never have to worry about any of this again, have to talk to any of you people again and, yeah."
C. Father's Testimony (From First Trial)
After the conclusion of H.M.'s testimony, county counsel stated Father would be the next witness called to testify in SSA's case-in-chief. At that point, Father, for the first time, invoked his Fifth Amendment right not to incriminate himself in the contempt proceedings pending against him.
After considering briefing from counsel, the juvenile court decided, based on People v. Malone (2003) 112 Cal.App.4th 1241, it would not order Father to testify. Later during the trial, the court granted Mother's request to receive into evidence Father's trial testimony from February and March 2020 in the first trial. The testimony was admitted "as to all issues before the court."
During the first trial, Father testified as follows:
Father claimed he had done everything the court and SSA had required of him. He claimed he had cooperated with all of SSA' home visits except one unannounced visit in August 2019 and had provided weekly schedules of his availability so that SSA could conduct unannounced visits. When he and H.M. were moving about, he provided SSA coordinates for where they were staying. Father did not sign the document of expectations (based on H.M. III) that had been presented to him in August 2019.
In 2018, Father, Stepmother, and their children moved to Nevada because Father was up for a job promotion and because their kindergarten aged children had been threatened at school in California. But after Father and Stepmother bought a house in Nevada, the job promotion did not "pan out." The Running Springs, California home was rented out, but Father and H.M. continued to live in a bedroom. Father was registered to vote in Nevada, and Stepmother's vehicle had a Nevada license plate; however, Father claimed he had not moved or changed his residence from California to Nevada or that he was living with H.M. in Nevada. Stepmother is a real estate broker in Nevada, and H.M.'s siblings are enrolled in school in that state. H.M.'s medical insurance is in Nevada. Father will not move his family back to California.
From January through August 2019, Father and H.M. usually spent Sundays and Mondays, and a few times Friday through Monday, in Nevada with his family. Father believed he did not need a court order to visit his family in Nevada. Father notified SSA whenever he and H.M. were going to visit Nevada.
At one point, Mother's counsel asked the court for a recess due to Father's conduct while testifying. The court attempted to explain to Father that his attitude while testifying influenced the court's assessment of his credibility. Father launched into a rant. The court asked Father to stop, but Father interjected, "you want to take him? I brought him." When the court asked Father again to stop, he said, "[w]hat are you going to do, your honor? I've about had it too, if you want the truth." The court then twice warned Father that his behavior, tone, and attitude were "absolutely contemptuous." The court stated it was "running out of options" and called a recess for Father to speak with his counsel about his choices.
In the first part of his rant, Father exclaimed: "I'm losing my wife. Anybody on planet earth that's been through . . . what I've been through-I'm here because H.M. was sick and throwing up in mom's care. Do you think we ever got to it? Because of all the 388's she loves to file? Same thing in Family Law. It's the same thing. It's never going to end, your honor, so you can rule whatever you want. You want to take [H.M.] today, take him. I brought him for you. He's sitting there in front of mom, saying let's take him, detention. Everybody wants me here to make [H.M.] hang out with mom. I don't have to do anything. He's 14. You think he's going to go hang out with mom when he sits here all day, when he hears her trying to have him thrown in a boys ['] home. Do you think he's going to go hang with her when he slept on her sofa, was throwing up blood, and didn't go to the doctor until four days later?"
When the proceeding resumed, the court again warned Father that it did not tolerate contempt of the kind it had just observed and that "if similar conduct occurs in the future during the course of this hearing, [the court] will cite [Father] for contempt, [and] may place [Father] in custody, in jail." Father apologized, and the court accepted the apology.
Later in the proceedings, Father laughed at Mother's counsel while the court was addressing one of the attorneys and told the court to "let me step down." The court again warned Father about contempt and the possibility of incarceration. Father continued to behave in a disrespectful manner.
In early February 2020, Father learned his house in Running Springs had been sold. Father was surprised to learn that the Running Springs house had been sold. The home had been purchased in December 2015 for $236,000 and sold in February 2020 for $317,500. Father moved out of the home in Running Springs and had nowhere to live in California.
H.M. did not want to visit Mother. Father claimed he had encouraged H.M. to visit Mother and tried to discipline him if he would not visit her. On the way to visits, H.M. would cry, say that Mother was dead to him and that he did not want to go to the visit, and asked why he had to see the person who had hurt him and was trying to take him away from his family. According to Father, this was "[t]he same stuff he's been crying out for years." Upon arriving for a visit, Father would force H.M. to get out of the car and go say whatever he needed to say to the social worker, then H.M. would come back to the car, and they would leave. Before and after visits, H.M. sometimes had trouble breathing and after visits was tense and needed extra breathing treatments. Father decided not to force H.M. to visit Mother any longer when H.M. confronted Father and asked why Father, who was supposed to protect him, wanted to send him back to the person who had made him sick.
At the most recent visit, H.M. would not get out of the car, and so Mother approached the car and spoke with him briefly. As Mother walked away, she yelled to H.M., "maybe one day you'll be free." H.M. and yelled back, "maybe one day you'll be sane." Then Father and H.M. left
Because of everything going on in the last couple years with court and visitation and therapies, Father had lost three jobs and nearly all his income and had to sell the Running Springs house. Until March 6, 2020, when Father was terminated from his employment, he had been working from 7 a.m. to 7 p.m., Monday through Friday. Father and H.M. had been living in California on weekdays in a camper. As a result, H.M. could not have a "normal life" as he wanted: He could not attend a traditional school, play sports, or be with his siblings and around other kids his own age. H.M. did not have any friends at that time.
During an authorized visit to Nevada, H.M. had broken his arm while skateboarding and needed surgery. Father got him medical care immediately. Stepmother signed the consent for H.M.'s surgery. Father explained, "[s]he's his mom too though."
Despite traveling back and forth between California and Nevada, H.M. attended all his visits and service appointments. Father denied threatening therapist Donna Clark. Father had told Clark by text message that H.M. did not want to see her because what she had told him was "out of line" and H.M. felt uncomfortable moving forward with her.
Father took H.M. to all of his individual counseling sessions with Gail York. H.M. saw York until she retired. Father took credit for finding York and all the therapists during this dependency case. H.M. attended a "handful" of conjoint counseling sessions. Father had taken H.M. to all his conjoint counseling sessions. Father encouraged H.M. to attend conjoint counseling by telling him the court and the social workers were "looking to take him away" and "looking for a reason to split us up." After conjoint counseling sessions, H.M. was a "complete wreck"-he cried, hyperventilated, and needed "to get his treatments up" at Loma Linda University Children's Hospital - Cystic Fibrosis and Pulmonary Disorders Centers (Loma Linda).
Father believed the conjoint counseling sessions were of no benefit to H.M. Father believed he could do nothing more to improve H.M.'s relationship with Mother because H.M. "knows what he went through when he was at her home." Father no longer would, or could, encourage H.M. to attend conjoint counseling sessions: "It's way beyond me. It's way beyond the court. It's way beyond anybody."
Father denied statements in an SSA report that he had threatened prospective conjoint therapist Jinice Beacon. Father denied getting angry and yelling at SSW Gomez on February 27, 2020, in front of H.M. Father claimed he was being "brutally honest" and "conveying to him what needed to be conveyed."
Father had signed referrals for conjoint counseling, except one that contained his confidential address and his wife's personal information. Father had signed a document for H.M. to see a therapist but not to see the particular therapist SSA wanted. The only outstanding referral was for Jinice Beacon, and he was not willing to sign that referral.
Father had signed referrals for his individual counseling and had completed counseling except for the personality test. He would resume individual therapy if the court ordered it. Father and H.M. complied with the court order to complete an Evidence Code section 730 evaluation with Dr. Canul as soon as they were able to so.
When asked if he accepted any responsibility for H.M. having to be the subject of a dependency proceeding, Father testified he accepted responsibility only for having pulled H.M. out of Children's Hospital of Orange County (CHOC) before a test could have been taken to show that he had benzodiazepine in his system.
Father had concerns about H.M. returning to Mother's custody because previously he had been sick a lot while in her care. Father had concerns about H.M. being placed in a foster home because a foster family would not know how to provide his day-to-day care. Being removed from Father's custody would not help H.M.'s relationship with Mother. SSA had harmed and scared H.M. once in a therapy session by telling him that if he did not go to visits or be nice he would be taken away from Father and placed in a locked home. H.M. cried and hyperventilated. H.M. did not understand why people would not leave him alone and let him be a kid with a normal life.
D. Stepmother's Testimony
Stepmother testified as follows:
Stepmother had lived with Father, off and on, since November 2018 in the home they own in Nevada. H.M. stayed with her about half of the time between November 2018 and March 2020. He was enrolled in virtual school for that entire time. He resumed in-person schooling sometime during the 2021-2022 school year. H.M. enjoyed in-person school more than virtual school. He was doing well in school.
H.M.'s health was "excellent"; his pulmonary functions were "above 100 percent"; none of his medical providers expressed any concern about his health. H.M. had never gone without his medication, nebulizer, vest, or any other equipment. H.M. had not recently been hospitalized overnight. Father had taken H.M. to all his quarterly cystic fibrosis clinic appointments except once when Stepmother took him. H.M. was transferred from Loma Linda to a clinic in Nevada because "we wore out our welcome [at Loma Linda]." According to Stepmother, Loma Linda was becoming tired of and frustrated with frequent calls and requests for information from SSA. She believed SSA had adversely affected H.M.'s continuity of medical care at Loma Linda and criticized SSW Gomez for harassing H.M.'s treating physicians at Loma Linda.
Cystic fibrosis did not limit H.M.'s physical activities, but he had been told by doctors to limit travel. The home in Nevada had special air filters and everyone in the family frequently washed their hands or used hand sanitizer.
H.M. was very close with Father and his siblings. During the period of time in which H.M. was not allowed to stay in Nevada, and was staying from place to place in California, he was not able to see his siblings or Stepmother. It was "horrible" and they would cry together when speaking by telephone. In addition to being separated, Stepmother and H.M. became concerned over maintaining his health because they had to refrigerate certain medications and find power outlets for his equipment.
H.M. was generally respectful of authority figures, had no defiance or disciplinary issues at home, and was generally a "great teenager." If H.M. did get in trouble at home, it was for a late school assignment or forgotten chore, and Father and Stepmother never used corporal punishment. He had not been suspended from school or gotten in trouble with law enforcement.
H.M. never talks about Mother. His refusal to visit with Mother was an "anomaly" in light of his general compliance with authority. H.M. had a pattern of walking away from uncomfortable situations when he felt the need to escape, for instance, during interactions with SSA. At the February 2022 in-person compliance visit, H.M. was compliant with SSA until he saw the police officer, at which time he became upset and emotional and asked Father to drive him away.
H.M.'s emotional state was good, except when court-related issues came up. When they did, H.M.'s anxiety increased as he wondered what was going to happen to him and what was going on. But H.M.'s eating, ability to engage with friends and social activities, and to complete schoolwork did not change. H.M. suffered a hyperventilation episode once after two social workers had attended one of H.M.'s therapy appointments. Stepmother believed that H.M. saw his therapist Lubin in May 2022 because he felt overwhelmed about appearing in court.
Father and Stepmother never spoke about Mother, either in or out of H.M.'s presence. Stepmother never heard Father speaking with H.M. about visiting Mother or encouraging him to visit Mother or suggesting discipline if he did not visit her. During the same time period, Stepmother had never heard Father instruct H.M. not to have contact with Mother. Whenever H.M. expressed frustration to Stepmother about visits with Mother, Stepmother's response was to tell him it was court ordered and he should do what the court said. If H.M. decided he did want to visit Mother, Stepmother would not interfere with that decision; however, she would be concerned about the emotional effect a visit with Mother would have on him.
Stepmother denied badmouthing Mother to H.M and denied ever telling H.M. that Mother had poisoned him. Stepmother also claimed that Father never told H.M. that Mother had poisoned him. Father and Stepmother would not answer H.M.'s questions and would refer him to his attorney. Stepmother believed H.M. would "lose his mind if he was removed from us again."
Stepmother admitted she had once argued with a social worker, possibly in H.M.'s presence, but she did not think that would make H.M. nervous because it would show she was "in his corner." Stepmother said some social workers, most prominently SSA Gomez, had used their position and employment in a way that did more harm than good. She believed SSW Gomez had harassed H.M.'s doctors at Loma Linda and put Father in positions where he "was backed against a wall and had to make decisions."
E. Mother's Testimony
Mother testified as follows:
Mother asked for H.M. to be returned to her physical custody. She told the social worker on June 1, 2022, that nothing in this case had changed in several years. She wanted H.M. to come home to her, but there would have to be "a buffer period" because Father had done "so much damage."
Mother's last in-person visit with H.M. was in March 2020, just before the COVID-19 pandemic, at the SSA Eckhoff office. In February and March 2020, H.M. would show his face at visits and not stay. Either Father or Stepmother would bring H.M. to those visits. The visits usually lasted about five minutes. Mother would tell H.M. she loved and missed him; H.M. would say he was not staying, go on with whatever else he was doing, and then leave. She drove one and a half hours to see H.M. even if he stayed only 10 minutes. Mother believed those visits were valuable and positive because she was able to see her son and tell him that she loved him and was not going anywhere, which was "priceless."
In the Spring of 2020, Mother's visits with H.M. became virtual visits. At first, H.M. would ask Mother if she was going to let him stay in Nevada. Then, H.M. started joining the video visits just to say he was not going to stay. Mother nevertheless found those video visits valuable because she was able to see her son and tell him she loved him. Eventually, H.M. stopped joining the video visits altogether. The last time Mother saw H.M. on a video visit was on December 28, 2021. By June 2022, H.M. had not appeared for a visit in six months, but Mother still called in every other week and waited half an hour hoping he would appear. Mother would do the same until the day she dies, or H.M. turns 18 years old.
H.M.'s maternal grandmother was no longer willing to have H.M. placed with her because the situation had torn her family apart. H.M.'s maternal grandfather cried for one year over the situation, and both maternal grandparents did not like to see what it had done to Mother's life. The maternal grandparents were not willing to "open their hearts and be torn apart again."
If H.M. remained in Father's custody, Mother wanted to see the dependency case remain open, as she was still concerned for H.M.'s physical safety and health in Father's home. Mother believed Father did not take H.M. to the cystic fibrosis clinic often enough and did not provide her with medical updates and notice of appointments. Father had not produced report cards for H.M. and SSA had not spoken to H.M.'s teachers.
Mother believed SSA should have made Father sign the form for therapy and should have told him he had to obey the court order to have H.M. attend visits. Mother stated that if court orders from late 2018 had been followed, this case would have been closed by the time of trial, and Mother and H.M. already would be reunified. Mother believed the dependency case remained open because "people aren't doing what they're supposed to do, following the court order."
Mother believed H.M. should be in individual therapy and conjoint reunification therapy with her, as was ordered in 2018. Reunification therapy with Dr. Meyer improved the relationship between Mother and H.M. H.M.'s testimony about resistance to further therapy did not affect Mother's opinion on what services H.M. should be participating in. H.M. is a teenager and did not understand the long-term effects of alienation from Mother. Further, as H.M. was a teenager, he needed to be told and be expected to follow the rules and what the judge said he should do. Mother believed that H.M. would have a problem following authority later in life because he did not have to follow authority as a teenager.
Mother and H.M. had two conjoint therapy sessions with Gail York. Each session lasted five to 10 minutes because H.M. would not stay. At one of these sessions, York brought Father into the session when H.M. became upset. Instead of making the situation better, Father mocked and teased Mother by saying she would live in her same little apartment forever. In these sessions, H.M. did not ask Mother questions but leveled accusations against her. H.M. would scream and yell, which he had not done before living with Father, and would interrupt whenever Mother tried to say anything. Mother and H.M. had more constructive conjoint therapy sessions during the period of time just after they had been assigned to Dr. Meyer.
Mother told H.M. he would not go to a foster home or group home. If he were not placed with her, then he could be placed with her close friends and their children, H.M. had been best friends with them. The last time H.M. saw these friends in person was probably in 2017. If these friends were not deemed acceptable, then Mother knew many more people who loved H.M. and would take him in.
Mother believed that H.M. "surely loves me" but is an "alienated child" and is "not allowed to talk about it." She did not know of anything she had done that would have made H.M. unwilling to have contact with her. She had done "nothing but love [H.M.]" They had a very good relationship until he became alienated from her and was allowed to "hate [her] in that household."
Mother denied poisoning H.M. She had taken a polygraph test and passed with "flying colors" and also had passed a drug test. It was "ludicrous" to believe she had poisoned H.M. It was only after H.M. was returned to Father's custody that he formed the belief that she had poisoned him.
When asked whether she accepted any responsibility for the dependency case, she answered that everyone involved had some responsibility, except for H.M., who was an innocent child in a vicious custody battle. Mother's personal responsibility was to keep fighting and to have a relationship with her son. She had done what SSA had asked her to do and participated "100 percent" in conjoint therapy.
In response to H.M.'s testimony that Mother did not answer his questions in therapy, Mother testified that H.M. had asked her to stop the judge from doing something, which she could not do. H.M. misunderstood her contempt citations against Father for violating court orders to mean that she was sending Father to jail. Because H.M. did not understand her attempted explanation, he felt she had not answered his question.
In response to H.M.'s testimony that Mother had cut herself in order to get attention, Mother testified that she had accidentally cut her finger with a knife she was using to remove hard plastic from one of H.M.'s medications. In response to H.M.'s testimony that Mother had burned herself in order to get attention, Mother testified that once she had to boil H.M.'s cystic fibrosis medical equipment to clean it and she accidentally spilled some boiling water on herself in the process. She did not seek medical attention until the next day because she did not want to lose time with H.M. Mother had never bribed H.M. to say bad things about Father or told him to lie to child protective services.
Mother was receiving mental health treatment for a diagnosis of anxiety. Mother's anxiety symptoms include nervousness, fearfulness, chest pains, hyperventilating, difficulty breathing, confusion, worry, and not eating or drinking. The anxiety occasionally had interfered with her ability to function but not her relationship with and ability to care for H.M. Her anxiety was triggered only by something from the dependency case. Her lack of a relationship with H.M. and SSA's not following order has caused her to suffer stress. She has never had thoughts of harming herself or others.
Mother had been seeing her therapist, Lisa Grajewski, since the dependency case began. Mother used to see Grajewski frequently, now Mother sees her as needed. Mother was psychiatrically hospitalized in 2006, 2015, 2017, 2019, 2020, and most recently March 2022. She had signed herself in for the hospitalizations. Her 2006 hospitalization was triggered by post-partum depression, Father's attempt to take H.M. away from her, and a bad reaction to medication. The other hospitalizations were triggered by anxiety caused by events in the custody and dependency proceedings or the conduct of Father and Stepmother.
Mother's mental health issues do not affect her ability to care for herself and had no effect on her relationship with H.M. Mother believes her anxiety would resolve if H.M. were returned to her care and she had a relationship with him.
Mother wanted the dependency case to stay open because keeping the dependency case open was the only way to repair her relationship with H.M. and maintain oversight over him. Closing the case would be detrimental to H.M. because he would never see her again and never receive the therapy necessary to fix the trauma he had suffered.
Removal from Father's custody was the only means by which H.M. could begin to repair his relationship with Mother, and, according to two therapists, H.M.'s continued alienation from her would cause him problems later in life. Father did not follow court orders: He was living with H.M. illegally in Nevada, was not making H.M. show up for visits, and refused to sign the form for conjoint therapy. If Father had signed the form for conjoint therapy, she and H.M. would be a be able to communicate and discuss things, and he would learn that she loved him and did not poison him. Mother believed the court should enforce previous orders barring H.M. from living in Nevada.
Mother believed that removal from Father's custody would not lead to H.M. "acting out" or running away. When H.M., at age 10, was removed from Father by the district attorney's office, in court he was screaming that Mother was not his mother. But once out of sight of the court and Father, H.M. did not act out and was happy to be home with Mother. Once H.M. was back with Mother and away from Father, Stepmother, and the court, he would "snap back" very quickly. The effect on H.M. of being removed from Father's custody now would be exactly the same as when he had been removed from Father in 2017.
F. SSW Gomez's Testimony
SSW Gomez testified:
He was assigned to this matter as the primary social worker from November 2019 to the end of April 2022, when he left SSA.
H.M.'s case plan included individual and conjoint counseling with Mother. H.M. participated in individual counseling only for part of a period of time in which SSW Gomez was assigned to the case. SSA experienced "challenges" in finding a counselor who satisfied the qualifications laid down by the court. SSA called many therapists and did find one who qualified. Father spoke to this therapist, who, after speaking with Father, was no longer willing to take the case.
At some point, H.M. started seeing therapist Lubin in Nevada, which was found by Father; however, he did not satisfy the court's requirements. SSW Gomez discussed the issue with Father and H.M. H.M. said he did not want a different therapist, and Father deferred to H.M. While SSW Gomez was assigned to the case, H.M. did not participate in therapy with a therapist who satisfied the court's requirements. SSW Gomez had submitted a report to the juvenile court in August 2021 with an attachment from H.M.'s therapist which stated H.M. no longer needed therapy. The therapist opined in his letter that H.M. did not qualify as a resistant teenager. According to SSW Gomez, H.M.'s recent sessions with the therapist had consisted of light conversations about normative activities and were not consistent with helping H.M. achieve the goals set out for him by the court. SSW Gomez concluded that H.M. had not satisfactorily completed the individual counseling component of his case plan.
Before SSW Gomez was assigned to case, H.M. had seen Gail York for conjoint therapy. SSW Gomez had not spoken to York but did see her letter in which she recommended that H.M. not continue in conjoint therapy with Mother. That letter did not affect SSW Gomez's efforts to find a conjoint therapist because the court also had received the letter but did not change the conjoint therapy requirement.
SSW Gomez encountered difficulties in finding a therapist to conduct conjoint counseling. SSW Gomez spoke with H.M. at monthly visits about conjoint counseling, but H.M. repeatedly said he did not want to do conjoint counseling with Mother, and Father supported H.M.'s decision. SSW Gomez did find therapists who were willing to do conjoint counseling, but on more than one occasion Father referred to Gail York's letter and refused to sign the conjoint counseling referral. SSW Gomez informed Father that regardless of what York had said the court order was for H.M. and Mother to participate in conjoint counseling. At one point, Father demanded a copy of the referral so he could see Mother's signature on it. SSA provided the signed referral to Father, but Father still refused to sign it.
Father did not participate in any individual counseling while SSW Gomez was assigned to the case. SSW Gomez could not speak to Mother's mental health providers because Mother would not sign a release of information.
While SSW Gomez was assigned to the case, Mother and H.M. did not have meaningful visitation. Before the COVID-19 pandemic, in-person visits were set up every other week for four hours. Father drove H.M. to the visits. Visits lasted about four minutes-enough time for H.M. to say he did not want to be there. To no avail, SSW Gomez would encourage H.M. to stay longer at the visits but H.M. said many times he did not want to attend them.
Father did not want to encourage H.M. to visit Mother because Father wanted to maintain a relationship with him. Short of physically forcing or coercing H.M., there was nothing more SSA could have done to get him to visit Mother.
On many occasions, H.M. told SSW Gomez he did not want anything to do with the dependency case or SSA. SSW Gomez met with H.M. in person twice during the case and H.M. always kept the conversations short, perhaps five minutes long. SSW Gomez felt as though he never established much of a relationship with H.M. At some point after that, SSW Gomez was not allowed to contact Father and H.M. without their attorneys present. That requirement made it necessary for SSW Gomez to coordinate with the schedules of several people.
Once the COVID-19 pandemic hit, monthly compliance contacts were conducted by video. Video contacts did not affect SSA's ability to ascertain H.M.'s well-being, and the character of the compliance contacts remained the same. H.M. appeared to be "okay" when seen by video. In August 2021, H.M. stopped participating in monthly compliance visits and visits with Mother.
Before the COVID-19 pandemic, SSW Gomez contacted Loma Linda at least once a month to obtain information about H.M. The nurse whom SSW Gomez would contact was always responsive to his inquiries and never asked not to be contacted. During the pandemic, the clinic was recommending that H.M. shelter in place. When the clinic resumed in-person medical visits, Father refused to take H.M. to Loma Linda and his care was changed to a location closer to Father and H.M. in Nevada.
Once Loma Linda stopped making the shelter in place recommendation, SSW Gomez stopped asking the court for travel authorization and advised Father at the next compliance contact that he and H.M. had to return to California as there was no longer authorization for them to live in Nevada. SSW Gomez never requested a warrant or asked the court to remove H.M. because, in discussions at SSA, it was ultimately concluded that H.M. was safe with Father.
For many years, SSA had recommended continuing the dependency case with additional family maintenance services. However, beginning with the April 2022 report, which SSW Gomez and SSW Salzle had prepared together, SSA's recommendation changed to closing the case. The reason for the change was that closing the case would be in H.M.'s best interest because H.M. was being taken to his medical appointments, was attending school, and had expressed his desire to stay with Father. After a great deal of discussion, the decision to recommend closing the case was reached by SSW Gomez, SSW Salzle, Gomez's manager and supervisor, and the program manager in the special medical unit of SSA. Those discussions included consideration of removing H.M. from Father's custody based, in part, on Father's refusal to sign releases for information and a conjoint therapy referral.
As of April 2022, SSW Gomez did not believe there were any other services SSA had not yet tried that could help H.M. and his family. SSW Gomez had not seen any improvement in H.M.'s relationship with Mother from SSA's supervision of the case and from the services SSA had offered. SSW Gomez believed keeping the case open would be detrimental to H.M.'s well-being.
G. SSW Salzle's Testimony
SSW Salzle testified:
At the time of her assignment to H.M., SSW Salzle had been employed by SSA since 2014 and was working in the special medical unit for nearly three years. H.M. was assigned to the special medical program because he had cystic fibrosis, which required life-sustaining equipment or medication. SSW Salzle was assigned to H.M.'s case in November or December 2019 as a secondary worker. In mid-April or May 2022 she became the primary social worker on the case.
SSW Salzle attended one of H.M.'s medical appointments. H.M. became upset because Mother was in the waiting room. His breathing got faster and he said he did not want Mother to be there. Medical staff did not allow Mother to attend H.M.'s examination because H.M. requested she not be there. SSW Salzle wanted to meet with H.M. but medical staff told her that he was extremely upset and they would prefer she meet with H.M. after the appointment. After H.M.'s appointment, his doctor told SSW Salzle and SSW Gomez that H.M. was very stressed and upset due to Mother's presence and emphasized that stress might affect H.M.'s physical health. Although H.M. had been crying, he did well on his breathing test. The medical social worker said the clinic might not want to treat H.M. anymore because the "contentious issues that were going on between the family and social" and the presence of social services and Mother were causing H.M. stress.
SSW Salzle conducted the ill-fated in-person monthly compliance visit in February 2022. In preparing for the visit, SSW Salzle learned she was not allowed to speak to Father or H.M. without their attorneys present. SSA had requested law enforcement to be present because Father previously had intimidated social workers and there was history of Father or Stepmother discharging a weapon. Other than a child abuse and neglect investigation or when removing a child from parental custody, she had never before conducted a visit at which attorneys or law enforcement were present.
On the date of the compliance visit, SSW Salzle arrived at Father's home in Henderson, Nevada, and contacted law enforcement. While waiting about 20 minutes for law enforcement to arrive, SSW Salzle could see H.M.'s counsel, her assistant, and Father's counsel walking in and out of the home. When law enforcement arrived, Father said he wanted to talk with them first, so the officers asked SSW Salzle, county counsel, and Mother's counsel to wait down the street while Father, Stepmother, and Father's counsel spoke with the officers.
When SSW Salzle was allowed to approach the home, Father told her he had lost trust in SSA and was upset about law enforcement's presence. She tried to engage Father in a conversation about his case plan. Father was visibly upset. Father did answer questions about H.M.'s care and well-being, but many of his answers were vague, and he refused to provide specific information, sign releases, or provide documentation except through his lawyer. When asked about H.M.'s schooling, the only thing Father would say was "he's enrolled" over and over again. Although a court order prohibited anyone from recording the visit, SSW Salzle could see Stepmother recording Mother's counsel and saying it was her right to do so.
When SSW Salzle approached H.M., he told her that he was upset that law enforcement was present. He "shut down" and would not speak with her. A law enforcement officer tried to reason with H.M., but that made him more upset. He walked away and told Father he wanted to leave. Father agreed to drive him away. The two of them got into the car and drove off. SSW Salzle conducted a walkthrough inspection of the house and had no safety concerns.
Mother was offered an in-person visit, which was to take place during the February 2020 compliance visit, but she declined because she had been exposed to COVID and did not want to place H.M. at risk.
Since the in-person compliance visit, SSW Salzle had three subsequent compliance visits with H.M.-two by video and the other at court following H.M.'s testimony. H.M. did not participate in the video visits. During the courthouse visit, H.M. was compliant and willing to talk. He denied experiencing any abuse or neglect in Father's home. He was independent in adhering to his medical regimen, although Father and Stepmother checked up on him. His health was better than ever and he had missed no doctor's appointments.
SSW Salzle also talked with Father at the courthouse. She described Father as having "pretty strong boundaries when it comes to SSA." Father said that H.M.'s health was good, H.M. never missed an appointment with a medical specialist, and he had not been hospitalized recently. Father refused to provide SSW Salzle a picture of H.M.'s medications because, he said, there was no reason for her to question Father's ability to care for H.M. Father also refused to sign any releases of information for H.M.
SSW Salzle was present for one in-person visit between Mother and H.M. in December 2019 or January 2020, which was held at the SSA office because visits had been contentious. When H.M. arrived, he immediately said: "You guys can't make me visit. I don't want to be here." Mother told H.M. she loved him, but he was upset and ran to Father's car, thereby ending the visit.
Since becoming the primary social worker, SSW Salzle had facilitated visits between H.M. and Mother by providing him the video link, calling him, and encouraging him to visit. Mother and Salzle might wait up to 30 minutes, but H.M. never joined the video calls. During the June 2020 compliance visit, H.M. confirmed he had received the video links and was available during visit times. He said he did not appear for visits because he did not want to visit Mother. SSW Salzle asked Father about encouraging H.M. to visit Mother. Father said he did not want to get involved because that would interfere with his relationship with H.M. Father also said he was not allowed to discuss the case with H.M.
SSW Salzle did not support Mother's request to return H.M. to her care. Doing so would be neither successful nor safe. She based that conclusion on several factors. First, while SSW Salzle had no concerns over Mother's ability to meet H.M.'s basic needs, H.M. seemed so "repulsed" at the idea of being with Mother that SSW Salzle was concerned that H.M., if placed with her, might run away without his medications and medical equipment. Second, SSW Salzle saw H.M. as being so bonded to Father that removal from him would be more damaging to H.M. than the loss of his relationship with Mother. As H.M. was 16 years old, SSW Salzle considered his opinions and desires, and H.M. wanted to live with Father. Third, there was nothing further that SSA could do to improve H.M.'s relationship with Mother. SSW Salzle testified: "I think that as [an] agency we've done the best that we can with [H.M.] and engaging him and his relationship with his mom, including the conjoint therapy, the visits. And it seems like now more than ever his mind is absolutely made up that . . . there's nothing more that can be done to remedy the relationship and that this case continuing to go on just makes his feeling even stronger about not wanting to remedy that relationship."
SSW Salzle had considered the option of placing H.M. with a family friend, his grandparents, or a neutral third party. She ultimately was not in favor of removing H.M. from Father because she had no evidence that H.M. was being abused or neglected in Father's care and she was not concerned about Father's ability to meet H.M.'s medical needs. H.M. could rely on Father for emotional support, and Father was willing to take him to therapy as needed. Although Father had not been completely cooperative, SSW Salzle had obtained enough information from him to assess H.M.'s safety. SSW Salzle also considered the harm H.M. would suffer if separated from his siblings.
SSW Salzle considered removal of H.M. from Father's custody based on emotional abuse due to H.M.'s severe negative emotional response to Mother. However, such emotional abuse did not justify removing H.M. from Father's custody because, SSW Salzle believed, H.M.'s emotional state was not so severe that he was unable to function, was a danger to himself, or was severely depressed or anxious.
Although SSA's decision to recommend closing the case was made just before SSW Salzle became the primary worker, she was involved in making the decision. SSW Salzle agreed with the decision to recommend closing the dependency case and granting Father sole physical and legal custody of H.M. Watching H.M. testify confirmed SSW Salzle's belief that maintaining court supervision would be harmful to H.M.
SSW Salzle did not recommend granting custody to Mother because H.M. had so strongly made up his mind about not wanting her in his life and joint custody might negatively affect H.M.'s emotional and physical health. SSW Salzle believed that granting joint custody for medical decisions would not be in H.M.'s best interest because SSW Salzle had never seen Father and Mother collaborate on anything, and Father was fully capable of meeting H.M.'s medical needs.
The case had been open for a long time, and efforts to strengthen the relationship between H.M. and Mother had made their relationship worse, not better. For exit orders, SSW Salzle recommended sole physical and legal custody to remain with Father. She recommended no mandated visitation with Mother because H.M. suffered high levels of anxiety from being with her, did not comply with the visits, had said he did not want to visit Mother, and was 16 years old. SSW Salzle was sympathetic to Mother's situation and the heartbreak Mother felt, but due to H.M.'s age and H.M.'s strongly-felt desire not to see her, she did not think mandated visitation would be in H.M.'s best interest.
IV. THE JUVENILE COURT'S RULING
On August 4, 2022, after testimony had concluded and counsel had given closing argument, the juvenile court took the matter under submission. The court issued its statement of decision on August 10. We explain the court's decision at length in the Discussion section. A summary of the court's findings and decisions is as follows.
The statement of decision begins with the honest recognition that the dependency system's goals of family strengthening and reunification had not been achieved in this case. The court explained that the "the focus of the dependency system," as expressed in section 202, subdivision (a), "is first upon the protection of the minors -and then secondarily 'whenever possible' on the minor's family ties." Those priorities guided the court in reaching its decisions and conclusions.
The juvenile court concluded that removing H.M. from Father's custody would not be in H.M's best interest and therefore denied Mother's Section 388 Removal Petitions. The court terminated dependency jurisdiction pursuant to section 364 because "conditions do not exist which would justify the initial assumption of jurisdiction under section 300 or that those conditions are likely to exist if supervision is withdrawn." The court granted Father sole legal custody and Mother and Father joint physical custody of H.M. The court did not order visitation but, in light of H.M.'s age and unwillingness to visit Mother, ordered that "Mother's periods of physical custody shall be with the sole agreement of [H.M.], and Mother shall pick-up [H.M.] at Father's residence."
The juvenile court denied Mother's second amended contempt motion and dismissed Mother's motion for contempt against SSA. The court dismissed as moot Father's section 388 petition to terminate dependency jurisdiction. This appealed followed.
DISCUSSION
I. THE JUVENILE COURT DID NOT ERR BY DENYING MOTHER'S SECTION 388 PETITIONS TO REMOVE H.M. FROM FATHER'S CUSTODY
A. Relevant Law and Standard of Review
Mother contends the juvenile court erred by denying her section 388 removal petitions. Section 388 provides, in relevant part: "Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court . . . for a hearing to change, modify, or set aside any order of court previously made." (§ 388, subd. (a).) A petition under section 388 is an appropriate means for one parent to seek removal of a dependent child from the custody of the other parent. (In re Victoria C. (2002) 100 Cal.App.4th 536, 543.) If, as in the present case, reunification services were not ordered under section 361.5, subdivision (b)(4), (5), or (6), the parent, in order to obtain a change in court order, must show "by clear and convincing evidence" the proposed change in custody "is in the best interests of the child." (Cal. Rules of Court, rule 5.570(h)(1)(C).)
In juvenile dependency proceedings, "[t]he best interests of the child are paramount." (In re Josiah Z. (2005) 36 Cal.4th 664, 673.) "When making a custody determination in any dependency case, the court's focus and primary consideration must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 241, 268.) "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." (Ibid.)
We review the denial of a section 388 petition after an evidentiary hearing under the abuse of discretion standard. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re J.M. (2020) 50 Cal.App.5th 833, 846.) "'The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.'" (In re Stephanie M., supra, at pp. 318-319.)
Under the abuse of discretion standard, we review factual findings for substantial evidence. (In re A.R. (2015) 235 Cal.App.4th at 1102, 1117.) "[T]he issue is whether there is evidence, contradicted or uncontradicted, to support the finding. In making that determination, the reviewing court reviews the record in the light most favorable to the challenged order, resolving conflicts in the evidence in favor of that order, and giving the evidence reasonable inferences. Weighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court. Evidence from a single witness, even a party, can be sufficient to support the trial court's findings." (In re Alexis E. (2009) 171 Cal.App.4th 438, 450-451.) "'When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'" (In re Stephanie M., supra, at p. 319.)
B. The Juvenile's Court's Findings and Conclusions
In denying Mother's section 388 removal petitions the juvenile court made extensive findings and comments, which have the benefit of being both brutally honest and eminently wise. The court considered H.M.'s age and gave weight to his "thoughts, opinions and desires" and concluded from H.M.'s testimony and demeanor "it is evident that [H.M.] is infected with bitterness, cynicism, anger, falsehoods, delusions, anxiety, confusion, misunderstanding, and sadness." The one "truth," stated "over and over" by H.M. was it was "useless" to try to achieve the dependency system's goal of preserving and strengthening H.M.'s family ties.
The court found that "[H.M.] said and believes many bad things about his Mother. What he said and what he believes has only some foundation in reality and his catalog of her sins is disproportionate to the actual facts." The court found that H.M.'s beliefs about Mother were genuine and truly felt. But due to H.M.'s "heartfelt and genuine beliefs" about Mother, "however misplaced and disproportionate they may be," removing H.M. from Father would be emotionally detrimental to H.M. The court also found: "That detriment then will be exponentially compounded by his knowledge that his Mother - in whom he has lodged the worst possible beliefs - is the reason he was removed, since she petitioned the Court to remove him - essentially a verification and vindication of all of his heretofore disproportionate beliefs. In the opinion of the Court, this will be a substantial, longstanding and in all likelihood an irreparable detriment that [H.M.] will not, in Mother's words, 'snap out of', whatever the services that the Court may order in the statutory time remaining for its jurisdiction."
The court agreed with Mother that H.M.'s alienation from her was detrimental and would get worse as he got older. The court balanced such detriment from the detriment H.M. would suffer if removed from Father and concluded: "[T]he substantial, longstanding and likely irreparable detriment [H.M.] will experience if removed from his Father outweighs the detriment from his estrangement and continued alienation from his Mother."
The court found Father to be "a completely disagreeable person and lacking in any credibility, . . . obstructionist, obnoxious and obdurate, and certainly contemptuous of the Court in attitude." The court also found that Father bore "a measure of responsibility" for H.M. alienation from and attitude toward Mother and that Father took "action to frustrate, manipulate, delay and defeat the Court's orders intended to repair [H.M.]'s relationship with his Mother." However, the evidence at trial "did not establish by clear and convincing evidence a current risk to [H.M.]'s physical health, safety, protection, or physical or emotional well-being" while in Father's care. Removal of H.M. from Father would not be appropriate to force Father into cooperating with services. The dependency system required the court to focus upon "the genuineness of [H.M.]'s feelings and the implications they have for [H.M.]'s emotional detriment if he were to be removed" and not on Father's malfeasance.
The juvenile court addressed our opinion in H.M. III. and "its pointed findings and admonishments particularly focused on Father." H.M. III was by then nearly three years old, and the court believed it was compelled to analyze the case today, in light of current circumstances, from the standpoint of the best interests of the minor. The court balanced the potential detriments to H.M. and concluded that balance favored denial of Mother's request to remove H.M. from Father's custody.
C. Substantial Evidence Supports the Juvenile Court's Decision to Deny Mother's Section 388 Removal Petitions
The juvenile court's assessment is well-reasoned and findings are supported by substantial evidence. The court understood it had no ideal solutions at hand: The court had only options, and it had to select the best or, as it were, the least bad option given the facts and circumstances of the case. If H.M. were to remain in Father's custody, he would suffer detriment from further alienation from Mother. Yet H.M. would suffer irreparable detriment, possibly trauma, if he were removed from Father, with whom he was strongly bonded, and from the family he loved so much.
The better (or least bad) option was the one that would result in the least detriment to H.M., and the juvenile court concluded that was for custody to remain with Father. H.M's testimony, Stepmother's testimony, SSW Gomez's testimony, SSW Salzle's testimony, and reams of SSA reports support that finding. H.M. was happy and thriving in Father's custody. Father was meeting H.M.'s physical, medical, and emotional needs. SSW Salzle saw H.M. as being so bonded to Father that removal from him would be more damaging to H.M. than the loss of his relationship with Mother. Detriment and best interests being flip sides of the same coin-continued custody with Father would best serve H.M.'s interests. (In re Jacob P. (2007) 157 Cal.App.4th 819, 829)
The juvenile court had H.M's wishes to consider, and H.M., who was 16 years old during the retrial, wished to stay with Father. H.M.'s stated wishes, though not determinative, are "powerful demonstrative evidence" of his best interests. (In re Aljamie D. (2000) 84 Cal.App.4th 424, 432.) SSW Salzle, whom the juvenile court found to have been "careful, measured, impartial and thoughtful", recommended continued custody with Father, and Minor's counsel supported that placement. (Cf. In re Luke M. (2003) 107 Cal.App.4th 1412, 1427 ["Social workers are frequently recognized as experts in assessing risk and placement of children"].)
The juvenile court made the insight that removing H.M. from Father's custody would verify and vindicate H.M.'s beliefs and perceptions about Mother. H.M. blamed Mother and the juvenile court for the dependency proceedings, and almost certainly would blame Mother if he were removed from Father's custody. Removal from Father's custody therefore might actually impair or destroy any hope of future reconciliation with Mother.
The juvenile court found Father to be "a disagreeable person" and "lacking in any credibility." The court found that Father bore "a measure of responsibility" for H.M.'s attitude toward Mother and had taken actions to "frustrate, manipulate, delay and defeat" court orders intended to repair H.M.'s relationship with her. But the court judiciously resisted the temptation to punish Father by removing H.M. from his custody. The court never wavered from its adherence to the principle that "[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." (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) That was the correct approach.
Mother argues the juvenile court erred because H.M. "is not mentally and emotionally healthy and thriving in Father's care." She claims H.M.'s well-being has been in substantial danger since no later than November 2018 because, while in Father's custody, H.M. has not received individual and conjoint therapy, which is both necessary and court-ordered, and has been permitted to leave visits with her early or not show up at all. Mother claims that Father has alienated H.M. from her and induced him to believe she poisoned him, and that H.M. has erased all happy memories of her. H.M., Mother claims, is suffering and in the long term will suffer detriment from being alienated from her. In addition, Mother claims that while in Father's care, H.M. suffered from "extreme anxiety surrounding anything having to do with Mother or this case" and "[t]his anxiety affects [H.M.]'s physical health and well-being as well." The anxiety and psychological damage suffered by H.M. is shown by his withdrawal from and "untoward aggression" against Mother and social workers in the past several years.
Each of Mother's claims about detriment to H.M. is supported by evidence; indeed, the juvenile court accepted as true and considered each of the claims made by Mother. The juvenile court recognized that H.M. is alienated from Mother, Father bore a measure of responsibility for that alienation, and alienation from Mother placed H.M. at risk of suffering both physical and emotional long-term harm. The court freely admitted that the goals of family strengthening and reunification had not been achieved and, in terminating dependency jurisdiction, found that court orders designed to repair H.M.'s relationship with Mother had failed.
H.M. indeed is suffering from anxiety, which affects his physical health, but substantial evidence supports a finding, expressed or implied, that the root cause of H.M.'s anxiety and sadness was fear of being removed from Father's custody and being stuck in a seemingly endless dependency proceeding. After considering H.M.'s mental and emotional state, the juvenile court concluded the detriment H.M. would suffer if removed from Father's custody outweighed all of the detriment that H.M. was suffering and would continue to suffer if he were to remain in Father's custody. The court did not abuse its discretion by reaching that conclusion.
Mother points out that Father physically moved H.M. to Nevada without court authorization with the result that in early 2020 they lived back and forth between Nevada and California, which was stressful on H.M. and not in his best interests. Although those events are in the past, Mother argues, "we do not actually know how psychologically and emotionally damaged [H.M.] is now." As Mother suggests, events in the past have but attenuated relevance to H.M.'s best interest at the present time.
Mother takes issue with the juvenile court's finding that removing H.M. from Father's care would confirm H.M.'s "worst possible beliefs" against Mother and serve essentially as "a verification and vindication of all of his heretofore disproportionate beliefs." According to Mother, that finding reflects a "biased spin" because it would be Father's refusal to comply with court orders, and not anything Mother did, that would be the cause of H.M.'s removal. Mother misreads the court's statement of decision. The court did not state that Mother would in fact be at fault if H.M. were to be removed from Father's custody: The court stated that H.M. would see it that way and H.M.'s beliefs about Mother, though misguided, are sincerely held.
Mother argues that in H.M. III we "conditioned" affirmance of the denial of Mother's section 388 petition on the success of the juvenile court orders for visitation and therapy between Mother and H.M. In H.M. III we did not place any conditions on affirmance; rather, we directed the juvenile court to "consider a change in custody" if the relationship between H.M. and Mother did not substantially improve. (Italics added.) The juvenile court followed that direction. There was in fact no substantial improvement in H.M.'s relationship with Mother, and the juvenile court, in compliance with H.M. III, did consider a change in custody. H.M. III did not order, and could not have ordered, the juvenile court to make a change in custody.
The juvenile court accurately described as dicta this court's admonishment in H.M. III that "[f]ailure to comply is not an option for Father or SSA." (H.M. III, supra, G057128.) SSA heeded this admonishment. Father did not-he pretty much thumbed his nose at it-but H.M. III does not state or imply that a change in custody must be the consequence of Father's obstinance. As to Father, the admonishment in H.M. III must be considered in light of the court's statement that the juvenile court would have to consider a change in custody if the relationship between H.M. and Mother did not substantially improve within a reasonable period of time.
II. THE JUVENILE COURT DID NOT ERR BY TERMINATING DEPENDENCY JURISDICTION
A. Relevant Law and Standard of Review
Mother argues the juvenile court erred by terminating juvenile court jurisdiction. Once a child has been declared a dependent child, the juvenile must conduct a hearing every six months to review the child's status. (In re N.O. (2019) 31 Cal.App.5th 899, 922.) In the present case, section 364 governed the status review hearings because H.M. had been placed back in Father's physical custody. (In re N.O. at p. 903.)
Section 364, subdivision (c) (section 364(c)) reads: "After hearing any evidence presented by the social worker, the parent, the guardian, or the child, the court shall determine whether continued supervision is necessary. The court shall terminate its jurisdiction unless the social worker or his or her department establishes by a preponderance of evidence that the conditions still exist which would justify initial assumption of jurisdiction under [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary."
"At the section 364 review hearing, the juvenile court is not concerned with reunification, but in determining whether the dependency should be terminated or supervision is necessary. [Citations.] The juvenile court makes this determination based on the totality of the evidence before it, including reports of the social worker[,] who is required to make a recommendation concerning the necessity of continued supervision." (In re N.O., supra, 31 Cal.App.5th at p. 922.)
Section 364(c) has been interpreted to mean the juvenile court may not terminate dependency if any conditions exist which would justify initial assumption of jurisdiction, not just the precise conditions under which jurisdiction was initially assumed. (In re N.O., supra, 31 Cal.App.5th at p. 923.) But in In re D.B. (2015) 239 Cal.App.4th 1073, 1085, a panel of this court concluded in dictum, "the better interpretation of section 364(c) is that the court must terminate jurisdiction if the conditions that justified taking jurisdiction in the first place no longer exist." The D.B. court reasoned that "[b]y using the phrase 'the conditions still exist,' the Legislature meant the conditions existing at the time of initial assumption of jurisdiction continued to exist at the time of the hearing, not that new conditions have arisen." The D.B. court did not resolve the issue because it concluded the juvenile court should have terminated dependency jurisdiction with either interpretation. (Ibid.) We likewise do not decide the issue but assume that section 364(c) means the juvenile court must terminate jurisdiction unless any conditions exist which would justify initial assumption of jurisdiction.
Section 364(c) creates a statutory presumption in favor of terminating jurisdiction and returning the dependent child to the care of one or both parents without further court supervision. (In re N.O., supra, 31 Cal.App.5th at p. 923.) If, as here, SSA recommends termination of dependency jurisdiction under section 364(c), the parent, guardian, or child who opposes termination bears the burden of establishing by a preponderance of the evidence that conditions justifying continued jurisdiction exist or are likely to exist if supervision is withdrawn. (In re N.O., supra, at pp. 924-925.)
We review the juvenile court's decision to terminate dependency jurisdiction under the abuse of discretion standard. (In re Destiny D. (2017) 15 Cal.App.5th 197, 211-212; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) The court's factual findings are reviewed under the substantial evidence standard. (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1147.) If the juvenile court expressly or impliedly finds the party opposing termination of dependency jurisdiction failed to meet his or her burden of proof, then the standard of review is whether undisputed evidence compelled a finding in the appealing party's favor as a matter or law. (Ibid.)
B. The Juvenile Court's Findings and Conclusions
The juvenile concluded that conditions did not exist which would justify the initial assumption of jurisdiction under section 300 or that those conditions were not likely to exist if supervision was withdrawn. In ordering the termination of dependency jurisdiction, the juvenile court made extensive findings and comments which, like those supporting denial of Mother's section 388 petitions, are both candid and wise.
The juvenile court found that Father's failure to participate regularly in court ordered treatment, either for himself or to repair H.M.'s relationship with Mother, constituted prima facie evidence that continued supervision was necessary. The court concluded, however, there was a preponderance of the evidence that conditions justifying continued jurisdiction did not exist or would not likely exist if supervision was withdrawn. Such evidence included the testimony, conclusions and opinions of the SSW Salzle. The court found her to be "careful, measured, impartial and thoughtful" and therefore gave "significant weight to her recommendation to close this case." The court found that SSW Salzle's recommendation was support by H.M.'s medical and school records and that, despite "the toxic nature of [H.M.]'s emotions and Father's obnoxious and obstructionist conduct," evidence that Father and H.M. are bonded to each other supported terminating dependency jurisdiction. The court found that Father loves and cares for H.M., "albeit with actions that are short-sighted and misguided." Relevant to terminating dependency jurisdiction too was that continued court involvement would be detrimental to H.M.
The juvenile court considered H.M.'s testimony and "emotional turmoil being in court." The court believed H.M. was the product of being in the legal system for 13 of his 16 years. Although strengthening H.M.'s family ties was not "a useless goal in 2009 when the petition for dissolution of marriage was filed," as years passed, "the likelihood of achieving strengthened family ties began slipping away from a probability toward simply a possibility." By the time of the review hearing, there was little if any possibility of strengthening family ties through the dependency system.
Indeed, the juvenile court candidly admitted the system had failed and concluded Father was in large part responsible for that failure: "Orders of the Court calculated to repair [H.M.]'s relationship with Mother - for individual counseling, conjoint counseling, and visitation - failed. The Court concludes that the failure of these orders is due in large part to Father's conduct. In the judgment of the Court, this is not sufficient basis to continue with Court supervision, in light of the adjudicated basis for the Court's original assumption of jurisdiction." The court also concluded the evidence supported Mother's argument that "Father is the villain [who] caused the failure of the Court's order aimed at repairing her relationship with [H.M.]" Although it was "galling to close the case and give Father the 'win,'" the court correctly based its decision to terminate dependency jurisdiction on H.M.'s interests. The court judiciously resisted the temptation to keep H.M. in the dependency system jurisdiction for even longer just to "bludgeon" Father into complying with court orders.
C. Substantial Evidence Supports the Juvenile Court's Decision to Terminate Dependency Jurisdiction
Substantial evidence supported the juvenile court's decision to terminate dependency jurisdiction. The juvenile court concluded that continued dependency jurisdiction and court supervision were not necessary based on five factors: (1) court-ordered efforts to repair the relationship between H.M. and Mother had failed; (2) continuing dependency jurisdiction would be detrimental to H.M.; (3) Mother's unresolved mental health issues could be addressed with exit orders; (4) SSW Salzle recommended closing the case; (5) contentious family relationships had not improved despite years of court intervention; (6) absent other facts, fractured, damaged or destroyed relations between a parent and a child is not, in and of itself, a basis for the assumption of jurisdiction under section 300; and (7) Mother was not legally entitled to reunification or enhancement services.
Before addressing the juvenile court's findings, we review the conditions which served as the basis for initial assumption of dependency jurisdiction, as those are the core focus of a decision under section 364(c). Dependency jurisdiction over H.M. was declared when the juvenile court found to be true allegations that Mother had unresolved mental health issues (allegation b-2), Mother's behavior in December 2015 had caused H.M. emotional distress (allegation b-4), H.M. was the subject of a protracted and contentious child custody dispute between Mother and Father (allegation b-5), H.M. tested positive for benzodiazepine in March 2017 (allegation b-6), and in March 2017 Father had delayed medical treatment for H.M. by removing him first from CHOC and then from Loma Linda (allegation b-7). (H.M. I, supra, G055484.)
Of those allegations, the catalyst and primary reason for initial assumption of dependency jurisdiction was H.M.'s positive test for benzodiazepine in March 2017 (allegation b-6). Mother and Father blamed each other, and the question of how benzodiazepine got into H.M.'s system was fiercely contested for years. But by the time dependency jurisdiction was terminated, the risk that H.M. might again ingest benzodiazepine, in either Father's or Mother's care, had long since ceased to be of concern to SSA or the juvenile court. With respect to allegation b-2, the juvenile court found that Mother's mental health issues could be addressed by placing H.M. in Father's physical custody. Allegations b-4 and b-7 involved single, nonrecurring events, and, as to allegation b-7, the evidence established that Father was providing appropriate medical care for H.M.
The juvenile court found that allegation b-5 could be resolved, and was resolved, by exit orders and would resolve itself within 18 months when H.M. turns 18 years old. Moreover, the protracted dependency case, which was preceded by a protracted custody battle in the marital dissolution case, neither led to any improvement in the relationship between Mother and Father nor cooled the heated custody battle. As to allegation b-5, the juvenile court found, "[t]he contentious nature of Mother and Father's relationship remains to this day unaffected by years of Court intervention." More court intervention would not improve their relationship.
Whatever the grounds were for the initial assumption of dependency jurisdiction, the primary concern of the dependency proceedings, particularly since H.M. III was issued, was H.M.'s alienation from Mother, and the primary goal of services became mending H.M.'s relationship with her. Though not a stated ground for assumption of dependency jurisdiction, H.M.'s worsening relationship with Mother was a consequence of the protracted and contentious custody battle as well as Father's efforts to alienate H.M. from Mother and undermine court orders designed to improve their relationship.
The juvenile court frankly recognized that years of dependency jurisdiction and orders made to repair H.M.'s relationship with Mother had "failed." Since March 2017, the juvenile court had issued dozens of orders for individual counseling (for both H.M. and Father), conjoint counseling, visitation with Mother (both in-person and by video), and other services and requirements. SSA had addressed the concerns of partiality expressed in H.M. III and made herculean efforts, often in difficult circumstances, in an attempt to secure compliance with those orders. H.M.'s relationship with Mother only got worse. Both SSW Gomez and SSW Salzle testified there was nothing more SSA could do to improve H.M.'s relationship with Mother. H.M.'s Evidence Code section 730 evaluator concluded that conjoint counseling would not be of benefit to H.M. in the short run. H.M. did not want to see Mother ever again, did not believe therapy helped him, and was not willing to attend any more therapy sessions. Now that H.M. is 17 years old it is hard see how, short of brute force, he could be induced to visit Mother and attend more therapy sessions if they were ordered.
Dependency jurisdiction not only failed to improve H.M.'s relationship with Mother, but, as the juvenile court found, it was causing H.M. emotional harm. The juvenile court heard H.M. testify and found he was in "emotional turmoil from being in court" and "infected with bitterness, cynicism, anger, falsehoods, delusions, anxiety, confusion, misunderstanding, and sadness." The testimony of H.M., Stepmother, SSW Salzle, SSW Gomez, and reams of SSA reports attest to H.M.'s misery in being stuck in this seemingly endless dependency proceeding. H.M. would tell SSW Gomez, SSW Salzle, and anybody who would listen that he wanted to be done with the dependency case and allowed to live his life free of court visits and therapy. H.M.'s emotional state affected his physical health: For example, anxiety from the dependency case caused him to have difficulty in breathing that required extra cystic fibrosis treatments.
Continuing dependency jurisdiction likely would only cause H.M. to continue to suffer yet more emotional turmoil, anxiety, and sadness. The juvenile court found that "continued involvement in the court system would be detrimental to [H.M.]" and that "dragging H.M. through the Court system that has occupied his life for the last thirteen years of his life" would not be in H.M.'s best interests. Both SSW Gomez and SSW Salzle testified that keeping the dependency case open would be detrimental to H.M.'s well-being.
Further, the record supports a finding that continued dependency jurisdiction would make the relationship between H.M. and Mother even worse than it already is. H.M., correctly or incorrectly, blamed Mother for the dependency proceedings and almost certainly would blame her if they were to continue. Keeping H.M. in the dependency system likely would intensify H.M.'s ill feelings toward Mother and dim any glimmer of hope for future reconciliation with her. SSW Salzle testified that "it seems like now more than ever his mind is absolutely made up" and "continuing to go on just makes his feeling even stronger about not wanting to remedy that relationship."
SSW Salzle, as the assigned social worker, was required to make a recommendation concerning the necessity of continued court supervision. (§ 364, subd. (b); see In re N.O., supra, 31 Cal.App.5th at p. 922-923.) SSW Salzle recommended closing the case. The juvenile court, who found SSW Salzle to be "careful, measured, impartial and thoughtful," did not err by following her recommendation.
As the juvenile court found, "fractured relations" between a parent and a child alone are insufficient in themselves under section 300 for the juvenile court to assume dependency jurisdiction. But under section 300, subdivision (c), a child comes with dependency jurisdiction if the child "is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage . . . as a result of the conduct of the parent or guardian." (Italics added.) In that regard, Mother argues continued supervision with services is necessary because H.M. is suffering from serious emotional damage and depression and displays signs of untoward aggression toward Mother and social workers as a result of Father's conduct and being in Father's custody.
The juvenile court found H.M.'s "emotional turmoil" was not the result of a parent's conduct but was "from being in court" and that the cause of H.M.'s emotional state and aggressive behavior was "this family being in the legal system for thirteen of his sixteen years of life." We accept the inference drawn by the juvenile court. (In re Stephanie M., supra, at pp. 318-319.)
Substantial evidence supported the juvenile court's finding that the lengthy dependency proceedings were the primary cause of H.M.'s emotional state. Over the past six years, H.M. has spent a significant part of his life complying with the requirements of the dependency system. He testified he suffered anxiety while involved in any way with the dependency proceedings and worried ceaselessly about being taken away from Father, Stepmother, and his siblings. H.M. testified and consistently reported to SSA that he was happy and healthy living with Father and his only issue was anxiety, which H.M. said was caused by the dependency case and Mother.
In late September 2019, after treating H.M. for nearly six months, Gail York concluded that H.M. was "a happy, well adjusted young man" and he no longer needed individual therapy.
In June 2021, H.M.'s therapist, Lubin, reported that H.M. had been diagnosed with adjustment disorder and he did not suffer from any other disorder, including anxiety or depression. Lubin concluded that H.M. was "of sound mind and robust mentality" and did not need any more therapy.
Father's conduct and attitude throughout the dependency proceedings have been troublesome to say the least. The juvenile court found the evidence supported Mother's characterization of Father as "the villain [who] caused the failure of the Court's order aimed at repairing her relationship with [H.M.]" In the court's words, Father was "completely disagreeable," "obnoxious," and "obstructionist" and had taken actions to "frustrate, manipulate, delay and defeat" court orders intended to repair H.M.'s relationship with Mother. But the juvenile court correctly focused its attention on H.M.'s best interests, and not on Father's bad behavior. "'[T]he underlying purpose of dependency law is to protect the welfare and best interests of the dependent child.' . . . Thus, the focus is on the child, not the parent." (Serena M. v. Superior Court (2020) 52 Cal.App.5th 659, 672.) The juvenile court did not err by closing the dependency case, even if that meant giving Father the "'win,'" because doing so was in H.M.'s best interests.
Finally, the juvenile court concluded that Mother was not legally entitled to reunification or enhancement services. When, as in this case, a dependent child is placed in the custody of a parent, the juvenile court is not required, but has discretion to order services. (§§ 361.5, subd. (a); 362, subd. (c); In re C.S. (2022) 80 Cal.App.5th 631, 636; In re Destiny D., supra, 15 Cal.App.5th at p. 212.) These "enhancement services" are child welfare services designed to enhance the child's relationship with that parent who does not have custody. (In re Destiny D., supra, at p. 212.) Enhancement services are not designed to reunify parent and child but to address issues that brought the child into the dependency system. (In re A.C. (2008) 169 Cal.App.4th 636, 642, fn. 5.) The juvenile court did not abuse its discretion by denying Mother further enhancement services and to terminate dependency jurisdiction.
III. THE JUVENILE COURT DID NOT ERR BY GIVING H.M.'S Discretion to Decide Whether to Visit Mother
The juvenile court ordered joint physical custody of H.M. (primary residence with Father) but, rather than order visitation, ordered that "Mother's periods of physical custody shall be with the sole agreement of [H.M.]" The court stated: "In the Court's opinion, based on [H.M.]'s testimony and Father's decision to take a hands-off position as it relates to court-ordered visitation, [H.M.] is old enough and cautious enough to safely set the terms of his visiting and residing with his Mother, if at all, notwithstanding her apparent continuing mental health issues."
"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 will become part of the relevant family law file and remain in effect in the family law action 'until modified or terminated by a subsequent order.'" (In re T.S. (2020) 52 Cal.App.5th 503, 513, fn. omitted.) In making exit orders, the juvenile court's "focus and primary consideration" is the child's best interests. (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) We review an exit order regarding custody under the abuse of discretion standard. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 300.)
Given H.M.'s complete aversion to visiting Mother, the anxiety and related adverse health consequences H.M. suffered from the very prospect of seeing her, and, ultimately, his outright refusal to attend visits, the juvenile court's custody exit order is in H.M.'s best interest. Substantial evidence, in particular SSW Salzle's and H.M.'s testimony, supported a finding that H.M. would suffer detriment if ordered to spend time with Mother. H.M.'s best interest is served, not by ordering H.M. to visit Mother, but by letting him make the decision whether to visit her.
Mother argues the juvenile court's exit order improperly delegated to H.M. the decision whether she would have custody. "The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties. [Citation.] This rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated." (In re T.H. (2010) 190 Cal.App.4th 1119, 1123.)
It is true, as Mother argues, that several appellate courts have overturned visitation orders that delegate to the child the discretion to determine whether visitation will occur, as opposed to simply the number, time, place, and administration of the visits. In In re Julie M. (1999) 69 Cal.App.4th 41, 48-49, the Court of Appeal held the juvenile court abused its discretion by giving the children absolute power to whether their mother could visit them. "The order essentially delegated judicial power to the children-an abdication of governmental responsibility." (Id. at p. 49; In re S.H. (2003) 111 Cal.App.4th 310, 317-320 ["In no event, however, may the child's wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits"].)
Mother cites to In re Ethan J. (2015) 236 Cal.App.4th 654 (Ethan J.) and In re Korbin Z. (2016) 3 Cal.App.5th 511 (Korbin)in support of her argument that the decision whether visitation will occur cannot be delegated to the child. In Ethan J., the juvenile ordered a permanent plan of legal guardianship for the eight-year-old child and appointed maternal grandmother as guardian, terminated dependency jurisdiction, and ordered therapeutic visitation between the child minor and the mother with the understanding that visitation would not be forced. (Ethan J., supra, at pp. 660-661.) The child refused to visit the mother and refused to undergo a therapeutic evaluation. (Id. at p. 661.) The appellate court concluded the juvenile had erred by terminating dependency jurisdiction because, under section 366.26, subdivision (c)(4)(C), when a court orders legal guardianship as the permanent plan, the court must make an order for visitation with the parents unless the court finds that visitation would be detrimental to the child's physical or emotional well-being. The juvenile court had not made a detriment finding and had dismissed the dependency case with knowledge the visitation order would not be honored. (Ethan J., supra, at p. 661.)
In Korbin Z., the father challenged an order granting the child, who was 11 years old, sole discretion to decide whether father would have visits with him. (Korbin Z., supra, 3 Cal.App.5th at p. 513.) The father was not entitled to reunification services, which would include visitation, because his whereabout were unknown for than six years after the child's out-of-home placement. (Id. at pp. 513-514.) The appellate court concluded, however, the juvenile court erred in giving the child sole discretion over visitation: "Although the court was not required to order visits for Father, once it did so, it could not delegate the decision whether visitation would occur to [the child]." (Id. at p. 516.)
The present case is distinguishable from those cases overturning orders giving the child the power to control whether visitation occurs. Here, the juvenile court did not order guardianship as the permanent plan and therefore section 366.26(c)(4)(C) was inapplicable. H.M., who was 16 years old when the custody order was made, is much older than the eight-year-old child in Ethan J. and the 11-year-old child in Korbin Z and had been subject to visitation orders and had undergone therapy for years.
In addition, the juvenile court did not make the custody order as part of a plan for reunification but as an order upon termination of dependency jurisdiction pursuant to section 364(c). Because the custody order was an exit order, the court had the discretion to grant Father sole physical custody to Father with no visitation for Mother (In re Chantal S. (1996) 13 Cal.4th 196, 214 (Chantal S.)) without having to make an express finding of detriment (In re Aurora P., supra, 241 Cal.App.4th at p. 165). And that is what the juvenile court in the present case did in fact do. The court did not order visitation and did not find that visitation would be in H.M.'s best interests. The court in effect, if not literally, ordered no visitation and found it was in H.M.'s best interest to let him decide whether to visit Mother. Regardless of who caused H.M. to have negative feelings for Mother, the fact is he has them, and the juvenile court found they were genuinely held. H.M. should not be forced to visit Mother against his will (In re Danielle W. (1989) 207 Cal.App.3d 1227, 1237) and the record establishes that at this point in his life H.M. is not going to visit Mother, even if visitation had been ordered.
If in fact the juvenile court did order visitation, Mother has suffered no prejudice from giving H.M. the ability to decide whether to see her. In Chantal S., an exit order stated visitation was to be "'facilitated'" by the child's therapist, and visitation was to begin when the father's chosen therapist determined the father had made "'satisfactory progress for a time.'" (Chantal S., supra, 13 Cal.4th at p. 213.) The father argued the exit order improperly delegated judicial authority to the two therapists. (Ibid.) The Supreme Court disagreed. The court acknowledged that the exit order vested some discretion in the father's therapist to determine when visitation should begin. (Ibid.) But the juvenile court had concluded that to protect the child, visitation should not begin until the father had made sufficient progress in his own therapy. (Ibid.) The Supreme Court explained that a juvenile court faced with this situation has two options: The juvenile court can deny the father any visitation or the court can issue an order specifying that visitation would start when the father's therapist has determined the father has made satisfactory progress. (Id. at pp. 213-214.)
In Chantal S. the Supreme Court also addressed the issue of prejudice: "Even assuming arguendo that the order delegated too much judicial discretion, father is not prejudiced thereby. As noted above, father does not contest the position that on this record the juvenile court would have been within its discretion if it simply denied him any visitation. The fact that the juvenile court rejected that course, and instead issued the restrictive order challenged now, amounts to a windfall to father, not a violation of his rights." (Chantal S., supra, 13 Cal.4th at p. 214.)
The Supreme Court's decision in Chantal S. is not a perfect fit, but it supports the juvenile court's custody order. As authorized by Chantal S., the juvenile court in the present case issued an order granting Father sole physical custody with no visitation for Mother. The exit order leaves open the possibility, slim though it may be, that visitation will occur: As SSA argues, the exit order "left the door open for possible visitation, without Mother needing to apply to the family court for a change in court order, should [H.M.] be more open to a relationship once he was no longer feeling so pressured by Mother and SSA and the juvenile court."
Mother argues Chantal S. is inapplicable because she "is not violent, has committed no crimes, has no alcohol or other substance abuse issue, and [H.M.]'s anxiety and withdrawal from Mother are not based in facts but in delusions created by Father to alienate [H.M.] from Mother." The juvenile court made findings that support those claims. Mother also argues that, unlike the father in Chantal S., she did contest issuing an exit order denying visitation. That too is true. But those facts do not meaningfully distinguish this case from Chantal S. because, as we have said, in making exit orders the juvenile court must give "focus and primary consideration" to the child's best interests. (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.)
Court-ordered visitation with Mother has not helped to repair her relationship with H.M.; if anything, ordering H.M. to visit her has only made their relationship worse. The record provides no reason to believe that ordering H.M. to visit Mother for the 9 months remaining until he turns 18 years old would have any greater success. Forcing H.M. to visit Mother is discouraged by case law, difficult if not impossible without using brute physical force, and likely to have the effect of making him even more hostile toward her. H.M. is more likely to decide, with greater maturity and the fullness of time, to see Mother and mend their relationship if he is now freed from court orders and pressures to visit her.
DISPOSITION
The order denying Mother's section 388 removal petitions and terminating dependency court jurisdiction is affirmed.
WE CONCUR: O'LEARY, P. J. DELANEY, J.