Opinion
G063810
09-13-2024
In re I.L., a Person Coming Under the Juvenile Court Law. v. J.L., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Nos. 16DP0787B, 16DP0787A, Vibhav Mittal, Judge.
Elizabeth Klippi, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Debbie Torrez and Aurelio Torre, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
SANCHEZ, J.
J.L. (Mother) appeals from custody and visitation orders entered by the Orange County juvenile court (the court) at the conclusion of her son's juvenile dependency case. The court awarded sole physical and legal custody of the son I.L. (Minor) to L.M. (Father) and reduced Mother's visitation with Minor to four hours per week. Mother contends the court abused its discretion by awarding Father sole legal custody and by reducing her visitation. We disagree and affirm.
STATEMENT OF FACTS
I.
DETENTION BASED ON THE ORIGINAL DEPENDENCY PETITION
In June 2022, Minor and his half-sister, T.B., were taken into protective custody when Minor was five years old and T.B. was seven years old. A few days later, the Orange County Social Services Agency (SSA) filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (b)(1), (c), and (g). The petition alleged, inter alia, that Mother had unresolved mental health issues. A few days earlier, Mother had experienced a "violent mental health episode" in the presence of Minor and T.B. She got lost on her way back to her apartment and made certain "nonsensical" statements. She also told the maternal grandmother it was going to be "'the end of her time.'" She then blocked the hallway and front door with chairs and put knives and scissors in a plastic tub. She screamed at the maternal grandmother and raised a remote as if threatening to hit her. The maternal grandmother was able to leave and call the police. When officers arrived, Mother was defensive and ran upstairs where she attempted to jump over the railing but was stopped by officers. She was transported to the hospital and placed on a section 5150 hold. As a result of the incident, Minor and T.B. were distraught and crying.
Minor and T.B. have different fathers. Because Mother's appeal only concerns Minor, we limit our summary to the facts and orders pertaining to Minor.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mother was released from the hospital a few days later and blamed her hospitalization on the maternal grandmother. According to the petition, Mother's apartment was unsafe and unsanitary as there were hoarded items and a significant number of insects. The maternal grandmother reported Mother was not taking her medications for anxiety or depression and was not attending therapy.
The petition also noted T.B. was a prior juvenile court dependent due to Mother's mental health issues. Around that time, Mother had reported she suffered from depression and post-traumatic stress disorder and that her mental health issues interfered with her ability to keep their home clean. Mother ultimately reunified with both children. Two months after the latter dependency case terminated, Mother was placed on a section 5150 hold in April 2020 because her home was unsanitary and she was experiencing paranoia, delusions, and hallucinations. Mother challenged the hold and was eventually released.
The petition further alleged Mother and Father had a "history of conflicts over custody of" Minor. Mother likewise had a history of domestic violence with T.B.'s father who previously failed to reunify with T.B.
After a detention hearing, the court detained Minor and placed him in Father's care. T.B. was detained from both Mother and her father. The court also authorized supervised visitation for Mother.
II.
JURISDICTION/DISPOSITION BASED ON THE ORIGINAL DEPENDENCY PETITION
Prior to the jurisdiction/disposition hearing, SSA recommended the court sustain the petition, terminate Minor's dependency case with exit orders giving Father full custody, and provide family reunification services to Mother. In January 2023, after hearing testimony, the court sustained an amended petition under section 300, subdivision (b)(1) and (g) but dismissed the allegation set forth in section 300, subdivision (c). The court declared Minor and T.B. dependents and found there were reasonable means to protect them without removing them from Mother's care and custody. The court ordered custody of Minor to be shared between Mother and Father while family maintenance services were ongoing. T.B. also remained in Mother's care. The court further ordered an Evidence Code section 730 evaluation for Mother and set a six-month review hearing, which was eventually continued to October 2023.
In January 2023, Father appealed from the jurisdictional and dispositional orders. Another panel of this court affirmed. (In re Isaac L. (July 10, 2023, G062248) [nonpub. opn.].)
III.
MOTHER'S SECTION 388 MOTION
In March 2023, Mother filed a section 388 petition seeking to change the court's January 2023 order regarding the parents' custodial agreement with Minor. Mother noted the court ordered the custody schedule to return to the prior schedule that existed before the instant dependency action, but the court did not have the complete information about the prior custody order between Mother and Father. Mother therefore sought a new order memorializing her prior custody agreement with Father. The court granted Mother's section 388 motion.
IV.
SSA REPORTS
Among other things, SSA reported T.B. had told a social worker in August 2023 that Mother pulled her ear and hit her on the back "when she gets in trouble." The social worker asked if Minor and T.B. felt safe with Mother, and T.B. responded she did not and wanted to live with her grandmother. As of September 2023, SSA reported it had received several child abuse reports from the child abuse hotline. On one occasion, T.B. said Mother threatened to put her head in the toilet, previously punched her in the nose, cut and pulled her hair, tackled her and pushed her to the ground, and threatened to leave her at the side of the freeway. T.B. also said Mother yells at Minor and pulls his wrist and ear. According to T.B., Mother previously got on top of Minor who was crying and had a red mark on his wrist. On another occasion, Mother made "odd statements" to T.B. and told her she would have to clean the toilet for an hour when she got home from school.
In October 2023, SSA reported it received another child abuse report stating Mother had punched Minor in the nose with a closed fist. When Minor was initially questioned about the incident, he said T.B. "'was not supposed to tell you that.'" Minor eventually told SSA he had trouble sitting down at church service, so Mother punched him in the face while telling T.B. to stand behind a bush. Mother told Minor not to tell anyone about the incident, and Minor did not previously report it because he was scared Mother would hit him again. Minor also said he wanted to live with Father and only visit Mother "'at a place.'" He did not feel safe at Mother's home. Father likewise told SSA he did not think it was safe for Minor to return to Mother's care.
T.B. later told SSA that Mother did not want her to disclose anything to SSA and had told her to lie about the maternal grandmother. T.B. also reported she found empty glass bottles in Mother's hamper.
V.
MINOR'S SECTION 388 MOTION
In October 2023, Minor's counsel filed a section 388 motion seeking to change the January 2023 order placing Minor and T.B. with Mother under a family maintenance plan. Counsel argued Mother physically, mentally, and emotionally abused Minor and T.B. and threatened them with punishment if they disclosed her abuse. Counsel also noted Minor and T.B. were afraid of Mother and did not feel safe living with her. Counsel accordingly requested T.B. be placed under the care and custody of her maternal grandmother with Minor remaining in Father's custody.
The court temporarily removed Minor and T.B. from Mother's custody and placed Minor in Father's care.
VI.
SSA'S Subsequent Petition Under Section 342
A few days later in October 2023, SSA filed a subsequent petition under section 342 incorporating the above allegations of abuse. Regarding T.B., the petition alleged Mother pulled T.B.'s hair, dragged her to the floor, cut her hair, and told her she looked ugly. On another occasion, Mother again pulled T.B.'s hair and yelled at her while holding her against a wall. Mother also told T.B. she looked like trash and "she needed to be in Orangewood."
Regarding Minor, the petition alleged Mother squeezed his hand tightly, twisted his ear, and punched him in the face, which left a red mark on his nose and caused a nosebleed. Minor reported Mother punched him outside of church in August 2023 because he could not stay quiet. Minor did not previously disclose the incident because he was afraid Mother would hit him again, and Mother instructed him not to tell anyone. Minor also said he wanted to visit Mother at a visitation center so she would not hit him or T.B. The petition further alleged Mother used profanities directed at Minor and T.B. and coached both of them not to disclose the abuse.
The petition noted Mother had a history of substance abuse issues. In October 2023, alcohol bottles were found in her hamper.
VII.
HEARING ON MINOR'S SECTION 388 MOTION AND DETENTION BASED ON SSA'S Section 342 PETITION
At a section 388 evidentiary hearing in October 2023, the court heard testimony from Minor, T.B., and a social worker. Minor testified that Mother hit him in the nose when they went to church. He also testified he did not feel safe with Mother because she hit him "a lot" and that Mother told him not to tell anyone about the hitting. The court ultimately found changed circumstances and that removal of Minor and T.B. from Mother's care was in their best interest.
After a detention hearing regarding the section 342 petition, the court detained Minor and T.B. from Mother, noting Minor was already in Father's care while T.B. was with the maternal grandmother.
VIII.
JURISDICTION/DISPOSITION BASED ON THE SECTION 342 PETITION
Prior to the jurisdiction/disposition hearing, SSA recommended the court sustain the section 342 petition and terminate Minor's dependency case with exit orders giving Father sole physical custody as well as shared legal custody and monitored visitation for Mother. SSA submitted numerous reports from November 2023 to January 2024. According to those reports, SSA acknowledged Mother was willing to participate in services but was concerned her mental health would impact her parenting. Mother told SSA she was diagnosed with bipolar disorder. SSA was also concerned because Minor and T.B. were afraid of Mother. Mother generally denied abusing Minor and T.B.
As of November 2023, SSA noted Minor and T.B. were anxious at their monitored visits with Mother, but two visits went well. During one visit, Minor was frustrated while painting, and Mother was calm and supportive. During another visit, Minor appeared to enjoy spending time with Mother. He "was able to laugh and even dance." Mother helped Minor with reading and praised him for his progress. While Mother had the capacity "at times to be calm, cooperative, and amenable to feedback," SSA indicated she could "show a different side" to other providers. SSA was concerned Mother could present one way to social workers and differently to others.
During a December 2023 visit, Mother and Minor played a card game and laughed together. Minor also sat on Mother's lap, and Mother hugged and kissed him. He gave Mother a kiss on the cheek in exchange for candy and danced to music. Mother tried to kiss Minor when they were parting, but Minor pushed Mother away.
As of January 2024, SSA reported Mother was prepared for the visits, took various activities for Minor, and appeared interested in their activities. But Minor declined two visits and asked to have visits only once a week. He indicated he felt overwhelmed during the visits. SSA remained concerned because Mother denied any abuse while Minor and T.B. were adamant that it happened and were afraid of it happening in the future.
At the jurisdiction/disposition hearing in February 2024, the court admitted SSA's reports into evidence and heard testimony from two social workers. One social worker recommended the court terminate Minor's dependency case and provide custody to Father. The social worker noted her recommendation was based, in part, on Mother's inability to take responsibility for abusing Minor and T.B. The social worker also recommended eight hours of weekly supervised visitation for Mother with a monitor paid for by Mother. The social worker further noted Mother cooperated with her case plan except for a 52-week child abuse class.
The court then heard argument from the parties. SSA repeated its recommendation that the court order sole physical custody of Minor to Father and joint legal custody to both Mother and Father. As to visitation, SSA said it "defaults" to the current visitation order. Minor's counsel disagreed with providing joint legal custody to Mother and Father and instead requested the court provide sole legal custody to Father. Minor's counsel also requested the court reduce Mother's visits with Minor.
Mother's counsel requested Minor and T.B. to be returned to her care. She alternatively sought joint legal custody of Minor and objected to any reduction in her weekly visitation time and any requirement that she pay for the monitor. Father's counsel believed Father should be given sole physical custody of Minor but did not object to sharing joint legal custody with Mother. Father's counsel also argued Mother's visits with Minor should be reduced from eight hours per week to four hours per week because Minor was overwhelmed by the visits. If Minor was willing to do more visits and Mother progressed in her case plan, Father's counsel suggested Mother could request an increase in visitation.
At the end of the hearing, the court sustained the section 342 petition and declared Minor and T.B. dependents. The court terminated Minor's case with exit orders and set a section 366.26 hearing in T.B.'s case. As to Minor, the court noted there was "no protective issue with him remaining with [F]ather." The court stated it was removing Minor from Mother's care for the same reasons it removed custody in October 2023. The court explained it considered the physical abuse in the summer of 2023 and Mother's denial of the physical abuse, "which raises risk, in the [c]ourt's view, of recurrence without demonstration of any sort of insight." The court found Minor and T.B. to be credible and believed it saw "little to no progress in addressing the physical abuse ...." Given "the recent physical abuse, [Mother's] coaching, the conflictual relationship between the parents, and . . . [F]ather's ability to safely care for [Minor]," the court granted sole physical and legal custody of Minor to Father. The court also found four hours of weekly monitored visits was in Minor's best interest.
In February 2024, Mother filed a timely notice of appeal.
Mother also filed a brief pursuant to In re Sade C. (1996) 13 Cal.4th 952, stating no arguable issues had been found. Her appeal was dismissed.
DISCUSSION
Mother does not challenge the court's termination of jurisdiction or the award of sole physical custody of Minor to Father. Instead, Mother contends the court abused its discretion by denying her request for joint legal custody of Minor and by reducing her weekly visitation time from eight to four hours. SSA filed a letter stating it does not oppose Mother's appeal because it was not previously opposed to giving her joint legal custody or the visitation she sought. For the reasons below, the court did not err.
The court has authority to issue an order determining custody and visitation when it terminates jurisdiction over a minor. (§ 362.4.) In making these orders, the court must consider the best interests of the child and evaluate the totality of the circumstances. (In re Chantal S. (1996) 13 Cal.4th 196, 205-206.) "The issue of the parents' ability to protect and care for the child is the central issue." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) "[T]he juvenile court has broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) We accordingly review the court's order for abuse of discretion. (In re J.M. (2023) 89 Cal.App.5th 95, 113.)
Here, the court did not abuse its discretion by denying joint legal custody of Minor to Mother. "'Joint legal custody' means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Fam. Code, § 3003.) Joint legal custody assumes the parents can work together and communicate effectively. The court found there was a "conflictual relationship" between Mother and Father. This finding was supported by evidence that Mother and Father could not agree on a haircut for Minor and had some communication issues regarding Minor's medication. In the past, Father told a social worker that communication with Mother was not productive, and a school health assistant indicated there was ongoing conflict between Mother and Father over Minor's health. Both Mother and Father previously acknowledged some challenges in their coparenting relationship.
The court further found Mother was recently physically abusive to Minor and coached him not to disclose the abuse. These findings likewise were supported by evidence that Mother punched Minor around August 2023. Minor confirmed Mother told him not to tell anyone about the incident, and that he was scared Mother would hit him again if he disclosed the abuse. He also generally stated he did not feel safe with Mother because she hit him "a lot." T.B. further reported Mother pulled Minor's wrist and ear and was on top of him on one occasion. According to SSA's reports, Mother was evasive whenever she was questioned by SSA about the abuse. She also failed to participate in a 52-week child abuse class.
Based on the totality of the circumstances, the court did not abuse its discretion by determining sole legal custody with Father was in Minor's best interest. (In re Jennifer R., supra, 14 Cal.App.4th at p. 713 [affirming sole legal custody to the father where the mother had, among other things, a history of mental illness and "fail[ed] to make progress in overcoming the problems leading to [the child's] removal"].)
Relying on In re Roger S. (1992) 4 Cal.App.4th 25, Mother contends the court "was in danger of issuing an uninformed order" (id. at p. 31) by discounting SSA's recommendation for joint legal custody and Father's agreement to joint legal custody. In re Roger S. is inapposite because it concerned a juvenile court's refusal to hear the father's evidence in support of a change in visitation schedule. (Id. a pp. 30-31.) Another panel of this court held the juvenile court "was in danger of issuing an uninformed order which could fail to serve the best interests of the child." (Id. at p. 31.) Here, similar concerns do not exist because the court did not refuse to consider evidence. While SSA recommended joint legal custody and Father agreed to it, Minor's counsel urged the court to award sole legal custody to Father. The court was entitled to consider the totality of the circumstances and ultimately agree with Minor's counsel.
Finally, the court did not abuse its discretion by reducing Mother's visitation with Minor. While Mother notes there were no problems with her visits with Minor and some visits were positive, there also was evidence Minor was overwhelmed by the visits. Indeed, Father's counsel requested the court reduce Mother's visits with Minor because Minor was overwhelmed. By January 2024, Minor declined two visits and only wanted to visit with Mother once a week.
As noted ante, the court was tasked with making custody and visitation orders that were in Minor's best interest given the totality of the circumstances. We find no abuse of discretion in the court's conclusion that Minor's best interest was served by Father's sole legal custody as recommended and requested by Minor's counsel. We likewise find no abuse of discretion in reducing visitation given Minor's feelings about the visits.
DISPOSITION
The order is affirmed.
WE CONCUR: O'LEARY, P. J., GOETHALS, J.