Opinion
G054245
03-30-2017
In re A.G., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. M.G., Defendant and Appellant.
Melissa A. Chaitin, 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. No appearance for the Minor.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DP0769) OPINION Appeal from a judgment of the Superior Court of Orange County, Craig E. Arthur, Judge. Affirmed. Melissa A. Chaitin, 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. No appearance for the Minor.
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At a dispositional hearing, the juvenile court declared A.G. a dependent child, removed her from M.G.'s (Mother) custody, placed A.G. with her father (Father), gave Father sole legal custody, and terminated dependency jurisdiction. Mother appeals from only the orders terminating jurisdiction and awarding Father sole legal custody. She argues this ruling was an abuse of discretion because it was premature and the evidence demonstrated jurisdiction was necessary to protect A.G. We affirm the judgment.
I
In the evening of July 14, 2016, police officers took then nine-year-old A.G. into protective custody due to allegations of general neglect. A Del Taco employee called the police after a customer reported a child was crying because she had been left in the restaurant alone and her leg was bleeding. The employee stated A.G. had been crying at a table for approximately one hour and the men's bathroom had been locked for that same time period. The officers entered the bathroom and found, passed out on the toilet, Mother's friend. That morning he had met Mother and agreed to babysit A.G. Officers described Mother's friend as being dazed and having bloodshot red and watery eyes. He possessed methamphetamine and a pipe. The police arrested him and took A.G. to Orangewood Children's Home (Orangewood) because Mother was not answering her telephone and could not be located.
The Orange County Social Services Agency (SSA) filed a petition stating earlier that year police officers found A.G.'s three-year-old brother (G.G.) unsupervised. On that occasion, when they located Mother she was disoriented and unaware G.G. was missing. Mother admitted she used methamphetamine and she refused the offer of voluntary family services. Father stated he was able to care for A.G. at that time.
This appeal does not concern G.G.
The petition also recounted A.G.'s abandonment at the Del Taco restaurant. It alleged Mother put A.G. in the care of an incapacitated and unrelated adult male. Father "had not taken appropriate steps to protect the child in the care of [Mother] despite having been previously notified [Mother was] not adequately supervising [G.G.], and having reported he was able to care for [A.G.]."
The petition alleged Mother had an unresolved history of substance abuse, including methamphetamine. Although Mother claimed she was no longer using drugs, Father and paternal grandfather reported Mother used methamphetamine one month ago. It also alleged Mother had unresolved mental health issues. She self reported the diagnosis of depression and anxiety. She was not currently taking medication to address these issues. Maternal grandfather reported Mother was diagnosed with bipolar disorder five or six years ago, and she attempted suicide when she was 14-years-old. He recalled Mother had previously been prescribed medication to address her mental health issues.
The petition described additional concerns. Mother was homeless and unable to make sure her children were adequately supervised. A.G. reported the family lived in parks and motel rooms. Mother self reported a history of domestic violence with G.G.'s father (who was different from A.G.'s biological father). Mother had a criminal history, including convictions/arrests for driving under the influence and displaying fake identification. G.G.'s father had a criminal history and was currently incarcerated.
The petition also discussed Father. It stated he was aware of Mother's instability and her failure to supervise A.G. SSA advised him to seek custody of A.G. in family court but he failed to do so. He also failed to take A.G. to a doctor after she injured herself falling off a bike. Father asked maternal grandparents to seek medical attention, but they did not have the child's medical card.
In the detention report dated July 19, 2016, the social worker described the prior child welfare history, including when G.G. went missing. G.G. left a motel room while Mother was sleeping. He was found by strangers, who called the police. Mother initially agreed to participate in services and seek mental health services. However, she did not follow through, failed to seek treatment, and refused to tell SSA about her whereabouts. The social worker eventually found Mother at A.G.'s school, and Mother refused to sign the case plan. The maternal grandparents reported Mother was incapable of caring for or protecting the children and she refused her family's offers of help. Maternal grandmother stated the children were not safe with Mother and they should be placed in protective custody. She knew Father had been working on construction jobs in South Carolina and he often traveled out-of-state for work.
The social worker reported she made an effort to involve Father after the first missing child incident. During one telephone call, Father stated he was unable to meet in person because he was not in Orange County. Father stated he had health insurance for A.G. He also provided Mother with financial assistance. He denied any history of drug abuse, child abuse, criminal activity, or mental health concerns. He was unaware of the incident involving G.G., and A.G. had not mentioned it to him. A.G. and Father had regular contact. He purchased a cell phone for her to communicate with him. He was no longer in a relationship with Mother and believed she was "doing okay despite the unstable housing situation." Because they no longer lived together, Father did not know if Mother used drugs. He stated that when they had contact she did not appear to be under the influence. Father stated he was interested in obtaining full custody of A.G. The social worker told Father he could apply for custody in family court.
The social worker interviewed A.G., who stated her Mother was homeless and they were living in parks and hotel rooms. She denied seeing Mother or her male friend abuse drugs. She described the chronology of her day with Mother's friend before he passed out in the Del Taco bathroom. That day A.G. did not know when she was going to meet Mother again and she knew the friend's phone "did not work for calls only for games." A.G. called Mother when she arrived at Orangewood, and Mother said there was a misunderstanding and she did not tell A.G. to go with the male friend. Mother stated she had looked for A.G. everywhere. When the social worker asked A.G. about Father, she said she had no contact with him.
Mother told the social worker the same story she told A.G., claiming the incident was due to a misunderstanding. Mother denied having a drug problem or neglecting her children. The social worker told Mother she needed to voluntarily place G.G. at Orangewood or the social worker would request a warrant with the police department. Maternal grandfather eventually located Mother and G.G., and he brought G.G. to Orangewood.
At the detention hearing, the juvenile court determined Father was A.G.'s presumed father. Father's counsel argued the allegations in the petition were untrue as to Father and asked for return or placement of the child with Father. Counsel stated Father stopped living with Mother three years ago and he saw A.G. on weekends. He also bought her a cell phone. Counsel argued the petition's allegation that Father's whereabouts were unknown was untrue because he was present in court and Father provided the court with an address. Due to concerns about whether there was an accurate criminal report, and Father's ability to provide housing and childcare, the hearing was continued.
In an addendum report, the social worker stated she met Father for a home visit and she learned the apartment belonged to his uncle and was not yet available. Father stated he gave Mother $300 every two weeks for A.G. and he had been working on the East coast. He was not aware Mother and the children were homeless. Father stated his work schedule was demanding, often starting at 5 a.m. and ending at 7 p.m. Father stated he sometimes worked on weekends and was out of town. Father stated he would find an apartment and childcare.
At the hearing on July 21, 2016, the court stated, "I don't think anybody disagrees with the fact that there isn't much in [the petition] regarding [Father]." It noted Father has not been around and advised Father to cooperate with the social worker. The court told Father to get his housing and childcare in place and the social worker would release A.G. to him. In the meantime, the court ordered the children remain detained, and gave SSA authority to release A.G. to a parent or suitable adult if appropriate. The court ordered Father be given liberal, unmonitored, and unsupervised visitation while A.G. was at Orangewood.
In the jurisdiction/disposition report, dated August 11, 2016, social worker, Vanetta Warrior, recommended the court amend and sustain the petition and declare dependency. Warrior reported A.G. appeared "to be parentified and protective of her mother and [G.G.]." The children visited with each other regularly and G.G. had difficulty separating from his sister. A.G. told the social worker she was concerned about where Mother was staying and that they had never been apart. She stated she did not want to be placed with Father because he left her with people she did not know. She was willing to live with her paternal aunt and uncle temporarily, but would rather live with Mother.
Father believed he had a good relationship with A.G., they regularly spoke on the phone, and he recently took her to an amusement park. Father stated he wanted custody of A.G. and for her to have a normal upbringing. He looked forward to caring for her. He acknowledged his line of work as a driller often took him out-of-state for long periods and his work hours were lengthy. Father said he was living with his brother and sister-in-law (Paternal Uncle and Paternal Aunt) in Anaheim and they have agreed to have A.G. live with them and provide childcare in Father's absence. Father stated this was his arrangement approximately one and one half years ago when A.G. was in his care. He mentioned his commitment to continue supporting Mother financially. Father told the social worker he never spoke badly about Mother to A.G. and would reassure her that Mother would always be her mother.
On the scheduled hearing date, August 11, 2016, the court conducted a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118), regarding Mother and her counsel. The court determined there was not a breakdown of the relationship and denied Mother's request to discharge her counsel.
The court continued the hearing to September 1, 2016. In an addendum report, Warrior's recommendation had changed to terminating the dependency with exit orders. Warrior stated she met with Paternal Aunt on August 12, 2016, after the last hearing and discussed childcare plans. Paternal Aunt confirmed she and Paternal Uncle were willing to care for A.G. and they had cared for her in the past. A.G. had a good relationship with them and their 12-year-old daughter. Warrior released A.G. to Father that same day.
Warrior met with the family a few weeks later. Paternal Aunt stated she was in the process of enrolling A.G. in school. A.G. appeared healthy and she stated he liked living with Father and extended family members. She explained she liked to go places with her Father, Paternal Aunt, and cousin. They had gone shopping and bought a new dress for church. She stated Father had promised to take her somewhere soon.
At the September 1, 2016, jurisdictional hearing, Mother's counsel requested a continuance because Mother was not in court. The court denied the request and sustained the amended petition. It scheduled a disposition hearing.
At the end of September 2016, Warrior filed an addendum report. Mother called the social worker and was very upset, asking why the court would not release the children to her and she would receive housing if they were with her. Following another hearing continuance, Warrior filed an addendum report on October 25, 2016. She reported Paternal Aunt was having difficulty arranging A.G.'s visits with Mother. The social worker arranged for visits to take place on Fridays, monitored by maternal grandfather and would include a visit with G.G.
Warrior reported Mother was not participating in her case plan. Mother had not started counseling, complaining it was too far away. She was not drug testing. She did not complete the parenting class. She missed her initial Perinatal program appointment.
The October 26, 2016, disposition hearing was trailed for one day for Mother to be present. She did not show up and the court denied her counsel's request for another continuance to give Mother more time to appear in court. At the hearing, the parties did not wish to present evidence or cross-examine the social worker. The court considered the parties' arguments. Father's counsel stated Father requested sole legal custody because the dependency case concerned Mother, who was not participating in her services or visiting A.G. consistently. Counsel noted there was evidence that multiple parties experienced great difficulty coordinating visits with Mother, who was uncooperative, and therefore, "it's a stretch to think [Father would] be able to coordinate . . . educational, medical and travel decision with [her]. Father's counsel stated Mother's new Friday visitation schedule was appropriate and she should receive extra visits on Mother's Day and A.G.'s birthday.
Mother's counsel requested the court keep the case open and not terminate jurisdiction. She argued Father was in contempt of court for not allowing visitation to occur and it was in A.G.'s best interests for the parents to have joint legal custody. Counsel argued that if the case stayed open Mother would have more time to become stable and regain custody. Father's counsel replied Father was not refusing visits, but rather Mother made scheduling visits problematic. Minor's counsel stated she was "simply submitting" because she did not know if there was a basis to keep the case open and she would not object if the case was left open.
The court ruled A.G.'s welfare required her removal from Mother's custody. The court declared A.G. a dependent child of the juvenile court, placed her in Father's sole physical and legal custody, and terminated jurisdiction. The court ordered Mother would have supervised visitation for six hours on Fridays, six hours on Mother's day, and six hours on A.G.'s birthday (odd numbered years).
II
Mother's argument on appeal is limited to the following two issues: (1) did the court abuse its discretion in terminating jurisdiction; and (2) was it an abuse of discretion to award Father sole legal custody. She does not dispute the court's decision to remove A.G. from her custody and award Father physical custody. A. Welfare and Institutions Code section 361.2 and Standard of Review
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. --------
Pursuant to section 361.2, subdivision (a), the court must place a dependent child with a previously noncustodial parent who requests custody, unless the placement would be detrimental to the child's safety, protection, or physical or emotional well-being. The noncustodial parent has both a constitutionally protected interest in custody and a statutory right to custody, and consequently, there must be clear and convincing evidence of detriment to the child before the court can deny the noncustodial parent's request for custody. (In re Isayah C. (2004) 118 Cal.App.4th 684, 696; In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 (Luke M.).) "'"'Clear and convincing' evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind. [Citations.]"' [Citations.]" (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205-1206.) With its heightened standard of proof, section 361.2, subdivision (a), gives effect to the legislative preference for placement with the previously noncustodial parent. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1132 (Austin P.).)
Under section 361.2, subdivision (b), if the court places a child with the previously noncustodial parent, the court may either (1) grant sole legal and physical custody to the noncustodial parent and terminate jurisdiction, or (2) grant custody to the noncustodial parent, but continue its jurisdiction and provide reunification services to either the offending parent, the nonoffending parent, or both parents. (§ 361.2, subd. (b); Austin P., supra, 118 Cal.App.4th at p. 1131.) "In examining section 361.2, subdivisions (a) and (b), it is clear that the Legislature envisioned a two-step process: under subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court's jurisdiction should be terminated." (Ibid.)
When, as in this case, the court's findings as to the need for continuing supervision is challenged on appeal, we consider the record favorably to the order and determine whether there was substantial evidence from which a reasonable trier of fact could make the findings by clear and convincing evidence. (Luke M., supra, 107 Cal.App.4th at p. 1426; Austin P., supra, 118 Cal.App.4th at p. 1134.) We may not reweigh or express an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.) "We do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, consider the record most favorably to the juvenile court's order, and affirm the order if supported by substantial evidence even if other evidence supports a contrary conclusion. [Citation.] The appellant has the burden of showing the finding or order is not supported by substantial evidence. [Citation.]" (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 (L.Y.L.).) B. Termination of Jurisdiction
Mother does not argue that temporarily placing A.G. with Father would be detrimental to her well being, i.e., the first step in the section 361.2 process. Her argument on appeal is focused on the second step, arguing it was premature to make the placement permanent and terminate jurisdiction. We disagree.
Mother acknowledges there is case authority holding a juvenile court's decision to terminate or continue its jurisdiction turns on "whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction." (Austin P., supra, 118 Cal.App.4th at p. 1135, In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496, disapproved on another point in In re Chantal S. (1996) 13 Cal.4th 196, 204.) In making this determination, "concern for the child's immediate welfare and care is paramount." (In re Phoenix B. (1990) 218 Cal.App.3d 787, 793-794.)
Mother argues the evidence did not support the court's order terminating jurisdiction because additional supervision was warranted. She explains supervision would "ensure the minor is safe and secure in" Father's home. She opines a "more prudent approach, given the facts of this case, warranted an order . . . granting [M]other reunification services with her [10-year-old] daughter who she raised and order family maintenance services to [Father], who has not taken care of this child at all prior to this case being filed and then set a review hearing in six months." In essence, Mother is claiming additional supervision was warranted because living full time with Father was a new arrangement and it would make it more difficult for Mother to reunite with A.G.
We conclude evidence merely supporting the "most prudent approach" is not enough to satisfy Mother's burden of showing the court's order was not supported by substantial evidence. (L.Y.L., supra, 101 Cal.App.4th at p. 947.) The evidence showed A.G. was parentified and overly protective of Mother due to their living circumstances. She initially did not want to leave Mother to live with Father, and voiced concern about where Mother would live. However, after being placed with Father in August 16, 2016, A.G. stated she liked living with him and her extended family members. She spent time with Father and he took her to school when he was not working. Father reported he and A.G. spoke on the telephone frequently. The social worker observed A.G. was healthy and well dressed. The social worker voiced no concerns that A.G. was not safe or secure in Father's home. At the time of the hearing, on October 25, 2016, A.G. had lived with Father for over two months without incident. Thus, nothing in the record suggested A.G. was at risk, that additional supervision was warranted, or that A.G.'s happiness with her living arrangements would not continue.
To the contrary, there was evidence it was not in A.G.'s best interests to continue jurisdiction because Father reported that he could lose his job because he was missing work to attend all the court hearings. Mother's ability to reunify in the near future with A.G. was doubtful given the depth and severity of her multiple issues (drug usage, unstable mental health, and homelessness), and her minimal progress with her case plan. There was also evidence, from Father and Paternal Aunt, that A.G. had lived with him in the past and he had a caring relationship with A.G. Father provided her with a cell phone to keep in touch when they were apart, he gave Mother child support money, and he bought A.G. clothes. The court could reasonably rely on the above evidence in determining there was no need for additional supervision and terminating jurisdiction was in A.G.'s best interests. C. Sole Legal Custody
"When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court." (In re Roger S. (1992) 4 Cal.App.4th 25, 30, fn. omitted.) "We normally review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or 'exit') order pursuant to section 362.4 for abuse of discretion [citation] and may not disturb the order unless the court '"'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].'"' [Citations.]" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
Mother argues the juvenile court's order was an abuse of discretion because A.G. was then 10 years old, had lived with Mother for the majority of her life, and had "consistently expressed her desire to live with [M]other and/or have 'lots and lots of visits." She added, placement with Father had only been for a few months and A.G. stated Mother and G.G. were the most important people in her life. Finally, Mother maintained joint legal custody was appropriate because the order "essentially stripped [M]other of all her rights pertaining to her child . . . ." We disagree, concluding Mother has not carried her burden of proof.
First, Mother fails to mention that A.G.'s statements about where she desired to live and her feelings for Mother were made by Minor's counsel at the July 2016 detention hearing and during the social worker's interview of A.G. while she resided at Orangewood. After she began living with Father in August 2016, there is nothing in the record suggesting A.G. preferred living with Mother over Father. Rather, there was evidence to support the conclusion A.G. and Father had a positive relationship and A.G. liked living with Father and her extended family members.
Second, there is nothing in the record to suggest Mother could not continue to enjoy a relationship with A.G. despite losing legal custody. The court's exit orders gave her six hours of supervised visits on Fridays, with additional time on Mother's Day and half of A.G.'s birthdays. Father stated he would continue financially supporting Mother and he believed he should not speak badly about Mother to A.G. He understood the relationship was important to A.G. and sought to reassure her that Mother would always be her mother.
Third, there was substantial evidence Mother was making it difficult to coordinate visits with A.G. She occasionally missed visits or arrived late, and she was minimally participating in services. She was absent from several court hearings. "'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.) Father's counsel argued it would be difficult for Father to coordinate medical, educational, travel, and other decisions with someone who missed the jurisdictional hearing, nearly all of the disposition dates, and had difficulty communicating with her trial counsel and the people coordinating visits with A.G. In light of all of the above, it cannot be said the court abused its discretion in awarding Father sole legal and physical custody of A.G.
III
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: MOORE, J. IKOLA, J.