Opinion
E066550
07-06-2017
Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Respondent A.P. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ113358) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Valerie N. Lankford, under appointment by the Court of Appeal, for Defendant and Appellant J.R. Michelle D. Peña, under appointment by the Court of Appeal, for Defendant and Respondent A.P. Gregory P. Priamos, County Counsel, and James E. Brown, Guy B. Pittman, and Carole A. Nunes Fong, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant J.R. (mother) is the mother of A.P. (child), who is the subject of this dependency matter. She challenges the juvenile court's decision to terminate jurisdiction and to issue exit orders denying her visitation. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The child (born May 2004) first came to the attention of plaintiff and respondent Riverside County Department of Public Social Services (DPSS) in July 2004, when it received a referral alleging general neglect. The allegation was eventually deemed unfounded.
After several other referrals that reached the same result, in November 2006, DPSS received a referral alleging that the child's father, defendant and respondent A.P. (father), was incarcerated, and that mother had contacted law enforcement requesting that the child be taken into protective custody while she went into a sober living home. During DPSS's investigation, mother reported being homeless, and wanted the child to be taken from her while she found work and a place to live. The child was adjudged a dependent of the court. After reunification services for both parents failed, a permanent plan of legal guardianship was ordered; the child's paternal grandmother was appointed his legal guardian in May 2008.
The child and father share a name; father is A.P., Jr., while the child is A.P. III.
In March 2011, the child again came to the attention of DPSS, when it received a referral alleging general neglect by the father and caretaker absence/incapacity of the legal guardian/paternal grandmother. It was reported that in April 2010, the paternal grandmother had signed custody of the child over to father and moved out of the United States. The allegations were determined to be unfounded as to father, and inconclusive as to the paternal grandmother.
In June 2011, father filed a Welfare and Institutions Code section 388 petition, requesting that he be given primary legal and sole physical custody of the child. The juvenile court eventually, in April 2012, granted father's petition, initially returning the child to him on a family maintenance plan, and later, in October 2012, awarding him sole physical and legal custody of the child, with mother to have supervised visitation once per month.
Further undesignated statutory references are to the Welfare and Institutions Code.
"Family maintenance" refers to services provided while the dependent child remains in his or her own home, in the custody of a parent, under the supervision of the county welfare department. (See In re Pedro Z., Jr. (2010) 190 Cal.App.4th 12, 19-20; § 16506.)
In March 2015, the child yet again came to the attention of DPSS, when it received a referral regarding allegations of caretaker absence/incapacity. Law enforcement told the social worker that it had responded to the residence of father and the child on a noise complaint, but ended up arresting father for possession of controlled substances (methamphetamine, as well as Hydrocodone that was not prescribed to father), possession of brass knuckles, and child endangerment. A large amount of ammunition was also found in the home, which was unlawful for father to possess because of prior felony convictions.
When interviewed by the social worker in jail, father said that on the night of his arrest, he had become upset because a neighbor was going to fix the kitchen sink, but when the neighbor went to get materials, water began flooding the kitchen. When police arrived, father was yelling at everyone to help clean up the water. Father stated that the brass knuckles belonged to a friend, who had left them there a few weeks before. Father denied having drugs in the house, and denied any knowledge of the police finding any drugs. He said that the drugs found were not his, and denied admitting to officers that the drugs they found were his. He admitted to having problems with drugs in the past, but denied any current drug or alcohol problems, stating also that he was drug tested at work (as a union laborer), and that he had tested negative about a week before.
Father told the social worker that the child was the product of a brief relationship with mother. He said that she is "always homeless and runs the streets all the time." He and the child had not seen or heard from her in about four years, and that they would rather not have any contact with her because she is disruptive to the child's life. Father said he previously went to prison because she "lied and said there was domestic violence between them." He said he spent two years in prison on charges of making terrorist threats and domestic violence, and it was the only time he had been in prison.
The social worker also interviewed the child, who confirmed father had not been yelling at him, but was upset because of water flooding the kitchen. The child denied being aware of the police finding drugs in the house, or being aware of his father using drugs at any time. He said that his father takes good care of him, and that he likes living with him. The child enjoyed playing baseball, and his father helped coach the team.
In contrast, the child had not seen his mother for about four years, and he did not know where she was living or how to contact her. Mother had not been involved in his life, and does not seem to be interested in him. He said that he did not want to live with mother, and that he did not know her anymore.
The dependency petition, filed on March 20, 2015, alleged the child came within section 300, subdivision (b) (failure to protect) and subdivision (g) (no provision for support). The juvenile court detained the child as to both mother and father, and placed the child in foster care. It authorized supervised visitation for mother every two weeks, supervised by DPSS. It authorized visitation for father a minimum of two times per week, unsupervised so long father remained sober, and permitted father to attend the child's school and extracurricular activities.
In the jurisdiction/disposition report, filed on April 8, 2015, DPSS recommended that the subdivision (g) allegation should be stricken, because father was no longer incarcerated. Father told the social worker that he had been held on two traffic warrants, but no charges had been filed and he was released after two days. DPSS recommended, however, that the child should be declared a dependent of the court under section 300, subdivision (b), citing "significant concern" about father's ability to protect and appropriately care for the child. Father had "an unresolved history of substance abuse," though he had a negative drug test on March 31, 2015. The report makes note of father's most recent arrest, along with a criminal history that included "arrests for domestic violence, drug possession, and child endangerment." Father also has "a documented history with Child Protective Services for substantiated allegations of general neglect and caretaker absence/incapacity."
Charges were later filed, and father pleaded guilty to several felony counts; he was sentenced to seven years four months in prison, but execution of the sentence was suspended, and he was placed on probation for a period of 48 months.
With respect to mother, DPSS reported that she "has an unresolved history of substance abuse and has never been able to demonstrate the ability to adequately maintain her sobriety for any extended period of time." It noted she had a "lengthy history of CPS intervention and services" due to substance abuse and chronic homelessness, including an open dependency case with respect to the child's younger half siblings. She had only "limited contact" with the child in the previous four years.
DPSS recommended reunification services be provided to father and mother, who both wanted custody of the child. In an addendum report, filed May 28, 2015, DPSS requested authorization for family maintenance services, provided father made adequate progress on his case plan. Father had tested negative for all controlled substances, and he had been making adequate progress with his substance abuse treatment program, which he would complete in six weeks if he attended the scheduled meetings. The child told the social worker that he was enjoying his weekend visits with father, and that he was looking forward to returning home. He had not visited with mother; he expressed that he would like to visit with her, but he did not want the visits to interfere with his baseball practice or games. He did not want to live with mother.
At the jurisdictional/dispositional hearing on May 28, 2015, the juvenile court adjudged the child to be a dependent pursuant to section 300, subdivision (b), striking the subdivision (g) allegation per DPSS's recommendation. The court placed the child with father, and ordered father to participate in family maintenance services. The court ordered reunification services for mother and weekly supervised visitation, with the proviso that visits "are not to interfere with child's school or extracurricular activities."
In a status review report filed November 9, 2015, DPSS recommended that the dependency be terminated, that father obtain sole legal and physical custody of the minor, and that mother have reasonable supervised visitation at the discretion of the child, with the visits to be supervised by a third party or a paid monitor at mother's expense. Father had completed a 24-week outpatient substance abuse treatment program, submitted negative results to substance abuse testing, and had "verbalized how to maintain his sobriety." His progress report for the program stated among other things that he "was in all groups with excellent participation," and that he "appeared to be genuinely concerned about the health and welfare of his child and becoming a good role model." The social worker reported some difficulty in making contact with father to assess his living arrangements. When a home visit was finally arranged, however, "the home was found to meet the needs of the family, no safety issues were present and there were sufficient provisions for the family." Father failed to take the child to a scheduled mental health assessment appointment. During the review period, however, the child "presented as happy and outgoing" and "reported to be bonded to his father." DPSS's conclusion was that there was "no longer a continued need for in home services."
DPSS reported that the child had supervised visits with mother on July 20, 2015, and again on August 3, 2015, skipping a week because of an extracurricular activity. The supervisor reported that during the visits, the child and mother did not appear to bond very much; during the first visit, mother spent most of the time caring for her baby, the child's half sibling. During the second visit, the child and mother played a board game together, but engaged in little conversation. After the visit, the child told the supervisor that he was not interested in visiting mother again, and for the remainder of the reporting period, he refused to visit her or participate in monitored telephone calls with her.
In an addendum report, filed December 15, 2015, DPSS changed its recommendation; it continued to recommend that the dependency be terminated, and that father have sole physical custody of the child, but now recommended mother and father have joint legal custody, and that mother's visitation be supervised by a third party agreed upon by the parents. The addendum report described a visit between mother and child that took place on December 11, 2015, which went well; another visit was scheduled for December 14, 2015.
At the review hearing on December 18, 2015, the juvenile court observed that "father does not approve of the continued relationship between the mother and the child and he has not been helpful in terms of that relationship . . . ." The child's counsel reported that the child had enjoyed his visits with mother, but seemed to feel that he would be "disloyal to his father by asking for visits for his mom or saying that he enjoys them." On that basis, instead of terminating jurisdiction as DPSS had recommended, the juvenile court ordered that family maintenance services be continued for father, and family reunification services be continued for mother. The court found that "[t]he court's supervision is necessary to ensure visitation" with mother, and that to do so was in the best interest of the child.
Father appealed the juvenile court's decision not to terminate jurisdiction. That appeal (case No. E065063) is stayed pending resolution of the present appeal.
In an addendum report filed February 22, 2016, DPSS asked the court to admonish father "for not ensuring the child has participated in a mental health assessment"; appointments for the assessment had been scheduled, but the child did not attend. DPSS also asked for authorization to allow unsupervised overnight visits with mother, upon the recommendation of the child's therapist and the child's consent. The child had visited with mother on December 15, 2015, and January 4, 2016, and the visits had gone well, though some subsequent visits were cancelled due to illness or scheduling conflicts.
At a hearing on March 10, 2016, the juvenile court ordered that mother have unsupervised visitation with the child, with the schedule to be worked out by DPSS to accommodate the child's school and extracurricular activities.
In a status review report filed June 3, 2016, DPSS reported that mother had an unsupervised visit with the child on March 28, 2016, which went well; the child "appeared happy after the visit with no complaints." No subsequent visits were scheduled, however, because both mother and father failed to maintain contact with DPSS. With respect to mother, the social worker reported that attempts to reach mother at her listed phone number were unsuccessful, and that the number had no functioning voicemail. The social worker did learn that the dependency proceedings regarding mother's three younger children, the child's half siblings, had been terminated on February 25, 2016, and she had "secured housing with the assistance of the Department in March 2016." Father told the social worker that mother had their phone number, but had not called on the child's birthday.
The social worker continued to have difficulty accessing the home of father and the child to assess the living arrangements, but gained access on May 31, 2016, and found the home "to meet the needs of the family . . . ." Father continued to "fail to have the child assessed for mental health services," but the child "presented as happy and outgoing," and reported "to be bonded to his father." Father had "submitted negative results to substance abuse testing and [had] verbalized how to maintain his sobriety." The social worker opined that "[i]t would not be detrimental to the emotional or physical well-being of the child should the dependency be terminated." On that basis, DPSS's recommendation was that the dependency be terminated, with father to obtain sole physical and joint legal custody of the child, with mother to have reasonable unsupervised visits at least one time per month.
At the review hearing on June 17, 2016, father and the child were present, but mother was not. Father requested sole physical and sole legal custody of the child, and no visitation for mother, arguing that it was a detriment to the child for mother to "constantly come in and out of [the] child's life." The child's counsel informed the court that the child "does not want to visit his mother." Mother's counsel had no explanation for why she had not visited the child since March, or why she had not been in contact with the department, stating "I don't know what's going on." Mother's counsel asked that the court "follow the recommendation" of DPSS.
The juvenile court granted father sole physical and sole legal custody of the child, and terminated jurisdiction. It ordered "no visits for the mother at this time," making an explicit finding of detriment "based upon the mother's in-and-out behavior in the child's life," elaborating as follows: "The court has given her extensive opportunity to amend or correct her past relationship issues with this child, and the court finds that her lack of contact since March of this year, her failure to contact her son on his birthday causes severe emotional harm."
Mother's notice of appeal describes the order appealed from as follows: "June 17, 2016. Denial of visits to mother." (Some capitalization omitted.) The notice of appeal makes no specific mention of the juvenile court's decision to terminate jurisdiction.
II. DISCUSSION
A. The Juvenile Court Did Not Err by Terminating Dependency Jurisdiction.
Mother argues that the juvenile court erred by terminating jurisdiction "in light of the obvious and continuing need for services in order to serve the best interests of the minor." She argues that father was "actively engaged in thwarting any possibility of [the child] and mother developing a relationship" in various respects. She points out that the court had recognized that "being alienated from mother was harmful to [the child]," and concludes from that premise that the court "had a duty to keep the case open until that issue was addressed." We find no error.
We acknowledge the argument asserted by both DPSS and father that mother forfeited any challenge to the juvenile court's decision to terminate jurisdiction by failing to object in the juvenile court, as well as DPSS's argument—which father does not join—that mother's notice of appeal restricts her challenge on appeal to the denial of visitation. We reject DPSS's argument regarding mother's notice of appeal. (Rules of Court, rule 8.405(a)(3) ["The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed."].) We find it to be both appropriate and expedient to address mother's challenge to the juvenile court's ruling on the merits, and therefore do not reach the forfeiture issue. (See In re S.B. (2004) 32 Cal.4th 1287, 1293.)
"Once a child has been declared a dependent, the juvenile court must review the status of the child every six months. [Citations.] 'The applicable standards at the six-month review hearing differ depending on the child's placement.' [Citation.] Section 364 provides the standard when 'a child under the supervision of the juvenile court . . . is not removed from the physical custody of his or her parent or guardian.'" (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1154-1155, fn. omitted (Aurora P.).) "[U]nder section 364[,] [subdivision] (c), the juvenile court must terminate dependency jurisdiction unless either the parent, the guardian, the child, or the social services agency establishes by a preponderance of the evidence that the conditions justifying assumption of jurisdiction exist or will exist if supervision is withdrawn.'" (Id. at pp. 1155-1156.)
"We normally review the juvenile court's decision to terminate dependency jurisdiction and to issue a custody (or 'exit') order pursuant to section 362 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].'"'" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Some courts have applied a substantial evidence standard, rather than abuse of discretion. (Aurora P., supra, 241 Cal.App.4th at p. 1156.) The substantial evidence standard, however, is inappropriate where "'the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals . . . .'" (Ibid.) Rather, "where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) As a practical matter, there is no difference between a decision exceeding the limits of legal discretion, and the evidence compelling a finding in favor of the appellant as a matter of law.
There is nothing arbitrary, capricious, or patently absurd in the trial court's decision to terminate dependency jurisdiction. To the contrary, the record contains ample evidence that the conditions justifying the assumption of jurisdiction over the child had been ameliorated. Father had completed a substance abuse program, consistently tested negative for drugs, and had demonstrated to the satisfaction of DPSS that he was on track to maintain his sobriety. Although the social worker expressed some frustration with difficulties in gaining access to father's home to assess the living arrangements, when assessments were performed, no problems were observed. The child was bonded to the father, and presented as happy and healthy. The social worker's conclusion was that "[i]t would not be detrimental to the emotional or physical well-being of the child should the dependency be terminated." The juvenile court was well justified in accepting DPSS's recommendation that it terminate dependency jurisdiction.
Mother contends, and we may assume for present purposes, that father interfered in certain ways with her building a relationship with the child. And it is possible that continuation of the services available to families during dependency proceedings could have been useful to facilitating the development of that relationship. It does not follow, however, that the conditions that caused the court to take jurisdiction of the child still existed or would exist if jurisdiction were terminated, requiring continued court supervision.
Mother quotes In re Christopher C. (2010) 182 Cal.App.4th 73, 85 (Christopher C.) for the proposition that "'juvenile courts must not become a battleground by which family law war is waged by other means,' but when children are at risk of harm in an 'ongoing familial fight,' it is proper for the dependency court to intervene." In Christopher C., the juvenile court found the children came within section 300, subdivision (c), based on their suffering, or being at substantial risk of suffering, severe emotional damage as the result of the conduct of the parents; a bitter custody battle between those parents had devolved into "'cross allegations of sexual abuse, physical abuse, [and] "coaching [to make false accusations of abuse]."'" (Christopher C., supra, at p. 81.) The court found that each of the children "'have, in the past, and now continue to suffer with fractured minds due to the parents' juvenile ways.'" (Id. at p. 79.) The Court of Appeal affirmed the juvenile court's exercise of jurisdiction over the children. (Id. at p. 85.)
Mother proposes that this case is similar to Christopher C. It is not. Among other things, Christopher C. examines the exercise of jurisdiction under section 300, subdivision (c), which applies when a child is suffering, or is at substantial risk of suffering, "serious emotional damage . . . evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others . . . ." (§ 300, subd. (c); see Christopher C., supra, 182 Cal.App.4th at p. 83.) The conditions that led to the dependency in the current case fell under section 300, subdivision (b), specifically, the risk of physical harm to the child arising from the conditions in father's home and father's substance abuse issues. Whatever harm the child may incur from the lack of a positive relationship with mother, it is not of the same magnitude as that suffered by the children in Christopher C., and there is no evidence the child suffers from or is at substantial risk of suffering severe anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or others. Moreover, Christopher C. considers whether the juvenile court's exercise of jurisdiction was supported by substantial evidence, not whether the trial court's decision to terminate jurisdiction was an abuse of discretion. (Christopher C., supra, at p. 84.) Nothing in Christopher C. suggests that the juvenile court may retain jurisdiction to help foster a developing relationship with a noncustodial parent, even though the conditions in the home of the custodial parent that led to the dependency have been ameliorated.
In short, mother has demonstrated no error in the juvenile court's decision to terminate jurisdiction.
B. The Juvenile Court Did Not Err by Denying Mother Visitation.
Mother contends that, even if the juvenile court correctly terminated jurisdiction, it abused its discretion by issuing exit orders that deny her visitation. We disagree.
"Section 362.4 provides that when the juvenile court terminates jurisdiction over a dependent child, and there is a pending family court case, the juvenile court may issue an order determining the custody of, or visitation with, the minor, which order 'shall' become part of the family court file and 'shall continue' unless 'modified' or 'terminated' by that court. [Citation.] An order entered pursuant to section 362.4 is commonly referred to as an '"exit"' order." (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455.)
The standard of review for a custody order made in a dependency proceeding is abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) A reviewing court will not disturb the juvenile court's custody determination unless it "'"has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]."'" (Id. at p. 318.)
As DPSS notes, some courts have used a substantial evidence standard or blended standard. (E.g., In re Daniel C. H. (1990) 220 Cal.App.3d 814, 837-838 [no abuse of discretion because substantial evidence supported order].) Similarly, mother asserts that abuse of discretion is the appropriate standard, but then argues that no substantial evidence supported the court's decision. We would reach the same result under any of the plausibly applicable, deferential standards of review.
"The standard which governs all determinations in dependency proceedings is to protect the welfare and best interests of the child." (In re Elizabeth M. (1991) 232 Cal.App.3d 553, 569.) Thus, when creating an exit order, the standard the juvenile court must consider is the best interests of the child. (See, e.g., In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) The juvenile court "must look to the totality of the child's circumstances when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)
We conclude the record supports the juvenile court's decision to deny mother visitation (even if it also could have supported a different decision, as had been recommended by DPSS). Mother has intermittently chosen to make herself absent from the child's life, for one reason or another, both before and during these dependency proceedings. Most recently, after a four year absence from the child's life, she received reunification services, and apparently began to build a relationship with him; after a rocky start, her visits with the child were going well, to the point that in March 2016 the court authorized unsupervised visitation. Then, after one unsupervised visit, she chose without explanation to disappear from the child's life again, by failing to maintain contact with DPSS to schedule further visits, and failing to maintain any sort of contact with the child, including by not calling on his birthday. Mother thereby destroyed the progress that had been made in building their relationship; by June 2016, the child no longer wanted to visit with mother. It was reasonable for the juvenile court to assent to the child's wishes, rather than require him to continue to subject himself to mother's "in-and-out behavior" through further court-ordered visitation.
Mother argues on appeal that there is no substantial evidence in support of the conclusion that she did not call the child on his birthday. This argument borders on frivolous. The social worker reported father had expressed frustration that mother did not call on the child's birthday. The information was confirmed by father's counsel in open court, in the presence of both father and the child: "Father indicates, not only the report, but to me this morning that mother didn't even call, didn't send him anything, didn't request visitation of any kind." Mother's self-interested questions about father's credibility do not render his statements to the social worker and to his counsel so unreliable that it was beyond the bounds of reason for the court to accept them. This is particularly so, given mother's failure to present any evidence rebutting father's claim about her lack of contact and failure to attempt contact with the child. --------
On appeal, mother attempts to shift blame to father, focusing on the various ways father could have more fully cooperated with DPSS and the court. But there is nothing in the record suggesting father did anything to prevent mother from scheduling visits, or otherwise maintaining contact with the child. This is not, for example, a circumstance where mother was actively attempting to schedule visits through DPSS, and father's failure to maintain contact was the cause of mother's lack of visitation. There is no declaration or other testimony from mother that she attempted to contact the child, either directly or through DPSS, and was thwarted from doing so by father. Rather, mother simply chose, for reasons that are not explained by the record, to absent herself from the child's life, and from these dependency proceedings.
Mother cites In re Mark L. (2001) 94 Cal.App.4th 573, 580 (Mark L.), for the proposition that "'It is ordinarily improper to deny visitation absent a showing of detriment.'" Mark L., however, does not consider the standard a court should apply in fashioning an exit order pursuant to section 362.4, but rather the standard for visitation during dependency proceedings pursuant to section 362.1. (Mark L., supra, at p. 580.) The Legislature knows how to require the juvenile court to make an express finding of detriment. (E.g., § 366.21, subd. (h) [pending a section 366.26 hearing, juvenile court shall continue to permit visitation "unless it finds that visitation would be detrimental to the child"].) No such requirement is included in section 362.4. In any case, the juvenile court made an express finding that visitation with mother would be detrimental, based on her sporadic presence in the child's life, and that finding is supported by substantial evidence.
Mother fails to demonstrate that the juvenile court's exit order denying her visitation constituted an abuse of discretion. We therefore will not disturb it.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. SLOUGH
J.