Opinion
E073269
05-05-2020
In re E.H. et al., Persons Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiffs and Respondents, v. C.H., Defendant and Appellant.
Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Harris Family Law Firm, Andrew McKeown and Kaleen Harris, for Plaintiff and Respondent D.H. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWJ1900206) OPINION APPEAL from the Superior Court of Riverside County. Michael J. Rushton, Judge. Affirmed. Donna P. Chirco, under appointment by the Court of Appeal, for Defendant and Appellant. Harris Family Law Firm, Andrew McKeown and Kaleen Harris, for Plaintiff and Respondent D.H. Gregory P. Priamos, County Counsel, James E. Brown, Anna M. Marchand and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant and appellant, C.H. (Mother), appeals from the juvenile court's "exit order" terminating dependency over her two children, E.H. and I.H., and awarding sole legal custody of the children to plaintiff and respondent, D.H. (Father). Mother contends the juvenile court erred by awarding Father sole legal custody. We disagree and affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father are the parents of E.H. and I.H. Mother has another child, Ir.H., whose father is J.H. (Mr. H.) and Mother's current husband. Mother has a fourth child, R. At the time this dependency proceeding began, E.H. was 11 years old, I.H. was nine years old, Ir.H. was 22 months old, and R. was five years old. R. was not part of the dependency, and Ir.H., who was part of the dependency, is not a party to this appeal. At all relevant times, Father was deployed in Kuwait, all four children were living with Mother at the time, and Father and Mother shared joint physical and legal custody of E.H. and I.H.
In February 2019, Mr. H. found R. floating face-down in the pool. Mr. H. resuscitated R. and, after the police arrived, R. was transported to the hospital. Mother was at work at the time of the incident.
After the pool incident, plaintiff and respondent, the Riverside County Department of Public Social Services (the Department) received an immediate response referral alleging general neglect. A social worker interviewed Mother, Mr. H., E.H., and I.H. E.H. and I.H. stated they had everything they needed at home. E.H. stated she was worried about I.H. because I.H. said she "'wanted to jump off a cliff.'" E.H. denied she ever hurt herself, and stated she was not sure if I.H. really wanted to hurt herself. Both of them disclosed that Mr. H. and Mother had verbal fights, but denied that they were physical, though I.H. stated she was scared of Mr. H. when he yelled or was angry. E.H. also said she felt "'[s]tressed out'" when she heard Mother and Mr. H. arguing.
Mother told the social worker that she was diagnosed with bipolar II disorder and was prescribed various medications for it. Mother also explained that she had signed up E.H. and I.H. for counseling to address their parents' relationship, as well as their Father's deployment. The counselor recommend that I.H. see a therapist.
The social worker also spoke with Father and his wife (stepmother). Father stated the family court ordered in January 2019 that E.H. and I.H. be enrolled in therapy. Stepmother explained that Mother failed to follow through with the therapy paperwork, so stepmother did it herself. Stepmother also stated that E.H. and I.H. told her that Mother and Mr. H. go out until late at night and leave R. and Ir.H. in their care. Father also said R. fell in the pool a previous time, which Mother subsequently confirmed. Father and stepmother were concerned for the well-being and mental health of E.H. and I.H. because they expressed wanting to hurt themselves. Father wanted sole custody over them.
Mother told the social worker that she regularly used marijuana, which she was prescribed for pain from a car accident. Mother explained that she kept the marijuana on a shelf in her bathroom, where the children could not reach it. At the time, there was a strong marijuana odor in the parents' bedroom.
In April 2019, the Department received another referral alleging general neglect. It was determined that Ir.H. had eaten a cannabis-infused food item, though Mother did not know how Ir.H. had been exposed to it. Mother believed an uncle who briefly lived with them dropped the food item, which Ir.H. found on the ground. A social worker observed Ir.H. picking up food from the floor and eating it, and neither Mother or Mr. H. tried to stop her.
The Department received two other referrals around the same time alleging general neglect. One referral stated that I.H. had "a red scratch on her ear and reported [Mother] often picks at any blemish she or [E.H.] may have." In the other referral, the reporting party stated Mother makes E.H. and I.H. "sit so she can pick at their faces." Mother explained to the responding social worker that she was a licensed esthetician and cleaned the children's faces.
The social worker spoke with Mr. H.'s sister, Ms. W., who observed that E.H.'s and I.H.'s drawings were "disturbing and concerning." I.H.'s drawings portrayed "'images of people crying and suicide taking place.'" Ms. W. also stated that Mother and Mr. H. left Ms. W. to babysit E.H. and I.H. "without leaving her any money or information about the children," so E.H. wrote down her schedule of activities and meals. Ms. W. also informed the social worker that E.H. and I.H. told her that Mother "sleeps a lot and stays in bed."
The social worker also received "several reports" of Mother "sleeping long hours and leaving the older children to watch over the youngest two." Mother reported smoking marijuana daily, as well as taking an antidepressant and Benadryl on a daily basis. The social worked noted that in 2014, a vendor inspecting Mother's home reported that two young children were playing by themselves in the pool while Mother was lying on the living room floor, though it was unclear whether she was asleep or "passed out." Mother "was educated about the children's safety around a swimming pool, yet failed to install safety measures, resulting in [R.'s] near drowning."
In April 2019, a petition was filed under Welfare and Institutions Code section 300 as to E.H., I.H., and Ir.H. The Department alleged that E.H. and I.H. came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) and (c), and Ir.H. came within the jurisdiction of the juvenile court under section 300, subdivisions (b)(1) and (j). The juvenile court found that the Department made a prima facie showing that the children came within section 300, subdivisions (b), (c), and (j), and detained the children. E.H. and I.H. were placed in Father's care.
Unless otherwise noted, all further statutory references are to Welfare and Institutions Code.
E.H. and I.H. continued with counseling, and attended all scheduled appointments. E.H.'s therapist reported that she was doing well in therapy. The therapist also reported that E.H. "had a lot of support in [Father's] home." Father "was following through on all recommendations including buying recommended books and following recommended tasks."
In May 2019, E.H. and I.H. reported that "everything was going well in [F]ather's home," Father and stepmother got along, and they "felt safe."
The Department filed an amended petition in June 2019. On the same day, the juvenile court found true the b-1, b-3, and b-4 allegations in the amended petition, but struck the b-5, c-1, and j-1 allegations. The juvenile court found that E.H., I.H., and Ir.H. came within section 300, subdivision (b), and declared the children dependents of the juvenile court. Ir.H. was removed from the care of Mother and Mr. H., who were provided with reunification services.
At a combined jurisdictional and dispositional hearing, the juvenile court granted Father sole legal and primary physical custody of E.H. and I.H. and found that Father, E.H., and I.H. did not need services. Mother objected to Father's having sole legal custody. The juvenile court ordered that "[t]he issue of legal custody may be re-addressed in six months." The juvenile court also made findings under section 361, subdivision (c)(1) as to Ir.H., and removed her from the care of Mother and Mr. H. The juvenile court then terminated its jurisdiction over E.H. and I.H.
Mother timely appealed.
III.
DISCUSSION
Mother contends the juvenile court erred in awarding Father sole legal custody. We disagree.
The Department "joins in and adopts by reference" Mother's arguments on this issue. Because the Department did not object to the juvenile court's order awarding Father sole legal custody, the Department has waived the issue. (See In re Riva M. (1991) 235 Cal.App.3d 403 [party's failure to object waives appellate review].)
"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.)
In her opening brief, Mother contends the juvenile court erroneously "found under section 361[, subdivision] (c) the children would be at risk" if returned to her care. As Father correctly notes, however, the juvenile court made findings under section 361, subdivision (c) as to Ir.H. only and ordered her removed from Mother's and Mr. H.'s care. In her reply brief, Mother argues for the first time on appeal that the juvenile court was obliged to make findings under section 361, subdivision (c) as to E.H. and I.H. before awarding Father sole legal custody over them and, because it did not do so, its order granting Father sole legal custody must be reversed. We reject Mother's contention for four reasons.
First, Mother did not object to the juvenile court's failure to make section 361, subdivision (c) findings as to E.H. and I.H. When objecting to the juvenile court's order awarding Father sole legal custody, Mother argued only that there was "nothing to indicate that she has harmed" E.H. and I.H. Mother therefore forfeited the issue. (See In re Riva M., supra, 235 Cal.App.3d 403 [party's failure to object waives appellate review]; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502 [collecting cases "in a wide variety of contexts" where appellate courts found argument forfeited on appeal].)
Second, by failing to address the issue in her opening brief and raising it for the first time in her reply brief, Mother waived the issue on appeal. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303 [argument raised for first time in reply brief is waived].)
Third, Mother does not cite, and we cannot find, any authority that suggests the juvenile court was required to make findings under section 361, subdivision (c) before terminating its jurisdiction over E.H. and I.H. and issuing its exit order awarding Father sole legal custody. Instead, the juvenile court was required only to determine whether doing so was in the children's best interests. (See In re John W. (1996) 41 Cal.App.4th 961, 973-974 ["best interests of the child" standard applies to exit orders made under section 362.4].) By contrast, section 361, subdivision (c) applies when removing a minor under the juvenile court's jurisdiction from the physical custody of the child's parents. (See In re Adam H. (2019) 43 Cal.App.5th 27, 32, fn. 3 ["Section 361, subdivision (c) provides that a dependent child shall not be taken from the physical custody of a parent 'with whom the child resides at the time the petition was initiated,' unless the court makes certain findings," italics added]; In re D.B. 26 Cal.App.5th 320, 328 ["At the dispositional hearing, a dependent child may not be taken from the physical custody of the parent under section 361 unless the court finds there is clear and convincing evidence there is or would be a substantial danger . . . ," italics added].) Nothing in section 361, subdivision (c) (or elsewhere) indicates the statute governs exit orders.
Fourth, when, as here, "the statute does not mandate explicit findings, and where substantial evidence supports the juvenile court's order, findings may be implied." (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1166.) Here, the juvenile court found under section 361, subdivision (c)(1) that there was a substantial risk to Ir.H. if she were returned to Mother's care, and ordered her removed from Mother's and Mr. H.'s care. The basis for that finding—as well as the juvenile court's order granting Father sole legal custody—was that "all of the children" (E.H., I.H., and Ir.H.) were "at risk" in Mother's home. In so finding, the juvenile court observed that all three children were removed while Father was deployed and they were in Mother's care "because of her behaviors." In other words, the juvenile court found all of the children would be at risk if returned to Mother's care. The juvenile court therefore impliedly made section 361, subdivision (c)(1) findings as to E.H. and I.H.
Ample evidence supports the juvenile court's implied findings, which, in turn, support the juvenile court's decision to award Father sole legal custody over E.H. and I.H. The juvenile court has "discretion to terminate dependency jurisdiction when the child is in parental custody and no protective issue remains." (In re Destiny D. (2017) 15 Cal.App.5th 197, 207.) The overarching goal is to terminate dependency proceedings "'as soon as, the circumstances warrant.'" (Ibid.) "[T]he juvenile court's decision to terminate dependency jurisdiction necessarily means it found conditions justifying an initial assumption of jurisdiction under section 300 did not exist and were unlikely to exist if supervision were withdrawn." (In re Aurora P., supra, 241 Cal.App.4th at p. 1166.) "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 issuing an exit order, the juvenile court must consider 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.) "This purpose would obviously be frustrated if a juvenile court, on termination of dependency jurisdiction pursuant to section 362.4, were required to presume that joint legal and physical custody was in the best interest of a minor." (Id. at p. 206.)
We reject Father's argument that Mother waived the right to appeal the juvenile court's order awarding Father sole custody because she failed to object in the juvenile court. Mother unambiguously objected to the order on the ground that there was "nothing to indicate that she has harmed" E.H. or I.H.
"[T]he juvenile court has broad discretion to make custody orders when it terminates jurisdiction in a dependency case." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) The juvenile court's custody determinations made in an exit order "should not be disturbed on appeal unless an abuse of discretion is clearly established." (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) A juvenile court abuses its discretion "'"'"by making an arbitrary, capricious or patently absurd determination."'"' [Citations.]" (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 806.) We will reverse the juvenile court's custody order only "'"if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he did." [Citations.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
The juvenile court acted well within its discretion. The Department received three referrals in a short period of time in 2019 because of Mother's and Mr. H.'s conduct, which led to the removal of E.H. and I.H. while Father was deployed. One referral was made after R. nearly drowned because Mr. H. was not watching him in the pool, which had occurred on at least one prior occasion. The other report was made after Ir.H. was taken to the hospital because she consumed cannabis-infused food. As the social worker put it, "[i]n a six-week time period, [Mother's and Mr. H.'s] neglect could have resulted in the death of two of their children."
And a few years before those referrals, the Department received a report from a vendor who observed I.H., who was five years old at the time, and another young child playing around the pool unattended while Mother was asleep—or potentially passed out—on the living room floor.
After responding to the 2019 referrals, a social worker smelled a strong marijuana odor in Mother's home and she admitted to routinely using marijuana. The social worker also observed Ir.H. eating things off the floor without Mother or Mr. H. trying to stop her. The Department received "several reports of [Mother] sleeping long hours and leaving" E.H. and I.H. to watch R. and Ir.H. Mother and Mr. H. have had verbal fights that caused E.H. to feel "stressed out" and I.H. to feel afraid. Both E.H. and I.H. have expressed "feelings of sadness and wanting to hurt themselves."
By contrast, E.H. and I.H. reported that E.H. that "everything was going well in [Father's] home," Father and stepmother got along, and they "felt safe" in Father's home. Mother does not argue, and nothing in the record indicates, that Father cannot care for E.H. or I.H. As the juvenile court found, they "are flourishing and apparently doing far better" under Father's care and neither Father, E.H., or I.H. needs services or Department supervision.
On this record, the juvenile court did not abuse its discretion in granting Father sole legal custody as part of its exit order terminating its jurisdiction over E.H. and I.H. Substantial evidence supports the juvenile court's determination that it is in E.H. and I.H.'s best interests for Father to have sole legal custody over them. We note that the juvenile court's order does not forever preclude Mother from sharing legal custody of E.H. and I.H. If the circumstances that caused the juvenile court to award Father sole legal custody change, Mother may seek joint legal custody. (§ 362.4; In re Jennifer R., supra, 14 Cal.App.4th at pp. 712, 714.)
IV.
DISPOSITION
The juvenile court's order terminating jurisdiction over E.H. and I.H. and granting Father sole legal custody over them is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.