Opinion
E083345
10-23-2024
In re A.C. et al., Persons Coming Under the Juvenile Court Law. v. K.C., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Super. Ct. Nos. J299487, J299488, J299489, J299490, J299491, J299492, & J299493, Annemarie G. Pace, Judge.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, and Joseph R. Barrell, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
CODRINGTON Acting P. J.
I.
INTRODUCTION
Defendant and appellant K.C. (Mother) is the mother of seven children: 16-year-old M.M., 14-year-old K.M., 13-year-old N.M., 11-year-old T.M., three-year-old L.M., two-year-old A.M., and one-year-old A.C. Mother appeals from the jurisdictional, dispositional and family law exit orders removing the children from her physical custody, terminating the six older children's cases and granting Father sole legal and physical custody of his six children, and imposing conditions on her visitation. On appeal, Mother contends (1) there was insufficient evidence to support the allegation that she had a problem with substance abuse; (2) the juvenile court abused its discretion in granting sole legal and physical custody to Father of her six older children; and (3) the juvenile court abused its discretion in entering exit custody orders granting her very limited supervised visitation because such an order was not in the children's best interests. We reject these contentions and affirm the judgment.
The father of the six older children is R.M. (Father), and the alleged father of A.C. is D.A. (D.A.). The fathers are not parties to this appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of plaintiff and respondent, the San Bernardino County Children and Family Services (CFS) in December 2023 after Mother left then-three-month old A.C. in a car seat near his alleged father, D.A., while he was at a police station seeking assistance with a possible restraining order protecting him from Mother. Mother had followed D.A. over the past four days, including to court, a gas station, an event for one of D.A.'s other children, and the police station. After D.A. stated A.C. was not his, law enforcement took A.C. into custody. A.C. was transported to Loma Linda University Medical Center (LLUMC). Mother was arrested at LLUMC when she went to claim A.C., and charged with willful/intentional abandonment of a child under 14 years old and child endangerment. Based on exigent circumstances, CFS took A.C. into protective custody and placed him in a foster home while CFS assessed maternal aunt, Ms. C., for placement. A.C. eventually was placed with maternal aunt Ms. C.
Mother's six older children - M.M., K.M., N.M., T.M., L.M., and A.M. - resided with their father. Father reported that he had primary physical custody of the children and that Mother had an undiagnosed bipolar disorder. She had been seen pulling her hair out, having bouts of rage, and vomiting at will. In addition, Mother had attacked Father with a boxcutter in the presence of the children, and Mother had attacked and robbed a woman of her cell phone. Father denied any substance abuse and reported Mother used marijuana on occasion. Father noted that he had been in a relationship with Mother for over 16 years off and on with Mother leaving and returning months later.
M.M. reported that he resided on and off with Father since March 2023 but mostly with Father. He visited with Mother from time to time but not overnight. He denied any abuse by either parent and denied witnessing any domestic violence between the parents or any illegal activity by Mother or Father. K.M. reported that he lived with Father and wanted to stay with him. He also denied any abuse and reported there was no mental health, substance abuse, or domestic violence in the home. The social worker observed that K.M. had a speech impediment and had to ask him questions several times and in different ways for him to understand. Father confirmed that K.M. had a speech impediment. T.M. reported living mostly with Father. He also had a speech impediment and was hard to understand. T.M. reported seeing Mother attack Father with a boxcutter and cutting him several times on the chest. He noted that he had seen Mother attack Father multiple times and had not observed Father ever hit Mother. He denied any type of abuse in the home. All three older children reported feeling safe in Father's home. Because the interviews of Father and the three older children occurred around 2 a.m., the other three children refused to get up and were not interviewed.
After being bailed out of jail, Mother spoke with the social worker. She denied the allegations in the referral and claimed that she and D.A. had set up to exchange A.C. for visitation at the police station. She asserted that D.A. was denying paternity because he had a new girlfriend. She believed the social worker was biased because the worker did not collect all the information. Mother provided the contact information for D.A., but the social worker was unable to reach him.
Child welfare history searches revealed histories for Mother, Father, and D.A. Searches also revealed criminal histories for Mother and D.A. A family law court minute order revealed that Father had requested a restraining order on August 18, 2023, protecting him from Mother. Another minute order from family law court showed
Mother had requested a restraining order on July 25, 2023, protecting her from Father. A third family law minute order addressed Father's request for custody, visitation, and domestic violence issues filed on October 18, 2023. The first two minute orders showed that testimony was taken, and the matters were continued. The third showed testimony was taken but the family law court was unable to make a record because Mother was being argumentative with the court and the matter was continued to February 27, 2024.
On December 26, 2023, CFS filed petitions on behalf of all seven children pursuant to Welfare and Institutions Code section 300, subdivisions (b) (failure to protect) and (g) (no provision for support). The petitions alleged that Mother created an unsafe and unstable lifestyle and lacked knowledge and parenting skills; Mother participated in domestic violence; Mother had untreated and undiagnosed mental health issues; Mother abandoned A.C.; D.A. failed to supervise and protect A.C.; D.A. abandoned A.C.; A.C. was left without provisions for support because Mother was incarcerated; and A.C. was left without provision for support because D.A.'s whereabouts were unknown. No allegations were filed against Father.
Unless otherwise noted, all statutory references are to the Welfare and Institutions Code.
Mother and Father were present at the December 27, 2023, detention hearing. D.A. was not present. A one-day continuance was granted for the six older children to be present. A.C. was detained from Mother and D.A. The six older children were detained from Mother and remained in Father's custody. Mother was ordered to drug test.
At the further detention hearing, Mother's counsel informed the court that she attempted to drug test yesterday but her name was not on the list. The juvenile court formally detained all seven children from Mother and A.C. from D.A. The court ordered the six older children to remain with Father. Mother was provided with supervised visitation once a week for two hours. The court intended to order Mother to drug test again, but while it was making the findings, Mother left the courtroom.
On January 17, 2024, CFS filed amended section 300 petitions on behalf of the children. The petitions modified the domestic violence allegation to read that Mother had a pattern and history of engaging in domestic violence and added an allegation that Mother had a substance abuse problem.
CFS recommended dismissing the allegations that Mother had untreated and undiagnosed mental health issues and that A.C. was left without provisions for support because Mother was incarcerated. CFS also recommended that all other allegations in the amended section 300 petitions be found true, that Mother be provided with reunification services, and that the six older children remain with Father and dependency dismissed in their cases with family law orders. Mother acknowledged that in 2014 or 2015 she was arrested and convicted for assaulting Father but did not want to discuss the matter further as it occurred about 10 years ago. She completed her probation through the Substance Abuse Treatment and Reentry Program (STAR) in Oklahoma where she and the children resided from 2015 to 2020 but she was unable to obtain the certificate of completion. When asked how she benefited from the program, Mother said it was helpful and she learned to recognize unhealthy situations and leave before it got toxic. Mother noted her relationship with Father was unhealthy. Mother and Father got back together again in 2020 and lived together with the children in Colorado. They remained together for about two more years. She denied any subsequent domestic violence incidents with Father and noted if there were any disagreements, Father would sleep on the couch. She added that Father was arrested for driving under the influence in Oklahoma. Mother denied the allegation that she maintained an unstable and unsafe lifestyle and that she lacked knowledge and parenting skills because the children lived with her the entire time in Oklahoma and most of the time in Colorado. She also stated that the children lived with her the majority of the time in 2023.
Mother denied the allegation that she abandoned A.C. She explained that she left A.C. at the police station with D.A. because it was a prearranged custody exchange. The plan was for A.C. to stay with D.A. for a day or two and for her to pick him up sometime before Christmas. She also said she met D.A. in public prior to the police station incident so he could spend time with A.C. She denied she ever followed D.A. to his other child's event and denied stalking D.A. When she was contacted by the police and told that D.A. denied A.C. was his child, she sent her friend to pick him up from the police station, but the friend was told to go home. She asserted that if she knew D.A. was going to do something like that, she would not have left A.C. with D.A.
Mother also denied being diagnosed or assessed for any mental health issues or being prescribed any medications for mental health or having any problems with her mental health. She claimed Father always stated she had "'undiagnosed bipolar.'" When Father was interviewed, he said he was "'not surprised'" by Mother's behavior of abandoning A.C. and that Mother was "'just crazy.'" He reiterated Mother attacked him with a boxcutter in 2014. He also reported that Mother had "'keyed'" his car multiple times, that she "'goes off,'" and that she does "'scandalous stuff,'" such as stealing from him, "'coming home pregnant by men,'" and "'tear[ing] up'" his property. Father noted that while they were living in Colorado, Mother "'got mad and jealous and up and left'" for two months and did not contact him or their children. When she returned, she "'emptied the house'" and took the children to California while he was at work. The children called Father and told him to come to California. After moving back to California, Mother went to jail for felony robbery and possession of a firearm. He bailed her out and the family resided together in a hotel from December 2022 to March 2023. In March, Father found out Mother was pregnant, and they separated again. A court ordered the parents to have joint custody. Soon thereafter Mother went to jail for three months and the children resided with Father. In October 2023, Mother dropped the children off with Father and did not return for a month because she could not afford the children.
Father claimed Mother then forged his signature and was awarded sole custody of the children in November 2023. The children stayed with Mother for three weeks until the events that led to this case in December 2023. Father said he was the only stable parent in the children's lives, explaining Mother would leave for a period of time, come back, and try to buy the children things to make them forget what she did. Father denied knowledge of substance abuse by Mother.
N.M. did not disclose any issues at Mother's home and felt safe with Mother. She denied she was ever present when her parents did not get along and denied ever seeing her parents use any drugs. She did not believe Mother would leave A.C. at the police station in the manner described and denied the allegations against Mother. K.M. reported that he heard his parents argue on the phone, but Father would step outside when it happened. He denied any domestic violence between his parents or seeing Mother acting strange in any way. K.M. felt safe at Mother's home. M.M. said he saw his parents argue three years ago but never observed anything physical. T.M. also denied ever seeing his parents get angry around the children. Both T.M. and M.M. reported feeling safe in Mother's home.
The day after his interview in January 2024, Father showed a video recording to CFS which he claimed depicted Mother breaking into his car and going through it. CFS was unable to identify Mother, but the video showed it was Father's residence and Mother's car parked behind Father's vehicle. Father was not home during the incident but M.M. called him to let him know Mother was at the apartment. Father said Mother broke into the apartment through a window looking for money she believed he stole from her because he had reported to county welfare that the children primarily resided with him. Father claimed Mother stole a printer from his home. He called the police to report the incident and stated feeling "'unsafe about the whole situation.'"
When asked about the incidents, Mother denied ever going to Father's apartment. Mother submitted to a random drug test which was positive for cocaine and marijuana. Mother knew it would be positive for marijuana but denied knowing why it was positive for cocaine. CFS submitted a referral for a confirmation test and for another on-demand test.
A Department of Justice inquiry yielded several arrests and/or convictions for Mother from 2005 to 2023 excluding the charges related to this case. There was one arrest for use/under the influence of a controlled substance and several charges from 2010 to 2014 for corporal injury to a spouse. In 2015, Mother was sentenced to two years in prison for assault with a deadly weapon. In 2022 and 2023, she was arrested for robbery and possession of a firearm. Father's criminal history revealed charges for corporal injury to a spouse/cohabitant in 2007 and assault with a firearm in 2008, each of which was dismissed. Father admitted to being on probation in Oklahoma in 2015 due to a driving under the influence conviction.
A search of Mother and Father's child welfare history revealed four prior referrals. A referral from September 2023 alleged that Mother was selling "crack cocaine" in downtown Victorville while the children were in the car. It was also reported that Mother stole Father's firearm from his home in Colorado and then used it to commit a robbery in California. It was also reported that Mother tried to kill Father in front of the children and that Mother cooked crack cocaine in the home using the microwave while the children were present. It was further reported that Mother cooked crack cocaine in other people's homes while she was pregnant and that she had a history of abandoning the children for months at a time. In one incident, Mother had dropped the children at a paternal relatives' homes and left them there for two months while she was still breastfeeding A.M. There were also allegations that Mother smoked marijuana and used cocaine. The referral was closed as inconclusive because CFS was unable to locate the family.
A referral from February 2023 alleged that Mother cooked crack cocaine in front of the children and sold drugs. It also alleged that Mother and Father used methamphetamine, Mother left the children for long periods of time, and Mother was on the run and had felonies. This referral was also closed as inconclusive because CFS was unable to locate the family.
A referral from August 2014 alleged physical abuse of N.M. that was closed as inconclusive because the child denied any abuse by the parents and Father was being protective of the children and was working on not allowing the children to fight or hurt themselves. A referral from July 2011 alleged that Mother attacked Father with a shovel and that the parents were always fighting. The referral was closed as inconclusive because CFS was unable to locate the family.
CFS attempted to locate D.A. but was unsuccessful in contacting him. D.A. had an extensive criminal history related to theft and drug-related charges. D.A. also had a prior child welfare history related to his other children, but they were not substantiated or inconclusive.
CFS concluded it would be detrimental for the children to be in Mother's care and recommended they be removed from her custody. CFS listed several concerns, including her failure to provide documentation of her completed domestic violence class, a lack of benefiting from the program as evidenced by breaking into Father's apartment while M.M. was there and breaking into Father's car, and denial of substance abuse issues despite testing positive for cocaine and marijuana. CFS noted Mother had a pattern of damaging Father's property when she became upset and that her behavior continued to show a pattern of coercive control that met the definition of domestic violence. Mother also demonstrated a pattern of abruptly leaving for extended periods without contacting the children. As a result, CFS recommended the children remain in Father's care under family law orders. In contrast to Mother, CFS explained that Father was protective of the children, the children were bonded to him, and he was employed. Father attempted to get a restraining order against Mother in August 2023 and he appeared to have appropriate living arrangements and a support system.
At the initial jurisdictional/dispositional hearing on January 18, 2024, the juvenile court set the matter for mediation. Mother's counsel entered a general denial to the allegations in the amended section 300 petitions and represented that her position was to have the children returned to her under the prior family law order. During the hearing, after setting the matter for mediation, Mother spoke directly to the court stating there were no reasonable efforts to prevent removal. When told by the court to "stop talking" and that she was "not helping herself," she responded "No," and told the court she was "not talking to [her] attorney." When told by the court that she was talking too loudly and communications with her attorney are supposed to be confidential, she responded by saying to the court, "sorry you're offended." Mother then walked out of the courtroom.
The January 30, 2024, mediation report indicated there was no agreement between the parties. CFS continued to recommend the dismissal of the allegations that Mother had untreated and undiagnosed mental health issues and that A.C. was left without provisions for support because Mother was incarcerated. Mother wanted family maintenance with all of her children and contested the dismissal of the cases of the six oldest children with custody to Father.
On February 2, 2024, CFS informed the court that a 10-day referral was called into the hotline in which it was reported that on January 22, 2024, N.M. called her Mother to pick her up from Father because "'my dad just put hands on me.'" Mother called law enforcement who responded to the home and reported that N.M. would remain with Father. It was also reported that Father was not taking the children to school. The children, Father, and maternal aunt K.C. were interviewed. N.M. reported that her father kept pushing her, that father's niece choked her, and her neck was red, and she had a cut on her finger. N.M. had been staying at the maternal aunt's home with Father's permission since the incident. M.M., K.M., and T.M. denied the reports that Father pushed N.M. and said that N.M. was being "disrespectful" to Father. They also denied that Father's niece choked N.M., explaining Father's niece had to pull N.M. off T.M. because she was trying to take his cellphone. The law enforcement calls for service to the home regarding the incident indicated, in contrast to N.M.'s statements, that she had no injuries. The referral remained open but would likely be closed as inconclusive.
CFS informed the court of other calls for service to the home. On May 5, 2023, it was reported that Father was receiving death threats via email from Mother for testifying against her. A police report from the same day noted that Father's home was burglarized, and Father believed it was Mother. A police report filed on August 1, 2023, reported that Father's home was burglarized again and Father again suspected it was Mother. On October 2, 2023, it was reported that Mother attempted to get into the home through a broken window. On October 21, 2023, it was reported that there were no child safety concerns noted but Father discussed on-going issues with Mother breaking into the home, vandalizing his vehicle, and that he suspected her of damaging the mirror of his rental vehicle. On October 29, 2023, Father reported that Mother violated the custody agreement and intended to take one of the children and not return her. On November 4, 2023, Father reported that Mother took the phones he bought for the children and threatened to sell them. On January 4, 2024, Father reported that he had a restraining order against Mother and his son reported she was trying to get into the apartment. CFS also reported that Mother's drug test from January 11, 2024, was positive for marijuana.
The contested jurisdictional/dispositional hearing was held on February 6, 2024. Mother was not present in court, even though she set the matter contested. The matter proceeded by argument. Mother's counsel argued as follows: "I'm going to object for the record. I have no affirmative evidence. My client was interviewed by the social worker, so her statements are included in the reports. [¶] As far as the family law order, I would ask for joint legal custody if it's not there already." The children's counsel submitted on CFS's recommendations and argued that Father should be awarded sole legal custody. Counsel did not believe Mother could coparent based on her behavior in court and added that ordering joint legal custody would create unnecessary friction if Father had to cooperate with Mother. CFS's counsel joined in the children's counsel's arguments.
The juvenile court dismissed Mother's mental health allegation and the allegation that A.C. was left without provisions for support because Mother was incarcerated and found true the remaining allegations. As for the disposition of the six older children, the court removed the children from Mother's custody, maintained them with Father as their primary residence, granted sole legal and physical custody of the children to Father, and terminated their dependency cases. The court awarded full custody to Father based on the arguments made by the children's counsel. Mother was provided with supervised visits with the children once a week for two hours with additional days and times by mutual agreement monitored by Father's delegate or a professional monitor. The basis for supervised visits was Mother's failure to complete a drug treatment program with random testing, a domestic violence treatment program, anger management training, parenting classes, and individual counseling. Regarding A.C., the juvenile court declared A.C. a dependent of the court, found D.A. to be an alleged father not entitled to services, and ordered reunification services and supervised visitation once a week for two hours for Mother. Mother's case plan consisted of anger management classes, domestic violence classes, parenting classes, individual counseling, a drug treatment program, and random drug testing. Mother timely appealed.
III.
DISCUSSION
A. Substance Abuse Jurisdictional Finding
While not challenging the remaining allegations found true against her, Mother contends there was insufficient evidence to support the allegation she had a problem with substance abuse, and thus believes the substance abuse allegation should be dismissed and the drug treatment component of her case plan eliminated. CFS responds Mother's claim is not justiciable as there are multiple unchallenged bases for jurisdiction related to her conduct alone. Alternatively, CFS argues Mother's contention lacks merit. Anticipating the justiciability argument, Mother addresses the issue in her opening brief. She contends her argument is justiciable and not moot because the challenged finding has practical consequences for her, namely she is subjected to a substance abuse component of her reunification plan in A.C.'s case and supervised visitation in the older children's case.
"[W]here there are multiple findings against one parent; the validity of one finding may render moot the parent's attempt to challenge the others." (In re D.P. (2023) 14 Cal.5th 266, 284.) But "[a] case is not moot where a jurisdictional finding affects parental custody rights [citation], curtails a parent's contact with his or her child [citation], or 'has resulted in [dispositional] orders which continue to adversely affect' a parent.'" (Id. at pp. 277-278.) "'[T]he critical factor in considering whether [an] appeal is moot is whether the appellate court can provide any effective relief if it finds reversible error.'" (Id. at p. 276.) Put another way-as our Supreme Court recently clarified-if "a parent has demonstrated a specific legal or practical consequence that would be avoided upon reversal" the challenge is not moot. (Id. at p. 283.) Here, if the challenged jurisdictional finding were reversed, we could provide Mother with effective relief, i.e., she would not be subject to random or on-demand drug testing or participation in a substance abuse program. We therefore conclude Mother's jurisdictional challenge relating to her problems with substance abuse is not moot.
Section 300, subdivision (b)(1), "provides that a juvenile may be adjudged a dependent of the court when '[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of any of the following: [¶] (A) The failure or inability of the child's parent or guardian to adequately supervise or protect the child.... [¶] (D) The inability of the parent or guardian to provide regular care for the child due to the parent's or guardian's mental illness, developmental disability, or substance abuse.'" (In re N.R. (2023) 15 Cal.5th 520, 537-538 (N.R.); see In re R.T. (2017) 3 Cal.5th 622, 626-627; In re M.D. (2023) 93 Cal.App.5th 836, 848; In re S.F. (2023) 91 Cal.App.5th 696, 712; In re L.W. (2019) 32 Cal.App.5th 840, 848 (L.W.).)
"A court 'need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' [Citation.] And a parent's '"'[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue."' [Citation.] However, '"[t]o establish a defined risk of harm at the time of the hearing, there 'must be some reason beyond mere speculation to believe the alleged conduct will recur.'"' [Citations.]" (In re S.F., supra, 91 Cal.App.5th at pp. 712-713; see In re J.A. (2020) 47 Cal.App.5th 1036, 1048; L.W., supra, 32 Cal.App.5th at p. 849.)
"'"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings . . ., we determine if substantial evidence, contradicted or uncontradicted, supports them. "In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court."'"'" (In re S.F., supra, 91 Cal.App.5th at p. 713; see L.W., supra, 32 Cal.App.5th at p. 848.) "'The parent has the burden on appeal of showing there is insufficient evidence to support the juvenile court's order.'" (In re L.B. (2023) 88 Cal.App.5th 402, 411-412; see In re M.C. (2023) 88 Cal.App.5th 137, 151.)
Under section 300, subdivision (b)(1)(D), the department must establish, "as separate elements, that (1) substance abuse (2) makes a parent or guardian unable to provide regular care for a child and (3) this inability has caused the child to suffer serious physical harm or illness or creates a substantial risk of such harm or illness." (N.R., supra, 15 Cal.5th at p. 558.) The Supreme Court has interpreted section 300, subdivision (b)(1)(D), "as assigning the term 'substance abuse' its ordinary meaning-essentially, the excessive use of drugs or alcohol." (N.R., supra, at p. 531; see ibid. [neither "a diagnosis by a medical professional" nor "satisfaction of the prevailing criteria for a substance use disorder as specified within the Diagnostic and Statistical Manual of Mental Disorders (DSM)" is "essential under section 300(b)(1)(D)"].)
Substantial evidence supported the court's finding Mother had a problem with substance abuse which impaired her ability to adequately and appropriately parent her children. Mother failed to initially drug test, claiming her name was not on the list. (See In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384 ["a missed drug test, without adequate justification, is 'properly considered the equivalent of a positive test result'"], disapproved on another ground in N.R., supra, 15 Cal.5th at p. 560, fn. 18.) And, when the juvenile court was going to order another drug test for Mother at the further detention hearing, Mother left the courtroom. Mother tested positive for cocaine and marijuana on December 29, 2023. Thirteen days later, on January 11, 2024, she again tested positive for marijuana. In addition, in 2007, Mother was arrested for use/under the influence of a controlled substance. (See L.W., supra, 32 Cal.App.5th at p. 850 ["recent DUI arrests and conviction for reckless driving provide a nexus between [the mother's] substance abuse and a substantial risk of future harm to" her child].)
Moreover, a review of Mother's child welfare history revealed two referrals, one in February 2023 and one in September 2023, related to substance abuse. Those referrals alleged Mother was using, selling, and making "crack cocaine" in the presence of the children. Although the referrals were closed as inconclusive, they were closed as inconclusive because CFS was unable to locate the family to conduct an investigation. Inconclusive is defined as a referral that is "determined by the investigator who conducted the investigation not to be unfounded, but the findings are inconclusive and there is insufficient evidence to determine whether child abuse or neglect, as defined in [Penal Code] [s]ection 11165.6, has occurred." (Pen. Code, § 11165.12, subd. (c).) Mother's behavior created a substantial risk of harm because of the children's exposure to cocaine while in Mother's care in the car and at the home. The statements of the older children that they did not observe Mother acting strangely or under the influence were not persuasive because three of the children were under the age of three at the time of the 2023 referrals. (See In re K.B. (2021) 59 Cal.App.5th 593, 604 ["father points to statements by the children and family members that they had not seen the father under the influence; but this does not nullify other evidence in the record"]; see also In re I.J. (2013) 56 Cal.4th 766, 773 ["'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings . . ., we determine if substantial evidence, contradicted or uncontradicted, supports them.'"].)
The juvenile court could also reasonably infer Mother was excessively using drugs based on her current erratic and risky behaviors. She had a pattern of abruptly leaving the children for extended periods of time without contacting them, leaving young children unsupervised, walking out of the courtroom in the middle of court proceedings, and being inappropriate during some court proceedings. Furthermore, Mother stalked D.A., broke into Father's apartment while M.M. was present, attacked Father with a boxcutter in the children's presence, stole Father's firearm, and used the firearm to commit a robbery. She also broke into Father's car, damaged Father's property, made death threats toward Father, and attacked Father with a boxcutter in the children's presence. These behaviors could reasonably be attributed to using drugs excessively.
Mother also remained in denial about her substance abuse problem and how it impacted the children's health and safety. (See In re K.B., supra, 59 Cal.App.5th 593, 604-605 ["A court is entitled to infer past conduct will continue where the parent denies there is a problem."], disapproved on another ground in N.R., supra, 15 Cal.5th at p. 560, fn. 18; In re D.B. (2020) 48 Cal.App.5th 613, 622 ["Realizing conduct needs improvement is a first step to improvement."].) Mother's failure to acknowledge her substance abuse led her to repeatedly abandon the children and act erratically and placed them at substantial risk of physical harm. (Cf. In re K.B., supra, at pp. 602-603 [where the mother left her children "largely unsupervised every evening," her "failure to supervise [was] the direct and decisive evidence of substantial risk of harm"].) Finally, some of the children's very young ages supported the court's conclusion Mother's substance abuse placed them at substantial risk of serious physical harm. (See N.R., supra, 15 Cal.5th at p. 559 ["a child's youth and maturity level can bear upon the care that the child may require and whether a parent's or guardian's substance abuse places the child at substantial risk of serious physical harm"].) After stalking D.A. for days, she left then-three-month-old A.C. near D.A., who denied he was the child's father, while D.A. was at the police station getting a restraining order against Mother. The juvenile court could reasonably infer Mother's substance abuse led to the dangerous lapse in supervision and attacks on Father. (See N.R., supra, at p. 559 [courts may "discern an inability to provide regular care and a substantial risk of serious physical harm or illness from the evidence that has been introduced in a particular case . . . and the reasonable inferences that can be drawn from this evidence"].)
As previously noted, "[a] court 'need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child.' [Citation.] And a parent's '"'[p]ast conduct may be probative of current conditions' if there is reason to believe that the conduct will continue."' [Citation.]" (In re S.F., supra, 91 Cal.App.5th at pp. 712-713; see In re J.A., supra, 47 Cal.App.5th at p. 1048; L.W., supra, 32 Cal.App.5th at p. 849.) There is substantial evidence to support the substance abuse jurisdictional finding against Mother.
B. Exit Custody Orders Granting Father Sole Legal and Physical Custody
Mother argues the juvenile court abused its discretion in entering exit custody orders granting sole legal and physical custody to Father. We disagree.
"Section 362.4 governs the termination of juvenile court jurisdiction and related orders." (In re J.M. (2023) 89 Cal.App.5th 95, 112 (J.M.).) "The statute authorizes a juvenile court to make 'exit orders' regarding custody and visitation upon terminating dependency jurisdiction over a child." (Ibid.; In re Chantal S. (1996) 13 Cal.4th 196, 202-203.) "These exit orders remain in effect until modified or terminated by a subsequent order of the superior court." (J.M., supra, at p. 112, citing § 362.4, subd. (b); see also Cal. Rules of Court, rule 5.700.)
"'[I]n making exit orders, the juvenile court must look at the best interests of the child.'" (J.M., supra, 89 Cal.App.5th at p. 112, quoting In re John W. (1996) 41 Cal.App.4th 961, 973.) "Because juvenile dependency proceedings arise when children are subject to or at risk of abuse or neglect, '[t]he presumption of parental fitness that underlies custody law in the family court just does not apply.... Rather the juvenile court, which has been intimately involved in the protection of the child, is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.' [Citations.]" (J.M., supra, at p. 112.) "[A] finding that neither parent poses any danger to the child does not mean that both are equally entitled to half custody, since joint physical custody may not be in the child's best interests for a variety of reasons." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) "By the same token, a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child." (Ibid.) We also note the exit order is subject to modification by the family court in the event Mother demonstrates a "significant change of circumstances." (§§ 302, subd. (d), 362.4, subd. (b); Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163.)
The juvenile court has broad discretion to make custody orders when it terminates jurisdiction. (J.M., supra, 89 Cal.App.5th at p. 112.) We review the juvenile court's exit orders for an abuse of that discretion. (Id. at p. 113.) The juvenile court's decision will not be disturbed unless it has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Ibid.) We "'consider all the evidence, draw all reasonable inferences, and resolve all evidentiary conflicts, in a light most favorable to the trial court's ruling. [Citation.] The precise test is whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child. [Citation.] We are required to uphold the ruling if it is correct on any basis, regardless of whether it is the ground relied upon by the trial judge. [Citation.]'" (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Mother contends the juvenile court abused its discretion by awarding sole legal and physical custody to Father because she was the primary caretaker of the children, she had reported K.M. had a speech delay, all the children reported feeling safe with Mother, and the juvenile court failed to consider all evidence related to the legal custody matter. The juvenile court could have reasonably concluded it would be difficult for Mother to coparent with Father based on Mother's destructive behavior toward Father. Thus, we find the juvenile court did not abuse its discretion in awarding Father full legal and physical custody of the six older children.
Considering the totality of circumstances, including the children's best interests and Mother's behavior towards Father currently and in the past, the juvenile court did not abuse its discretion in granting Father full legal custody of his six children. On the record before us, we see nothing arbitrary, capricious, or patently absurd in the juvenile court's determination giving Father full legal custody. There is nothing in the record to rebut the presumption that the juvenile court was aware of its obligation to consider the best interests of the children, and duly considered those interests, prior to making its order. Moreover, Mother does not cite to specific harm caused by the custody order. As noted above the juvenile court's paramount concern in determining custody is the best interests of the child based on the totality of the circumstances (In re Nicholas H., supra, 112 Cal.App.4th at p. 268)-not fairness to parents. Here, the juvenile court properly concluded it was reasonably likely that Mother could not coparent with Father, that Mother would continue to act erratically towards Father, and Mother would abandon the children, endangering both their physical and psychological health. The juvenile court, therefore, could reasonably infer that awarding sole legal custody to Father provided stability and continuity for the children, thus serving their best interests. (In re Stephanie M. (1994) 7 Cal.4th 295, 317 ["In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity."].)
Mother argues that awarding sole legal and physical custody to Father was an abuse of the juvenile court's discretion because the evidence suggested the children were safe in her care and she was their primary caretaker throughout the majority of the children's lives. We disagree. Because the custody order was made in a dependency proceeding, it was not presumed Mother was entitled to half custody because of her parental fitness (J.M., supra, 89 Cal.App.5th at p. 112), and the children's safety in her care was not dispositive of their best interests. (In re Nicholas H., supra, 112 Cal.App.4th at p. 268.) Instead, the juvenile court based the custody order on evidence indicating shared custody was unworkable due to serious parental conflicts that were often instigated by Mother.
Courts have long recognized that conflict can make it impossible or impracticable for parents to effectively coparent, and in such circumstances, a child's best interests are served by an award of sole custody. (See, e.g., In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1344 ["The parents' attitudes and actions towards each other indicated that the joint custody arrangement was not working," resulting in grant of sole physical custody to the mother]; see J.M., supra, 89 Cal.App.5th at p. 108 [affirming exit order awarding sole physical custody to the mother where the father was noncompliant and "coparenting between mother and father was an 'ongoing issue.'"].) Here, the juvenile court acknowledged the parents' difficulty in coparenting. The record indicated that Mother could not coparent with Father as evidenced by Mother attacking Father, breaking into Father's home while M.M. was present and car, damaging Father's property, and threatening to kill Father. Mother did not express remorse for endangering or causing distress to Father and the children, and instead, denied the allegations. Mother's contentious relationship with Father began prior to the dependency as evidenced by both parents seeking restraining orders against each other and persisted throughout the dependency matter. The juvenile court was not required to overlook Mother's erratic behavior toward Father and the children, her seeming lack of appreciation of the risk of harm she created, and her lack of contrition. The juvenile court was within its discretion to determine that Mother had not acted in the children's best interests while parents attempted to share custody. (See In re John W., supra, 41 Cal.App.4th at p. 974 ["A child's best interests are not necessarily served by shuttling between two parents ...."].)
Moreover, Father was deemed a "noncustodial, nonoffending parent" and was protective of the children. He was employed and had appropriate living arrangements and a support system. The children indicated that they felt safe with Father. Father had provided the children with security and stability for most of their lives while Mother repeatedly abandoned the children. The social worker reported no issues with Father's care or home. Ample evidence established that when Mother and Father had shared custody, the arrangement was riddled with conflict that interfered with coparenting. Thus, the record provides evidence to show an award of sole legal and physical custody to Father, with supervised visits by Mother, was a solution that provided "continuity of attention, nurturing, and care" for the children. (Burchard v. Garay (1986) 42 Cal.3d 531, 540.) It was not arbitrary, capricious, or patently absurd.
In sum, from the totality of the circumstances, a rational trier of fact could conclude that awarding sole legal and physical custody to Father advanced the best interests of the children. (In re Robert L., supra, 21 Cal.App.4th at p. 1067.) Accordingly, we conclude the juvenile court did not abuse its discretion in making the order.
C. Visitation Order
Mother further contends that the juvenile court abused its discretion in granting her "very limited" supervised visitation in the absence of substantial evidence such an order was in the children's best interests.
As previously stated, when terminating jurisdiction over a child who has been declared a dependent child of the court, "section 362.4 authorizes the juvenile court to issue a custody and visitation order (commonly referred to as an 'exit order') that will become part of the relevant family law file and remain in effect in the family law action 'until modified or terminated by a subsequent order.'[] When making a custody determination under section 362.4, 'the court's focus and primary consideration must always be the best interests of the child.' [Citations.]" (In re T.S. (2020) 52 Cal.App.5th 503, 513, fn. omitted; see also § 362.4; In re C.W. (2019) 33 Cal.App.5th 835, 862-865.)
We review the juvenile court's issuance of the exit custody orders for an abuse of discretion. (In re C.W., supra, 33 Cal.App.5th at p. 863.) We may not disturb such rulings unless they are arbitrary, capricious, or patently absurd. (Ibid.; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
Here, the juvenile court granted Mother two hours of supervised visitation once a week. For the reasons previously indicated, the juvenile court did not abuse its discretion by ordering such a visitation order. Mother repeatedly abandoned the children for months without contacting them; at times, when some of the children were under the age of one. She left A.C. with a man who claimed the child was not his when A.C. was four months old. She also stalked D.A., attacked Father, and stole Father's firearm and used it to commit a robbery. And recently, Mother broke into Father's apartment while M.M. was present, broke into Father's car, and threatened to kill Father. Mother had a pattern of stalking behavior, damaging Father's property when she became upset, and a pattern of coercive control that met the definition of domestic violence. She tested positive for cocaine and marijuana and continued to engage in criminal behavior. Further, Mother denied all of the allegations in the petitions and failed to take responsibility for her actions. "One cannot correct a problem one fails to acknowledge." (In re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) The juvenile court did not abuse its discretion by ordering supervised visitation for Mother once a week for two hours.
IV.
DISPOSITION
The juvenile court's jurisdictional and dispositional orders are affirmed.
We concur: FIELDS, J., RAPHAEL J.