Opinion
E053109
01-11-2012
In re L.R. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, "Plaintiff and Respondent, B.R., Defendant and Respondent, v. M.F., Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Marsha Slough and Gregory S. Tavill, Judges. Affirmed. Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. J234965 & J234966)
OPINION
APPEAL from the Superior Court of San Bernardino County. Marsha Slough and Gregory S. Tavill, Judges. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of Appeal, for Defendant and Appellant.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Respondent.
Jean-Rene Basle, County Counsel, and Danielle Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.
After parents M.F. and B.R. had battled for several years in family court over child custody, the San Bernardino County Children and Family Services Agency (CFS) intervened to sort out cross-accusations of inappropriate touching of two girls by the mother's boyfriend, and, alternatively, their father. The investigation revealed no one was touching the girls inappropriately, but father was not happy that mother had a new boyfriend and pressured the girls to say they felt uncomfortable when the boyfriend hugged them. Mother reciprocated with allegations against father, and the custody fight percolated over into juvenile court. The juvenile court found the girls were persons described by Welfare and Institutions Code section 300, subdivision (b), based on the deterioration of the parents' relationship resulting in exposure of the children to multiple interviews and official investigations. The court ordered joint legal custody to both parents with a detailed visitation schedule, and dismissed the dependency with exit orders. Mother appealed.
On appeal, mother argues the juvenile court should have awarded her sole legal and physical custody. We affirm.
BACKGROUND
Mother and father met through a dating service and dated for less than two years before mother became pregnant with the oldest child, C.R. The second child, L.R., was conceived approximately nine months later. Mother and father never married; they cohabited at the time the children were conceived and born. After the younger child was born, the parents remained together for one year, after which mother moved out.
In 2003, father was granted primary care of the children as a result of an incident in which the older daughter, C.R., wandered away from the front yard of mother's home when mother went inside to answer the phone. In 2004, the parents were each evaluated and both were found to be able to care for the children, resulting in a recommendation for joint legal and physical custody. Since their separation, the parents have been to family law court approximately 30 times. At some point, both parents were awarded joint legal and physical custody. However, in 2009, a special master was appointed by the family law court with respect to custody and visitation matters. Despite the finding that the parents' self-absorption was not benefitting the children, the special master recommended that they continue to share joint legal and physical custody.
In July 2010, a referral was made to CFS that mother's boyfriend was touching the children (C.R. was nine, L.R. was eight) inappropriately. The boyfriend apparently got on his knees, wrapped his arms around the children's waists and leaned backwards, hugging them "pelvis to pelvis." Minutes after that referral was made, a second referral was made to CFS that one of the children had complained to mother that father was still bathing the children, washing their vaginal areas, and drying them.
The children denied being touched in any way and reported that they did not feel uncomfortable with mother's boyfriend. However, they did state that until recently, their father was washing their vaginal areas and they felt uncomfortable with their father seeing them naked. The children were detained and forensic interviews were conducted. During the investigation, it was learned that the father pressured the girls to lie to law enforcement officials in the past about allegations father had made against mother, and that father had threatened to spank them or lock them out of the house and make them sleep on the porch if they did not state that mother's boyfriend was inappropriately touching them. A detention warrant was obtained. Mother's home was deemed to be suitable, so the children were detained with her.
On September 20, 2010, a dependency petition was filed alleging the children were at risk due to the parents' failure to protect (§ 300, subd. (b)), and were at risk of emotional damage as the result of the parents' conduct. On September 21, 2010, the court made a prima finding that the children were persons described by Welfare and Institutions Code section 300, after hearing the children testify outside the presence of their parents. The court removed custody from father, and placed them in the temporary custody of mother, with supervised visits for father. On October 12, 2010, the petition was amended to reflect allegations against father only. As the alleged nonoffending parent, the department recommended an award of full legal and physical custody of the children to mother.
On January 10, 2011, the adjudicatory hearing regarding jurisdiction was held. The children testified that they wanted to see their father but did not feel comfortable visiting him without a monitor. They would not feel comfortable with him alone at home or at a park because they were afraid father would yell at them or punish them in connection with his efforts to get them to say mother's boyfriend had touched them inappropriately.
After taking the children's testimony, the court received waivers from the parents by which father pled no contest to the petition and mother submitted on the basis of the information in the reports in evidence. The court made a true finding on the petition which was amended by rewording allegation b-1 to read that the children were at risk because the parents' relationship has deteriorated to such an extent that the minors have been exposed to detailed interviews with police officers, 730 evaluations, CACinterviewers, testifying in a criminal trial, and CFS regarding sexual abuse allegations, as well as a special family law master.
Referring to Evidence Code section 730.
Children's Assessment Center.
On February 25, 2011, a contested dispositional hearing took place at which both parents testified. After hearing the evidence and considering the reports and recommendations of CFS that had been entered into evidence, the court dismissed the petition and terminated the dependency after ordering joint legal and physical custody to the parents, and visitation according to a detailed schedule. On March 8, 2010, mother appealed.
DISCUSSION
We begin by noting that mother does not challenge the jurisdictional finding. Instead, she challenges the orders awarding joint legal and physical custody, pointing out that the CFS recommendation was to award mother sole legal and physical custody.
Welfare and Institutions Code section 362.4 provides, in essence, that when the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependency child, the juvenile court may issue an order determining custody of, or visitation with, the child. (In re Robin N. (1992) 7 Cal.App.4th 1140, 1146.) When making an order to be transferred to the family court, the juvenile court has the power to hear evidence relevant to that order under section 362.4. (In re Michael W. (1997) 54 Cal.App.4th 190, 194-195.) Such orders become part of any family court proceeding concerning the same child (or children) and will remain in effect until they are terminated or modified by the family court. (In re T.H. (2010) 190 Cal.App.4th 1119, 1123.)
Although both the family court and the juvenile court focus on the best interests of the child, the juvenile court has a special responsibility to the child as parens patriae and must look at the totality of the child's circumstances. (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.) The presumption of parental fitness that underlies custody law in the family court does not apply to dependency cases. (In re John W. (1996) 41 Cal.App.4th 961, 972.) The issue of the parents' ability to protect and care for the child is the central issue in dependency proceedings. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) In making an exit order, the juvenile court must consider the best interests of the child under all the circumstances. (John W., at p. 973.)
In this case, aside from the relationship problems between the former spouses, and the fact that father induced his children to make false reports of sexual abuse, there was no evidence father posed a risk of detriment to the children. Both children enjoyed visiting with father and there had been no problems during visits. Both girls were comfortable visiting with father at his home, unsupervised, after the jurisdictional findings had been made. CFS's recommendation for sole legal and physical custody was based on the "unhealthy relationship" between the parents. The juvenile court's finding at the jurisdictional hearing was that both parents were at fault for the deterioration of the relationship which resulted in the children being found to be dependents.
A juvenile court is not authorized to limit a parent's custodial rights for having an "unhealthy relationship" with his or her former spouse. If sole legal and physical custody could be awarded based on the unhealthy relationships of former spouses, the family law presumption of joint custody would become a nullity, and there would be no need to require a finding of detriment to justify removal of custody in a dependency. Additionally, while the juvenile court must consider the report and recommendations of a social worker (Welf. & Inst. Code, § 355, subd. (b)), it is not bound to follow the recommendations of the social worker. (See In re Ashley M. (2003) 114 Cal.App.4th 1, 10.) The juvenile court is charged with making findings and orders for the protection of the child. (Welf. & Inst. Code, §§ 355, subd. (a), 356, 358.)
The juvenile court determined that an award of sole custody would not ameliorate the discord between the parents. This conclusion was reasonable. The record contains no evidence to support an inference that a continuation of the joint legal and physical custody order would expose the children to substantial danger to the child's physical health, safety, protection, or physical or emotional well-being. Further, an award of sole custody to one parent would not end the turmoil; it would be like pouring gasoline on a flame.
Mother argues that the juvenile court improperly applied the family-law-based joint custody presumption to the custody determination here because the juvenile court makes custody determinations based on the best interest of the child without any preferences or presumptions. In this respect, mother attempts to argue that the joint custody decision constituted a legal error, rather than an abuse of discretion. We already acknowledged that application of the family-law-based joint custody presumption would be inconsistent with the purpose of the juvenile court law, although certain parts of the Family Code apply to orders issued by the juvenile court. (In re Chantal S. (1996) 13 Cal.4th 196, 206.) There is nothing in the record that supports an inference that the award was made pursuant to a family law presumption.
Mother's argument in favor of a de novo standard of review asserts that the juvenile court's decision did not articulate whether the exit orders were issued under family law or dependency law authority. This is incorrect, as the dispositional order clearly states the custody order was to be filed in family law court pursuant to Welfare and Institutions Code section 362.4. In any event, no other statute is applicable because dependency proceedings are special proceedings governed by their own rules and statutes (In re Josiah Z. (2005) 36 Cal.4th 664, 678-679), and nowhere does the juvenile law specify that family law codes apply to custody determinations within dependency proceedings. (In re Jennifer R., supra, 14 Cal.App.4th at p. 711.)
The court recognized that it had authority to order sole legal custody, but determined that such an order would not eliminate the discord and angst that exists in the family. The juvenile court clearly considered the children's best interests in declining to follow the recommendation of the social worker and ordering joint legal custody. It noted that the two children loved both of their parents and that they were not currently at risk. The juvenile court did not apply the family law presumption of joint legal custody, so there was no legal error which would justify application of the de novo standard of review.
Instead, we apply normal standard, reviewing the juvenile court's decision to terminate dependency jurisdiction, and to issue a custody (or "exit") order pursuant to Welfare and Institutions Code section 362.4, for abuse of discretion. Under this standard, we may not disturb the order unless the court exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301, citing In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
The record shows that the parents have a miserable relationship and that each has gone to the lengths of making official complaints against the other in order to obtain leverage in their ongoing custody fight. Both parents are equally at fault, as the trial court correctly found. Since both parents were equally at fault, an award of sole custody to one over the other is inappropriate. The children have not experienced any emotional suffering as a result of the parents' conduct toward each other. Additionally, the record contains two separate evaluations of the parents, conducted in 2004 and 2009, respectively, in which the evaluators recommended joint legal and physical custody because, despite their problems with each other, both were good parents, capable of caring for the children.
We conclude there was no abuse of discretion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Ramirez
P.J.
We concur:
King
J.
Codrington
J.