Opinion
E083538
10-23-2024
In re A.Y., a Person Coming Under the Juvenile Court Law. v. M.Y., 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NOT TO BE PUBLISHED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. No. J296409, Steven A. Mapes, 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
When A.Y. was born, her biological parents, M.Y. and S.F., were in a polyamorous relationship with F.G., S.F.'s wife and A.Y.'s presumed mother. That relationship ended when A.Y. was about four years old, and a custody dispute over A.Y. arose between her three parents. When the parties were litigating the dispute in family court, the San Bernardino Children and Family Services (CFS) filed a petition on A.Y.'s behalf in juvenile court under Welfare and Institutions Code section 300, alleging that the parents' dispute put her at risk. The juvenile court terminated its jurisdiction with a family law exit order that granted joint legal and "primary physical custody" to all three parents, but ordered S.F. and F.G.'s home to be A.Y.'s "primary residence."
M.Y. argues, and CFS concedes, that the exit order must be reversed because it is internally inconsistent and not statutorily authorized. We agree and reverse.
II. FACTUAL AND PROCEDURAL BACKGROUND
We provide only a brief recitation of the background given that there is only one limited, uncontested issue on appeal.
M.Y. moved into S.F. and F.G.'s home in 2008 and they began a polyamorous relationship. About nine years later, M.Y. gave birth to A.Y., who was fathered by S.F.
In 2020, M.Y. left the relationship and S.F. and F.G.'s home, and took A.Y. with her. Within weeks, S.F. and F.G. filed a family law case concerning A.Y.'s custody. The parties stipulated that S.F. and M.Y. were the biological parents while F.G. was the presumed mother. The family court temporarily granted S.F. and F.G. temporary legal and physical custody of A.Y.
CFS received a referral in December 2022, alleging that M.Y.'s partner, MS.F. C., had physically abused A.Y. After investigating the allegations, CFS concluded that A.Y. should be detained from all three parents. CFS thus obtained a warrant to detain A.Y., detained her and placed her with a relative, and then filed a Welfare and Institutions Code section 300 petition on her behalf, alleging that all three parents' behavior put her at risk. CFS later filed an amended petition with additional allegations against F.G.
At a contested jurisdiction/disposition hearing, the juvenile court accepted the parties' suggestion to add and sustain an amended allegation to the petition that the parents' custody dispute has placed A.Y. at risk while dismissing the other allegations. The juvenile court thus adjudged A.Y. a dependent of the court and ordered family maintenance services for all three parents.
At the six-month hearing, the parties (including CFS) told the court that they agreed that the dependency case should be dismissed and that the only remaining issue was the family law exit order. After a lengthy discussion with the parties about custody, the juvenile court terminated its jurisdiction with family law orders granting "joint legal custody" to all three parents, "primary physical custody" to all three parents, and "primary residence" to S.F. and F.G., who lived together. M.Y. timely appealed.
III. DISCUSSION
Welfare and Institutions Code "[s]ection 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 [Welfare and Institutions Code] section 362.4 is commonly referred to as an '"exit"' order." (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455.)
In making an exit order, the juvenile court must employ a strict best interest standard. (In re John W. (1996) 41 Cal.App.4th 961, 974.) The juvenile court "must look to the totality of the child's circumstances when making decisions regarding the child." (In re Chantal S.F. (1996) 13 Cal.4th 196, 201.)
The order must be filed in the superior court and may be modified in a family law proceeding if the parent shows a significant change of circumstances and establishes that modification of the order is in the best interest of the child. (Welf. &Inst. Code, §§ 302, subd. (d), 362.4, subds. (b), (c); Fam. Code, § 3021; Heidi S.F. v. David H. (2016) 1 Cal.App.5th 1150, 1165.)
We review a juvenile court's exit order for an abuse of discretion. (In re Cole Y., supra, 233 Cal.App.4th at p. 1456.) Under that standard, we will not disturb the court's decision unless we find it exceeded the limits of discretion by making an arbitrary, capricious, or patently absurd determination. (In re Aaron R. (2005) 130 Cal.App.4th 697, 705-706.)
The parties agree, as do we, that the juvenile court's exit orders were an abuse of discretion because, at a minimum, they are internally inconsistent and statutorily unauthorized. The exit order continued the then-existing 50/50 parenting schedule, where A.Y. spent equal amounts of time with M.Y. and S.F./F.G. But that is inconsistent with the exit order granting "primary physical custody" to all three parents. By definition, there cannot be three parents with "primary" physical custody, and there is no Family Code statute defining or authorizing "primary physical custody." It appears the juvenile court meant to grant the parents joint physical custody. (See Fam. Code, § 3004 ["'Joint physical custody' means that each of the parents shall have significant periods of physical custody."].)
"The term, 'primary physical custody' . . . seems to be the equivalent of 'primary caretaker,' as used in section 3086 [of the Family Code].... 'Joint custody orders can complicate the administration of public assistance programs. To alleviate the problem, the court is authorized to specify one of the parents as the "primary caretaker"....'" (Brody v. Kroll (1996) 45 Cal.App.4th 1732, 1736-1737.) But the court nonetheless ordered S.F. and F.G. to have "primary physical custody" of A.Y., with their home as A.Y.'s "primary residence," in violation of Family Code section 3086, which allows the court to designate only "one parent as the primary caretaker." In making that determination, the court also failed to consider which parent(s) would need public assistance, which is what dictates who the "primary caretaker" should be. (See Fam. Code, § 3086 ["[T]he court may specify one parent as the primary caretaker of the child and one home as the primary home of the child, for the purposes of determining eligibility for public assistance."]; Brody v. Kroll, supra, at pp. 1736-1737.)
CFS further argues that the court abused its discretion to the extent it declared S.F. and F.G. the primary caregivers because it is "more likely that [M.Y.] would need public assistance" given that S.F. and F.G. both have incomes and F.G.'s was the largest of the three parents. But because the issue of public assistance was never raised, we leave the issue for the juvenile court to consider in the first instance on remand.
Finally, the juvenile court erroneously designated S.F. and F.G.'s home as A.Y.'s "primary residence." The juvenile court believed it had to make a primary residence finding "because of tax and insurance purposes and things like that," such as child support. But, as M.Y. and CFS correctly note, the Family Code does not define "primary resident," and nothing in the code (or the Welfare and Institutions Code) requires any court to designate a "primary residence." The designation of S.F. and F.G.'s home as A.Y.'s "primary residence" also does not make sense given that they and A.M. live in separate homes, but all three parents have the same legal and physical custody rights over A.M.
For all these reasons, we agree with the parties that the exit order must be reversed. But because the juvenile court terminated its jurisdiction, we remand the matter to the family court overseeing the parties' family law case. (See In re John W., supra, 41 Cal.App.4th at pp. 976-977; In re Brison C. (2000) 81 Cal.App.4th 1373, 1382-1383.)
IV. DISPOSITION
The juvenile court's exit order is reversed and the matter is remanded to the family law court.
We concur: FIELDS, J., RAPHAEL J.