Opinion
E081009
01-16-2024
In re A.M., a Person Coming Under the Juvenile Court Law. v. M.Z., Defendant and Appellant. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Megan Turkat Schrin, under appointment by the Court of Appeal, for Defendant and Appellant. Tom Bunton, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. J295846. Steven A. Mapes, Judge. Affirmed.
Megan Turkat Schrin, under appointment by the Court of Appeal, for Defendant and Appellant.
Tom Bunton, County Counsel, Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
FIELDS, J.
INTRODUCTION
Defendant and appellant M.Z. (mother) appeals from the juvenile court's order granting sole legal and physical custody of A.M.C. (the child) to the child's father, J.R., (father) and supervised visitation with a paid professional monitor for mother. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The child first came to the attention of the San Bernardino Department of Children and Family Services (CFS) on April 29, 2022, when it received a referral of sexual abuse and general neglect. She was 10 years old and reported, at school, that she did not like to be around her mother's boyfriend, M.J., because they" 'play fight'" and he "grabs her in the 'boob area'" and says it is an accident. The child reported that M.J. would always try to come near her so he could rub or touch her. Although he would tell her it was an accident, she felt he did it on purpose. The child reported that M.J. came into the bathroom and stared at her for five seconds, so she now locked the door because she was afraid he will come in and do something to her. The child said mother did not believe her or did not want to hear what M.J. did because mother wanted to stay in a relationship with him. Mother "keeps trying to make her get along" with him, but the child did not want to do so. The referral was closed as inconclusive. The situation appeared to be stabilized, since father kept the child in his care when he learned about the sexual abuse allegations against M.J. He called in a referral to CFS and was advised not to return the child to mother's care. However, on May 9, 2022, mother contacted law enforcement, and father was ordered to return the child to her, despite the allegations. Father filed an ex parte pleading in family law court on May 16, 2022, but it was denied.
The detention report does not specify what the ex parte pleading stated or requested.
On May 20, 2022, CFS received a 10-day referral for the same sexual abuse and neglect allegations. The referral reported that the child did not want to get out of father's car and had a panic attack when asked to return to mother's home because M.J. was there. Law enforcement was called, and father was told the child could not be forced to get out of the car. The referral was "evaluated out." Mother then filed an ex parte request against father, and father was ordered to return the child. Per a family law court order dated June 1, the child was ordered to remain in mother's care and have no contact with M.J.
On July 1, 2022, CFS received another 10-day referral for the same allegations. The referral reported that a final family law hearing had taken place that day, and the judge ordered the child to reside with mother. Father was ordered to have no visitation; however, effective August 1, he was granted supervised visitation up to two hours per week. Father called the child abuse hotline and spoke to a child protective services (CPS) director and several law enforcement agencies, in an attempt to ensure the child's safety. The law enforcement agencies said he needed to respect the court order; however, the CPS director advised him to keep the child with him, considering the alleged perpetrator still lived with mother.
On November 7, 2022, the child participated in a forensic interview at the children's assessment center (CAC). The child confirmed the sexual abuse by M.J. She disclosed that he pinched her breast and walked into the room while she was changing. He also walked into the bathroom when she was there. The child further reported that, during a trip to an amusement park, M.J. touched her butt over her clothing. He also showed her "a shelf of porn." The child further disclosed that she has been exposed to mother and M.J. having sex in her room. She added that M.J. twisted her arms behind her back to get her to acknowledge that she was a" 'Jimenez'" like him. The child reported that mother did not believe the sexual abuse allegations and said M.J. was just playing. At that time, a referral was called in but was closed as inconclusive, since CFS was unable to locate mother, M.J., and the child.
On December 27, 2022, a 10-day referral was called in, due to concerns that the prior referral had not been investigated and M.J. continued to reside with mother and the child. A social worker met with mother, M.J., and the child on January 17, 2023. The child made statements consistent with her forensic interview and said M.J. made her feel uncomfortable due to his touching her boobs when playing a board game, touching her butt at an amusement park, and attempting to open the bathroom door when she was in the shower. The child also reported that he walked in on her while she was undressed and stared at her before closing the door. The child stated that mother told her she provoked M.J. by wearing short shorts. The child also said mother told her she should not "say such things," since M.J. supported the household, and if anything happened to him, it would be the child's fault. Mother claimed that father manipulated the child to make the allegations and told her to lie in court; however, the child denied that father told her to lie. The child also said she was not allowed to talk to father unless the conversation was recorded by mother.
Mother reported that the child visited father around March 2022, and father would not return the child to her, using the child's sexual abuse allegations against her. Mother said she took father to court because he was failing to follow the court order. She claimed the court placed a restraining order against father, due to his manipulating the child into falsifying allegations; however, the social worker did a superior court search, and there was no evidence of such restraining order. Mother also claimed that father made up the allegations, so the court suspended his visitation. She denied the child had ever said she felt uncomfortable around M.J. Mother said he only walked in on the child once because he thought she (mother) was in the room. Mother also stated that she and M.J. would pretend they were going to open the bathroom door by turning the knob when the child was taking too long in the shower. Mother further said that whenever M.J. touched the child or twisted her arms, he was only playing.
M.J. told the social worker that the child probably misunderstood him, and that when he touched her breast, he was tickling her and did not intend to touch her breast. He said that when he twisted the child's arms, he was only playing, and it was always in front of mother. He also claimed that father manipulated the child into making the allegations.
The social worker subsequently spoke with father on January 18, 2023. He said mother and M.J. notified him of the allegations the child made at school in April 2022. Father said he immediately moved back to Salinas so he could be given the opportunity to have the child back in his home. The child reported feeling safe under his care. Father's home was observed to be free of concern and appeared to have plenty of provisions. Father said he felt he had done what he could to protect the child, but his hands were tied, since he was given mixed directives from CFS and the family law court.
The social worker was concerned that M.J. would continue to sexually abuse the child, so she obtained a detention warrant on January 25, 2023, and served it with a police officer.
On January 27, 2023, CFS filed a Welfare and Institutions Code section 300 petition on behalf of the child. The petition alleged that she came within subdivisions (b) (failure to protect) and (d) (sexual abuse). The petition specifically alleged that mother failed to protect the child, since she let her significant other, M.J., have access to the child despite knowledge of sexual abuse, thus placing the child at risk of further emotional and physical harm.
All further statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
The court held a detention hearing on January 30, 2023, and detained the child. The court ordered that the child remain in father's custody, under the supervision of the court. It also ordered that there be no contact between the child and M.J., pursuant to the child's and father's requests.
Jurisdiction/Disposition
The social worker filed a jurisdiction/disposition report on March 1, 2023, recommending that the court sustain the petition, issue an order granting custody to father, and dismiss the dependency. The social worker reported that she interviewed the child on February 21, 2023, and the child again said that M.J. touched her breast and butt, and he tried to come into the bathroom. The child stated that M.J. once came into her room, stared at her for five seconds, and then left. She told mother, and mother said M.J. thought she (mother) was in the room; however, the child was pretty sure mother was in the kitchen. The child told mother that M.J. walked in on her once while she was changing, and mother took it as a joke. The child further disclosed that M.J. would twist her hand and she would cry and tell him to stop.
The social worker interviewed father about the child's allegations, and he said he reported them to the court. He said he took the child to Salinas, and the court made him return her to mother. Father said the court told him that, even though "the other person" was in the home, mother was supposed to supervise the child. He disclosed that, even though mother knew what was going on, she wanted the child to have a friendship with M.J. Father said he wanted custody of the child because he did not think mother was capable of taking care of her.
The social worker also interviewed mother on February 21, 2023. Mother said the family court allowed her to stay with M.J., although he was not to be alone with the child. Mother said father was putting ideas in the child's mind and was always saying things against M.J. Mother said she did not believe the child and did not believe M.J. did anything to her, noting that he had been helping take care of her since she was four years old. Mother stated the child was not at risk.
The social worker additionally reported that father was the child's biological father. Mother and father were living together at the time of conception and were married when the child was born. They subsequently divorced. Father said there was a child support order for $560 per month, but he gave mother $250 per month for the child.
Based on all the information, the social worker recommended that the child be removed from mother and maintained in father's care. The social worker found that mother's actions and statements that she did not believe her daughter demonstrated that mother would not be able to protect the child from any further abuse. In contrast, the social worker found that father had demonstrated he was going to protect the child from any abuse and noted that he had tried to address this issue with the family court, to no avail. The social worker recommended that father be given a family law order and the dependency be dismissed.
The court held a jurisdiction/disposition hearing on March 6, 2023. Mother testified that, prior to the start of the dependency case, the child was living with her and M.J., and that M.J. had been living with them since 2016. Mother testified she never saw M.J. touch the child inappropriately and was never informed of him doing so. Mother said M.J. was almost never alone with the child. When asked to recall the last time he was alone with her, mother responded, "In fact, she has always been with me. I always set aside a lot of time to be constantly with her, totally devoted to her." Mother testified that M.J. always had a good relationship with the child, and the child never expressed that she felt uncomfortable with him. When asked if she believed it was possible that M.J. could have sexually abused the child, mother said, "No, not at all."
Mother further testified that the child never told her about any sexual abuse by anyone. However, on cross-examination, mother said the child "[o]nly once" told her that M.J.'s hand was on her breast, but mother did not see it. Mother then said she believed "it's been a misunderstanding of what [the child] said." When asked if she recalled that an exam was completed regarding the child's sexual abuse, at first mother said there was no exam because the child refused to comply. When county counsel stated there was an exam completed and the child confirmed sexual abuse, mother asked if the abuse was committed by father. Mother again testified she did not believe M.J. sexually abused the child.
Mother was asked if she was still living with M.J., and she said yes, but she was looking for a place to live with the child. On cross-examination, mother testified that, despite the child's disclosures of inappropriate touching by M.J. to the social worker, the forensic interviewer, and others, she still did not believe M.J. was a risk to the child.
On redirect examination, mother testified that M.J. only walked in on the child in the shower one time, and they resolved that they would lock the door. When asked if there were any other times the child told mother she was uncomfortable with M.J., mother said, "Only once .... [T]hey were playing, and playing he would prick her little breasts, and . . . she would prick his breasts as well, and I said that that was not appropriate."
In closing arguments, mother's counsel asserted mother's position that the information in the report was not correct, and mother was not aware of what the child had reported. Counsel stated that mother admitted knowing M.J. and the child were playing around inappropriately, and he walked in when she was in the shower; however, those situations were dealt with. Mother's counsel asserted that M.J. had always been appropriate with the child and that there was no occasion when sexual abuse could have occurred, and he continued to contend that father had influenced the child. Father's counsel objected to mother's claim that father was coaching the child and submitted on the social worker's recommendations for a family law order granting father sole custody. The child's counsel argued that 95 percent of mother's testimony was not credible, and the child had been very consistent in her disclosures to different people. She noted that the disclosures were made early on, and father made attempts to seek custody in the family law court, but "[i]t did not go well, so now we're here in dependency." As to visitation, the child's counsel was hesitant, since mother's attitude was clearly that her boyfriend could not possibly have molested the child. However, the child wanted to have contact with mother, so counsel said visits in a therapeutic setting would probably be the most protective for the child. The child's counsel stated that visits would have to be very strictly supervised, with a paid professional monitor who understood the history of the case and who would be able to recognize situations where mother may blame the child for the situation. Father's counsel asked that all visits with mother be supervised, and he agreed with the child's counsel that they should be supervised by a paid professional monitor.
The court adopted the recommended findings and orders. It sustained the allegations under section 300, subdivisions (b) and (d), and declared the child a dependent. It then removed the child from mother and placed her in the custody of father, the previously noncustodial parent, and terminated its jurisdiction. The court ordered supervised visitation, once a week for two hours, with a professional monitor in a therapeutic setting, at mother's expense, and ordered that M.J. was not to be present at the visits.
DISCUSSION
I. The Juvenile Court Properly Granted Father Sole Legal and Physical Custody Mother argues the juvenile court's exit order granting father sole legal and physical custody was an abuse of discretion since the family law court had just recently dismissed the sexual abuse allegations and granted mother sole custody. She further claims there was insufficient evidence to support the court's order. Mother also contends the order for supervised visitation with a professional monitor was unwarranted. We conclude the court properly ordered sole custody for father and supervised visitation for mother.
A. The Appeal is Not Moot
At the outset, we note that mother contends her appeal is justiciable, even though the court terminated its jurisdiction. Respondent concedes, and we agree, that the appeal is not moot. The question of mootness must be decided on a case-by-case basis. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547 (Joshua C.).) Joshua C. involved an appeal following the termination of dependency jurisdiction. The juvenile court found that a father had sexually abused his daughter, and his son was in danger of being sexually abused. (Id. at p. 1547.) At the dispositional hearing, the court awarded sole physical and legal custody of the children to their mother, restricted the father's visitation, and terminated dependency jurisdiction. (Ibid.) The father filed a notice of appeal challenging the jurisdictional findings. (Ibid.) The appeal was not moot. The appellate court held that "[t]he fact that the dependency action has been dismissed should not preclude review of a significant basis for the assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect [the father]. If the jurisdictional basis for orders restricting [the father's] visitation with, and custody of, [the child] is found by direct appeal to be faulty, the orders would be invalid. Moreover, refusal to address such jurisdictional errors on appeal by declaring the case moot has the undesirable result of insulating erroneous or arbitrary rulings from review." (Id. at p. 1548.)
In the instant case, the order granting father custody was made at the same time the juvenile court terminated its jurisdiction. The order will continue to adversely affect mother. Moreover, similar to the father in Joshua C., mother challenged the order at the first opportunity. Thus, mother's appeal is not moot. (Joshua C., supra, 24 Cal.App.4th at p. 1548.)
B. Relevant Law
"When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make 'exit orders' regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child 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, 1122-1123 (T.H.); § 362.4.) "When making a custody determination in any dependency case, the court's focus and primary consideration must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 (Nicholas H.).) "The issue of the parents' ability to protect and care for the child is the central issue." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 (Jennifer R.).)
We review the juvenile court's decision to terminate dependency jurisdiction and to issue an exit order pursuant to section 362.4 for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) We"' "will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Furthermore,"' "[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (Id. at p. 319.)
C. The Juvenile Court Did Not Abuse its Discretion in Granting Father Sole Custody
The court here properly granted father sole custody of the child, in light of the evidence. The child reported consistent statements of sexual abuse by M.J. to different people at different times, and mother did not believe her and failed to protect her from his inappropriate conduct. The child first reported, at school, that she did not like to be around M.J because he would "gra[b] her in the 'boob area'" and say it was an accident when they were play fighting. The child said he always tried to come near her so he could touch her. She further reported that M.J. came into the bathroom and stared at her for five seconds.
We note that sexual abuse includes "the intentional touching of the genitals or intimate parts, including the breasts . . . and buttocks, or the clothing covering them, of a child, . . . for purposes of sexual arousal or gratification." (Pen. Code, § 11165.1.)
The child confirmed the sexual abuse by M.J. at the forensic interview. She disclosed that M.J. had pinched her breast, walked into the room when she was changing, and walked into the bathroom when she was there. The child also reported that M.J. touched her butt over her clothing during a trip to an amusement park. She made consistent statements to the social worker that M.J. made her feel uncomfortable due to his touching her boobs when playing a board game, touching her butt at an amusement park, and attempting to open the bathroom door while she showered. The child also reported that he walked in on her while she was undressed and stared at her before closing the door. She further reported that mother told her she provoked M.J. by wearing short shorts. After the child was detained in the instant case, the social worker interviewed her, and the child again stated that M.J. touched her breasts and butt, tried to come into the bathroom, and once came into her room, stared at her for five seconds, and then left.
Furthermore, when the child told mother about M.J.'s inappropriate conduct, mother either did not believe her or would minimize his conduct and tell the child he was just playing. Mother said that M.J. only walked in on the child once because he thought she (mother) was in the room. She also claimed she and M.J. would pretend they were going to open the bathroom door by turning the knob when the child was taking too long in the shower. Mother further claimed father made up the sexual abuse allegations, and she denied the child ever said she felt uncomfortable around M.J.
Consistently, at the jurisdiction/disposition hearing, mother testified that she never saw M.J. touch the child inappropriately, even though she also said he was almost never alone with the child. Mother testified that M.J. always had a good relationship with the child, and the child never expressed feeling uncomfortable with him. We note that, by the time of the jurisdiction/disposition hearing, mother was still living with M.J., despite the family law court ordering that the child remain in her care and have no contact with M.J., and the juvenile court subsequently ordering no contact between the child and M.J. Moreover, mother maintained the position that M.J. had always been appropriate with the child, despite her own testimony that he "would prick her little breasts." When asked if she believed it was possible M.J. could have sexually abused the child, mother testified, "No, not at all."
In light of mother's numerous and persistent excuses made for M.J.'s inappropriate conduct and touching, her refusal to acknowledge even the possibility that he sexually abused the child, her disregard for both the family law court's and juvenile court's no contact orders, and the fact that M.J. was still living with her at the time of the hearing, it was evident that mother would not protect the child from further abuse. (See Jennifer R., supra,14 Cal.App.4th at p. 712.) We recognize, as mother points out, that not all of M.J.'s inappropriate interactions with the child constituted sexual abuse. However, when viewed in the context of him touching her breasts and butt, it was clearly not in the child's best interests for her to stay with mother. We conclude the court properly exercised its discretion in removing the child from mother's custody and granting father sole custody. (See Nicholas H., supra, 112 Cal.App.4th at p. 268.)
Mother points out that she and M.J. had no criminal history, while father had a criminal record which, included domestic violence and driving under the influence offenses. Mother appears to be suggesting that, in light of father's record, the court should have kept the child in her custody. However, the record showed that father was very protective of the child. In contrast, there was substantial evidence that mother would not protect the child from further abuse. (See ante.)
Despite the evidence supporting the court's decision, mother argues the order granting father custody was not in the child's best interests, since the court did not consider "any of the evidence as to why mother was just granted sole custody by the family law court and father supervised visits." She asserts that the sexual abuse allegations were initially raised in the family law court, but that court "did not find it necessary to remove the child from mother." Mother further states there is no evidence that the social worker or the juvenile court had any communication with the family law court "to understand the basis of this decision." Mother additionally points out that the child was never questioned about whether she wanted to live with her or father, and also argues that the order granting father custody and depriving her of the right to make educational and medical decisions for the child was an abuse of discretion, since there was no evidence she ever neglected the child's educational or medical needs. None of these issues was relevant to the court's decision to remove the child from mother and grant father custody. (Jennifer R., supra, 14 Cal.App.4th at p. 712 [The central issue is "the parents' ability to protect and care for the child."].)
Mother is essentially arguing that the juvenile court abused its discretion by reaching a different custody decision than the family law court, despite the family law court "consider[ing] and reject[ing] the same evidence." First, we note that "[t]he purposes and parties of family law and juvenile proceedings, while often overlapping, are not the same." (In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1469.) "The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children. In that setting, parents are presumed to be fit and capable of raising their children. [Citation.] The juvenile court, by contrast, provides the state a forum to 'restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians.'" (In re Chantal S. (1996) 13 Cal.4th 196, 201.)
Second, contrary to mother's claim, the evidence before the juvenile court was not the same evidence that was before the family law court when it ordered that mother have custody of the child on July 1, 2022. The record reflects the child initially came to the attention of CFS through a referral of sexual abuse allegations when the child reported the allegations to her school in April. However, the referral was closed as inconclusive. The family law court evidently did have some concerns, since, on June 1, it ordered the child to remain in mother's care but have no contact with M.J. However, on July 1, CFS received another 10-day referral for the same sexual abuse allegations, and "[t]he referral reported that on this date[,] . . . a final family law hearing took place and the Judge ordered for [sic] the child to reside with mother ...." The record does not make any reference to what evidence the family law court considered when issuing its order; however, we observe that, at that point, the only apparent evidence of the allegations was from the initial referral, which was determined to be inconclusive.
In any event, the juvenile court had no obligation to consult with the family law court when making its custody order, especially since there was substantial evidence of sexual abuse that was not before the family law court. Such evidence included the child's disclosures made during the subsequent forensic interview and the consistent statements she made to the social worker during two different interviews. Furthermore, the juvenile court had the evidence of mother's statements to the social worker and her testimony at the hearing showing that she knew M.J. had touched the child's breasts and simply made excuses for him, and that, despite the child's disclosures, she did not believe the child was at risk with M.J. Ultimately, the juvenile court made a credibility determination, which was well within its province. (See Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163 ["' "The trial judge, having heard the evidence, observed the witnesses, their demeanor, attitude, candor or lack of candor, is best qualified to pass upon and determine the factual issues presented by their testimony."' "].)
In sum, "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.) In view of all the circumstances, the court was well within its discretion in ordering that the child be removed from mother's custody and placed with father.
II. The Court Did Not Abuse its Discretion in Ordering Supervised Visitation
Mother complains that the court's order of supervised visitation with a professional monitor was unwarranted. We disagree.
When terminating jurisdiction, the juvenile court has the authority to make visitation orders. (T.H., supra, 190 Cal.App.4th at p. 1122; § 362.4.) In doing so, the court "must look at the best interests of the child." (In re John W. (1996) 41 Cal.App.4th 961, 973.) The appropriate standard for visitation orders is abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.)
Mother claims there were no specific concerns "besides" her being in a relationship with M.J. However, her relationship with M.J. was at the core of the dependency case. The child made disclosures that he sexually abused her, but mother did not believe her or did not want to hear about it because she wanted to stay with M.J. The child said mother told her she should not "say such things," since M.J. supported the household, and if anything happened to him, it would be the child's fault. Furthermore, mother defended M.J. against her own child and had the attitude and belief that he could not possibly have sexually abused her, despite the child's disclosures.
Notably, the child's counsel requested visitation in a therapeutic setting, so the child could confront mother on her choices and about not protecting her. The child's counsel asserted that the visits would have to be strictly supervised in a therapeutic setting and insisted that the visits be facilitated by a paid professional, who understood the history of the case and could recognize any situation where mother might blame the child for the situation. Father's counsel agreed with the request. In view of the circumstances, we cannot say the court's order accommodating the child's request was an abuse of discretion.
We note that mother complains that paid monitors can be costly, and since she only made $16 an hour, the professional monitor requirement would essentially deprive her of visitation. However, mother did not raise any issue about the costs below and has therefore waived the issue on appeal. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)
We ultimately conclude the court properly considered the evidence and prioritized the child's best interests in making its custody and visitation orders. (Nicholas H., supra, 112 Cal.App.4th at p. 268.) There was no abuse of discretion.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: McKINSTER Acting P.J. MILLER J.