Opinion
D081352
08-14-2023
In re H.O., a Person Coming Under the Juvenile Court Law. v. S.G., Defendant and Appellant; SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, N.O., Intervener and Respondent.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant. Pamela Rae Tripp, under appointment by the Court of Appeal, for Intervener and Respondent. Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County, No. J521048AB, Browder A. Willis, Judge. Affirmed and remanded with directions.
Sarah Vaona, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Intervener and Respondent.
Claudia G. Silva, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Tahra Broderson, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
INTRODUCTION
S.G. (Mother) appeals from the juvenile court's exit orders. Mother complains they limit visitation with her son, H.O., to five hours per week in Arizona. She argues this is not in H.O.'s best interests and, therefore, is an abuse of the juvenile court's discretion. She further contends the written order awarding sole legal custody to H.O.'s father, N.O. (Father), must be corrected because it conflicts with the hearing transcript reflecting that the trial judge ordered joint legal custody to Mother and Father. Father wants this court to leave the exit orders intact, but concedes the custody portion of the order conflicts with the juvenile judge's intentions.
The San Diego County Health and Human Services Agency (Agency) filed a letter brief explaining that it would not defend the juvenile court's exit orders on appeal because the Agency took no position at the contested jurisdiction and disposition hearing on whether the juvenile court should order joint legal custody or a minimum amount of visitation to Mother. The Agency requested this court appoint counsel for Father to represent his interests on appeal. We appointed counsel who subsequently filed a respondent's brief asking this court to affirm the visitation portion of the exit orders.
We conclude the court did not abuse its discretion when it fashioned Mother's visitation plan with H.O because substantial evidence supports the trial court's findings regarding H.O.'s best interests. However, the final written orders conflict with the court's oral statements regarding custody. Accordingly, we affirm the exit orders but remand to correct the written version.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Leading to H.O.'s Detention
In June 2022, the Agency filed juvenile dependency petitions alleging four-year-old H.O., and H.O.'s half-sibling, one-year-old A.S. (collectively, the children), were exposed to a series of violent confrontations between Mother and A.S.'s father, G.S. The petitions and related detention report describe a history of drug abuse and domestic violence. Specifically, in May 2022, law enforcement officers arrested G.S. for drug possession, and domestic violence involving Mother. In June 2022, the police responded to a verbal altercation between Mother and G.S. during a child visitation exchange. When contacted by law enforcement, Mother and G.S. both alleged the other parent used methamphetamine in the presence of the children. Mother told police that G.S. punched her in the face earlier that day, following 18 incidents of domestic violence that month.
Although Mother identifies A.S. in the title of her opening brief on appeal, she only asserts error as to H.O. A.S. is not the subject of this appeal and is discussed only when relevant.
Also in early June 2022, the parties sought and obtained temporary restraining orders against each other; one protected G.S., as well as the children, from Mother. But, Mother and G.S. violated the restraining orders multiple times. For instance, Mother and G.S. traveled together to Nevada where at one point authorities arrested Mother for domestic violence against G.S. Nine days later, Mother entered G.S.'s residence without his consent.
On June 23, 2022, Mother expressed concern to the Agency about G.S. using drugs while he cared for the children. The following day, G.S. drove the children to a gas station and left them unattended with the clerk. G.S. then went to a nearby used car lot where he lit a vehicle on fire before running from the scene. Police responded to the area, arresting G.S. Authorities later charged G.S. with arson, willful cruelty to a child, and being under the influence of a controlled substance. G.S. admitted to officers that he left the children with the gas station clerk before burning the car. He told an Agency social worker he intentionally" 'caused a scene'" by setting the fire because someone told him his" 'sister and everyone is involved in like a child molestation ring.'" G.S. denied being under the influence of a controlled substance.
Following G.S.'s arrest on June 24, 2022, the children were taken to Polinsky Children's Center (PCC). There an Agency social worker interviewed H.O. He told the social worker he observed G.S. choke Mother and push her down. He also saw Mother hit G.S.; he stated G.S.'s and Mother's fighting made him cry. H.O. warned the social worker not to speak with G.S. because G.S. would get mad.
On June 27, 2022, the Agency informed Mother of the incident involving G.S.'s arrest. However, when reached, Mother was in Nevada. She stated police called her a few days prior telling her what occurred. She said G.S. still had an active restraining order against her seeing the children.
As part of its ongoing investigation into Mother and G.S.'s turmoil surrounding drugs and domestic violence, the Agency contacted H.O.'s father, N.O., who resides in Arizona. At the time of these events, Father was a noncustodial parent, but he said he spoke to H.O. every day. Father told the Agency about concerns with Mother's behavior as well as G.S.'s presumed drug use. Father believed Mother was a" 'good mom,'" but he expressed a desire to reunite with H.O. and for H.O. to live with him.
At the June 29, 2022, detention hearing, the court made prima facie findings that the children fell within the juvenile court's jurisdiction pursuant to Welfare and Institutions Code section 300, subdivision (b). The court detained the children in out-of-home care. Father attended the hearing, asking the court to place H.O. in his custody. Seeking more information before ruling on the request, the court ordered the Agency to assess Father for H.O.'s placement. The court scheduled a jurisdiction and disposition hearing for July 19, 2022. That hearing would not occur until December 9, 2022.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
II. Post-detention Period
During the six months between the detention hearing and the jurisdiction and disposition hearing, Mother acknowledged she had a history of domestic violence with multiple partners and that she used illicit drugs. Mother tested positive for methamphetamine in June 2022 and again on July 8, 2022. In August 2022, Mother entered a residential treatment program, started parenting classes, and enrolled in a class directed towards anger and violence. Mother asked social workers to place the children with her at the treatment program, but the Agency determined such a placement inappropriate without demonstrable progress by Mother.
On August 16, 2022, about two weeks following her admission to the residential treatment facility, program staff discharged Mother because of" 'behavioral issues and anger'" and" 'lashing out'" at staff. On September 12, 2022, Mother entered another treatment facility but left it after a month. On October 11, 2022, Mother entered a third drug program. She attempted to enroll in classes related to domestic violence, but she" 'yelled and insulted'" the provider during the intake process and had to be referred to another organization.
The Agency expressed concern that Mother "demonstrated a pattern of behavior including anger outbursts with multiple service providers and on at least two occasions in the presence of the children." The Agency noted that, "[t]hese incidents continue to occur despite [Mother] being sober for approximately 60 days and have interfered with her progress in reunification, as she has had to switch services providers for both substances abuse services and [domestic violence] services." Further, the Agency's reports showed multiple incidents in which Mother violated the restraining order involving G.S.
During the six months before the jurisdiction and disposition hearing, Mother participated in supervised visits with the children. Social workers observed in these visits that H.O. and Mother hugged, said they loved each other, and that H.O. cried on some occasions when the visits ended.
However, Mother's supervised visits involved challenges. Mother repeatedly arrived late to see the children. Prior to the start of one visit, H.O. told the social worker," '[m]y mom probably isn't here she is always late.'" Another time Mother slept during the visit. Around that period, she tested positive for fentanyl. She also yelled and cursed at visitation center staff in the presence of the children on multiple occasions. The Agency noted H.O. then repeated Mother's inappropriate language. After one conflict between visitation center staff and Mother, the visitation center informed the Agency it could no longer provide services to Mother because of her aggressive behavior.
In the meantime, Father continued phone and video contact from Arizona with H.O. H.O. also expressed a desire to reside with Father. Seeking reunification with H.O., Father reported to the Agency that Father worked, could provide a stable home, and H.O. would enjoy extended family support while living with Father. The Agency reviewed Father's criminal history, finding nothing recent in Arizona. Due to accusations that Father abused heroin and fentanyl, the Agency asked Father to take a hair follicle drug test. That test result showed negative for drugs. The Agency concluded the allegations against Father were false.
The juvenile court then gave the Agency discretion to allow an extended visit between H.O. and Father. The Agency authorized the visit allowing H.O. to visit Father in Arizona for one week. When the Agency social worker and H.O. arrived at the airport in Arizona, H.O. ran to Father and gave him a hug. The social worker observed H.O. tell Father," 'I want to be with you forever.' "
Father reported that his one-week visit with H.O. went well and that H.O. was sad to leave Arizona. Although the juvenile court authorized Mother to have three phone or video conversations with H.O. during his Arizona trip, she failed to attend one of those scheduled visits. When the social worker picked up H.O. at the airport after the extended visit, H.O. cried. H.O. stated multiple times that he wanted to live with Father.
III. Jurisdiction and Disposition Hearing
On December 9, 2022, the juvenile court conducted a contested jurisdiction and disposition hearing. One of the Agency's reports entered into evidence at the hearing summarized Mother's psychological evaluation. The report's conclusion stated in part, "[Mother's] history suggest[s] a pervasive pattern of disregard for and violation of the rights of others. She has failed to conform to social norms with respect to lawful behaviors. She has been deceitful and impulsive, and fails to plan ahead. It was well-documented that she becomes easily irritated and aggressive and at times has a reckless disregard for the safety of herself or other[s]. Substance abuse appears to contribute to her behavior.... She has experienced difficulty with impulsivity as evidenced by her substance abuse and reckless lifestyle." (Italics omitted.) The evaluation recommended that Mother continue to participate in substance abuse treatment, receive ongoing psychiatric care, and get cognitive behavioral therapy.
The court received all of the Agency's reports into evidence without objection.
In another report prepared for the hearing, the Agency recommended that the juvenile court award physical custody of H.O. to Father, allow H.O. to reside in Arizona, and terminate dependency jurisdiction.
Two witnesses also testified during the hearing: the Agency's social worker and Mother. The Agency social worker said that H.O. appeared to enjoy his visits with Mother, concluding that H.O. loved Mother. The social worker also recounted the episode during which Mother appeared to sleep at one visit. At the visit Mother appeared unresponsive to the children and the visitation monitor had to supervise A.S. who ran down the hallways of the supervision facility. The social worker expressed concern that Mother fell asleep during this visit because it happened within the timeframe Mother tested positive for fentanyl. As to Father, the social worker stated Father would meet H.O.'s physical and emotional needs, and that H.O. should be placed in his care.
During Mother's testimony, she described her visitation with the children, explaining that she prepared for the visits by bringing snacks and games. She testified regarding the positive fentanyl test that occurred in November 2022, claiming the test was in error because she had not used drugs or alcohol. Mother also described her progress in treatment and sobriety. Mother testified that she would continue to take the psychotropic medications prescribed to her and required by her Agency case plan.
Following the presentation of evidence, Mother asked the court to place H.O. in her care with joint legal custody to Father. She argued that H.O.'s placement with Father would be contrary to H.O.'s best interests because the evidence did not demonstrate a strong relationship between Father and H.O. Regarding visitation, she asked the court to reject the recommendation of five hours minimum supervised visitation per month, noting that this would be a significant reduction from the two-and-a-half hours of supervised visitation per week that was currently authorized for her.
By clear and convincing evidence, the juvenile court found true the allegations in the petition. The court found H.O. fell under its jurisdiction pursuant to section 300, subdivision (b). The court then ordered H.O. removed from Mother's care, noting her history of "still unmitigated domestic violence [and] concerns of impulsivity [and] anger management." The court discussed the reports by her service providers, all of which commented she had "impulsive, emotional regulation issue[s]" and that "she is either rude or inappropriate or unfit for the type of program that she was in ...." The court observed that Mother's "responses to stresses [are] extreme."
The court placed H.O. with Father after finding the placement would not be detrimental to H.O.'s wellbeing. The court noted that Father had made himself available to the Agency and provided negative drug tests. Father created an appropriate home environment for H.O. with the Agency reporting H.O.'s extended visit with Father went well.
The juvenile court then terminated its jurisdiction as to H.O. with various exit orders. The court stated that "all findings and orders of the court are made in the best interest of the child." As to custody, the court ordered Father to have "physical custody, primary residence[,] and joint legal custody." As to visitation, the court permitted Mother to have a minimum of five supervised visitation hours per month in Arizona.
In making its visitation order, the court said that while no evidence of domestic violence existed between Mother and Father, Mother's psychological evaluation described domestic violence as a major issue she still needed to address in terms of parental safety. The court found that "[Mother] needs to satisfactorily complete a domestic violence program as well as a substance abuse [program]." Although the court recognized Mother continued her work addressing behavioral and mental health challenges, the court expressed concern that during her visits with the children, "she has fallen asleep, she has, on occasion, exhibited behavior of cussing or swearing or speaking to the children in ways that are consistent with some of the mental health concerns that have been set forth in the reports and observed by [the psychologist]."
The juvenile court issued a written custody and visitation order. The court directed its staff to forward the document to the family court and from there a conformed copy of the domestic file to the juvenile court. However, the written order awarded sole legal custody to Father, conflicting with both the juvenile court's oral order and the corresponding minute order. Those reflected the judge wanted the parents to share H.O.'s legal custody.
Mother filed a timely notice of appeal from the juvenile court's exit orders.
DISCUSSION
I. Standard of Review
"We review a juvenile court's decision to terminate jurisdiction and to issue an accompanying exit custody order for abuse of discretion, and may not disturb such rulings unless the court made an '"' "arbitrary, capricious, or patently absurd determination." '"' [Citation.]" (In re C.W. (2019) 33 Cal.App.5th 835, 863; see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) "When applying the differential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citations.]" (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
II. The Trial Court Did Not Abuse Its Discretion
Mother argues the juvenile court abused its discretion by issuing a visitation order that "allowed for a single, five-hour visit per month, in Arizona." She contends that H.O.'s best interests would be served by more visitation with her because the evidence demonstrated they shared a close relationship. In support of her argument, she notes that H.O. "ran to Mother when he arrived at visits with her, and told her he loved her and he missed her." Preliminary, Mother is mistaken as to what the visitation order says. We see no abuse of discretion.
When terminating dependency jurisdiction, a juvenile court has broad discretion to fashion custody and visitation orders, commonly referred to as "exit orders." (§ 362.4, subd. (a); In re T.S. (2020) 52 Cal.App.5th 503, 513.) The juvenile court's focus and primary consideration in issuing the exit orders must be the best interests of the child. (T.S., at p. 513.) Any presumptions that may apply in family court regarding parental fitness are not applicable in this context; the juvenile court is guided by the "best interest standard" in issuing the appropriate visitation exit orders. (In re J.M. (2023) 89 Cal.App.5th 95, 113; In re Chantal S. (1996) 13 Cal.4th 196, 206.)
Mother asserts the trial judge allowed her "one, five-hour visit per month" with H.O. She is incorrect. Instead, the juvenile court's visitation order allowed for a minimum of five hours of supervised visitation monthly. The trial judge said, "I'm going to go structured supervised [visits] because it is in Arizona and it would be a minimum of five hours as requested or as set forth in the exit orders." (Italics added.) We anchor our analysis to the court's actual order, not Mother's misunderstanding of it.
Moreover, the juvenile court properly indulged its discretion by crafting visitation orders it determined served H.O.'s best interests. (See In re Jennifer G. (1990) 221 Cal.App.3d 752, 757 [the juvenile court must, in issuing its visitation orders, "determine whether there should be any right to visitation and, if so, the frequency and length of visitation. The court may, of course, impose any other conditions or requirements to further define the right to visitation in light of the particular circumstances of the case before it"].) As the juvenile court found, Mother was making an effort to address her mental health and behavioral issues. But the court also considered ample evidence that Mother posed a "substantial danger to [H.O.] with no reasonable means to protect [him,] as Mother has not progressed sufficiently [in her programs,] as noted by the multiple changes in providers all reporting the same general emotional dysregulation." Because the issues related to Mother's psychological challenges remained unaddressed, and she had yet to satisfactorily complete a domestic violence or substance abuse program, the court acted well within its discretion.
The juvenile court further observed that Mother's behavior, sometimes in the presence of the children, was consistent with the psychological report that concluded she behaved aggressively and with a disregard for the safety of others. The Agency's reports reflected, among other troubling observations: Mother's frequent tardiness to visits with H.O., and that at times she failed to attend altogether; H.O. repeating Mother's inappropriate language; and H.O. commenting to an Agency social worker that Mother was" 'always late'" to their visits. By contrast, he enjoyed his visitation with Father and repeatedly expressed a desire to reside with him.
Although Mother urges this court to reach a contrary conclusion from that of the juvenile court, we decline to do so. As we described above, the juvenile court considered extensive evidence of Mother's behavioral issues before making its visitation orders. We consider the entire trial record in the light most favorable to the juvenile court's decision. (See In re A.S. (2018) 28 Cal.App.5th 131, 149). We conclude substantial evidence supports the juvenile court's findings and we see no abuse of discretion by the court in its issued orders.
III. The Written Exit Order Does Not Reflect the Trial Court's Findings
At the jurisdiction and disposition hearing, Father asked the juvenile court to give him sole legal custody. The court rejected his request, instead ordering joint legal custody between Mother and Father. The minute orders of the proceeding reflect that, stating, "[Father] is granted joint legal and sole physical custody and primary residence of [H.O] under the custody orders." On appeal, the parties agree the written custody order conflicts with the juvenile court's oral order, and that the written order must be corrected.
"Where there is a conflict between the juvenile court's statements in the reporter's transcript and the recitals in the clerk's transcript, we presume the reporter's transcript is the more accurate." (In re A.C. (2011) 197 Cal.App.4th 796, 799-800.) However, this presumption is not absolute, and whether the reporter's transcript prevails over conflicting written orders" 'must depend upon the circumstances of each particular case.'" (People v. Smith (1983) 33 Cal.3d 596, 599.) Having reviewed the comments by the juvenile court judge and the parties at the contested hearing, as well as the clerk's related minute orders, we conclude the juvenile court intended to order joint legal custody between the parents and that the conflicting written order contains a clerical error. Accordingly, we remand the matter to the juvenile court for correction of the written custody order making it consistent with the court's oral order. (See A.C., at p. 800 [remanding matter to the juvenile court for correction of the exit order to make it consistent with the court's oral visitation order].)
DISPOSITION
The matter is remanded with instructions to correct the written custody order to clarify that Mother and Father share joint legal custody. In all other respects, the orders are affirmed.
WE CONCUR: DATO, Acting P.J., KELETY, J.