Opinion
H046942
12-04-2019
In re T.L., a Person Coming Under the Juvenile Court Law. SANTA CRUZ COUNTY HUMAN SERVICES DEPARTMENT, Plaintiff and Respondent, v. A.L., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. 18JU00159)
A.L. (mother) is the mother of five-year-old T.L. (child). Child became a dependent of the juvenile court after a domestic violence incident involving mother and the father of child's half-sister (stepfather). During the dependency proceedings, child's presumed father J.M. (father) reestablished a relationship with child and eventually progressed from weekly supervised visitation to unsupervised visitation. At the six-month review hearing, the juvenile court terminated dependency jurisdiction and ordered joint legal custody, granting physical custody to mother and unsupervised Sunday visitation for four hours to father.
Mother challenges the joint legal custody and Sunday visitation orders as unsupported by the evidence and contrary to child's best interests. She contends that she should have retained full legal custody with supervised visitation for father on a weekday coordinated with child's counseling. We find no abuse of discretion and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Investigation (April to June 2018)
Child, born 2013, came to the attention of the Santa Cruz County Human Services Department, Family and Children's Services Division (Department) in April 2018, along with her newborn half-sister (half-sister), who is not a party to this appeal. Department social workers interviewed mother and stepfather at the hospital where half-sister was being treated for a medical condition.
Half-sister's medical condition, suffered at birth, is not connected with the dependency. For purposes of this appeal, we focus our discussion on child as the subject.
Mother reported that child's maternal grandparents (grandparents) were caring for child while mother was at the hospital with half-sister. Mother, child, and stepfather had been living together, but mother and child moved in with grandparents when stepfather lost his job. Mother acknowledged that she and stepfather fought but denied any verbal or physical abuse. She denied a reported allegation that stepfather had threatened to kill half-sister while she was still pregnant with her. She appeared to have a good understanding of half-sister's medical needs. Though half-sister had tested positive at birth for morphine, Ativan, and THC, mother denied any substance use; she believed that medications from her c-section caused the positive for Ativan and morphine. Mother said that stepfather had used cocaine in the past and had a medical marijuana card but did not use around her or child. She agreed that she and stepfather would benefit from counseling and consented to a "Families Together" referral. She also consented to random drug testing.
Mother explained the circumstances of the reported threat, which involved an argument in which stepfather responded, " 'That's like if I said I'll punch you in the stomach and then you'd lose the baby.' " Mother did not feel scared and knew stepfather was mad and trying to make her understand how she would feel in that situation.
Stepfather denied being verbally abusive. He viewed child as his daughter and said that they were very close. He denied using cocaine and said he had taken Xanax in the past for depression but that was years ago.
Grandparents believed that stepfather abused Xanax and cocaine and that mother was taking Xanax unprescribed and smoking marijuana. Grandmother reported that mother hit child when child was younger, causing bruises; grandmother later gave photos to the Department. She said that mother and stepfather would punish child by putting her in the bathroom and turning out the lights.
Mother denied using excessive punishment and that she ever hit child or left bruises. When she and stepfather lived in a studio she would send child to the bathroom for one to two minutes for timeout, but lately she was working on different ways to get child to listen because " '[s]he's a little turd and she's got such an attitude.' " When shown the photos provided to the Department, she could not explain child's injuries and suggested that grandmother was the perpetrator. Mother agreed to complete a caregiver responsibility plan and again expressed interest in a referral to "Families Together." Half-sister's pediatrician reported that mother had followed through with all medical appointments for the baby.
In June 2018, grandmother reported that stepfather was volatile and using drugs, and that mother had missed a drug test because she was out with stepfather the night before. Mother denied the accusations and said the missed test was due to car trouble. Mother completed five drug tests which were all negative. Stepfather completed one test which was positive for marijuana and failed to test after that.
On June 15, stepfather assaulted mother. According to the police report, stepfather unlawfully entered the home while yelling obscene insults and charged at mother who was nursing three-month-old half-sister. Stepfather grabbed mother's phone and violently headbutted her; mother suffered momentary blurred vision and reported almost losing consciousness. Mother told the police that she had broken up with stepfather a few days earlier and that he had repeatedly threatened to kill himself and take her and the baby with him. After the assault, stepfather sent streams of demeaning and threatening text messages to mother's cell phone. Stepfather was arrested the next day in possession of cocaine.
Mother obtained a five-day restraining order. She later reported that she had filed for full custody of half-sister and she would not go back to stepfather after he headbutted her while she was breastfeeding.
B. Dependency Petition and Amended Petition (July-August 2018)
The Department filed a petition on behalf of child and half-sister on July 10, 2018. As to child, it alleged risk of serious physical harm under Welfare and Institutions Code section 300, subdivision (b)(1) due to mother's failure to protect child from domestic violence and from stepfather's drug use, and because of bruises on child's body seen in the photos provided by grandmother. It alleged that child was left without provision for support because father's whereabouts were unknown (§ 300, subd. (g)).
Unspecified statutory references are to the Welfare and Institutions Code.
Father contacted the Department after receiving a copy of the petition, which had gone to the wrong address. He confirmed his address in Colusa, California.
The Department filed an amended petition on August 15, 2018, eliminating the section 300, subdivision (g) allegation and adding father to the failure-to-protect allegation under section 300, subdivision (b)(1). It alleged that father had been absent since 2015 despite a family court order for supervised visitation and that his failure to supervise and protect child placed her at substantial risk of harm from stepfather's and/or mother's conduct.
C. Initial Hearing (July 2018)
Both parents attended the initial detention hearing on July 31, 2018. Father filed a parentage statement for child stating that he believed he was her parent and that he had established parentage in a 2014 child support case. He reported that he lived with mother and child for about a year after child was born and that he paid child support. The juvenile court found father to be the presumed parent of child.
Father reported that he had a flexible schedule for his work as an irrigation tech supervisor. He thought he could travel two times a month to reestablish contact with child through visitation, as Santa Cruz was three-and-a-half hour's drive from Colusa. This met the Department's recommendation that he travel to Santa Cruz a couple of times a month to establish a connection.
The juvenile court ordered father to attend supervised visitation twice a month in Santa Cruz and encouraged more frequent visits when feasible. The court indicated the purpose was to assess child's connection with father and get feedback from the supervised visitation. The court denied mother's request that father drug test before visits but noted the visits would be supervised at the "Parents Center" where staff were trained to identify substance issues.
D. Jurisdiction and Disposition Hearing (August 2018)
The Department's jurisdiction/disposition report recommended that the juvenile court declare child to be a dependent of the juvenile court and order family maintenance services. The Department referred the court to the 2014 family court case regarding child. Mother had obtained a three-month restraining order against father in October 2014. During that time, mother was granted temporary sole legal custody of child, and father was granted visitation three times a week, supervised by maternal grandfather. Father failed to appear at an appointment for child custody recommending counseling in March 2015, and the prior custody and visitation orders remained in effect.
Father reported that he and mother separated in October 2014, after an argument led to father's arrest for domestic violence. According to father, they argued in the car and mother ordered him to get out because she wanted to take child to grandparents' home. He became angry and took her phone. He cooperated when police arrived and was jailed for the night. When he returned home, mother had moved out. Mother said that there were other domestic violence incidents before the October 2014 incident and father's arrest. She said that during the argument in the car, father elbowed her in the face, refused to get out of the car though she wanted to drive away, and took her phone so she could not call for help. Child was a baby at the time. A restraining order was issued but was no longer in effect.
Both parents reported no contact with each other since father moved away. Mother did not know father's whereabouts but said that he knew how to reach her since he had grandparents' phone number. She did not want contact with him and was concerned he would try to get custody of child. She explained that child had no relationship with him and believed stepfather was her father. Father stated that mother had his phone number and knew where to find him. He believed that she had been trying to keep child from him for the past two or three years. He explained that after the family court visitation order, mother started showing up to his visits with child. He feared he would be arrested because of the restraining order so he pulled back on visits. In 2015, he relocated to Colusa where he has a job and his own home and has been stable for the past two years.
Father acknowledged that he did not have a relationship with child, which he said was because mother had alienated him and allowed no contact. He also did not have a good relationship with grandparents. He wanted to have a relationship with child and was willing to engage in recommended services like counseling or parenting classes to help him obtain custody and visitation with child.
At the hearing on August 16, 2018, both parents submitted with comments on the Department's report and waived trial on jurisdiction and disposition. The juvenile court sustained the allegations in the amended petition, made child a dependent of the juvenile court to remain in mother's custody, and ordered family maintenance services for parents. Mother requested a gradual approach in introducing father to child. The court found that given the allegations of domestic violence, history of mistrust, and the fact that child had not seen father since 2015, father would continue supervised visits with child two times per month, for a minimum of one hour, in a therapeutic setting. However, the social worker would have discretion to adjust the frequency, length, and supervision of the visits.
The Department filed a modification petition a month later, asking for visitation between child and stepfather. The Department noted that stepfather had requested visitation with child, who considered him her father. Mother supported the request. Child asked regularly about stepfather. Father agreed " 'if [child] wants to see him' " but did not want stepfather to fill the role of father for child. The juvenile court granted supervised visits for stepfather twice a week.
E. Family Maintenance Review Report and Hearing (April 2019)
The Department's six-month review report, submitted in late March 2019, recommended that the juvenile court dismiss the dependency as to child and grant full legal and physical custody to mother with unsupervised visitation to father for a minimum of one day a week for four hours.
Child had been staying overnight with grandparents from Sunday through Friday so she could remain in her pre-K program. Mother picked her up each day and dropped her at grandparents' house at bedtime. Mother planned to move child in the fall to a kindergarten program near the apartment that she had obtained with housing assistance. Mother was in the process of securing part-time work. She consistently attended weekly individual therapy sessions and had enrolled in a six to eight-month parenting skills course. The instructor reported that mother was accountable and attentive. Mother also enrolled in a required parent education program through the Parents Center and attended the first class.
Mother said that she was ready for the Department to close the dependency case. She had " 'participated in all the parts for the family maintenance' " including her counseling, child's counseling, visitation, medical appointments, and had moved into a two-bedroom that she deemed " 'best for me and my girls.' "
Father continued to travel once a week for visits with child. He was engaged in individual therapy and had completed four out of eight parenting classes for "Triple P." His therapist reported that he was making good progress in identifying negative behaviors and learning healthier ways to " 'respond versus react.' " He was committed to learning how to help child see him as a father rather than trying to force the relationship.
The Parents Center reported that father was " 'accountable and engaged throughout his visits with [child].' " Child, who initially presented behaviors like spitting and throwing items during the visits, eventually took to playing with father, calling him dad, and asking for park visits. Father brought his mother for one visit and asked child if she could join them; child agreed and was kind and interactive with her paternal grandmother. When maternal grandfather confronted father at a park visit and " 'got in his face' while mother" was also present, father handled the situation well by escorting child away and not engaging in the confrontation. The Parents Center transitioned father to " 'loosely supervised' " visits in January 2019 and prepared in late March 2019 to transition him to unsupervised visits if all continued going well.
Stepfather participated in supervised visits with child and half-sister but did not follow through with his referrals. He stopped visits with child in late January 2019 because he believed it was confusing for her to see him and her father. He began a jail sentence in February 2019.
Child began therapy in January 2019. Child's therapist reported that child exhibited anxious behavior while transitioning to visits with father but appeared to relax and engage with him after five to 10 minutes. She believed that child's anxiety was driven by feeling " 'torn and confused' " about being around father due to mixed messages from family members, like maternal grandfather who told child he does not want her alone with father.
At the review hearing on April 11, 2019, the Department recommended dismissal of the dependency with exit orders related to custody and visitation. It concluded that the risk of further abuse or neglect to child was low based on mother resolving the initial petition issues. She was proactive about engaging in individual therapy and addressing her domestic violence history. She attended to half-sister's significant medical needs and appointments and continued to ensure child's participation in counseling. Father did not hesitate to take the opportunity to reenter his daughter's life and stayed engaged throughout the case. He had "allowed his daughter to express different behaviors and emotions throughout their time together while being compassionate and honoring the space she has needed while getting to know him. [He] has advocated for time with his daughter outside of an office setting and has shown a desire to have unsupervised time with her."
Mother and father did not agree with the Department's visitation recommendations. The juvenile court referred the parents to mediation and indicated the focus should be "not only on what works with the parents' work schedule, where they live, etc., but also . . . on what's in the child's best interests." The court requested that the parties outline details to reduce any conflict around visitation.
F. Dismissal Hearing and Exit Orders (May 2019)
The parties reconvened in the juvenile court after failing to reach an agreement about visitation. Mother testified that she wanted father's visits to continue to occur every other Thursday after child's therapy because child was used to that arrangement and "sometimes she's not always ready for the visit, and they help ease her into the visit." Mother also wanted the visits to stay supervised. She explained that the counselor had told her that sometimes child was "still hiding" from father and still "nervous to fully be there around him" as "he just came into the picture after four years . . . ." She objected to father's proposal about joint legal custody based on his recent entry into child's life. She testified that child was "still getting comfortable with . . . visitation at all. . . . He has to bring her all kinds of toys. He has to let her watch the phone. He has to, . . . in a way, bribe her with toys and objects for her to play with him."
Father testified that he wanted joint legal custody of child. He "respect[ed] her mother's opinions and choices" but wanted to be involved in decisions about healthcare, education, and schools. Father testified that driving from his home to Santa Cruz for visitation during the week, which took at least three hours one way, jeopardized his fulltime employment. He asked for weekend visits and suggested that it might be more convenient for child as well since she would not have school. He also requested alternating holidays and participation in birthdays, stating "I've got a lot of family that misses her and wants to know her." The parties agreed on a neutral location at a Santa Cruz police station for the visitation exchange.
Counsel for the Department expressed support for father's request for weekend visits but remarked that the issue of legal custody was "much closer." The fact that father did not have a longstanding relationship with child did not mean he could not make appropriate decisions. On the other hand, counsel noted that the family's inability to get along complicated the case, as did the domestic violence allegations against father. She concluded the Department did not have "a strong position on" the issue of legal custody.
Child's counsel pointed out that visitation was already unsupervised and seemed to be going well, that father had been "extremely compliant" with the agency, and that he seemed "very interested in having an appropriate relationship with his daughter, completely understanding that [she] is going to be living with the mother." As to custody, child's counsel observed that child's "relationship with the father is expanding" but voiced concern that "these parents do not get along."
Mother's counsel reiterated that child would be "greatly disturbed" by any change to the Thursday visit routine and emphasized mother's request for sole legal custody. Father's counsel responded that joint legal custody was needed for the parents to learn to communicate and make decisions for child, and "avoiding contact by having sole legal is not going to solve that problem."
The juvenile court finalized the permanent plan and dismissed child's dependency case. The court granted joint legal custody with primary residence and physical custody to mother. It cited "the fact that the alleged domestic violence incident happened over four years ago. The parties have been working together. The father has successfully completed his parenting classes and earned unsupervised visits through the quality of his visits. So . . . I would make it joint legal." It ordered weekly visitation every weekend on Sunday for four hours, with additional visits on Father's Day and on child's birthday. With the custody orders and dismissal in place, the juvenile court assigned a family law case number for the parties in case of future modifications to the custody and visitation order.
Mother immediately appealed.
II. DISCUSSION
Mother contends that the orders granting father joint legal custody and unsupervised Sunday visitation were unsupported and must be reversed.
Section 362.4 governs the termination of juvenile court jurisdiction and related orders. The statute authorizes a juvenile court to make custody and visitation orders upon terminating its dependency jurisdiction over a child. (§ 362.4, subd. (a).) The juvenile court's exit order remains in effect until modified or terminated by a subsequent order of the superior court. (§ 362.4, subd. (b); see Cal. Rules of Court, rule 5.700 [juvenile court custody and visitation order procedures].) In re Armando L. (2016) 1 Cal.App.5th 606, 616 (Armando L.) describes the process: "When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make exit orders regarding custody and visitation. These orders become part of any family court proceeding concerning the same child and will remain in effect until they are modified or terminated by the family court. The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court . . . ."
The juvenile court's primary consideration when determining custody in a dependency case "must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 (Nicholas H.).) "The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201 (Chantal S.); see In re J.T. (2014) 228 Cal.App.4th 953, 963 ["When the juvenile court makes custody and visitation orders as it terminates dependency jurisdiction, it does so as a court with 'a special responsibility to the child as parens patriae . . . .' "].) The court in doing so "is not restrained by 'any preferences or presumptions' " (Nicholas H., supra, at p. 268, quoting Chantal S., supra, at p. 206) but must consider the evidence required to make an informed decision concerning the child's best interest (In re John W. (1996) 41 Cal.App.4th 961, 973 (John W.)).
"[W]hen a court has made a custody determination in a dependency proceeding, ' "a reviewing court 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 (Stephanie M.).) Accordingly, we review the juvenile court's custody and visitation " 'exit' " orders pursuant to section 362.4 for abuse of discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300; In re Maya L. (2014) 232 Cal.App.4th 81, 102.)
Mother suggests that the standard of review comprises a mix of abuse of discretion and substantial evidence. She is not incorrect. Courts have recognized that "evaluating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling." (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067; accord In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351 [juvenile court's custody determination "is typically reviewable for abuse of discretion" though the "practical differences between the two standards of review are not significant"].) As the California Supreme Court has explained, "[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. 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." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.) We therefore review the juvenile court's exit orders for abuse of discretion and any underlying factual findings for substantial evidence. (In re C.B. (2010) 190 Cal.App.4th 102, 123.)
We find that mother has not demonstrated an abuse of discretion as to either the custody or visitation exit order. "[T]he juvenile court has broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case (§ 362.4)." (Nicholas H., supra, 112 Cal.App.4th at p. 265, fn. 4.) Here, father's consistent participation in case plan services and progress in the parent-child relationship—despite the distance of his commute and child's challenging behaviors at first—as well as the history of the case and years since father's arrest for domestic violence, support the juvenile court's findings and custody order. In addition, the practical reality of mother's desired visitation schedule and challenges it would pose to father's employment—and by reasonable inference his ability to help support child—support the visitation order. We address mother's contentions to the contrary.
A. Mother Does Not Demonstrate That the Juvenile Court Abused its Discretion In Ordering Joint Legal Custody
First, mother challenges the grant of joint legal custody to father. She asserts that father was domestically violent and absent for many years, that he made no effort to contact child or establish visitation, and that his engagement with child was still recent when the juvenile court issued its order. She argues that given this history, father was ill-equipped to be a legal decisionmaker on behalf of child. She points out that the family court in 2014 had granted her full legal and physical custody of child and argues that the juvenile court changed the family court's order "for no justifiable reason." Father disputes any abuse of discretion, as does the Department. Both respondents point out that despite father's estrangement from child several years earlier, he fully embraced his role as a parent when given a fair opportunity to do so. When he first contacted the Department social worker about the dependency petition in July 2018, father expressed a desire to participate in any recommended services to help obtain visitation and custody and complained that mother had kept child from him for the past two or three years. He progressed from supervised visitation with child to loosely supervised visits within a few months. Child's initial behaviors of spitting and throwing objects decreased during that same period; child became more affectionate with father. Father responded appropriately during his first park visit with child to interference from maternal grandfather and progressed to unsupervised visits a few months later. Father's therapist reported that he was making " 'really good progress' " in individual therapy and parent education classes.
The Department acknowledges that while it recommended joint legal and physical custody to mother at the six-month review hearing, the juvenile court acted within its authority to order something different.
This record provides substantial evidence in support of the juvenile court's finding that father had committed himself to child and established a positive, loving relationship. Mother in contrast relies on father's absence from child's life after one year of living together, his criminal record, and his domestic violence toward mother. But as father points out, those facts did not describe him at the time of the juvenile court's exit orders. His criminal history consisted of a 2012 arrest and 36-month probation period for misdemeanor causing a fire, and of his 2014 arrest for spousal battery and damage to a wireless device. There was no evidence that father committed additional offenses.
The juvenile court expressed its confidence in both parents' progress at the review hearing, stating "I'm really impressed with [father] and his commitment that he's made to his daughter." The court noted that it was very positive for child to have "both of you in her life and extended family. . . . I think it's great that you both have such loving relationships with your daughter [child]."
Although father was absent for several years of child's life, all parties acknowledged his active recommitment when the opportunity arose. Child's counsel described father's "expanding" relationship with child and cited only the parents' inability to get along as a concern for joint legal custody. Father's conduct throughout the dependency proceedings was consistent with his expressed desire to be involved in child's life while demonstrating respect for mother's decisions and for her physical custody rights. Although mother questions father's truthfulness in testifying that he stopped visiting child in the period after the parents' separation because he believed there was still a restraining order against him, it was the province of the juvenile court to weigh issues of fact and credibility. (In re I.J. (2013) 56 Cal.4th 766, 773.) The same is true for mother's claim that father "voluntarily" created the lengthy absence from child's life and that child only knew her mother's family and remained uncomfortable with visitation. These points were the subject of testimony before the juvenile court.
Furthermore, we infer from the joint legal custody decision and the remarks of the juvenile court that it sought to ensure the continued participation of both parents in decisions affecting child. (Fam. Code, § 3003 [defining legal custody as the shared "right and responsibility to make the decisions relating to the health, education, and welfare of a child"].) This was consistent with the concept of a child's best interest, the purpose of which is " 'to maximize a child's opportunity to develop into a stable, well-adjusted adult.' " (In re Ethan N. (2004) 122 Cal.App.4th 55, 66; see also Stephanie M., supra, 7 Cal.4th at p. 317 ["In any custody determination, a primary consideration in determining the child's best interests is the goal of assuring stability and continuity"].)
The record also shows that the juvenile court properly considered the totality of the circumstances affecting child's best interests in making its custody determination. (Chantal S., supra, 13 Cal.4th at p. 201.) These circumstances included the history of father's arrest in 2014 for domestic violence against mother and his absence from child's life for several years. But they also included the events leading to juvenile court jurisdiction over child for both parents' failure to protect her from risk of serious physical harm, as well as father's reentry into child's life, marked by his demonstrated ability and commitment to develop a parental relationship with her. Mother points out that father missed "at least some visitation" but the record shows only one session canceled by father and zero "no shows" in that period.
The totality of the evidence does not support mother's claim that the juvenile court's departure from the preexisting family court orders granting mother sole legal and physical custody of child was unjustified. These began as temporary orders filed in November 2014 after the domestic violence incident, and apparently later "remained in effect" when father failed to appear at an appointment for child custody counseling. These orders thus reflected the circumstances after the parents' separation. The circumstances changed when the juvenile court exercised dependency jurisdiction. For this reason, there is no standard of deference to the preexisting custody arrangement. The juvenile court has broad authority pursuant to section 362.4 to determine custody unconstrained "by 'any preferences or presumptions.' " (Nicholas H., supra, 112 Cal.App.4th at p. 268; Chantal S., supra, 13 Cal.4th at p. 206.) 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." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 (Jennifer R.); accord Chantal S., supra, at p. 206.)
We conclude that the juvenile court acted within the limits of its legal discretion in ordering mother and father to share joint legal custody. (Stephanie M., supra, 7 Cal.4th at p. 318.) The cases that mother relies on do not dictate otherwise.
In Jennifer R., one-year-old Jennifer was removed from her parents' care for reasons including the mother's substance abuse and unsafe and unsanitary conditions in the home. (Jennifer R., supra, 14 Cal.App.4th at p. 706.) After lengthy reunification proceedings in which Jennifer's father made significant progress but the mother continued to struggle (id. at pp. 709-710), the juvenile court eventually returned Jennifer to the father's care and awarded him sole legal and physical custody (id. at p. 710). The mother did not object to the grant of physical custody but contended on appeal that the court abused its discretion by refusing to grant her joint legal custody. (Id. at p. 711.) The appellate court rejected the mother's argument that the evidence did not support the custody order. (Id. at p. 713.) It cited the mother's "inability throughout these proceedings to care for herself and her children, her failure to make progress in overcoming the problems leading to Jennifer's removal, [and] her inconsistency and inappropriateness in visitation" (ibid.) as support for the juvenile court's decision that her "participation in making important decisions relating to Jennifer's welfare would not be in the child's best interests" (ibid.).
Mother claims that like the mother in Jennifer R., father in this case should not have been granted joint legal custody. The comparison is unfounded. The record here shows that father was stable and employed, participated consistently in visitation, counseling, and parenting classes, acted appropriately with child including when confronted by mother's family, and had no recent arrests or allegations against him. Even considering father's arrest for domestic violence and absence of several years from child's life, his demonstrated engagement with services and commitment to child's welfare during the proceedings stands in contrast with Jennifer R., where the mother failed to follow through on drug rehabilitation or testing, threatened to "take Jennifer" from the father, was irregular in visitation and angry about visitation restrictions, and had an extensive history of serious mental illness and a criminal record involving harm to another infant who had previously been removed from her care. (Jennifer R., supra, 14 Cal.App.4th at p. 713.)
Mother also refers to John W. for the proposition that the juvenile court did not make an informed decision based on child's best interests. But John W. involved a juvenile court's splitting physical custody at the termination of dependency jurisdiction between parents who lived in different counties, requiring the child to be "shuttled every two weeks" between the two. (John W., supra, 41 Cal.App.4th at p. 964.) The appellate court found the juvenile court had erred by imposing an "unworkable" arrangement that did not prioritize the child's best interests. (Id. at p. 974.) The juvenile court in that case incorrectly assumed that it "had to split physical custody because there was no evidence one parent was any better or worse than the other." (Id. at p. 965.) The appellate court deemed the error prejudicial and reversed because it could not "say that the result would be the same had the juvenile court used the correct standard." (Id. at p. 974.)
Mother argues that like in John W., the fact that neither parent in this case posed a current risk of harm to the child did "not mean that both parents [were] equally entitled to half custody." (John W., supra, 41 Cal.App.4th at p. 974.) But nothing in the record suggests that the juvenile court awarded joint legal custody based on an incorrect or default assumption concerning parental fitness. There was enough evidence of father committing to his parental role through visitation and his engagement in the dependency proceedings to support the juvenile court's determination that joint legal custody would serve child's best interests by engaging both parents in decisions about her health, education, and welfare.
In sum, mother has not demonstrated that the juvenile court's custody decision was arbitrary, capricious, or patently absurd. (Stephanie M., supra, 7 Cal.4th at p. 318.)
B. Mother Does Not Demonstrate That the Juvenile Court Abused its Discretion In Ordering Sunday Visitation
Mother also challenges the juvenile court's visitation order. She contends that the order granting unsupervised visitation to father on Sundays was not in child's best interests because it would no longer follow child's Thursday counseling sessions which helped ease child into visits. She argues that the Sunday visitation schedule served only father's interest in minimizing conflict with his work schedule. She points out that father had already been driving to Santa Cruz for visits on Thursdays and could continue to do so consistent with child's best interests, though she notes that he apparently cancelled visits, stating "it is unclear whether he cancelled a visit on the 12th of the month, or 12 visits."
Father responds that the record supports the juvenile court's determination that Sunday visitation was in child's best interests, especially because weekend visits would not interfere with child's school schedule, would allow father to maintain his fulltime employment and meet child support obligations, and would last beyond the eventual termination of child's counseling. He asserts there is no evidence that he missed visits.
We find that mother's arguments are largely unsupported by the record. In ordering the parties to mediation to try to resolve the disagreement over a visitation exit order, the juvenile court encouraged both sides to consider "not only on what works with the parents' work schedule, where they live, etc., but also . . . on what's in the child's best interests." When the parties were unable to reach an agreement, the court heard testimony. Mother believed that it would be best for child to visit with father every other week on Thursdays after her therapy, to continue the routine that she was used to. Mother wanted visits to be supervised because sometimes child was "still hiding" from father and was "nervous to fully be there around him." She did not propose an alternate day, saying that "during the weekends we're busy doing stuff as family and stuff like that." Father testified that he worked Monday through Friday from 7:00 a.m. to 3:30 p.m., and that traveling to and from Santa Cruz was jeopardizing his fulltime employment. He noted that weekend visits might be more convenient for child because of school.
As counsel for the Department and for child both noted at the review hearing, the evidence did not support mother's preference for supervised visits. Father already had transitioned to unsupervised visits. Child's counsel stated that those visits "seem to be going well." Both the Department and child's counsel also supported the proposal for weekend visits. Child's counsel suggested that weekend visits would allow father to have better quality time with child, and counsel for the Department observed that mother had put forward "no information . . . as to why the weekend would be a problem for the minor." There is no evidence that father missed visits other than one cancellation in December 2018. And as reported by child's therapist, child's anxiety in transitioning to visits with father might have been "driven by feeling 'torn and confused' " due to maternal family members' expressed hostility toward father. Even so, child would appear more relaxed and would engage with father after the first five to 10 minutes.
We have trouble accepting mother's interpretation of the record as to whether father missed a visit on the 12th, or 12 visits. The Parents Center quarterly report for October to December 2018 shows that for the month of "December" the "Sessions Cancelled This Quarter" (next to the box labeled "Dates" were "12 (client cancel)" and "27 (therapist vacation)." These refer unambiguously to dates: December 12th and 27th. In her supplemental reply brief, mother appears to acknowledge that "[u]pon close inspection, [father] may be correct that he did not substantially miss visitation" but surprisingly, on the next page, reverts to mischaracterizing the record by insisting that father missed 12 sessions with the Parents' Center.
We conclude on this record that that the juvenile court's decision to order visitation on Sundays for four hours was not an abuse of discretion. (Armando L., supra, 1 Cal.App.5th at p. 616 ["The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the juvenile court . . . ."]; In re Robert L., supra, 21 Cal.App.4th at p. 1067.) There is no question about the continued importance of child having therapeutic help in transitioning to visits with father after his extended absence from her life. But nothing in the record suggests that the therapist's presence was required at the time of the visit itself, though it may have been mother's preference to continue that arrangement. Child's treatment plan anticipated one year of counseling, which began in January 2019 and would continue regardless of the visitation schedule. Because counseling would not continue indefinitely, however, it was reasonable and appropriate for the juvenile court to consider other factors relevant to child's best interests. These naturally included father's ability to maintain fulltime employment as well as common-sense accommodations for child's school and activities, since she would start kindergarten in the fall.
C. Prejudice Based Upon the Modification Standard
Mother contends that she was prejudiced by the juvenile court's orders because of the substantial showing she will have to make to obtain any subsequent modification. We are sympathetic to her concerns, insofar as custody and visitation orders authorized by section 362.4 are transferred to the family court file and remain in effect until modified or terminated by that court. (See § 362.4, subds. (b), (c).) At that point, a party wishing to modify a custody or visitation order issued pursuant to section 362.4 must prove in the family court proceedings "that there has been a significant change of circumstances since the juvenile court issued the order and modification of the order is in the best interests of the child." (§ 302, subd. (d).) But because mother has not demonstrated an abuse of discretion as to either the juvenile court's custody or visitation order, we need not decide whether the statutory parameters for subsequent modification resulted in prejudice. (Cf. In re M.R. (2017) 7 Cal.App.5th 886, 903 ["Nothing about the burden of obtaining modifications to the juvenile court's orders from the family court . . . demonstrates that the orders are themselves erroneous."].)
DISPOSITION
The juvenile court's custody and visitation orders, issued pursuant to Welfare and Institutions Code section 362.4 upon its termination of jurisdiction, are affirmed.
/s/_________
Premo, J. WE CONCUR: /s/_________
Greenwood, P.J. /s/_________
Elia, J.