Opinion
C094052
03-02-2022
In re A.O., a Person Coming Under the Juvenile Court Law. v. C.O., Defendant and Appellant. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. 21JVSQ3191901
HOCH, J.C.O., mother of the minor A.O. (minor), appeals from the juvenile court's orders terminating dependency jurisdiction, awarding custody of the minor to B.E. (father), and ordering no visitation between mother and the minor. (Welf. & Inst. Code, §§ 300, 362.4, 395.) Mother contends the juvenile court's visitation exit order was not supported by substantial evidence. We affirm the juvenile court's orders.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has four children, each with a different father: Ch.O., (born in 2007), A.O. (born in 2010), I.O. (born in 2014), and Cha.O. (born in 2017). Mother has a prior criminal history and history of child protective services (CPS) referrals. A.O. was taken into protective custody along with her siblings by law enforcement officers on July 4, 2019, when it was learned that mother's 20-month-old son had ingested methamphetamine while in her custody.
The Orange County Social Services Agency (the OC Agency) filed a juvenile dependency petition pursuant to section 300, subdivisions (b)(1), (g) and (j) regarding mother's children, including A.O., alleging that mother failed to supervise or protect her children adequately, A.O.'s sibling had been abused or neglected, there was a substantial risk that A.O. would be abused or neglected, and mother failed to provide regular care for her children due to mental illness or substance abuse. Pursuant to section 355.1, the injury or detrimental condition sustained by Cha.O. was alleged to be of a nature as would ordinarily not be sustained except as the result of the unreasonable or neglectful acts or omissions of mother.
On July 9, 2019, the Orange County Juvenile Court ordered the minors detained and ordered no visitation for the parents until they presented themselves. Neither parent attended the detention hearing.
Jurisdiction/Disposition Report
According to the OC Agency's August 1, 2019 jurisdiction/disposition report, mother was released from jail on July 8, 2019, and A.O. and two of her siblings were placed with the maternal grandmother. Mother had not contacted the grandmother, her social worker, nor CPS. The social worker made multiple attempts to contact mother via telephone and certified mail and via mother's friend, who asked the social worker to contact him as he was acting as a mediator for mother. Accordingly, the social worker was unable to review case plan services with mother. The report emphasized that mother had unresolved substance abuse problems, which included methamphetamine, and a concern that mother would expose her children, including A.O., to her methamphetamine use that impaired her ability to provide appropriate care and supervision of her children. In his interview, Ch.O. reported having knowledge of drugs and alcohol use by mother but had not seen her using drugs. A.O. denied having knowledge of alcohol or drug use by mother but said that she would like mother "to stop yelling and throwing things." The case plan for mother included general counseling, a psychiatric/psychological evaluation, parenting classes, a drug treatment program, substance abuse testing, a 12-step program with Narcotics Anonymous/Alcoholics Anonymous, and monitored visitation with the minors for six hours per week after she presented herself.
In an addendum to the report, as of September 16, 2019, it was reported that mother had not presented herself despite the social worker's multiple attempts to contact her. The prior month, documents containing the children's personal identifying information were stolen from the home of the maternal grandmother, who alleged that mother was responsible for the theft and had shown up at the house, where the children resided with the grandmother, unannounced and without prior authorization. On August 29, 2019, mother was arrested for taking the grandmother's vehicle without her consent (Veh. Code, § 10851), possession of a stolen vehicle (Pen. Code, § 496d, subd. (a)), and obtaining credit using another's personally identifiable information (Pen. Code, § 530.5, subd. (a)). On September 6, 2019, mother entered the grandmother's residence and attacked her in the presence of Cha.O., causing minor injuries. An emergency protective order was granted to the grandmother.
Pretrial Hearing
At the pretrial hearing on August 5, 2019, the juvenile court appointed an attorney to represent B.E., A.O.'s father. The court found him to be the presumed father of A.O. and granted him unsupervised daily visitation with A.O. in Orange County. Mother did not attend this hearing and had not responded to the social worker's numerous attempts to reach her.
Jurisdictional Hearing
On October 29, 2019, the juvenile court found by a preponderance of evidence that the allegations in the amended petition were true as to section 300, subdivisions (b)(1) and (j). The court also found that notice of the hearing was given to all parties as required by law and that the OC Agency exercised due diligence in its efforts to locate and notice mother. Nevertheless, mother did not appear at the hearing.
Dispositional Hearing
Prior to the dispositional hearing, the OC Agency's search of the Orange County Sheriff's database indicated that mother was in custody on unknown charges. An addendum to the jurisdiction/disposition report stated that the social worker was able to contact mother while she was in custody, but she elected not to talk with the social worker without her attorney present. The social worker gave mother her business card and requested that mother contact her upon her release. On December 12, 2019, mother appeared for the first time in court. The court appointed counsel to represent her and ordered supervised visitation for her with her children twice per month for one hour while she remained in custody.
At the dispositional hearing on February 14, 2020, the court declared A.O. a dependent child of the Orange County Juvenile Court under section 360, subdivision (d). The court approved mother's case plan without changes and ordered monitored visitation for mother. The court found that mother had not made any progress toward alleviating or mitigating the causes necessitating removal of her children. Mother did not appear at the hearing, but her counsel was present.
Interim Review Report
On May 6, 2020, the OC Agency filed an interim review report. The report indicated that mother's whereabouts were unknown following her release from custody. A.O. was continuing to do well in the care of the maternal grandmother and had strong relationships with her grandmother and her half siblings.
Status Review Report
On August 7, 2020, a status review report was filed recommending continuing reunification services for mother and for A.O.'s father. The report noted that A.O. was still residing with the maternal grandmother and mother's whereabouts were unknown. Mother failed to contact the OC Agency or the social worker, and she failed to comply with her case plan activities, including visitation. As to A.O., mother did not maintain any contact with the child during the period of supervision and, therefore, had not maintained any relationship with her. An addendum to the report indicated that A.O.'s father had obtained a valid driver's license, completed programs for driving under the influence and parenting, and continued to drug test as required.
Six-month Review Hearing
At the October 16, 2020, six-month review hearing, the juvenile court terminated reunification services for mother and found that A.O.'s return to her father was appropriate. Mother did not appear, but her attorney was present.
Interim Review Reports and Hearing
On October 27, 2020, an interim review report was filed recommending family maintenance services for father and A.O. and scheduling an intercounty transfer-out hearing. The report indicated mother's whereabouts were still unknown. The case plan recommended no visitation for mother until she contacted the OC Agency.
On November 9, 2020, the court approved the case plan from the interim report directing that A.O. finish the present school term in Orange County and then transition to Shasta County to accommodate her father. The court adopted a visitation plan for mother, however, it stated that the maternal grandmother was not authorized to supervise mother's visits at that time.
On January 5, 2021, an interim review report was filed recommending transferring the case to Shasta County. On December 30, 2020, care of A.O. was transitioned to her father in Redding, California. Mother's whereabouts were still unknown. Mother had not had any contact with the OC Agency. The social worker had unsuccessfully attempted to contact mother.
Case Transfer Hearing
On January 7, 2021, the Orange County Juvenile Court ordered all proceedings transferred to Shasta County for supervision pursuant to section 375. Even though mother was not present at the hearing, her attorney objected to the transfer. On February 2, 2021, the Shasta County Juvenile Court accepted transfer of the case. Mother did not attend the hearing in Shasta County, and the Shasta County Juvenile Court appointed an attorney to represent her.
Status Review Report
On April 2, 2021, the Shasta County Health and Human Services Agency, Children's Services (the S.C. Agency) filed a status review report recommending that dependency of A.O. be terminated, and that legal and physical custody be given to A.O.'s father. Father had completed all his case plan services. A.O. was residing with her father in Redding, California in suitable housing in a room that she shared with her half sister. A.O. was enrolled in school that specifically met her educational needs, as this school had a program for gifted and talented students. A.O.'s father agreed to take her to visit her friends and family in Southern California every three months. Mother failed to communicate with either the OC Agency or the S.C. Agency and failed to participate in any of the case plan activities during the life of the case. Father expressed concern for A.O.'s safety and requested to have custody orders made that would protect A.O. from mother's unannounced visits. A.O. had no concerns about living with her father and was performing above her grade level at her new school. She expressed that she missed her family and her friends from her old hockey team, but she was maintaining contact with them via Zoom.
Family Maintenance Review Hearing
On April 13, 2021, mother appeared telephonically for the family maintenance review hearing. The juvenile court continued the matter pursuant to mother's attorney's request. On April 20, 2021, the court terminated the dependency of A.O. and ordered physical and legal custody of A.O. to father and no visitation with mother, who was present at the hearing. The court stated that the reason for ordering no visitation was that mother had not participated in any case plan services and that mother had had no contact with either the OC Agency or the S.C. Agency during the entire course of the dependency case.
Mother claimed that she never received notice after she was released from jail, but her counsel confirmed that the phone number the agencies had for mother was how she contacted her client. Mother stated that her contact phone number belonged to her mother and that the correspondence sent to her had been delivered to her mother's house. Mother contested the recommendations to give full physical and legal custody to father, claiming that A.O. had been with mother her "whole life," and that mother still spoke with A.O. "every week, [and] every day when possible." Mother requested visitation at the discretion of father. However, A.O.'s father requested no visitation because he was concerned about mother's failure to maintain sobriety. Mother denied knowing why A.O. had been detained and removed from her custody.
On April 20, 2021, the juvenile court issued its written custody order and final judgment. In its listed reasons for denying visitation to mother, the court checked boxes indicating visitation was denied because mother had not completed a drug abuse treatment program with random testing, anger management training, parenting classes, or individual counseling. The court added on the form: "The mother has not participated in any of the case plan objectives ordered by Orange County prior to the transfer of this case into Shasta County. The mother has made no contact with the Agency or this social worker."
Mother filed a timely notice of appeal.
DISCUSSION
Mother contends the juvenile court erred in denying her visitation with A.O. She contends no substantial evidence "showed that [m]other's contact with A.O. would be detrimental to the child" and "the juvenile court's factual justification for not allowing visits had very little to do with the child and was more about punishing [m]other for not cooperating in the case." The claim lacks merit.
"Section 362.4 provides that when the juvenile court terminates jurisdiction over a dependent child, and there is a pending family court case, the juvenile court may issue an order determining the custody of, or visitation with, the minor, which order 'shall' become part of the family court file and 'shall continue' unless 'modified' or 'terminated' by that court. [Citation.] An order entered pursuant to section 362.4 is commonly referred to as an' "exit"' order." (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455.) "When making a custody determination under section 362.4, 'the court's focus and primary consideration must always be the best interests of the child.' [Citations.]" (In re T.S. (2020) 52 Cal.App.5th 503, 513, citing In re Nicholas H. (2003) 112 Cal.App.4th 251, 268 & In re Chantal S. (1996) 13 Cal.4th 196, 206.) A juvenile court terminating dependency jurisdiction and making custody or visitation orders "does so as a court with 'a special responsibility to the child as parens patriae and [it] must look to the totality of a child's circumstances when making decisions regarding the child.' [Citation.]" (In re J.T. (2014) 228 Cal.App.4th 953, 963.)
In her brief, mother relies on a line of cases where the appellate courts applied the substantial evidence standard to review juvenile courts' findings that "parental visitation is detrimental to a child" in other statutory contexts. It is well established that the proper standard of review for the juvenile court orders regarding custody and visitation pursuant to section 362.4 is abuse of discretion. (In re R.R. (2010) 187 Cal.App.4th 1264, 1284.) The juvenile court has broad discretion to make custody orders when it terminates jurisdiction in a dependency case. (In re Nicholas H., supra, 112 Cal.App.4th at p. 265, fn. 4.) The decision to terminate dependency jurisdiction and to issue custody and visitation orders pursuant to section 362.4 is reviewed for abuse of discretion, and 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.)
Mother does not challenge the juvenile court's decision awarding sole custody to father or terminating dependency jurisdiction. Rather, her sole claim is the court erred in issuing the no visitation order. Specifically, she contends that the court erred in finding that visitation between mother and A.O. was detrimental to the child. However, the court made no such finding that visitation with mother would be detrimental to A.O. The citations mother provides to the record to support her contention do not mention detriment at all. The court instead focused on mother's failure to participate in the dependency case, respond to the agencies and social workers, or participate in her case plan and services. The court's order is consistent with the language of section 362.4, which does not specify any specific findings, such as detriment, that the juvenile court must make in issuing a no visitation order. The juvenile court is not required to find that visitation with a noncustodial parent is detrimental to the child prior to making a no visitation order under section 362.4. Rather, the juvenile court exercises its discretion in making custody and visitation orders pursuant to section 362.4 and such orders are made in the child's best interest based on the totality of the child's circumstances. (In re Roger S. (1992) 4 Cal.App.4th 25, 30-31.)
Under the circumstances of this case, the juvenile court did not abuse its discretion in denying visitation to mother. As the court observed, mother had not participated in any case plan services and did not have contact with either agency during the entire course of the dependency case. She misrepresented to the court that she did not receive notice of the case; indeed, the social worker was able to contact mother while she was in custody, but mother elected not to talk with the social worker without her attorney present and did not attempt to respond to the social worker despite receiving her business card. As the record makes clear, mother's whereabouts were unknown throughout most of this case, repeated attempts to contact her were unsuccessful, and she did not participate in any portion of her case plan. Mother had a history of making unauthorized contact with the minors at the maternal grandmother's home and a pattern of behavior that was traumatic for the minors. The juvenile court reasonably concluded that visitation was not in A.O.'s best interest. The court was not required to order such visits when mother had consistently refused to participate in the dependency or any services for nearly two years. The court properly exercised its discretion in denying visitation.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: ROBIE, Acting P.J., RENNER, J.