Opinion
C098150 C099555
08-08-2024
In re B.W., a Person Coming Under the Juvenile Court Law. v. J.F., Defendant and Appellant. SHASTA COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Super. Ct. No. 22JV3230001
ROBIE, ACTING P.J.
Appellant J.F. (father) appeals from the juvenile court's dispositional judgment and its orders following an interim review hearing (case No. C098150), as well as its order terminating jurisdiction (case No. C099555) over B.W. (minor), father's child with J.W. (mother). Father challenges many of the juvenile court's findings related to awarding mother custody of minor and later terminating jurisdiction, as well as its earlier orders denying father reunification services and visitation. Father further contends the juvenile court impermissibly delegated its authority when granting mother and minor a restraining order and erred by issuing exit orders inconsistent with the restraining order. Finally, father contends the juvenile court erred when finding the Indian Child Welfare Act (ICWA) did not apply. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 27, 2022, the Shasta County Health and Human Services Agency (Agency) filed a Welfare and Institutions Code section 300 petition, pursuant to subdivisions (b)(1) (substantial risk the child will suffer serious physical harm) and (j) (prior termination of parental rights), on behalf of minor, who was 11 months old at the time. Two days before filing the petition, the Agency placed minor in an emergency placement with maternal grandmother. As to mother, the petition alleged ongoing substance abuse of nitrous oxide and cannabis, an untreated mental health condition, and incidents of domestic violence while minor was present. As to father, the petition alleged multiple acts of domestic violence towards mother and threats to kill maternal grandmother, as well as a prior termination of parental rights in Florida.
Further undesignated section references are to the Welfare and Institutions Code.
On May 31, 2022, minor was ordered detained and placed with maternal grandmother. The juvenile court also ordered initial case plan services to be provided to parents for the purposes of reunification.
The jurisdictional and dispositional hearings were continued over the course of several months until December 2, 2022. During that time, the Agency completed an initial plan assessment with the goal of returning minor to mother. The Agency recommended the juvenile court deny services to father given his previous termination of parental rights, criminal history, and ongoing anger and domestic violence problems. It also submitted official records of father's criminal history and previous termination of parental rights. The records pertaining to father's prior termination identified drug use and domestic violence as the cause of the termination. As is relevant to the domestic violence, father was documented as committing multiple acts of domestic violence against the half sibling's mother both before and after the half sibling's birth. Acts occurring after the half sibling's birth were in front of the half sibling and included strangulation.
The Agency further reported on father's participation in the services already provided. Father completed parent engagement classes; however, he had multiple documented instances of disrespecting Agency employees by yelling, posturing, or making derogatory comments. When the Agency explained the services it could offer to father, father stated he would not agree to services and misrepresented his past performance in an anger management program by stating he attended a 52-week program when the program was actually 26 weeks and father's performance was unsatisfactory. He also canceled some visits with minor.
Father sent photographs to the Agency showing minor and mother near a large cannabis farm. Another photo sent by father showed an unknown male and female holding guns near bags of cannabis, while yet another showed minor with a nitrous oxide canister in his mouth. Mother explained the photographs containing cannabis were taken at father's home, which was located on a cannabis grow site. Along with the photographs, father sent the Agency a video of mother and father in an argument and another video of mother putting a nitrous oxide cannister to her mouth and saying she was tired of father choking and punching her every week. Another video of mother on what appears to be the same occasion depicted her saying, "If the courthouse is watching this, please put him in jail." The Agency indicated the photographs and videos appeared to have been taken before dependency proceedings were initiated or at unknown times.
On October 25, 2022, father was arrested for kidnapping, false imprisonment, corporal injury, and intent to terrorize his girlfriend, who was not mother. Police reports indicated father held his girlfriend captive for 12 hours and, throughout that time, punched her, threatened to kill her, and strangled her multiple times until she could not breathe or talk and her vision was blurred. Father's girlfriend attempted to escape but father physically stopped her while threatening to kill her.
Father was also tried for charges against mother, including corporal injury, robbery, burglary, and willful damage to a cell phone. The night before trial, father contacted mother by phone from jail asking for help and for her to not testify against him. Mother said she would truthfully testify. Father also tried to contact mother by e-mail. The next day, mother testified at father's trial, which the Agency summarized as mother recounting how father broke into her home, punched her in the face several times, shoved her, and took her cell phone before throwing it onto the pavement.
As for mother's efforts regarding reunification services, she engaged in classes and a mental health assessment, as well as therapy. She consistently attended visits with minor, and the Agency steadily increased her visitations, including achieving court approval for overnight visits. The Agency visited mother's home both when minor was and was not present. Mother's home appeared appropriate for minor at all home visits.
On December 2, 2022, at the combined jurisdictional/dispositional hearing, the juvenile court sustained the allegations in the petition, adjudged minor a dependent child of the court, and ordered him removed from parental custody. The juvenile court ordered reunification services be provided to mother but bypassed services for father under section 361.5, subdivision (b)(11), finding father's parental rights to minor's half sibling had previously been terminated and father had not made reasonable efforts to treat the problems that led to the prior termination of parental rights. The court also ordered minimum visitation for parents at one time per month for one hour but gave the Agency discretion to increase visitation depending on parents' progress and the best interest of minor.
Finally, the juvenile court issued a three-year restraining order protecting mother and minor and providing father with visitation at the discretion of the Agency or as ordered by the juvenile court. For the purposes of enforcement, the restraining order directed law enforcement officers to consult with the most recent court order as the relevant order to determine father's stay-away obligations.
An interim review hearing was set and took place on February 28, 2023. The Agency's report for the hearing recommended the juvenile court place minor with mother in a plan of family maintenance. Mother had complied with her case plan by attending classes, assessments, and therapy sessions, maintaining employment and safe housing, and testing negative for drugs. Further, mother's visits had increased from one night a week to three nights a week, mother had demonstrated age appropriateness with minor, and the Agency had no safety concerns regarding minor's visitation with mother.
The juvenile court accepted the Agency's recommendation and ordered minor returned to the physical custody of mother. It found mother had made substantial progress and returning minor to her physical custody would not create a substantial risk to minor's safety. The Agency retained discretion to increase or decrease visitation with minor, but father was to be provided a minimum of one visit per month for one hour.
Father timely appealed from the juvenile court's February 28, 2023 interim orders and we construed it to also appeal from the December 2, 2022 jurisdictional and dispositional orders (case No. C098150).
Six months after minor was returned to mother's physical custody, the Agency filed a family maintenance status report recommending the juvenile court terminate dependency jurisdiction and grant legal and physical custody to mother. The Agency noted that mother had continued to care for minor, as well as maintained her sobriety, housing, and employment. The juvenile court agreed and at the family maintenance review hearing on September 12, 2023, it terminated jurisdiction, ordering physical and legal custody to mother. The juvenile court ordered no visitation for father because his parental rights had been terminated in the past following similar conduct and father had not made necessary changes. The court further noted that father was incarcerated with a restraining order not to contact mother and minor. Finally, the juvenile court found the ICWA did not apply because minor was returned to the care of a parent.
Father appealed from the juvenile court's September 12, 2023 order (case No. C099555) and his appeal was consolidated with his appeal from the earlier jurisdiction, disposition, and interim review orders. Father filed his opening briefs in both cases in December 2023.
DISCUSSION
I
Scope Of Review
Regarding case No. C098150, father raises several claims of error regarding the December 2, 2022 and February 28, 2023 orders, including as it relates to his bypass for services, mother's physical custody award, the court's ICWA determination, the form of the Agency's recommendation of return of minor to mother's custody, and the language of the restraining order. Citing In re S.G. (2021) 71 Cal.App.5th 654 and In re C.W. (2019) 33 Cal.App.5th 835, father argues that reversal on any one of these grounds would necessitate reversal of the court's later termination of jurisdiction. Not so.
Father's reliance on In re S.G. is misplaced. (In re S.G., supra, 71 Cal.App.5th 654.) In S.G., the appellate court concluded that termination of jurisdiction did not render moot the mother's challenge to the denial of a permanent restraining order because the court could grant relief that had no effect on the termination order. (Id. at pp. 663-664, 668.) Here, father does not demonstrate how his challenge to the juvenile court's orders from the combined jurisdictional/dispositional hearing and interim review hearing remain viable given the court's later termination of jurisdiction. (Id. at p. 663 ["Mootness in the dependency context-as in any context-depends on 'whether the appellate court can provide any effective relief if it finds reversible error' "].) Indeed, it is difficult to imagine a remedy for father even if mother received physical custody of minor earlier than she was otherwise entitled, or he was erroneously denied services before properly awarding mother sole custody of minor. The same is true for father's ICWA claim regarding the court's February 28, 2023 findings and the form of the petition filed by the Agency. Further, father's claim the restraining order includes an improper delegation to the Agency to set the terms of father's contact with minor is also moot. Given the juvenile court's termination of jurisdiction, the Agency's involvement with the terms of father's visitation has ceased as a matter of law. (See In re Aurora P. (2015) 241 Cal.App.4th 1142, 1157-1558 (Aurora P.) [when a juvenile court terminates jurisdiction, it finds that continued supervision of the minor is no longer necessary].) As a result, any improper delegation to the Agency no longer remains. Thus, unlike the facts in S.G., the issues raised by father related to the December 2, 2022 and February 28, 2023 orders are moot given the juvenile court's later termination of jurisdiction with custody awarded to mother.
Relying on In re C.W., father argues the orders from the interim review hearing are interwoven with the later termination of jurisdiction necessitating reversal of the termination to correct prior errors. (In re C.W., supra, 33 Cal.App.5th 835.) C.W. is inapposite. In C.W., the appellate court concluded it unnecessary to review whether the juvenile court's termination of jurisdiction was an abuse of discretion given that the exit order accompanying the termination was a clear abuse of discretion. (Id. at pp. 866-867.) Father does not explain, nor can we discern, how reversal of the juvenile court's earlier order, complained of in connection with his appeal in case No. C098150, could possibly affect other proper exit orders and the termination of jurisdiction at issue in case No. C099555. Given this conclusion, we will address the issues raised in case No. C099555, i.e., father's appeal from the order terminating jurisdiction, first and reach the remaining issues only if those orders were in error.
II
Substantial Evidence Supports The Juvenile Court's Termination Of Jurisdiction
Father contends insufficient evidence supports the juvenile court's decision to terminate jurisdiction and award mother full physical and legal custody because the evidence failed to demonstrate mother had control over her mental health and drug dependency issues. We disagree.
Section 364 establishes procedures for review hearings for a minor who has been adjudged a dependent but has been placed back in the custody of one parent. (In re N.S. (2002) 97 Cal.App.4th 167, 171-172.) And "[w]hen proceeding under section 364, because the child is in placement with a parent, the [juvenile] court is not concerned with reunification, but with determining whether continued supervision is necessary in the family home." (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650, citing § 364, subd. (c).)
Section 364 thus provides a statutory presumption in favor of termination of jurisdiction unless a party proves, by a preponderance of evidence, the conditions still exist that justified the initial assumption of jurisdiction. (Aurora P., supra, 241 Cal.App.4th at p. 1155.) In short, under section 364, "termination of dependency jurisdiction will be the 'default result.'" (Aurora P., at p. 1156.) The juvenile court makes its determination as to whether to continue jurisdiction" 'based on the totality of the evidence before it.'" (Id. at pp. 1154-1155.)
Orders terminating jurisdiction pursuant to section 364 are reviewed for substantial evidence. (Aurora P., supra, 241 Cal.App.4th at p. 1156.) The party challenging the juvenile court's decision to terminate jurisdiction has the burden of proving that conditions justifying assumption of jurisdiction continued to exist or would exist if supervision were withdrawn. (Id. at pp. 1155-1156.)
Father asserts the record lacks evidence demonstrating mother no longer used nitrous oxide or had success in battling her mental health condition. We are not persuaded. Mother successfully engaged in services over a prolonged period of time, held gainful employment, and steadily increased her visitation with minor to several days before being granted physical custody. After being granted physical custody, mother continued to successfully comply with services for an additional six months. Given mother's prolonged success with the reunification plan, it is reasonable to infer she was able to eliminate the drug dependency and mental health struggles that led to minor's removal and can continue to do so without supervision.
Father's arguments that mother may still be abusing nitrous oxide or suffering from a debilitating mental health condition are speculation and not supported by the evidence. Father merely points to the lack of definitive proof regarding mother's drug usage and mental health treatment. But at this point in the proceedings, it is father's burden to prove with evidence that the circumstances leading to removal still exist or will exist without supervision. (Aurora P., supra, 241 Cal.App.4th at pp. 1155-1156.) He has failed to make such a showing. (See In re Maya L. (2014) 232 Cal.App.4th 81, 103 [affirming sole legal custody with the father based on "overwhelming evidence that [the] father provided excellent care for [the child]," the department "consistently reported it had no concerns regarding [the] father's ability to care for the child," and the department and the child's counsel "repeatedly recommended" the father receive legal custody]; see also In re Jennifer R. (1993) 14 Cal.App.4th 704, 713 [affirming sole legal custody award where "the court's order indicates continuing concerns about [the appealing parent's] ability to protect and care for [the child] in any but the most limited circumstances of supervised visits"].) Accordingly, substantial evidence supports the juvenile court's termination of jurisdiction and award of full physical and legal custody of minor to mother.
III
The Juvenile Court Did Not Abuse Its Discretion By Denying Father Visitation
Father contends the juvenile court abused its discretion by denying him visitation in the exit order. We disagree.
"[S]ection 362.4 authorizes the juvenile court, when terminating jurisdiction over a dependent child, to issue a custody and visitation order," commonly known as an" 'exit order[].'" (In re Anna T. (2020) 55 Cal.App.5th 870, 871, fn. omitted.) "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.'" (In re T.S. (2020) 52 Cal.App.5th 503, 513; accord, In re J.M. (2023) 89 Cal.App.5th 95, 113-114.) Accordingly," '[t]he juvenile court has broad discretion to make custody [and visitation] orders when it terminates jurisdiction in a dependency case,'" and "[w]e review the juvenile court's exit orders for an abuse of that discretion." (In re J.M., at pp. 112-113.) "When applying the deferential abuse of discretion standard, 'the [juvenile] court's findings of fact are reviewed for substantial evidence . . . and its application of the law to the facts is reversible only if arbitrary and capricious.'" (In re C.B. (2010) 190 Cal.App.4th 102, 123.)" '" 'When 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 [juvenile] court.'" '" (In re N.M. (2023) 88 Cal.App.5th 1090, 1094.)
Father acknowledges the juvenile court cited to his continued acts of domestic violence, but focuses on the fact that his incarceration, alone, cannot serve as a basis to deny him visitation. We agree that incarceration alone cannot serve as a basis to deny visitation. (In re Dylan T. (1998) 65 Cal.App.4th 765, 773.) But the juvenile court did not rely on father's incarceration alone. The juvenile court also relied on father's lack of reasonable efforts to control his domestic violence tendencies, as well as the issuance of a restraining order against him on the part of mother and minor.
The record amply supports these factual findings. Since father's prior termination of parental rights, he was arrested for crimes of domestic violence against mother and against a more recent girlfriend. The record further contains evidence demonstrating father's physical and emotional abuse of mother and people around her occurred prior to and after minor's birth, without an appreciable break demonstrating an effort on behalf of father to address the problem. Father's untreated domestic violence issues were similarly at the root of his failure to reunify with his child in Florida and the problems persisted, necessitating removal in the instant matter. Consequently, the juvenile court did not abuse its discretion in denying father visitation because it was not in minor's best interests.
IV
The Exit Orders And Restraining Order Are Consistent
At the combined jurisdictional/dispositional hearing, the juvenile court granted mother and minor a three-year restraining order limiting contact between minor and father to visitations occurring "at the discretion of the [Agency] or as ordered by the [c]ourt." The subsequent exit order denied father visitation. Father contends this language of these two orders is inconsistent and must be corrected. We disagree.
The restraining order, which was attached to the exit order, referred law enforcement officers to the most recent juvenile court order as defining the scope of father's visitation. The last juvenile court order issued upon termination of jurisdiction, i.e., the exit order, denied father all visitation and supplanted the visitation rights detailed in the restraining order. There is no need for the case to be remanded for clarification.
V
Father's ICWA Challenge Is Moot
Father contends conditional reversal is required because (1) the juvenile court erroneously found the ICWA inapplicable and (2) the Agency failed to make required inquiries. The Agency concedes it failed to send the proper notices and does not address the juvenile court's finding that the ICWA is inapplicable because minor had been placed with mother and jurisdiction terminated. We conclude father's ICWA challenge is moot.
"In any involuntary proceeding in a [s]tate court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe." (25 U.S.C. § 1912(a); see also In re Louis S. (2004) 117 Cal.App.4th 622, 630 [child welfare authorities bear the burden "to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the [Bureau of Indian Affairs]"].) The ICWA defines foster care placement as "any action removing an Indian child from [his or her] parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated." (25 U.S.C. § 1903(1)(i).)
When the juvenile court terminates jurisdiction and returns the minor to the custody of a parent, however, "the relief that [the] ICWA could provide," namely "invalidation of the foster care placement order," is "no longer available." (In re Austin J. (2020) 47 Cal.App.5th 870, 881, fn. 5.) Under that circumstance, an ICWA challenge is rendered moot. (Ibid.)
We acknowledge we have the discretion to consider the merits of father's challenge despite its mootness. (In re Austin J., supra, 47 Cal.App.5th at p. 881, fn. 5.) We decline to exercise that discretion here. The ICWA by its terms allows a challenge to "any action for foster care placement or termination of parental rights." (25 U.S.C. 1914.) Although the earlier interim placement with maternal grandmother triggered responsibilities to comply with the inquiry and notice provisions of the ICWA, the instant action no longer involves foster care placement or the possibility of termination of parental rights. The ICWA therefore provides no basis to reverse the orders at issue.
We are further unpersuaded by father's argument that minor could theoretically be removed from mother's care in the future when inquires under the ICWA will become required. Father "points us to no cases holding [the] ICWA applicable due to a merely theoretical possibility" that juvenile jurisdiction could again be established, and minor removed from mother's custody. (In re A.T. (2021) 63 Cal.App.5th 267, 275.) And, in any event, the inquiry and notice provisions of the ICWA would apply at that time. Father can provide no reason they should apply before this theoretical possibility were to take place.
Father's reliance on In re Jennifer A. (2002) 103 Cal.App.4th 692 is also misplaced. There, the appellate court concluded the child welfare authorities' complete lack of notification upon learning of the parent's Native American heritage was not harmless error even when the minor was placed with one parent during the pendency of dependency proceedings involving the other parent. (Id. at pp. 697-698, 702.) Appeal was taken after the dispositional order. (Id. at p. 698.) The appellate court reasoned that, since the child was still a dependent of the court and foster care had at one time been recommended, the child welfare authorities still had the burden to make required inquiries. (Id. at pp. 698-701.) The minor's future placement was an uncertainty, even though the minor had been initially placed with another parent. (Ibid.) Here, by contrast, minor is not the subject of ongoing dependency proceedings, and his placement with mother is a certainty.
Accordingly, father's ICWA challenge is moot. We express no opinion as to the obligations of the juvenile court and the Agency under the ICWA should circumstances change and minor once again falls within the jurisdiction of the juvenile court.
Because we have found no basis to reverse the juvenile court's termination of jurisdiction and accompanying exit orders, we do not address father's challenges to the dispositional judgment and interim orders as argued in his appellate brief for case No. C098150.
DISPOSITION
The juvenile court's orders are affirmed.
We concur: BOULWARE EURIE, J., MESIWALA, J.