Opinion
B293655
04-16-2020
In re Samantha C., a Person Coming Under the Juvenile Court Law. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, v. RAMIRO C., Defendant and Appellant; CATALINA S.E., Respondent.
Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance on behalf of Plaintiff. Leslie A. Barry, under appointment by the Court of Appeal, for Respondent Catalina S.E.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18CCJP04383A) APPEAL from an order of the Superior Court of Los Angeles County, Marguerite D. Downing, Judge. Reversed. Judy Weissberg-Ortiz, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance on behalf of Plaintiff. Leslie A. Barry, under appointment by the Court of Appeal, for Respondent Catalina S.E.
The juvenile court sustained a dependency petition alleging that Catalina S.E. (mother) had unresolved psychiatric problems that placed eight-year-old Samantha C. at risk of physical and emotional harm. The court declared Samantha a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b), and released her to her father, Ramiro C. (father). The Los Angeles County Department of Children and Family Services (DCFS) believed Samantha was safe in her father's home and recommended that the court terminate its jurisdiction with a family law order granting father legal and physical custody. Instead, the juvenile court maintained jurisdiction for the sole purpose of ensuring that visits occurred between Samantha and mother.
All subsequent statutory references are to the Welfare and Institutions Code.
Father appeals the juvenile court's order continuing juvenile court jurisdiction over Samantha. Mother is the sole respondent because DCFS, which was aligned with father below, has taken no position in this appeal. We conclude that the juvenile court abused its discretion by maintaining jurisdiction over Samantha because there are no continuing protective issues, and thus we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Prior Proceedings
Samantha was born in January 2010. In February 2010, when Samantha was a month old, mother was placed on a psychiatric hold after she admitted wanting to harm Samantha. The juvenile court sustained a dependency petition alleging emotional abuse by mother and general neglect by father. Fifteen months later, the juvenile court terminated its jurisdiction with a family law order granting father sole legal and physical custody of Samantha.
Samantha's maternal half-sister, Victoria, now an adult, also had been the subject of dependency referrals (in 2000, 2001, 2002, 2003, and 2009) as a result of mother's psychiatric illness and domestic violence between mother and Victoria's father. Victoria was placed with her maternal grandmother and, subsequently, with her father. She is not a subject of the present appeal.
In September 2014, mother asked the superior court to modify the custody order. Father apparently did not participate in the hearing, and in January 2015, the court granted mother sole legal and physical custody of Samantha.
It is not clear from the record why the hearing went forward without father's participation. One DCFS report says "the judge asked [father] for 'some money' and he refused to pay it;" another says mother was granted full custody when father "didn't show up for a court hearing." In any event, it appears undisputed that the court granted mother full custody at a hearing at which father did not participate.
II.
Present Proceeding
A. Detention
In May 2018, mother was placed on an involuntary 14-day psychiatric hold after threatening to kill the maternal grandparents. At that time, eight-year-old Samantha was living with mother and the maternal grandfather, spending afternoons with the maternal grandmother, and visiting father on the weekends.
Samantha told a children's social worker (CSW) that there were frequent arguments between mother and the maternal grandfather that made her anxious. She described a recent argument between her mother and grandfather in which mother became angry because grandfather refused to drive her somewhere. Samantha told her mother and grandfather not to fight, and mother "pulled me from one arm and pulled [me] into the kitchen. I was scared and then I started shaking. Then my mom told me, 'that's why you have ADHD.' " Samantha said she did not feel safe around her mother because " 'I get scared when they fight.' " She described a second recent incident in which mother had yelled at her during a swimming lesson for not " 'swimming right' " because she was not " 'focused.' " Samantha said she felt nervous and afraid with mother, but felt "peace" with father. She liked visiting father and said she would like to live with him.
Samantha saw a therapist weekly for anxiety. The therapist, Jennifer S., told the CSW that Samantha had witnessed mother's angry outbursts and psychotic behavior. Samantha had said on several occasions that she would like to live with father.
Both maternal grandparents reported that mother became easily unbalanced when she went off her medication. The grandmother reported she would be concerned about Samantha living with mother without the support of the grandfather because mother needed help maintaining the home, cooking, grocery shopping, and caring for Samantha.
A CSW interviewed father in his home, where he lived with his girlfriend and nephew. Father expressed concern about mother's mental health and said Samantha frequently asked if she could stay in his home forever. Father believed mother was not a fit parent and that the maternal grandparents were Samantha's primary caregivers.
Mother said she was tired of " 'everyone getting in her business' " and said she wanted to live alone with Samantha. She described the maternal grandparents as "overbearing" and said they would not let her parent Samantha. When mother was told Samantha was asking to live with father or maternal grandmother, mother said "if 'that's what Samantha wants then I don't want to see her, I will only see her with a therapist.' "
On July 11, 2018, DCFS detained Samantha from mother and placed her with father.
B. Petition and Detention Hearing
On July 13, 2018, DCFS filed a two-count juvenile dependency petition, which alleged that mother had unresolved psychiatric problems, including a diagnosis of schizophrenia, which endangered Samantha's physical and emotional health (count b-1); and that mother regularly exposed Samantha to verbal confrontations with the maternal grandfather, causing Samantha anxiety and placing her at risk of suffering serious emotional damage (count c-1).
On July 16, 2018, the court ordered Samantha detained from mother and released to father under DCFS supervision. Mother was granted monitored visits in a therapeutic setting; DCFS was given discretion to liberalize visits as appropriate.
C. Jurisdiction/Disposition Report
DCFS reported that father was in good health, had a stable residence, and was employed as a machine operator. He had no history of mental illness and no criminal record. He was unmarried but had been living with his girlfriend, Elsa, for one year. He said he had been granted custody of Samantha in 2011, but mother regained full custody through the family court because he did not appear at the hearing. He wanted Samantha to remain in his care.
Samantha told the CSW that mother was easily angered if she did not take her medication. She said mother " 'yells at me and makes me feel scared. Even when [mother] does take her medicine she does this but it just gets worse if she doesn't take her medicine.' " Samantha said she was afraid of mother because " 'she always fights with my grandfather.' " She felt comfortable living with father and got along well with his girlfriend, Elsa. When asked what she would wish for if she had one wish, Samantha said: " 'I want to stay with my dad and not have any more courts. My mom isn't going to stop until she gets me and I don't want to live with her anymore.' "
Mother admitted to the CSW that she had angry outbursts and had trouble controlling her emotions. She said she had pulled Samantha's arm during an argument with the maternal grandfather because " 'Samantha always protects my father. . . . I pulled [her arm] and told her why are you always defending your grandpa instead of seeing things from my perspective.' " She insisted things would be better when the grandfather moved out of the home. She did not believe her contentious relationship with her father or her emotional outbursts affected Samantha in any way.
The maternal grandmother said mother's illness prevented her from caring for Samantha without help. She reported that mother sometimes forgot to take Samantha to school or to turn off the stove.
Based on the foregoing, DCFS recommended that the court sustain the petition and terminate jurisdiction with a family law order granting father sole legal and physical custody of Samantha and granting mother monitored visitation.
D. Subsequent Reports
In early September 2018, DCFS told the court that it had not been able to arrange conjoint counseling for mother and Samantha through Samantha's therapist. The therapist reported that when she had discussed conjoint counseling with Samantha, Samantha " 'exhibits . . . flat affect, tense body language, shuts down and becomes resistan[t].' " DCFS therefore recommended that mother be permitted weekly monitored two-hour visits with Samantha at the DCFS office. Subsequently, DCFS said father was not consistently making Samantha available for visits with mother, and it recommended that the case be continued for three months to allow arrangements to be made for conjoint counseling between mother and Samantha.
On October 29, DCFS reported that it continued to be concerned about father's lack of compliance with the visitation schedule, noting that father did "not appear to believe Samantha having a relationship with her mother is in the child's best interest." Nonetheless, the agency noted that father was nonoffending and mother remained unable to live on her own or care for Samantha without supervision. Further, Samantha had not reported any issues in father's home, and she had said she was afraid to live with mother or to have unmonitored visits with mother. Accordingly, DCFS recommended that the court terminate its jurisdiction with a family law order granting father full legal and physical custody of Samantha, and granting mother monitored visits.
E. Jurisdiction and Disposition Hearings
On September 25, 2018, the juvenile court sustained both counts of the petition. With regard to disposition, on October 29, 2018, the court declared Samantha a juvenile court dependent, removed her from mother, and placed her with father. The court declined to terminate jurisdiction, however, because it said father had "not been cooperative" with the court's visitation orders.
The court ordered mother to submit to a psychiatric and psychological evaluation, to take all prescribed psychotropic medication, and to participate in a parenting class, individual counseling, and conjoint counseling with Samantha. Father was not ordered to participate in any services, but was directed to cooperate with DCFS with regard to mother's visitation.
Father timely appealed from the disposition order.
DISCUSSION
Father contends the juvenile court lacked discretion to retain jurisdiction because Samantha was not at risk in his care. He seeks an order directing the juvenile court to terminate its jurisdiction and grant him legal and physical custody of Samantha.
Mother, who is the sole respondent, urges that the juvenile court properly maintained jurisdiction to ensure Samantha continued to have a relationship with both parents, and because father did not demonstrate that he was fully capable of assuring Samantha's safety.
As we discuss, when a juvenile court places a dependent child with a parent, the court has discretion to continue jurisdiction only if necessary to protect the child from harm. In this case, there was no evidence that Samantha was at risk of harm in father's home; to the contrary, DCFS reported that she was thriving in his care. The juvenile court therefore erred in continuing its jurisdiction.
I.
Legal Standards
Section 361.2 provides that if a court orders a child removed from a custodial parent, the court shall determine whether there is a parent of the child "with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300" who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child. (§ 361.2, subd. (a).)
Mother contends that Samantha was "residing" with both parents when the events arose that brought her within the provisions of section 300, and thus section 361.2 does not apply. Mother urges that custody and jurisdiction instead should have been determined under section 245.5, which provides that "the juvenile court may direct all such orders to the parent, parents, or guardian of a minor who is subject to any proceedings under this chapter as the court deems necessary and proper for the best interests of or for the rehabilitation of the minor."
We reject mother's contention that section 361.2 does not apply in this case. At the time Samantha was detained from mother, mother had sole legal and primary physical custody of Samantha, and father had visitation rights every other weekend and one afternoon each week. Thus, Samantha was not "residing" with father within the meaning of section 361.2. But even were father a joint custodial parent, the legal standard governing termination of court jurisdiction would be the same: As Division Seven of this court has held, the juvenile court's authority pursuant to section 245.5 necessarily includes, by analogy to section 361.2, "discretion to terminate dependency jurisdiction when the child is in parental custody and no protective issue remains." (In re Destiny D. (2017) 15 Cal.App.5th 197, 207-208.)
If the court places the child with the formerly noncustodial parent, it may (1) order that the formerly noncustodial parent become the child's legal and physical custodian and then terminate court jurisdiction over the child, or (2) order that the formerly noncustodial parent assume custody subject to the supervision of the juvenile court. (§ 361.2, subd. (b)(1), (3).) If the court chooses the second option, it "may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child." (§ 361.2, subd. (b)(3).) The court shall make a finding, either in writing or on the record, of the basis for its determination under subdivisions (a) and (b). (§ 361.2, subd. (c).)
Section 361.2, subdivision (b)(2) provides the court a third option that is not relevant here. Under this third option, the court may "[o]rder that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months."
We review a juvenile court's custody orders for abuse of discretion. (In re Maya L. (2014) 232 Cal.App.4th 81, 102; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) In applying the abuse of discretion standard, we review the trial court's findings of fact for substantial evidence. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1134; In re Janee W. (2006) 140 Cal.App.4th 1444, 1452; In re A.J. (2013) 214 Cal.App.4th 525, 535, fn. 7.)
II.
The Juvenile Court Abused Its Discretion
by Continuing its Jurisdiction for the Sole Purpose of
Ensuring Mother Received Regular Visits
Section 361.2 does not define the circumstances in which the juvenile court should continue jurisdiction after placing a child with a formerly noncustodial parent, but the Courts of Appeal have held that jurisdiction should be retained where there is "a need for continued supervision" to protect the child. (In re Janee W., supra, 140 Cal.App.4th at p. 1451; see also In re Destiny D., supra, 15 Cal.App.5th at p. 208 [juvenile court has jurisdiction to terminate jurisdiction at disposition if "services and continued court supervision are not necessary to protect the child"]; In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496, disapproved on other grounds in In re Chantal S. (1996) 13 Cal.4th 196, 204 [court jurisdiction continues only until " 'the protection of the minor no longer requires supervision' "]; In re Maya L., supra, 232 Cal.App.4th at p. 99 [in applying section 361.2, juvenile court must " 'determine whether continued supervision is still necessary' "]; In re Austin P., supra, 118 Cal.App.4th at p. 1134 [before terminating its jurisdiction, "juvenile court must make a factual finding that supervision is no longer necessary"].)
The court applied this standard in In re Destiny D., supra, 15 Cal.App.5th 197, holding that the juvenile court properly terminated its jurisdiction after placing a dependent child with her mother because no continuing safety issues remained. The court explained that the fundamental goal of the dependency system is to "return the child to his or her custodial parent and terminate dependency jurisdiction as soon as circumstances permit." (Id. at p. 208.) Thus, limitations on parental rights "may not exceed those necessary to protect the child" (§ 361, subd. (a)(1)), and the juvenile court must "terminate dependency jurisdiction when the child is in parental custody and no protective issue remains." (In re Destiny D., at p. 207; see also id. at p. 211 [juvenile court's statutory authority "necessarily includes the discretion to terminate jurisdiction at the conclusion of the disposition hearing in an appropriate case when child welfare services and continued court supervision are no longer necessary to protect the child"], italics added.)
The court reached a similar conclusion in In re Sarah M., supra, 233 Cal.App.3d 1486, holding that where the child was safely living with one parent, continuing juvenile court jurisdiction was not warranted merely to ensure visits occurred between the child and the other parent. There, the juvenile court removed a child from her mother and placed her with her father, the formerly noncustodial parent. After a period of supervision, the court terminated its jurisdiction, finding the child was thriving in the home of her father and stepmother. The mother appealed, urging that the juvenile court should have retained jurisdiction "due to visitation problems and the resulting emotional conflict which the child suffered." (Id. at p. 1498.) The Court of Appeal disagreed, noting that because by the time of the hearing there were no concerns about the child's well-being, she "no longer needed the protection of the juvenile court." (Id. at p. 1500.) The visitation issues and conflict between the parents, alone, did not justify continuing court supervision: "[I]f parents' poor communication skills and distrust established a need for its continued supervision, the juvenile court could assume or continue jurisdiction in virtually every family law case involving custody or visitation issues. It would appear the family law court was better suited to handling the issues relating to visitation. This is part and parcel of the family law court's role." (Ibid.)
The present case is analogous to In re Sarah M. As in that case, the evidence here demonstrated, and DCFS concluded, that Samantha was safe in father's home and was thriving in his care. Father had no history of mental illness and no criminal record. He had an appropriate residence, full-time employment, and was in a stable relationship with his girlfriend, Elsa, with whom Samantha got along well. Father had enrolled Samantha in an elementary school near his home, and Samantha reported that she enjoyed attending her new school and felt comfortable making new friends. Samantha told the CSW that she liked living with father, and if she had one wish, it would be " 'to stay with my dad and not have any more courts.' "
There is no question that father's compliance with the court's visitation order was inconsistent and that father appeared not to believe it was in Samantha's best interest to have regular visits with mother. But while we, like the juvenile court, are troubled by these issues, they do not support the continued exercise of dependency jurisdiction in the absence of any protective issues. The trial court therefore abused its discretion by continuing jurisdiction for the sole purpose of ensuring that visits occurred between mother and Samantha.
III.
Mother's Remaining Contentions
Are Without Merit
Mother contends that even if visitation issues did not justify continuing juvenile court supervision, other safety concerns did. For the reasons that follow, mother's claims are without merit.
First, mother urges that father had not shown himself capable of protecting Samantha because he had not sought custody of Samantha prior to DCFS's intervention despite his concerns about mother's mental health. Not so. "[D]ependency jurisdiction is not warranted . . . if, at the time of the jurisdiction hearing, there is no longer a substantial risk that the child will suffer harm." (In re Carlos T. (2009) 174 Cal.App.4th 795, 803; In re Savannah M. (2005) 131 Cal.App.4th 1387, 1397 [same].) Here, by the time of the disposition hearing, the court had already ameliorated the risk of harm to Samantha posed by mother's mental illness by placing the child with father. Thus, any risk posed by father's failure to intervene earlier did not pose a current risk to Samantha.
Second, mother contends Samantha continued to be at risk in father's care because he "allowed Samantha to have unauthorized contact with mother in violation of court orders." Again, we do not agree. Mother is correct that there were several occasions on which father and Samantha stopped by mother's home to pick up paperwork and, once, to visit the maternal grandfather after he had surgery. Father was present on each of these occasions, and thus these visits, while perhaps ill-advised, did not create a safety risk.
Finally, mother asserts that Samantha was at risk in father's care because father did not obtain appropriate medical care for her. Not so. The only evidence to support mother's claim that Samantha required medical care was mother's own statement to the CSW that Samantha had lost a lot of weight and "had lead poisoning." Nothing in any of the reports suggests that Samantha actually had lost weight or had lead poisoning; and, when the CSW asked father whether he had taken Samantha to the doctor, he said he had. Thus, there is no evidence that father failed to obtain appropriate medical care for Samantha.
For all of these reasons, we conclude that at the time of the October 29, 2018 disposition hearing, there were no safety issues that justified the continuing exercise of jurisdiction by the juvenile court.
DISPOSITION
The disposition order is reversed and the matter is remanded to the juvenile court with directions to conduct a new disposition hearing within 60 days from the date of this opinion. At that hearing, the court shall determine, consistent with the views expressed in this opinion, whether there is any continuing need for juvenile court supervision based on facts and circumstances that have taken place since the October 29, 2018 disposition hearing. If the court determines there is no continuing need for supervision, it shall order Samantha to remain with father and terminate court jurisdiction. If the court determines there is a continuing need for supervision, it shall retain jurisdiction and enter an appropriate family maintenance order. The court shall make a finding of the basis for its determination, either in writing or on the record. (§ 361.2, subd. (c).) This opinion is final immediately upon filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)
Mother's second request for judicial notice, filed December 12, 2019, is granted.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
EGERTON, J.
DHANIDINA, J.