In re Angel C.
Filed 6/20/12 In re Angel C. CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ANGEL C., JR., a Person
Coming Under the Juvenile Court Law.
B236121
(Los Angeles
County
Super. Ct.
No. CK85181)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ANGEL C., SR.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Donna Levin, Juvenile Court Referee. Affirmed.
Michael A.
Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
Tracey M. Blount, Deputy County Counsel, for Plaintiff and Respondent.
________________
>
Angel C.,
Sr. (Father), appeals the juvenile court’s order under Welfare and Institutions
Code section 362.4
title="">[1] terminating its jurisdiction and granting sole
legal and physical custody of the
couple’s eight-year-old son, Angel C., Jr. (Angel), to Rosa D. (Mother),
limiting Father to monitored visitation.
Father contends the juvenile court abused its discretion in granting
Mother sole legal custody of Angel. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Petition
On November 16, 2010 the
and Family Services (Department) filed a section 300 petition alleging
Father had physically abused Angel by choking him and repeatedly kicking him in
the buttocks and Mother had failed to protect Angel from Father’s abuse. The petition also alleged Father and Mother
have a history of engaging in violent altercations in Angel’s presence; Father
has hit and choked Mother in Angel and his younger sibling’s presence;
renders him incapable of providing regular care and supervision. The juvenile court detained Angel and
released him to his mother after being assured Father no longer resided with
her. On November 18, 2010 the court also issued a temporary
restraining order against Father based on Mother’s allegations he had
threatened to kill her.
2. The
Jurisdiction and Disposition Hearing
After a
contested jurisdiction and disposition hearing on February 3, 2011, the juvenile court sustained the
allegations in the petition, declared Angel a dependent child of the court,
removed him from Father’s custody and ordered him released to the home of
Mother.
monitored visitation and family preservation services for Mother. The court’s order required Father to complete
domestic violence counseling for batterers and random drug and alcohol testing. If Father tested positive for drugs or
alcohol or, if any tests were missed, he was to complete a substance abuse
program with random drug and alcohol testing.
Mother was ordered to complete a program of domestic violence counseling
for victims. The court also issued a permanent
restraining order against Father, to expire February 3, 2014.
3. The
Section 364 Review Hearing and
Termination of the Court’s Jurisdiction At
the section 364 review hearing on August
4, 2011, the Department reported Mother and her children had been
participating in family preservation services and Mother was in full compliance
with her case plan. Father, on the other
hand, had failed to participate in several of the court-ordered programs,
complaining he could not find a job and thus could not afford them despite
Department referrals for free sessions.
He tested negative for drugs and alcohol several times, but had missed
other tests and did not enroll in a substance abuse program or a parenting
program as ordered. He also failed to
consistently attend his counseling program for domestic batterers. Angel was initially resistant to visiting
with Father, but became more comfortable as the visits progressed. Father was appropriate with Angel during
these visits. However, Angel reported he
had felt apprehensive about visiting with Father without a monitor
present. After Father made an offer of
proof contesting the Department’s report, the court continued the matter to August 26, 2011 for a contested
section 364 hearing.
On August 26, 2011, following an
Father had not made substantial progress addressing the issues that had led the
court to intervene. Pursuant to the
Department’s and Angel’s request, the court granted sole legal and physical
custody of Angel to Mother with twice weekly monitored visitation for
Father. The court advised both parents
it would terminate jurisdiction upon receipt of a custody order.
On August 31, 2011 the juvenile court
restated its August 26, 2011
order as a custody order pursuant to section 362.4 and terminated its
jurisdiction.
DISCUSSION
1. Governing
Law and Standard of Review
Section
362.4 authorizes the juvenile court, when terminating its jurisdiction over a
child who has been declared a dependent child of the juvenile court, to issue a
custody and visitation order that will become part of the relevant family law
file and remain in effect in the family law action “until modified or
terminated by a subsequent order.†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
Nicholas H. (2003) 112 Cal.App.4th 251, 268; accord,
206.) This determination is made without
reference to any preferences or presumptions ordinarily applicable in the
family court. (See In re John W. (1996) 41 Cal.App.4th 961, 972 [ordinary “presumption
of parental fitness ‘that underlies custody law in the family court just does
not apply to dependency cases’â€].)
We review
the juvenile court’s decision to issue a custody order and terminate its
jurisdiction pursuant to section 362.4 for abuse of discretion (
295, 318) and may not disturb the order unless the court “‘“exceeded the limits
of legal discretion by making an arbitrary, capricious, or patently absurd
determination.â€â€™â€ (Ibid.; accord, Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300.)
2. Father
Has Not Demonstrated the Juvenile Court Abused Its Discretion
Father
contends the court deprived him of legal custody without identifying its
factual reasons for doing so, and this alone constitutes an abuse of the
court’s discretion. Contrary to Father’s
contention, the record amply demonstrates the propriety of the court’s
order: Mother had participated in
court-ordered programs and had made substantial progress in dealing with the
issues that had led the court to assume jurisdiction. Father, in contrast, had not made substantial
progress addressing the domestic violence and child abuse issues that had
prompted jurisdiction in the first place.
Mother’s counsel and Angel’s counsel both emphasized Father’s compliance
deficiencies and supported the Department’s recommendation that Mother receive
sole legal and physical custody and that dependency jurisdiction be
terminated. Following arguments of
counsel, the court granted Mother sole legal and physical custody of Angel with
monitored visitation with Father. While
the court did not fully explain its reasons for the order on the record, its
implied finding such an order was in Angel’s best interests was clear and
unmistakable and well within the court’s broad discretion. (See In
re Marquis D. (1995) 38 Cal.App.4th 1813, 1825 [ample evidence
supports juvenile court’s implied findings, which, while not express, were
“obvious†from record].)
DISPOSITION
The August
31, 2011 section 362.4 order is affirmed.
PERLUSS,
P. J.
We
concur:
ZELON,
J.
JACKSON,
J.
references are to the Welfare and Institutions Code.
C., Sr., is not the father of Kimberly, Mother’s other child, who is three
years younger than Angel. Kimberly is
not a subject of this appeal.
