In re Joe R.
Filed 8/14/12 In re Joe R. CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re JOE R. et al., Persons
Coming Under the Juvenile Court Law.
B238416
(Los Angeles
County
Super. Ct.
No. CK86544)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SONIA P.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Timothy Saito, Judge.
Affirmed.
Grace
Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Acting County Counsel, James M. Owens, Assistant County Counsel,
William D. Thetford, Principal Deputy County Counsel for Plaintiff and
Respondent.
_______________
In
connection with its order terminating dependency
jurisdiction over 10-year-old Joe R., Jr. and nine-year old Christian R.,
on November 7, 2011 the juvenile court, pursuant to Welfare and Institutions
Code section 362.4,
title="">[1] granted joint legal custody of the children
to their mother, Sonia P., and their father, Joe R., Sr. and full physical
custody of both children to Joe Sr. with monitored visitation for Sonia. On appeal Sonia contends the court erred in
denying her shared physical custody
and requiring her visitation to be monitored.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Voluntary Maintenance Contract
On August 17, 2010 the Los Angeles
County Department of Children and Family
Services (Department) entered into a voluntary family maintenance contract
with Sonia and Joe Sr. after a referral and follow-up investigation revealed
Sonia was using methamphetamine and abusing alcohol. The family maintenance agreement required
Sonia to participate in drug counseling, random drug and alcohol testing and
domestic violence and parenting education.
Joe Sr. also agreed to participate in
classes. At the time Sonia and Joe
Sr., who were and remain legally separated, shared custody of Joe and
Christian: On alternate weeks the
children lived with Sonia either Thursdays through Sundays or Wednesdays
through Friday mornings; they lived with Joe Sr. the rest of the time.
2. The
Dependency Petition, Adjudication and Disposition
While the
place, Sonia missed several drug tests, twice tested positive for
methamphetamine and was terminated from her drug treatment program. As a result, on February 14, 2011 the Department filed a section 300
petition alleging Sonia had a history of substance abuse, was a current abuser
of alcohol and methamphetamine and her drug and alcohol abuse were interfering
with her ability to care for her children, placing each of them at risk of
harm.
Following a
mediation, Sonia submitted the matter on the basis of an amended petition, the
Department’s reports and the mediation
agreement, which recommended that Sonia complete parenting, substance abuse
and alcohol programs with weekly random drug and alcohol testing and
participate in individual counseling.
Under the mediation agreement Sonia would continue to have overnight
visitation with Joe and Christian provided she remained compliant with the case
plan and did not miss a drug or alcohol test or test positive for drugs or
alcohol. Joe Sr., who was nonoffending,
also submitted to the jurisdiction of the court based on the recommendations in
the mediation agreement.
On April 20, 2011 the court
sustained the allegations in the amended petition, declared Joe and Christian
dependent children of the court, removed them from Sonia and released them to
Joe Sr. with overnight, unmonitored visitation for Sonia conditioned on her
participating in drug and alcohol treatment programs, attending individual
counseling and testing negative for drugs and alcohol.
3. The
Six-month Review Hearing and Termination of Dependency Jurisdiction
At the
October 19, 2011 six-month review hearing (§ 364), the Department requested the
court terminate its jurisdiction over Joe and Christian with an order for joint
legal custody but awarding Joe Sr. sole physical custody of the boys with
monitored visitation for Sonia. The
Department’s recommendation was based on Sonia’s noncompliance with the case
plan, including several missed drug tests from August 2011 through September
2011. She had also not attended
parenting or drug treatment classes and had recently been involved in a violent
altercation with her boyfriend’s sister.
Sonia objected, and the court set the matter for a
Sonia
testified at the November 7, 2011 contested hearing. She disputed the Department’s account of
eight missed drug tests, asserting she had only missed two and explaining those
absences were due to a back injury and her work schedule. She acknowledged she had been dropped from a
parenting class for nonattendance, but insisted she had recently
reenrolled. She also acknowledged she
had “missed a few” counseling sessions because of work, but testified she could
now attend since she was no longer working.
Sonia also told the court she had just been diagnosed with depression
and had begun psychotropic medication to treat that condition. She had not enrolled in a drug treatment
program because she believed she was required only to enroll in an alcohol
treatment program. Finally, she said she
suffered physical injuries after her boyfriend’s sister had unjustifiably
attacked her; Joe and Christian were not with her when that altercation
occurred.
Following
Sonia’s testimony, the children’s counsel and Joe Sr.’s counsel withdrew their
initial support for a custody and visitation order giving Joe Sr. primary
physical custody and awarding Sonia unmonitored and overnight visitation and
instead supported the Department’s recommendation that dependency jurisdiction
be terminated with a custody order granting full physical custody to Joe Sr.
with monitored visitation for Sonia. The
court concluded those recommendations were sound and in the children’s best
interests, explaining, “there are concerns that are still existing in this
case,” including Sonia’s inconsistent drug and alcohol testing and failure to
attend or make any substantial progress in her drug and alcohol treatment
programs, as well as the recent violent altercation with her boyfriend’s
sister. The court terminated its
jurisdiction over Joe and Christian, then stayed the termination order pending
receipt of the family law order. The
family law order was received on November 14, 2011. The court’s order terminating its
jurisdiction was entered the same date.
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 court, to issue a custody and visitation
order (an “exit” order)
name="_ftnref5" title="">[5] 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.” (
251, 268; accord, In re Chantal S. (1996)
13 Cal.4th 196, 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’”].)
We review
the juvenile court’s decision to terminate dependency jurisdiction and to issue
a custody order 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.”’” (Ibid.; accord,
148 Cal.App.4th 285, 300.)
name="_ftnref6" title="">[6]
2. The
Court’s Custody and Visitation Order Was Well Within Its Discretion
Sonia does not challenge the
termination order. Rather, she contends
the court erred in granting Joe Sr. sole physical custody with only monitored
visitation for her because she had enjoyed unmonitored visitation throughout
the dependency proceedings and nothing had occurred while the children were in
her care to justify altering that arrangement.
She further asserts she had “completed a substance abuse program,” had
recently began taking medication to treat her depression and had reenrolled in
parenting classes.
This is not
a close question. The evidence showed
Sonia had missed several drug tests; she had not enrolled in, much less
completed, a drug treatment program; and she had only recently began addressing
her depression and participating in parenting classes. The court expressed its belief that Sonia
sincerely loved her children and wanted to do the best for them. However, in light of her failure to make any
substantial progress toward addressing the issues that had led to the dependency
proceedings (the minimal progress she had made was simply too recent to credit
with any confidence), the court found it was in Joe and Christian’s best
interests that they remain in Joe Sr.’s custody and their visitation with Sonia
be monitored while she continued to try to resolve those problems. That order was well within the court’s broad
discretion in such matters.
DISPOSITION
The court’s custody and
visitation order is affirmed.
PERLUSS,
P. J.
We
concur:
WOODS,
J.
ZELON,
J.
references are to the Welfare and Institutions Code.
had full custody of her two other minor children, Jerry (17 years old) and
Melanie (16 years old), who are not related to Joe Sr. Although Jerry and Melanie were covered by
the family maintenance agreement and named in a subsequent dependency petition,
they are not the subjects of this appeal.
