Filed 12/19/18 In re L.C. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re L.C., a Person Coming Under the Juvenile Court Law.	H045819 (Santa Clara County Super. Ct. No. 16JD024021)
SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN’S SERVICES, Plaintiff and Respondent, v. A.C., Defendant and Appellant.

This juvenile dependency case originated in the family court as the result of a custody dispute. A.C. (Father) and M.C. (Mother) separated in 2007 when L. was three years old and thereafter appeared in the family court for various hearings related to custody and visitation of L. On August 2, 2016 at a hearing on further custody and visitation orders, the family court ordered Family Court Services to assess whether one or both parents posed a danger to the child. Based on the resulting recommendations, the family court initiated orders that resulted in the child’s placement in protective custody. Thereafter the Santa Clara County Department of Family and Children’s Services (department), filed a dependency petition pursuant to Welfare and Institutions Code[1] section 300 on August 5, 2016. The juvenile court took jurisdiction of L., and removed her from the custody of her parents.

Father and Mother made significant progress on their reunification and maintenance plans, and as a result, the juvenile court dismissed the dependency case. In its exit order, the juvenile court adopted the recommendation of the department that Father and Mother share joint legal custody, with Father to have sole physical custody of L. On appeal, Father argues that the juvenile court erred in its exit order because he should have been granted sole legal custody of L. We reject Father’s arguments and affirm the judgment.

1. STATEMENT OF THE FACTS AND CASE

When the parents first appeared in the family court in 2007, that court ordered Father and Mother to share legal custody, and Mother to have physical custody of L. In 2011, Father and Mother agreed to share joint legal and physical custody, with L. to live with Father in Stockton during the school week. Mother had visitation with L. on the weekends.

In 2016, by the time L. was 12 years old, Father, who is an alcoholic, had relapsed. Father drank alcohol every day while he was caring for L., and drank to the point of intoxication once or twice a week. When Father was drunk, he would become angry at L. and yell at her, calling her names. L. was afraid of Father when he drank. In 2016, because of Father’s alcohol use, Mother filed a request in the family court to modify the custody agreement so that L. could live with her full-time. At the time, L.’s 16-year-old half-brother, D., lived with Mother. D. was a registered sex offender because of a prior juvenile adjudication for a lewd act with a minor. (Pen. Code, § 281.) In the past, Mother had left L. home alone with D.

As a result of these circumstances, the family court ordered Family Court Services to assess whether L. was safe with either parent. Based on that assessment, the family court initiated the protocol to place the child in protective custody, and the department filed a dependency petition in the juvenile court. The department’s section 300 petition alleged that there was a substantial risk of imminent harm if L. was left in the care of Father or Mother, and that L. was suffering, or was at a substantial risk or suffering, serious emotional damage as a result of Father’s conduct. (§ 300, subds. (b)(1) & (c).) The specific allegations in the petition included Father’s intoxication and verbal abuse of L. while she was in his care (b-2 and c-1), Mother leaving L. in the care of her 16-year-old half-brother, who was a registered sex offender (b-3), Mother’s failure to reunify with L.’s half-brother in a 2014 dependency case (b-4), Mother’s participation in a voluntary family maintenance plan in 2009 due to her depression and attempted suicide (b-5), and Father’s criminal history, which included driving under the influence of alcohol in 1991, domestic violence in 2007, violating a restraining order in 2008, and committing domestic violence on Mother in L.’s presence (b-6).

On September 13, 2016, the juvenile court sustained the petition, removed L. from her parents’ custody, and ordered her placed with her paternal aunt. The juvenile court ordered the department to provide Father and Mother with reunification services, including unsupervised visitation. The court ordered Father to participate in substance abuse treatment. The court also ordered Father and Mother to participate in separate individual therapy. At the six-month review hearing on February 28, 2017, the juvenile court ordered the department to provide Father and Mother with an additional six months of reunification services.

At the 12-month review hearing on July 17, 2017, the court ordered L. to return to Father’s home with a family maintenance plan. Family reunification services were continued for Mother. The department’s Status Review Report indicated that L. wanted to return to live with Father in part because she wished to stay enrolled in school in Stockton. The report also stated that Mother and Father were participating in separate therapy, and Father was attending 12-step meetings, working with his sponsor and submitting clean drug tests each week. L. was spending two weekends per month with Mother. The social worker indicated that both Father and Mother had made progress with their plans, and showed a commitment to L.’s well-being.

The department submitted another Status Review Report on January 17, 2018, recommending that the juvenile court dismiss the dependency case and issue family custody orders. The social worker recommended that L. continue to live with Father full-time so that she could remain enrolled in school in Stockton, stating that a change of schools would not be in L.’s best interests.

On March 12, 2018, the court conducted a contested 18-month review hearing. At the trial, the department recommended that Father and Mother share legal custody of L., and that Father have sole physical custody of L. Father agreed with the department’s recommendation. Mother agreed with the recommendation that she share legal custody with Father, but requested sole physical custody of L. L.’s counsel agreed that the department’s recommendation was in L.’s best interests, but represented to the court that L. wanted Mother to have sole physical custody. The social worker and each of the parents testified at the hearing.

The juvenile court issued its decision following the contested 18-month hearing, finding that there were no longer safety concerns that required L. to remain a dependent of the court, and concluding that the case should be dismissed. The court was impressed with the progress Father and Mother had made, and stated with regard to custody: “if ever there were a case where I could do a true split in custody, a 50:50, this would be it.” However, because Father lived in Stockton, and Mother lived in San Jose, this arrangement was impractical. The court concluded that L. should continue to live with Father in Stockton, stating: “I am going to give full physical custody to the father.”[2] The court referred Father and Mother to mediation to create a visitation schedule for L. that would maximize the time Mother would spend with L. outside of the school schedule.

Father and Mother participated in mediation on May 9, 2018. Thereafter the court ordered Father and Mother to share joint legal custody of L. Father was granted sole physical custody of L. and his home was designated as L.’s primary residence. The court dismissed the dependency case, and Father filed a timely notice of appeal on May 14, 2018.

2. DISCUSSION

Father argues that the juvenile court abused its discretion by ordering him to share joint legal custody of L. with Mother. Father asserts he should have been granted sole legal and physical custody of L., and that Mother should have been granted visitation.

1. Termination of Dependency Jurisdiction

When a juvenile court terminates its jurisdiction over a dependent child, it has the authority to make exit orders regarding custody and visitation. (§ 362.4; In re Armando L. (2016) 1 Cal.App.5th 606, 616 (In re Armando L.).) 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. We will not disturb the order unless the court “ ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ ” ’ ” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300 (Bridget A.) “When making a custody determination in any dependency case, the court’s focus and primary consideration must always be the best interests of the child [Citations]. Furthermore, the court is not restrained by ‘any preferences or presumptions.’ [Citations].” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) The juvenile court has broad authority to make “ ‘any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child.’ (§ 362, subd. (a).)” (Bridget A., supra, 148 Cal.App.4th at p. 296.)

Furthermore, the juvenile court is not governed by the Family Code in making its order because many Family Code provisions do not apply to dependency proceedings due to the distinct differences in the purposes of the juvenile and family courts. In re J.T. (2014) 228 Cal.App.4th 953, 960-961.) “The family court is established to provide parents a forum in which to resolve, inter alia, private issues relating to the custody of and visitation with children. In that setting, parents are presumed to be fit and capable of raising their children. [Citation.] The juvenile court, by contrast, provides the state a forum to ‘restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians.’ [Citation.]” (In re Chantal S. (1996) 13 Cal.4th 196, 201.) “It is inconsistent with the purposes of the dependency system’s protection of children who have been abused, abandoned, or neglected to require the juvenile court to apply statutory procedures meant for use in family court. [Citation].” (In re Armando L., supra, 1 Cal.App.5th at p. 616.)

Here, at the 18-month status review hearing, the department recommended that both parents share legal custody of L. Mother agreed with the department’s recommendation that she share legal custody with Father, L.’s counsel agreed that joint legal custody was in L.’s best interests, and Father agreed with the department’s recommendation. Father now asserts: “[a] joint legal custody order unnecessarily creates risks for future conflict between these parents, who have a history of such conflict, and who do not live geographically near one another.” Father has waived this argument by failing to raise it in the juvenile court. (In re Dakota H. (2005) 132 Cal.App.4th 212.) Even if he had not waived his objection, we find Father’s argument to be without merit.

There is significant support for the juvenile court’s order that Father and Mother share joint legal custody following the termination of its jurisdiction. From the time of the inception of the dependency action in 2016, both parents worked hard to address the issues with L.’s care, and at the time of the review, no longer presented a risk of harm to L. Father addressed his alcoholism by remaining sober, regularly attending 12-step meetings, and working with a sponsor. Mother consistently participated in individual therapy as directed in her reunification plan. The juvenile court even noted that joint physical custody was warranted in the case, but that Father’s residence in Stockton was a better place for L. to live because of her school enrollment. However, the court made clear that visitation with Mother should be substantial outside of L.’s school schedule. The court was impressed with the progress both parents had made to resolve the issues that led to the filing of the dependency petition.

By all accounts, L. had a good relationship with both of her parents, and enjoyed her time with them. By this time, both Father and Mother cared for L., and were consistently attentive to her needs. However, at the 18-month review, L. had also requested that she live with Mother. We note also that L. was entering her teens at the time of the review (her date of birth is in January 2004). The fact that L. attended school in Stockton where Father lived justified the court’s order that he retain physical custody of L., but that was based on the very practical need for geographic stability for L. during the school year and was not based on any evidence of deficits in Mother’s care of her daughter.

In short, there was strong evidence presented of the attachment between L. and Mother, evidence that Mother no longer posed a risk to the child, and evidence of her ongoing involvement in L.’s life. Given these facts and the department’s recommendations, it was well within the juvenile court’s discretion to determine that Mother’s authority to have an equal say in L.’s education and medical care through joint legal custody was in L.’s best interests. The court was equally entitled to conclude that the child’s attachment and need for her Mother’s input in major decisions about her well-being outweighed any potential risk of future conflict between the parents.

There was nothing arbitrary, capricious, or patently absurd in the juvenile court’s determination that Father and Mother should share joint legal custody L. We find that there was no abuse of discretion in this case. (See Bridget A., supra, 148 Cal.App.4th at pp. 285, 300.)

3. DISPOSITION

The judgment is affirmed.