In re Morgan S.

Filed 4/16/10 In re Morgan S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.

In this consolidated appeal, Gary S. challenges an order placing his son, Morgan S., with the child's mother, Kellie F., at the six-month review hearing. (Welf. & Inst. Code,[1]  361.21, subd. (e).) He also appeals an order granting sole legal and physical custody of Morgan to Kellie. ( 362.4.) Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Gary S. and Kellie F. are the divorced parents of Morgan S., who is now nine years old. The San Diego County Health and Human Services Agency (the Agency) provided voluntary services to Gary and Morgan from August 2006 to April 2007, and again from October 2007 to June 2008, because Morgan showed signs of neglect. Gary's alcohol use was of serious concern. Kellie's whereabouts were not known.

In May 2008 Gary was arrested for drunk driving. He was abusive and combative with police officers. Morgan was present during the arrest. Gary's blood alcohol content (BAC) was 0.15. When arrested, Gary did not ask to talk to Morgan, who was detained in protective custody, or seek to reassure him. Morgan was upset because he had to go to "kid jail again."

In June 2008 Gary was arrested for drunk driving. Morgan was with him. ( 300, subd. (b).) Gary was weaving in and out of traffic. He ran two stop signs and a red light, and stopped in the middle of an intersection, impeding oncoming traffic. Gary's BAC was 0.18. The Agency filed a petition alleging Morgan was at risk of serious physical harm and detained him in protective custody.

Morgan told the social worker his mother was in heaven. Gary said Kellie was not deceased and might be living in Illinois with her family. The Agency could not locate her.

The court removed Morgan from parental custody and ordered a plan of reunification services for Gary. Gary stated he did not have a problem with alcohol and the substance abuse treatment program could "kiss my ass." Gary was incarcerated for three months of the first six-month review period.

Shortly after Gary was released from jail, he took Morgan to a bar where Morgan had a "Shirley Temple" and Gary had a beer. Gary then drove Morgan to his house for a visit. In February 2009 the court ordered Gary not to take the child to any bars.

Kellie contacted the Agency in January 2009 after receiving notice that she was no longer required to pay child support to the county because of Morgan's dependency proceedings. After Gary had forced her to leave their home, Kellie became homeless and moved to Illinois to be with her family. Kellie's mental health condition was diagnosed as paranoid schizophrenia, which was stable with appropriate treatment. She had traveled to San Diego by plane in March and by bus in June 2008 to find Morgan. In March Kellie spoke with Gary, but he refused to let her see Morgan. She could not find them in June.

Morgan was excited to hear from Kellie. He thought she was in a graveyard. Kellie telephoned him every day.

Kellie did not have a criminal history. She was close to her large family, who lived nearby. The family did not have issues with drug use, violence or criminal activity. The Agency recommended the court place Morgan with Kellie.

In March 2009, with the permission of Illinois office of the Interstate Compact on the Protection of Children (ICPC), the court authorized the Agency to send Morgan to visit Kellie for no longer than 29 days pending completion of Kellie's home study. With the cooperation of the Illinois ICPC, the visit was extended to avoid displacing Morgan, who had had a number of foster placements and was doing well in Kellie's care. The court held a series of 15-day review hearings.

In June 2009 the Illinois ICPC social worker recommended the court order Morgan be placed with Kellie. She reported that Kellie appeared to be very functional and was capable of adequately providing for and protecting Morgan. The relationship between mother and son was positive and respectful, and there appeared to be a strong bond between them. Kellie did not have any record of child abuse, neglect or criminal history.

The contested six-month review hearing was held on August 10 and 12, 2009, and concluded on September 29. The social worker was aware Kellie had been under psychiatric care for many years. Gary had told him Kellie was violent and unstable. The social worker was unable to document the allegations. Kellie's current psychiatrist confirmed she was following her treatment regimen. The social worker acknowledged Kellie's mental health condition may have contributed to problems in the home. However, Kellie had stabilized her circumstances while Gary's ongoing alcohol use presented a continued threat to Morgan's safety and well-being. Morgan was happy and stable, and loved being with his mother and other family members. He did not want to return to San Diego. The social worker stated Morgan would not suffer any detriment in his mother's care.

Gary asked the court to terminate jurisdiction and return Morgan to his custody. Gary believed Morgan would not be safe in Kellie's care. When Gary and Kellie were together, Kellie had sudden outbursts of screaming and other out-of-control behaviors, and she could be aggressive. Gary submitted Kellie's mental health treatment records from 1991 to 2006.

Gary stated he was not an alcoholic and did not have a drinking problem. He did not need treatment. Gary testified he was "basically" alcohol-free. He last had a beer on July 4, 2009.

Cheryl E., a former neighbor of Gary and Kellie, stated Kellie frequently yelled and screamed at Morgan. Gary was more attentive to Morgan than Kellie was. Gary drank regularly. He typically consumed three or four drinks in one sitting.

The court found that reasonable services had been provided and that Gary did not make substantive progress with his case plan. The court found that there was no protective issue concerning Morgan's placement with Kellie, and stated its intent to terminate jurisdiction. The court ordered the parents to participate in Family Court Mediation Services to set up a visitation schedule. The court placed Morgan with Kellie, and continued the hearing.

Gary and Kellie were unable to agree on visitation orders. The court granted sole legal and physical custody of Morgan to Kellie, with Gary to have supervised visitation and liberal telephone calls. The court terminated jurisdiction.

DISCUSSION

Gary contends the evidence showed returning Morgan to his mother's custody would be detrimental to Morgan. Alternatively, at a minimum, Gary argues the court should have maintained supervision of the case to ensure Morgan's safety and well-being in Kellie's care. Gary argues the custody and visitation order ("exit order") was not supported by substantial evidence and was contrary to Morgan's best interests. He seeks a reversal of the exit order, which would restore the previous family court order which granted primary physical custody to him.

A. Return to Parental Custody

At the six-month status review hearing, the court must return the child to the physical custody of his or her parent unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child (detriment finding). ( 366.21, subd. (e).) To determine detriment, the court must consider the social worker's report and recommendations, the parent's efforts and progress and the extent of the parent's participation in services. (Ibid.)

We review a detriment finding for substantial evidence. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 763.)

We remind appellant that he has the burden to show the finding or order is not supported by substantial evidence, and not to merely recite facts as if we had the authority to reweigh the evidence. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) We need not consider the evidence, or inferences, that do not support the court's rulings.

Here, the record supports the court's determination that returning Morgan to his mother's care would not be detrimental to him. Kellie had been stable for several years. She attended her psychiatric appointments and maintained a regular medication regimen. The ICPC social worker stated the home was spotless and well maintained. There were no hazards to Morgan in his home environment. Kellie and Morgan had a close and respectful relationship. Kellie's family was supportive and Morgan enjoyed being with his cousins. He was doing well in school. The social worker testified there had been no concerns about Morgan's safety or well-being in the five months since Morgan had been with his mother, and Morgan would not suffer any detriment in his mother's care. The court credited the testimony of the social worker and acted in accordance with section 366.21, subdivision (e).

Gary contends the court erred when it did not maintain supervision of the case and order a plan of family maintenance services to Kellie. We do not agree. The social worker spoke directly to Kellie's treating psychiatrist to confirm her treatment. After an extended home visit, the ICPC social worker concluded Kellie appeared to be managing her mental health condition in a responsible manner and her condition was not having a negative impact on her life. Kellie was described as an "upstanding citizen." The record supports the reasonable inference that because of Kellie's extensive support system and safe home environment, Morgan's age and regular school attendance, and the lack of any concerns about Morgan's well-being in Kellie's care without services, the court could finalize Morgan's permanent placement without additional reunification services. ( 366, subd. (a)(1)(B).)

Gary also contends the court violated the ICPC when it allowed Morgan to stay with Kellie without formal approval from the state of Illinois. Gary's argument is without merit. This court, in In re John M. (2006) 141 Cal.App.4th 1564, 1575, held that the ICPC, by its plain terms, applies only to a foster care or adoptive placement, and not to a child's placement with an out-of-state parent. (Fam. Code,  7901; see Tara S. v. Superior Court (1993) 13 Cal.App.4th 1834.)

B. Custody and Visitation Orders

When the juvenile court terminates its jurisdiction over a child, the court may issue an order determining the custody of, or visitation with, the child. ( 362.4.) A custody and visitation order under section 362.4 is commonly referred to as an exit order. (See In re John W. (1996) 41 Cal.App.4th 961, 970.) Guided by the child's best interests, the court has broad discretion to fashion custody and visitation orders. (Id. at p. 973; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) The court considers "the totality of a child's circumstances when making decisions regarding the child." (In re Chantal S. (1996) 13 Cal.4th 196, 201.)

We review a juvenile court's exit orders for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)

Here, the court reasonably exercised its discretion when it granted sole legal and physical custody of Morgan to Kellie. In addition to the factors described above, the record shows Kellie was able to provide for Morgan's financial, emotional and physical needs without assistance from the state of California. Kellie had a regular source of income and a stable residence. Morgan was bonded to his mother and she made arrangements to accommodate her circumstances to meet his needs. In addition, the family court mediator recommended Kellie have sole physical custody of Morgan.

Similarly, the court did not abuse its discretion when it ordered supervised visitation for Gary. Gary denied he had an alcohol problem and refused treatment. His habit of driving drunk placed Morgan at great risk of physical harm or death, and Gary continued his practice of drinking and driving shortly after he was released from jail. The court had to order Gary not to take his eight-year-old son to bars. Citing Gary's history of alcohol abuse, the family court mediator recommended supervised visitation. Further, Gary had disregarded the previous custodial order and denied Kellie contact and visitation with Morgan. He told his young son that his mother was dead, without regard to the emotional impact the lie would have on the child.

In view of the totality of the circumstances, the court reasonably determined that Morgan's best interests were best served by granting sole legal and physical custody to Kellie, and that an order of supervised visitation would protect Morgan from Gary's ongoing alcohol use, instability and disregard of Morgan's safety and well-being.

DISPOSITION

The orders are affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

NARES, J.

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[1] Further references are to the Welfare and Institutions Code.