In re T.B.

Filed 12/30/09 In re T.B. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

After asserting its jurisdiction over T.B. as a dependent child, the juvenile court granted sole custody to the father and then terminated the dependency. T.B.s mother appeals, contending that the court: (1) erred by not making a finding necessary to justify removing T.B. from her custody; (2) erred in not ordering any reunification services; (3) the court abused its discretion in giving custody to the father; and (4) should not have terminated the dependency. We conclude that no reversible error is established, and we affirm.

BACKGROUND

The family had a troubled history prior to the commencement of this dependency. Mother and Father never married and, indeed, never lived together. Before and after T.B.s birth in 2003, Mother lived in Nevada and California. She met Father in Nevada. Beginning in 2001, child welfare authorities in both states received reports that Mother was abusive and neglectful of T.B. and his half-brother, S.T. There was also one incident in 2007 of reported physical abuse of T.B. by Father. During this period Mother was arrested on numerous occasions for crimes of violence and drug possession. In 2007 she was placed on three-years probation for possessing cocaine. In November 2007, Father made a report to San Francisco police that Mother was physically abusive to T.B.

In August 2008, Mother and Father were involved in San Francisco Family Court, which was conducting a custody evaluation. In the meantime, pursuant to a Family Court order, T.B. was in Fathers temporary custody during the week, with Mother allowed visitation for the weekend. A hearing of some undisclosed nature was scheduled for September. In January 2008, Father obtained a Family Court restraining order against Mother.

It appears that matters became worse in the months preceding August. Mother, who was previously diagnosed with a mental disorder, was described by a case worker as being on disability due to a mental health disorder, but is not receiving mental health services. The case worker also reported that he has had difficulty reaching and scheduling meetings with the mother, who has a history of refusing or not complying with recommended services, as evidenced by documents from a Nevada dependency. The case worker further advised that Mother has an anger management problem which has resulted in physical altercations around her neighborhood, which prompted her landlord to begin eviction proceedings. Mothers mother even reported that Mother was physically abusive to S.T. Mother told the case worker that she was experiencing a high level of stress . . . due to the ongoing custody dispute involving T.B. As of the end of July, the San Francisco Human Services Agency (Agency) was still attempting to provide family maintenance assistance.

Nevertheless, on August 29, 2008, the Agency filed a petition in which it was alleged that T.B. qualified as a dependent child within the meaning of Welfare and Institutions Code section 300, subdivisions (b) and (c).[1]

The filing of the petition did not result in T.B. being detained, or a request by the Agency to change the custody arrangement between Mother and Father. However, following completion of the family court evaluation by Dr. Deborah Roberto, the Agency petitioned to have Mothers unsupervised weekend visits suspended and Mother allowed only supervised visitation because the Agency believes unsupervised visits are detrimental to the minor. The juvenile court granted the Agencys request and suspended Mothers unsupervised visitation on September 26, 2008.

The Agency filed its Disposition Report in October 2008. The caseworker advised the court that two issues stand out the most. The emotional well-being of the children and the emotional well-being of the mother. T.B. and T.S. were reported as suffering emotional harm generated by the custody dispute of T.B. The case worker decried the constant denigration by Mother of Father in front of the children: The children are going to need a lot of therapy to help them deal with all of this. Matters were not helped by Mothers vitriolic personality: The mother herself appears to be suffering from an untreated emotional illness. She seems to blame everyone else for her problems and not take responsibility for her own behavior. Her history of interpersonal conflict with others speaks for itself. The case worker noted that [t]he mother has called the police and CPS on the father on at least five different occasions since June of this year. These calls have resulted in the police showing up unannounced at the fathers home and causing [T.B.] . . . to be very scared.

The case worker reported that T.B. was integrated into Fathers Sacramento home, and that Father appear dedicated to caring for his son. The case worker hoped that once Mothers mental health situation is addressed, . . . the custody issues will subside. Although the case worker submitted case plans for both parents, she recommended against providing reunification services to Mother because services are not appropriate because the mother has been offered and refused to cooperate with voluntary services in the past.

The unreported jurisdictional hearing was held on November 13, 2008. After both Mother and Father submitted on the case workers disposition report, the juvenile court sustained the following allegations of the petition, as amended, noting as follows:

The mother has an anger management problem for which she completed a parenting, domestic violence, and anger management program in Reno, Nevada in 2006. The mother acknowledges she needs additional therapy and services in this area. The father has obtained a restraining order against the mother.

The mother has a mental health disorder for which she completed a medical assessment and psychological evaluation and is currently receiving treatment.

The mother had a welfare case in 2006 which was dismissed with both the children living with her. There have been several allegations of physical abuse and neglect in California as well.

The mother is currently on drug felony probation for drug sales and possession.

The custody evaluator reports that the child is exhibiting anxiety and withdrawal as a result of the manner in which the mother has dealt with the custody dispute.

For the disposition hearing, the case worker submitted an addendum to her disposition report. She noted that since the jurisdictional hearing, Mother had undergone a psychological evaluation by Dr. Maria Holden, who assessed Mother as exhibiting traits [of] hypervigilance/paranoia, emotional impulsivity, passive-aggressive and hostile tendencies . . . . I agree that mothers behavioral and emotional stability is of utmost concern . . . . my strongest recommendation is that the mother use medications . . . . without it her behavior has proven repeatedly unstable and detrimental to the child. If and when mother has stabilized on medication, that stability will help her to benefit from therapy in individual and possibly group settings, and from parenting education. It could also help to accelerate the rate of her learning, gains in insight and judgment, and improved social functioning. Mother also needs to continue for a very long time in therapy aimed at her symptoms of PTSD [post traumatic stress disorder]. Subsequent to this assessment, Mother was placed on medication, and she has been attending individual therapy.

The case workers assessment was as follows: Though this CWW is encouraged by the mothers follow through on the above-mentioned services, this CWW still has the same concerns about the mothers emotional well being that have been expressed already in the previous disposition report . . . . She [Mother] continues to be in denial about her mental health issues and continues to blame this department and the father for all her problems . . . . This CWW concurs with Dr. Holdens assessment of the mothers mental health and recommendations. It does seem imperative that she continue to engage in all the above‑mentioned services for at least the next year in order to stabilize her own and therefore her childrens emotional well-being. [] And, though [T.B.s] sibling [S.T.] remains in the mothers care for now, it is a tenuous situation at best. The mother has been advised by this CWW that failure to follow through on the recommended services for [S.T.] could result in his removal from her care.[2] The reason [T.B.] has been placed with his father via the Family Court is most likely because [Father] is a father who is willing and able to have custody of his son and who appears to be a suitable parent. This CWW agrees with Dr. Deborah Robertos assessment for the Family Court (previously submitted to this court) that [T.B.] should be placed in the care of his father.[3]

Both Mother and Father were present at the contested dispositional hearing held on February 9, 2009. The court was advised that the Agency now recommended dismissing the dependency, a proposal with which counsel for T.B. agreed.

Xoledad Torres, a mental health worker for Alternative Family Services, testified that she supervised the visits between Mother and T.B. since October. The visits generally went well, and Ms. Torres believed they should be increased in frequency.

Erin Monahan, the case worker for T.B. for the previous six months and the author of the disposition report and its addendum,[4] testified that Father has been following through with the Agencys case plan. Ms. Monahan confirmed that the Agencys recommendation was the petition be dismissed and custody remain with the father. Nevertheless, Ms. Monahan believed that continued visitation between Mother and the two children was in the best interest of the children, and could even progress to more frequent visits. Mother was complying with the weekly therapy but she was not complying with medication. Ms. Monahan had received too many to count complaints from Mother that father is abusing or neglecting T.B., but none of these complaints has been verified. Fathers care of T.B. merited concern, but none such as would merit a dependency or rise to the level of court intervention.

Mothers counsel argued that the Agencys proposed disposition presented two problems. First, Assuming that the mother had joint physical custody at the time the petition was filed, the mother argues that . . . this is removal from the mother, which requires the Juvenile Court to find by clear and convincing evidence any of the circumstances listed under Welfare and Institutions Code 361(c)(1) through (5). Second, mother further argues that if the Court rules that the child shall live with [Father] post-disposition, the mother is entitled to reunification services under Welfare and Institutions Code 361.5 (a). Counsel further argued that T.B. would not be safe in Fathers custody, and Mother was therefore seeking an in-home disposition with the child residing in her home.

After hearing argument from the parties, the juvenile court ruled as follows: The court is most persuaded by the testimony of the [case] worker that she has no concerns about the childs safety with the father, and I believe that there is no basis for the petition. And on that basis I will order the petition dismissed. []  I will order that in favor of sole legal and sole physical custody to the father, with visitation to the mother . . . . [] . . . [] . . . every other weekend . . . . [] . . . [] [T]his will go into Family Court if the parents wish to make any changes to that.

Mother filed a timely notice of appeal.[5]

DISCUSSION

The Juvenile Court Has Not Been Shown To Have Acted

Contrary To Section 361

Subdivision (c) of section 361 enumerates the circumstances in which a child may be taken from parental custody. It provides in pertinent part: A dependent child may not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence of any of the following circumstances . . . : [] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minors health can be protected without removing the minor from the parents . . . physical custody . . . . [] (2) The parent . . . is unwilling to have physical custody of the minor . . . . [] (3) The minor is suffering severe emotional damage, as indicated by extreme anxiety, depression, withdrawal, or untoward aggressive behavior toward himself or herself or others, and there are no reasonable means by which the minors emotional health may be protected without removing the minor from the physical custody of his or her parent . . . . [] (4) The minor or a sibling has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent, guardian, or member of his or her household . . . . [] (5) The minor has been left without provision for his or her support . . . .

Mother contends that the juvenile court erred in not finding by clear and convincing evidence under section 361, subdivision (c)(1) that [T.B.] was at risk of abuse, and there was no way to protect him without removing him from appellants care. The Agency responds that section 361 does not apply because T.B. was not residing with Mother at the time the petition was initiated. With some caution, we think the Agency is correct.

Our caution stems from the confused state of the record as to who precisely had custody of T.B. when the Agency filed its petition on August 29. Proceeding backwards, the record has a Child Custody and Visitation Stipulation and Order dated July 8, 2008. Checked boxes state that legal custody and physical custody shall be [a]s previously ordered on January 24, 2008. An attachment deals with the details whereby T.B. is to be exchanged on Friday and Sunday evenings at the Greyhound Bus Station in Sacramento, where Father lives. The attachment also states that [a]ll previous court orders filed on January 24, 2008, with regard to custody and visitation shall remain in effect pending the current custody evaluation previously ordered by the court.

Dated January 24, 2008 is a Restraining Order After Hearing. The order recites that child custody and visitation are ordered on the attached Form DV-140. The attached form states: Father shall have the minor child [T.B.] . . . during each week (Sunday evenings through Friday afternoons), and Mother shall have the child every weekend. Mother shall pick up the child on Friday evenings in Sacramento and Father shall pick up the child on Sunday evenings in San Francisco.

Neither of these documents establish with certainty whether custody was shared or given to Father. One way to read them is that the five days T.B. spends with Father amounted to custody and the two days with Mother was simply the visitation mentioned in both orders. This appears to be the Agencys interpretation. In its Detention/Jurisdiction Report, the Agency concluded: Per an existing San Francisco Family Court order . . . , [T.B.] is in the custody of his father. He visits with his mother on weekends. This is probably why the Agency did not ask for T.B. to be detained, and would account for the Agency stating in the petition that Prior to intervention, child resided with parent, specifically, Father. Indulging this interpretation, Father had custody and Mother merely had visitation, which would mean that section 361 was, as the Agency maintains, simply inapplicable. This interpretation is corroborated in some measure by the juvenile courts order of September 26, 2008 treating Mother as having only a modifiable right of visitation.[6] It also comports with the total absence of any reference in the record to the parents sharing joint custody.

In any event, even if Mother did have some measure of legal custody, the failure to make the finding required by section 361, subdivision (c) would qualify as harmless error. The record is replete with evidence of Mothers long-term inability to provide her children with a stable environment. The Agencys Detention/Jurisdiction Report shows Mother being diagnosed with mental disorders as far back as 2006 in connection with the Nevada dependency. Her history of refusing or not complying with recommended services goes back at least as far. And the report has numerous instances of Mother exhibiting her anger management problem.[7] By the time of the disposition hearing, Mothers situation had improved somewhat, but Dr. Holden, Dr. Roberto, and Ms. Monahan were clearly of the opinion that she could not yet be trusted with unsupervised custody of T.B. Moreover, to judge by Dr. Robertos second report (see fn. 3, ante), her anger towards Father burned just as hot as ever.[8] The juvenile court was entitled to take cognizance of Mothers recalcitrant attitude to prior efforts to assist. (See In re Cole C. (2009) 174 Cal.App.4th 900, 917.) By submitting on the social workers report at the jurisdictional hearing, Mother was in effect acquiescing in the Agencys evaluation of her problems and failings up to that time. (See In re Richard K. (1994) 25 Cal.App.4th 580, 589.) In light of these circumstances, we believe the juvenile court would almost certainly have made the finding required by subdivision (c)(1) of section 361. (See In re Diamond H. (2000) 82 Cal.App.4th 1127, 1137 [Although the court did not state a factual basis for its removal order, any error is harmless because it is not reasonably probable such finding[], if made, would have been in favor of continued parental custody.], disapproved on another ground in Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.)

The Juvenile Court Did Not Err In Not Ordering That

Reunification Services Be Provided To Mother

Mother next contends that the juvenile court erred in not ordering the Agency to provide her with reunification services. However, such services are only required whenever a child is removed from a parents . . . custody. ( 361.5, subd. (a).) As demonstrated in the previous part of this opinion, there is a legitimate basis for concluding that T.B. was not removed from Mothers custody. The predicate for reunification services is therefore absent.

The Juvenile Court Did Not Abuse Its Discretion

In Dismissing The Dependency

Mothers final two contentions are that the juvenile court should have maintained jurisdiction to monitor [T.B.s] welfare, and abused its discretion when it did not consider the best interests of [T.B.] when making exit orders[9] that awarded sole physical and legal custody to Father. We shall consider these contentions together because they share the common element of attacking the juvenile courts decision to terminate the dependency.

Under section 364, subdivision (c) and California Rules of Court, rule 5.710(e)(2), if the court determines the child may safely be returned to the parent, it terminates jurisdiction unless the social worker establishes that conditions still exist that require supervision. The court shall terminate its jurisdiction unless the [social services agency] establishes by a preponderance of the evidence that the conditions still exist which would justify initial assumption of jurisdiction under Section 300, or that those conditions are likely to exist if supervision is withdrawn. ( 364, subd. (c); [citation].) If, after returning the child to the parents custody, the court determines continued supervision is required, it continues the matter for six months at which time it holds a review hearing. ( 364, subd. (c).) . . . Rule 5.710(e)(2) provides: If the child is returned, the court may order the termination of dependency jurisdiction or order continued dependency services and set a review hearing within [six] months. (Rule 5.710(e)(2).) (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650-651, fn. omitted.)

Section 362.4 provides that When the juvenile court terminates its jurisdiction over a minor . . . the juvenile court on its own motion may issue . . . an order determining the custody of, or visitation with, the child. Orders made under this authority are reviewed with a considerable measure of deference. We . . . review the juvenile courts decision to terminate and to issue a custody (or exit) order pursuant to section 362.4 for abuse of discretion, and may 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, citing and quoting In re Stephanie M. (1994) 7 Cal.4th 295, 318.) Moreover, this court has recognized that when a juvenile court terminates its jurisdiction over a dependent child pursuant to section 362.4, it is still empowered to continue existing orders regarding visitation. (In re Hirenia C. (1993) 18 Cal.App.4th 504, 518-519.)

Mother believes she has caught the juvenile court, and the Agency, in a logical inconsistency: If it is determined that [T.B.] was not removed from appellants care, as the Agency argued at the dispositional hearing, then the juvenile court should have made required findings pursuant to section 364. The Agency argued from the inception of the proceedings that this was not a removal based on the Agencys position that Father alone had custody of [T.B.]. Section 364(c) states that if a minor is not removed from the physical custody of the parent, the court shall determine whether continued supervision is necessary after hearing any evidence presented by the social worker, parent, guardian or child. The court shall then terminate its jurisdiction over the child unless the social worker establishes by a preponderance of evidence that conditions still exist which would justify initial assumption of jurisdiction or that those conditions are likely to exist if supervision is withdrawn. Thus, as Mother views it, the juvenile court terminated its jurisdiction, but it did not state a finding that continued supervision was unnecessary because the conditions that gave rise to that jurisdiction no longer exist.

As a matter of pure logic, Mother may be correct that such findings ought to have made by the juvenile court, but this omission cannot form the basis for reversal. The decision to terminate its jurisdiction necessarily included the subject matter of these findings, even if only by implication. As a reviewing court, we are required to recognize such implied findings. (E.g., Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1; Booth v. Robinson (1983) 147 Cal.App.3d 371, 377.)

In deciding whether to terminate the dependency, the juvenile court was required to act in the best interests of T.B. (See In re John W., supra, 41 Cal.App.4th 961, 973‑974.) There is no need to recount again the evidentiary basis for the juvenile court to conclude, as did the Agency, that T.B.s situation had sufficiently stabilized to end the need for dependency oversight. Suffice to say that, as recounted above, it was more than ample. Continuation of the dependency would be justified only if the court believed that T.B. was a likely victim of future harm to his emotional or physical well-being. To judge by the sustained allegations of the Agencys petition, such harm would most likely come from Mother. As we do not read Mothers brief as arguing that she acknowledges that her behavior posed a future danger to her son, she really can identify no other source of danger to T.B. that would justify continuing the dependency.[10]

And there is no danger that by terminating the dependency, the juvenile court was leaving T.B. without official protection. As it noted at the end of the disposition hearing, the Family Court would henceforth have jurisdiction over custody and visitation, and, we note, a full panoply of judicial powers to protect T.B. (See  362.4 [Any order issued pursuant to this section shall continue until modified or terminated . . . . The order of the juvenile court shall be filed in the [family court] proceeding . . . and shall become a part thereof.].) There is nothing in the record that will serve as a basis for concluding that the juvenile court either abused its discretion or failed to faithfully discharge its obligation to act in T.B.s best interest when it terminated the dependency. (Bridget A. v. Superior Court, supra, 148 Cal.App.4th 285, 300; In re John W., supra, 41 Cal.App.4th 961, 973-974.)

DISPOSITION

The Custody OrderJuvenileFinal Judgment entered by the juvenile court is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.

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

[2] S.T. was the subject of a separate dependency that was initiated prior to this one.

[3] Dr. Robertos evaluation was strikingly similar to Dr. Holdens report in critiquing Mothers problems. Nevertheless, the following remarks are chilling: I have serious concerns about [Mothers] ability to put the needs of her children before her own. I cannot convey to you in written form how disturbing it was to hear the way she was treating [T.B.] and her inability to let it go. She has no insight into how her behavior impacts her children and on the occasions that I have pointed this out to her she becomes angry and I receive a barrage of phone calls. Her judgment is poor and I am concerned that her reality testing is impaired leading to either delusional or psychotic thought process. If anyone contradicts her version of events she becomes enraged. [Mothers] defensive structure is very fragile, and when these defenses are challenged or breached she becomes angry, aggressive and irrational. She will misrepresent the facts to present herself in a more positive light to such a degree that it becomes difficult to trust what she says. Any statements made by [Mother] must be checked against collateral sources for veracity. Often her narrative involves being victimized and lied about and verges on paranoia.

Actually, Dr. Roberto submitted two evaluations. The first, in September 2008, was of Mother alone, while the second, dated November 2, 2008which was received in evidence at the dispositional hearingevaluated both Mother and Father. Dr. Robertos comments in the latter report about Father, and his commitment to raising T.B., were positive and optimistic.

[4] She is also the case worker for S.T.

[5] A Custody OrderJuvenileFinal Judgment was entered on February 20, 2009, 11 days after the juvenile court announced its decision at the dispositional hearing, and nine days after Mother filed her notice of appeal. In accordance with the rules proscribing liberal construction of a notice of appeal, Mothers notice will be treated as perfecting a valid, albeit premature, appeal from the subsequent judgment. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(e).)

[6] We hesitate to state that the court actually agreed with this characterization. Although the courts minutes recite that Mothers unsupervised visits were suspended and henceforth there would be only supervised visits, the court may have been simply adopting the language used in the Agencys application. On the other hand, that the court did not dispute the Agencys language may well show that it had no problem with characterizing T.B.s weekend stays with Mother as visitation.

[7] Significantly, in terms of the children, the instances deal with S.T., not T.B., which could also indicate that Mother had custody of S.T., but not T.B. In addition, there are repeated references to S.T.s school, but none concerning T.B. Dr. Roberto noted in her second report that Mother was recently asked to leave her anger management class and parenting class prior to completion because of her angry and combative behavior.

[8] After one visit with T.B. and Mother, Dr. Roberto recorded: Later that day I began receiving calls from [Mother]. Apparently she was upset by being asked not to speak negatively about [Father]. I received at least five or six calls that afternoon speaking disparagingly about [Father] and myself. [Mothers] speech was loud, pressured and angry, and the messages each went on for several minutes or until the message center cut her off. This is not an uncommon occurrence since the evaluation has begun . . . . I could hear the children in the background and I was concerned that instead of spending time with [T.B.] she was calling me on the phone leaving angry messages. At the next visit a week later, Upon entering the office and taking a seat, [Mother] immediately launched into statements about the lack of care [T.B.] was receiving in his fathers home. Mother told Dr. Roberto that Father is out to get her.

[9] Custody and visitation orders issued in connection with the termination of dependency jurisdiction are commonly known as exit orders. (See In re John W. (1996) 41 Cal.App.4th 961, 970 & fn. 13.) However, [section 362.4] exit ordersand one must remember that section 362.4 presupposes an ongoing family law caseare in the nature of pendent lite orders in family law (id., at p. 973, fn. omitted), that is, they are not permanent and may be modified.

[10] Although Mother points to the fact that Father had an extensive criminal background including a gang affiliationwhich Father freely admitted and renounced to the satisfaction of the Agency and Dr. Robertothere is absolutely no evidence in the record that these historical circumstances posed a future danger to T.B. Left unmentioned is Mothers own criminal history, which is even more contemporary. As Dr. Roberto noted, Father has been off probation for three years and . . . has had no arrests since his release from prison in 2000. This is clearly better than Mothers performance.

Mother points to other supposed failings of Father and concludes that he would benefit from continued supervision to assist in the transition to [T.B.] living with him full-time. But Ms. Monahan, who interviewed Father and observed his situation, did not reach the same conclusion. As for Mother insisting that she and Father had a tumultuous relationship that puts T.B. at risk , the tumult appears to have been generated entirely by Mothers obsessive behavior, which is obviously abated to the Agencys satisfaction by limiting her interaction with T.B. to supervised visits. Mother also points to the uncertainty whether her medication will help with her emotional problems. But Mother ignores the facts that (1) at the time of the dispositional hearing she was not taking her medications, and (2) any changepositive or negative due to her medicationscan be addressed in the power to modify visitation or custody that is now vested in the Family Court. However, in the interests of fairness, we must note that Mother does appear to have some realistic self-awareness, because she argues only that the juvenile court abused its discretion by awarding sole legal custody of T.B. to Father, expressly acknowledging the possibility that awarding sole physical custody to Father can be upheld.