In re M.G.

Filed 10/2/08 In re M.G. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from orders of the Superior Court of Los Angeles County, Jan G. Levine, Juvenile Court Referee. Affirmed.

Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Denise M. Hippach, Associate County Counsel, for Plaintiff and Respondent.

INTRODUCTION

J.V., mother of M.G., appeals from the orders of the juvenile court terminating jurisdiction and granting father, G.G., full physical custody of M.G. (Welf. & Inst. Code,  362.4).[1] Because there is no showing that the juvenile court abused its discretion, we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

The juvenile court declared M.G. and his half-siblings, A.V. and D.A., dependents of the court because of domestic violence in the family, fathers past sexual abuse of D.A., mothers history of amphetamine and methamphetamine abuse, and A.V.s positive toxicology screen for amphetamines.[2] ( 300, subd. (b).) Although married, mother and father had been separated for two years, but M.G. had regular communication and visits with father. The parents were granted reunification services.

Mother suffers from bipolar disorder and schizophrenia. She was hospitalized in October 2004 and had not taken her prescribed medication in the year before the childrens detention. She was unemployed and had been homeless. Also, she tested positive for the Human Immunodeficiency Virus (HIV) and felt it would be best for M.G. to return to fathers care.

Six months into the dependency, mother started complying with her case plan by enrolling in a drug rehabilitation program, from which she was expected to graduate in July 2007. Her weekly visits with M.G. went well.

Meanwhile, in the first six months of the dependency, M.G.s visits with father had gone very well. These visits occurred during weekdays and overnight on weekends. In just six months, father had completed his case plan and provided evidence that he made excellent progress in therapy and had gained insight and understanding into his role as a father. He was motivated about gaining custody of M.G. and was committed to parenting the child in a healthy manner.

By the time of the six‑month review hearing ( 366.21, subd. (e)), M.G. was living with father. Mothers program gave her an eight-hour home visit every Sunday, during which she visited the children at the maternal grandmothers house. Finding father was in compliance with his case plan and that father posed no risk of detriment to M.G., the juvenile court placed M.G. in fathers custody. However, the court found that it would be detrimental to return the children to mothers care because she was only in partial compliance with the case plan.

By the 12-month review hearing, on November 8, 2007, M.G. was thriving in fathers care. Father had continued in therapy and the therapist observed a healthy attachment between M.G. and father. Father wanted M.G. to live with him permanently. By contrast, mother had been discharged from her rehabilitation program before completing it for violating program rules and had to commence another program in the fall of 2007. Her sobriety was a continuing concern because she provided three diluted tests that autumn. Despite repeated requests for it, the Department never was able to confirm that mother was participating in individual therapy, or receiving treatment for her mental health issues, including the voices she heard. Until September 2007, her visits were monitored. Declaring mother in partial compliance with her case plan, the court again found that return of M.G. to her custody would create a substantial risk of detriment to their physical well‑being.

At the close of the contested hearing, 18 months after M.G. was detained, the court terminated its jurisdiction of him and granted sole physical custody to father with unmonitored visits for mother. Mother appealed.[3]

CONTENTIONS

Mother contends that the juvenile court erred in failing to grant her joint physical custody of M.G.

DISCUSSION

Section 362.4 authorizes the juvenile court, when terminating its jurisdiction, to make custody and visitation orders that will be transferred to the family court. ( 362.4;[4]In re Jennifer R. (1993) 14 Cal.App.4th 704, 712, citing In re Roger S. (1992) 4 Cal.App.4th 25, 30.) This so-called exit order remains in effect until modified or terminated by the family law court. (In re John W. (1996) 41 Cal.App.4th 961, 970.)

In fashioning exit orders, the juvenile courts focus is on the best interests of the child. (See In re Chantal S. (1996) 13 Cal.4th 196, 206.) The court has broad discretion to determine what best serves a childs interests and such decision will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227-1228.)

Mother contends that the juvenile court abused its discretion in granting father sole physical custody because, she asserts, there was no risk to the child and visits with him were going well. To the contrary, we conclude that on this record, the court did not abuse its discretion. First, it is not the case, as mother asserts, that M.G. wants to live with mother. His attorney reported that M.G. likes the visits with [mother]. (Italics added.) More important, mother has not finished her case plan after 18 months of services. She had never demonstrated that she is taking her medication, that she completed counseling, or that she is actually in psychiatric treatment. And, mother never explained her three diluted drug tests in September through December 2007, putting her very sobriety in question. (Her attorneys statements attempting to explain away the dilution is not evidence.) In short, the court properly identified a risk to M.G. if he were returned to mother with the result it would not be in the childs best interest to award the parents joint custody of him.

In any event, both parents are [not] equally entitled to half custody in dependency exit orders. (In re John W., supra, 41 Cal.App.4th at p. 974, italics added.) When the juvenile court hears a dependency case under section 300, it is handling children who have been abused, abandoned, or neglected and so it stand as parens patriae, having a special responsibility to those children and considers the totality of a childs circumstances when making decisions regarding the children. (In re Chantal S, supra, 13 Cal.4th at p. 201.) Stated otherwise,  [t]he presumption of parental fitness that underlies custody law in the family court . . . does not apply to dependency cases decided in the juvenile court. [Citation.] (Ibid.) Likewise, the Family Codes presumption that joint custody is in the best interest of the minor is inconsistent with the purposes of the juvenile court. (In re Jennifer R., supra, 14 Cal.App.4th at p. 712, fn. omitted.) The juvenile court did not abuse its discretion in concluding that joint physical custody would not be in M.G.s best interest. Mother had not fully complied with or completed her reunification plan, and hence the court was justified in finding that she continued to pose a risk of detriment to M.G. if he were returned to her.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] All statutory references are to the Welfare and Institutions Code, unless otherwise noted.

[2] M.G.s siblings are not fathers children and are not parties to this appeal.

[3] On May 27, 2008, we granted mothers request to take judicial notice of the juvenile courts minute order terminating its jurisdiction and the exit orders issued the same day. The Departments request to augment the record filed May 28, 2008, is denied.

[4] Section 362.4 reads in relevant part: When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minors attainment of the age of 18 years, and proceedings for dissolution of marriage . . . of the minors parents . . . are pending in the superior court . . . the juvenile court on its own motion, may issue . . . an order determining the custody of, or visitation with, the child. [] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court.