Filed 8/17/22 In re T.M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County, Stephen Marpet, Judge Pro Tempore. Affirmed.

Marsha F. Levine, under appointment by the Court of Appeal, for Defendant and Appellant.

Office of the County Counsel, Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.

_______________________________

Appellant Cameron G. is the presumed father of T.M. (born April 2012). In August 2020, after Father had been drinking heavily, he and T.M.’s mother engaged in domestic violence in the presence of eight-year-old T.M. Both Mother and T.M. reported that Father grabbed and pushed T.M. when the child tried to intervene.[1]

The Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, subdivision (a) (section 300(a)) and subdivision (b)(1) (section 300(b)(1)) that was eventually amended to allege three counts: the first count alleged the parents engaged in domestic violence in T.M.’s presence and described the August 2020 incident; the second count alleged Father abused alcohol and cared for T.M. while under the influence; and the third count alleged Father inappropriately disciplined T.M. using his fist and a belt. In January 2021, the court sustained all three counts, ordered T.M. removed from Father but released to Mother, and ordered both parents to enroll in certain classes and programs. Among other requirements, Father was ordered to enroll in a 52‑week domestic violence program and a six-month drug program and was to submit to weekly drug testing. Father did not appeal the jurisdictional or dispositional orders.

At a November 2021 judicial review hearing, the undisputed evidence showed that Father had not completed his domestic violence program and had not enrolled in a six‑month drug program. Additionally, he had missed a total of 20 drug tests and tested positive for marijuana three times. As Mother had completed her programs, the court terminated jurisdiction, granted Mother sole physical and legal custody, and granted Father monitored visits. On appeal, Father contends the court abused its discretion by not granting him joint custody, and by ordering his visits to be monitored. Because we find the court acted reasonably, we affirm.

3911719343734. OF RELEVANT FACTS
               1. DCFS Investigates a Referral

In August 2020, DCFS received a report that, the previous day, Father and Mother had been arguing after Mother took the car keys from Father, who had been drinking. After the argument turned physical, T.M. attempted to intervene. The fight continued outside the home and Mother told T.M. to go inside the house and lock the door. T.M. complied and called 911. However, Mother did not want Father arrested and did not want a protective order.

A children’s social worker (CSW) spoke with Mother. Mother stated she and Father had been in a relationship for six years and married for one year. Father had been in T.M.’s life since he was very young, and T.M. called him “‘Dad.’” Mother explained that she worked as a licensed vocational nurse and that when she went to work, T.M. either came with her or Father watched him. Mother stated Father “‘always had anger issues, but never towards us.’” She characterized his recent mood as “‘always mad,’” claimed he had had a drinking problem for a year, and opined that he needed “‘mental help.’” She reported that prior to the referral incident, there had been a previous incident “a few weeks back” where Father was drunk and they had pushed each other.

Regarding the referral incident, Mother stated that Father had been mad for three days, and the day before the incident, Mother had told Father he needed to leave and get help. On the day of the incident, Mother and T.M. left the house to give Father time to pack up and leave, but when they returned, Father was still in the house, heavily intoxicated. Mother took his car keys because Father “‘likes to drive drunk.’” Later that evening, Father, who worked the night shift, asked for his keys back, and Mother returned them after removing the house keys and telling him she did not want him in the house. Father responded by “tear[ing] up the house,” pushing Mother against a stove, and pinning her down. He also punched and broke a kitchen cabinet door (the CSW saw a broken cabinet door on the floor). At some point T.M. attempted to intervene in the parents’ altercation, and Father grabbed him. Mother was able to “‘drag[]’” Father out of the house, after which she told T.M. to get in the house, lock the door, and call 911; T.M. did. Father left before the police arrived but was eventually arrested. Mother explained she did not press charges because she felt Father “‘just needs help.’” Mother stated she did not intend to reconcile with Father and would not allow him to return to the home. Mother agreed to apply for a restraining order against Father.

In speaking with the CSW, T.M. referred to Father as “‘Dad.’” He confirmed that Father drank a lot, and sometimes did so when caring for him. When asked how he was disciplined, he mentioned that he was told to go to his room, but also received “‘whoopins’” from a belt. Father also hit him in the chest with a closed fist. When asked about violence between his parents, T.M. reported an incident in which they were “‘wrestling’” during an argument in T.M.’s room and Mother “‘sp[]it blood out on the wall.’” As for the referral incident, he confirmed that Father was drunk when T.M. and Mother returned home, that Mother had taken Father’s keys, that Father punched a cabinet door and broke it, that Father had pinned Mother to the bed, and that T.M. had told Father to stop and punched him. In response, Father pushed T.M. and told him he had better sit down. Father and Mother then went outside and Father tackled her. Mother instructed T.M. to go back in the house, and T.M. did and locked the door. When Father was unable to enter the house, he cussed at T.M. “‘sayin’ all types of bad words.’” T.M. reported being scared when his parents fought. After speaking with T.M., the CSW returned to Mother, who confirmed both that Father had punched T.M. in the chest, and that there had been an incident in which she spit blood on the wall.

A few days later, the CSW spoke with Father’s mother. She confirmed the basic facts of the incident, which she had learned from Mother. She also reported that Father drank “‘a little bit too much.’”

In September 2020, the CSW spoke with Father, noting he was easily agitated and argumentative. He stated he had been in T.M.’s life since the child was three years old and did not abuse him. As to the referral incident, he characterized it as an aggressive and loud argument, but denied any physical component. He admitted he had consumed alcohol earlier that day but denied being drunk during the incident. He denied putting his hands on T.M. He also denied physically disciplining T.M., but when the CSW referred to T.M.’s statements to the contrary, Father admitted to “‘whoop[ing]’” T.M.’s buttocks with his hand and the non‑buckle-end of a belt. He denied punching T.M. in the chest.

When the CSW raised concerns about domestic violence, alcohol abuse, and inappropriate discipline, Father admitted he had an anger problem and needed help. He acknowledged breaking the kitchen cabinet because he was upset. He also acknowledged drinking alcohol but denied abusing it and denied drinking while caring for T.M. He reported that he had seen and spoken to both Mother and T.M. after the incident, and that T.M. had apologized to him. Father stated that he eventually intended to return to the family home. One week later, the CSW learned that Mother had decided against obtaining a restraining order because Father was her husband, not her boyfriend. In a conversation with both Mother and Father, Father stated that he intended to move “‘with my family,’” meaning Mother and T.M.; Mother did not contradict him.

1. 2. DCFS Files a Petition

In mid-September 2020, DCFS filed a non-detention petition on behalf of T.M. under sections 300(a) and (b)(1). Counts a-1 and b-1 identically alleged that Mother and Father had a history of engaging in domestic violence in T.M.’s presence, that in August 2020 Father had grabbed and pushed T.M. when he attempted to intervene in his parents’ dispute, and that Mother failed to protect T.M. by allowing Father to reside in the home. Counts a-2 and b-3 identically alleged that Father physically struck T.M. in the chest with his fist and with belts, and that Mother again failed to protect T.M. Count b-2 alleged that Mother endangered T.M. by permitting Father to care for the child while he was abusing alcohol.

At the detention hearing, the court agreed that T.M. could remain with Mother and granted a temporary restraining order sought by Mother against Father. The court also granted Father monitored visits, but ordered that Mother could not be the monitor.

1. 3. Adjudication and Disposition

In October 2020, T.M.’s counsel moved to have Father deemed T.M.’s presumed father. In December 2020, the court granted the motion and ordered DCFS to assist Father with appropriate family reunification service referrals. Father was arraigned and denied the allegations in the petition. Also in December 2020, Mother advised a CSW that she was pregnant with Father’s child, due in July 2021.

At the adjudication hearing which took place in January 2021, DCFS filed an amended petition, reflecting Father’s status as a presumed father. The amended petition alleged only three counts: count a-1 (brought under section 300(a)) alleged that the parents engaged in domestic violence in T.M.’s presence and realleged the particulars of the August 2020 referral incident. Count b-2 (brought under section 300(b)(1)) alleged that T.M. was endangered both by Father’s alcohol abuse and by Mother’s permitting Father to live in the home and have access to T.M. when she knew of his alcohol abuse. Count b-3 (brought under section 300(b)(1)) alleged that Father inappropriately disciplined T.M. with his fist and with a belt, and that Mother failed to protect T.M. from this inappropriate discipline.

Pursuant to an agreement with DCFS, Mother pled no contest to the allegations in the amended petition. As for Father, DCFS’s counsel asked the court to sustain the amended petition, citing the referral incident, Father’s ongoing alcohol problem, and his inappropriate disciplining of T.M. T.M.’s counsel joined the arguments made by DCFS’s counsel. Father’s counsel agreed an incident had occurred in August 2020 but denied that it had been properly described and claimed Father had not shoved or pushed anyone. Counsel also claimed Father drank only on weekends, and it was “not an issue.” Finally, counsel explained that the physical discipline was reasonable and occurred only when other discipline had not worked.

The court sustained the petition as to Father. The court removed T.M. from Father and released him to Mother; it ordered Mother to attend a domestic violence support group, take a parenting class, and receive individual counseling and conjoint counseling with Father; and it ordered Father to attend a six-month drug and alcohol program with weekly random drug and alcohol testing, enroll in a 12-step program with a sponsor, take a 52-week domestic violence class and a parenting class, and receive individual counseling and conjoint counseling with Mother. A judicial review hearing was set for July 2021.

1. 4. Judicial Review Hearings

At the July 2021 review hearing, the court noted that Mother was following her case plan but that Father was not in compliance with his. The court set another review hearing for October 2021, indicating it wished to address closing the case at that hearing, and encouraged both parents to comply with the case plan so the family could reunite. DCFS was also made aware that Mother’s and Father’s baby had been born, and DCFS’s counsel opined that a petition would be filed regarding the newborn. However, DCFS did not file such a petition.

As of August 2021, Mother had completed both her domestic violence and parenting classes and was participating satisfactorily in individual counseling. In September 2021, DCFS permitted Mother to monitor Father’s visits.

In September 2021, DCFS recommended the case be closed with Father’s visits continuing to be monitored. At the October 2021 judicial review hearing, Father asked the court to set a contested hearing because he did not agree with DCFS’s recommendation. The court set a hearing for November 2021 and expressly stated that Father “needs to be in a drug program. If he isn’t in a drug program, which is the court order, [that] makes it difficult for the court to liberalize any visits.”

While Father finished his parenting classes, began individual counseling, completed his 12-step program, and continued to participate in his 52-week domestic violence program, he had not participated in the court-ordered six‑month substance abuse program, claiming his work schedule would not permit him to commit to a program of that length. Father claimed he did not use drugs or abuse alcohol because he was subject to random drug testing in his workplace. However, from the time that Father had been ordered to submit to weekly drug tests in January 2021 until the November 2021 judicial review hearing, Father had tested negative 19 times, tested positive for marijuana three times, and missed 20 tests, the latest in October 2021.

At the contested November 2021 hearing, Father’s counsel requested that Father be permitted to move back into the family home, and that the court close the case with an order granting the parents joint legal and physical custody of T.M. Counsel argued that Father recognized he had made a mistake, that Father had completed his 12-step program and was testing negative, and that Father and Mother had a newborn for whom DCFS had not filed a petition. DCFS’s counsel pointed out that Father had been testing negative on some occasions, but had also missed tests and had tested positive for marijuana. Both T.M.’s counsel and Mother’s counsel asked the court to grant unmonitored visits. After confirming that Father had not completed his domestic violence classes and had not enrolled in a drug program, the court terminated jurisdiction, granted sole custody to Mother, and permitted Father to have monitored visits. The court noted that the domestic violence class and the drug and alcohol program were “tailored to this case,” and added that when Father completed them, he could petition the family court to change the custody order. The court stayed the termination order until receipt of a juvenile custody order, which occurred in December 2021. Jurisdiction was then terminated and Father timely appealed.

“n making exit orders, the juvenile court must look at the best interests of the child.” ([i]In re John W. (1996) 41 Cal.App.4th 961, 973.) We review the court’s order for abuse of discretion. (S.Y. v. Superior Court (2018) 29 Cal.App.5th 324, 333.) “A court abuses its discretion only when ‘“‘the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.’”’” (In re Caden C. (2021) 11 Cal.5th 614, 641.)

Here, the court’s exit order granted sole custody of T.M. to Mother and permitted Father monitored visits. While Father agrees the court properly considered his “circumstances and whether the problems existing at the time of the precipitating incident ha[d] been satisfactorily resolved” in making its order, he contends the court “reached an arbitrary decision” in doing so and failed to consider T.M.’s best interests. He argues the court’s “order [wa]s illogical in that the court, while precluding father’s return to the family home, contemporaneously provided for mother to monitor father’s visits with [T.M.], presumably in the family home.” We discern no error.

In January 2021, the court found that Father had been drinking prior to the domestic violence incident in which Father pinned Mother down and pushed T.M. Both Mother and T.M. reported that Father was drunk. T.M. further confirmed that Father drank while caring for T.M., and the court expressly found that Father’s alcohol abuse endangered T.M. Father did not appeal these findings and does not now contend they were erroneous. Additionally, the evidence before the court showed that while Father admitted drinking alcohol, he denied having an alcohol problem. Nonetheless, from January 2021, when ordered to drug test weekly, to the November 2021 hearing at which jurisdiction was terminated, Father missed 20 tests and tested positive for marijuana three times. A missed drug test is “properly considered the equivalent of a positive test result.” (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1217.) In light of Father’s 20 missed tests in less than 11 months, the domestic violence incident fueled by Father’s alcohol abuse, and Father’s refusal to admit he had an alcohol problem, the court reasonably concluded that it was in T.M.’s best interests to grant sole custody to Mother, and to ensure all of Father’s contact with T.M. be monitored, until Father addressed his alcohol problem with a substance abuse program. Contrary to Father’s assertion, we see nothing inconsistent or illogical in precluding Father’s return to the family home while simultaneously requiring Mother to monitor Father’s visits with T.M. in the family home -- both directives reflect the court’s concern that Father should not be alone with T.M. while he suffered from an unaddressed alcohol problem.

The court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

[1] Mother is not a party to this appeal.