In re Estrella R. CA2/2 ( 2022 )

Filed 2/1/22 In re Estrella R. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re ESTRELLA R. et al., Persons B309573
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No. 20CCJP02276A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
ENRIQUE R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Craig S. Barnes, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jane E. Kwon, Principal Deputy
County Counsel, for Plaintiff and Respondent.
_________________________
Enrique R. (father) appeals from the juvenile court’s order
terminating jurisdiction at the combined adjudication/disposition
hearing. He contends that the juvenile court erred in
terminating jurisdiction with a custody order (1) giving the
parents joint legal custody of their four children, Estrella R.
(Estrella, born May 2006), Enrique R. (Enrique, born Sept. 2007),
Isiah R. (Isiah, born May 2010), and Carlos R. (Carlos, born Aug.
2013), and (2) granting Christina R. (mother) sole custody of the
children.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Child Welfare History
Between 2006 and 2009, there were multiple referrals to
the Denver County and Jefferson County Child Protective
Services (CPS) alleging domestic violence; some were deemed
unfounded.
On May 31, 2009, Jefferson County CPS received a referral
alleging that the parents had had an altercation that led to a car
chase where father had the children in his car and he chased
mother in another vehicle. He also exited the car at an
intersection and chased mother on foot. Father was arrested for
child endangerment and domestic violence. He was on probation
at the time for a prior domestic violence charge, and this was his
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third domestic violence charge involving mother. Mother had
moved out of their residence a few weeks prior and she had taken
the steps to leave father. The domestic violence allegations were
deemed founded.
After the family moved to California, there were referrals
to the Los Angeles Department of Children and Family Services
(DCFS); they were deemed either unfounded or inconclusive.
Detention Report (Apr. 28, 2020)
On March 25, 2020, DCFS received a referral alleging
father was physically violent towards mother in the children’s
presence. DCFS received another referral the next day alleging
domestic violence by father against mother in the children’s
presence.
DCFS Interview at Family Home
On April 3, 2020, a Children’s Social Worker (CSW)
interviewed mother and the children at the family home. The
home was clean, tidy, stocked with food, and no safety hazards
were observed.
Mother’s report
Mother reported that she met father at age 14 in Colorado.
They came to California 10 years ago to be closer to father’s
family, but mother also believed father wanted to “‘isolate’” her
from her family in Colorado. Mother obtained a temporary
domestic violence restraining order on March 30, 2020, to protect
her and the children from father, but it was set to expire on
July 8, 2020. She had also filed for a restraining order in May
2019 after a domestic violence incident, but she moved to
Colorado with the children and missed the court hearing. Mother
said that she returned to California in October 2019 because she
received more financial aid here and the children missed their
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father. In California, mother was going to file for divorce and
custody of the children.
Per mother, father began harassing her at work by calling
and showing up unannounced, and he found out where mother
lived from one of the children. Father told mother that he had
cancer so mother worried that the children would blame her for
not allowing contacts with him if he died. Mother also thought
father had changed because he went to therapy and treated her
better. Mother allowed father to move back into the family home
in January 2020 and they rekindled their relationship.
March 25, 2020, Referral
On March 24, 2020, mother said father insulted Estrella by
saying the child was promiscuous like mother; mother and father
argued, and father pushed mother, causing her to fall onto the
floor, in Estrella’s presence. Mother and father then entered a
walk-in closet for privacy, where mother told father to leave and
tried to break up with him, but he grabbed her by the arms and
shook her. Thereafter, he apologized and begged her not to leave
him. Mother said that she waited until the next day to call the
police because she did not want to scare the children. According
to mother, father previously manipulated the children by telling
them “‘look at what your mother is doing to me’” when she called
the police, and he also threatened to kill himself in April 2019, in
front of the children. So, mother made a police report on
March 25, 2020, and met police officers at a nearby Target store.
The corresponding police report corroborated mother’s statements
and further indicated that the children were present during the
incident, mother was crying, mother stated that there had been
20 unreported and four reported prior incidents of domestic
violence, and mother had tried to leave father in the past.
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March 26, 2020, Referral
Another incident of domestic violence occurred the
following day. On March 26, 2020, mother tried to go to the
laundromat with Estrella, but father blocked her, pushed the
door closed, pushed her and caused her to fall face first into the
front door. Mother threatened to call the police so father sat on
the couch with Estrella and put his arm over the child to block
her from leaving. Police arrived, father was arrested for domestic
battery, and mother was issued an emergency protective order.
The corresponding police report corroborated mother’s statements
and further indicated the children were present during the
incident, father had an outstanding Colorado warrant for a
probation violation from prior domestic violence with mother,
mother feared for her safety, she was crying, and she had tried to
leave father before. Father was arrested for intimate partner
violence without injury and mother was given an emergency
protective order for her and the children.
March 30, 2020, Police Return to the Family
Home
On March 30, 2020, police again responded to the family
home because father showed up at the mother’s home after being
released from jail. Mother said she gave him his belongings and
then quickly shut the door, but father continued banging on
mother’s front door. She called police and he was arrested for
violating the protective order. Mother reported father was again
released from jail on April 2, 2020.
Mother informed the CSW that there had been over 100
incidents of physical violence between father and mother during
their 16-year relationship. A lot of the violence happened in
Colorado, where father was arrested multiple times for domestic
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violence and child endangerment. Mother had also called police
multiple times in 2019 while in California. Mother said Estrella
and Enrique witnessed the most physical violence because father
used to “‘beat [her] up’” in front of them when they were two and
three years old. The children also witnessed a lot of their
arguments where father called her names.
Mother further reported that father was associated with a
gang in Pacoima. She also said that father was hospitalized
twice in Colorado for suicidal ideation, he had a history of
marijuana use, used cocaine in October 2019, and he threatened
to overdose on heroine in November 2019. Father also reportedly
groped her breasts and buttocks in front of the children, told her
she was “‘his,’” and he tried to have sex with her when she did
not want to. Mother said she witnessed father punch Enrique
very hard on his lower back “‘a few times,’” which mother did not
like, but she never saw a mark or bruise. She last saw this in
early 2019.
Enrique’s report
Enrique told the CSW that his parents “‘fight sometimes’”
and called each other mean names. They usually argued, mother
threatened to leave father, then father begged mother for
forgiveness. He denied physical violence, but he “‘want[ed] the
fighting to stop’” and for mother and father to “‘get along.’” He
denied anyone hit him, but mother sometimes slapped him in the
face when he was disrespectful. Enrique wanted to be able to see
both of his parents; he worried where father was staying. He
denied that father punched him in the back for discipline, but
stated that they often play-fought. He said he was usually
happy, but happier when father was home because they played
games and had fun together.
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Isiah’s report
Isiah told the CSW that he saw mother and father argue all
day long, about three times per week, and they called each other
“‘mean names.’” He saw mother hit father’s hands but he never
saw father hit mother. He did see father “‘accidentally’” slap
mother and father also “‘accidentally’” pushed her into the front
door when she tried to go do laundry. Isiah said the fights often
happened where he was trying to sleep (either on the couch or
bed in the living room). The child worried the fights would
“‘escalate’” and he believed it was bad for him and his siblings to
see the fighting because it might impact how they perceived
“‘right and wrong,’” especially for Carlos who was the youngest.
Isiah denied anyone hit him and he felt safe in mother’s home,
but mother slapped him in the face when he did not listen.
Estrella’s report
Estrella told the CSW she saw father pull mother’s hair.
She also saw father push mother when she tried to go do laundry.
Estrella said Enrique and Isiah probably denied seeing the
parents fight because the boys were allied with father who often
tried to get them to join him in his fights against mother. Father
also reportedly said bad things about mother to all the children.
Estrella said she “‘used to be on that side’” when she was younger
but now she saw that father was wrong. Estrella reported
witnessing a lot of physical and verbal violence between father
and mother. She saw father punch and push mother several
times. She denied anyone hit her and she felt safe in mother’s
home, but mother smacked her in the face when she was
disrespectful. Estrella said mother never left marks or bruises on
her or her siblings. Estrella saw father punch Enrique in his
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lower back last week when mother told father to discipline the
child, but mother did not approve of father’s actions.
Carlos’s report
Carlos told the CSW he heard father and mother argue,
mother yelled at father after he pulled her hair, and he saw
father push mother last week. The child also remembered seeing
mother and father fight when they lived at their old house about
one and a half years ago. Carlos said he got spanked with a
“‘Japanese’” belt.
Prior CSW Report
A prior investigating social worker reported that the
parents were living together at that time, but were in the process
of separating. While there was no evidence of neglect, the social
worker was concerned about ongoing domestic violence between
father and mother, among other things.
April 6, 2020, Incident
On April 6, 2020, mother reported father was repeatedly
calling her on her cell phone, so she filed a police report for
violation of the restraining order.
Mother was afraid father would come back to the home if
she left the children alone and she was afraid he would follow her
if she left the home, even to drug test.
Interview with Maternal Aunt
A maternal aunt in Colorado told the CSW that mother and
father had had domestic violence issues throughout their
relationship. She witnessed father “‘beat [mother] black and
blue’” in July 2009, and mother told her that there had been
several instances where father hit her since then. The aunt
believed that all of the children witnessed father’s violence. The
aunt informed the CSW that mother wanted to go back to
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Colorado to get away from father, and the aunt believed that
mother would succeed this time because she had been more
“‘consistent’” about asking for help. The aunt also believed that
mother had allowed father to move back in because he “‘played
the cancer card’” and said he was going to die. The aunt also saw
father use cocaine years ago and said he was a heavy drinker.
She believed that father had a “‘psychological issue’” because he
stalked mother and appeared to be obsessed with her. The aunt
also worried that father manipulated the children against mother
because he often told them intimate details about their
relationship in order to get them to side with him. She had no
safety concerns for the children and believed that mother was
capable of caring for them.
Interview with the Maternal Grandmother
The maternal grandmother told the CSW that she spoke
with mother regularly on the phone and was aware of the
longstanding domestic violence in the relationship. The
grandmother did not agree with mother moving back to
California in 2019 and mother told her that she allowed father to
move back in because mother thought father was going to die
from cancer. The grandmother believed that mother wanted a
two-parent household; thus, mother struggled to accept the
relationship was over. According to the grandmother, mother
recently called to let her know about the continued violence by
father; mother planned to move to a hotel and then return to
Colorado. The grandmother believed that mother would
successfully leave father this time because mother recognized
how father kept her from finishing school and getting a job in law
enforcement. The grandmother also believed that father might
have bipolar disorder “‘or something’” because of his quick
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shifting moods. In 2019, the maternal grandmother heard father
call Estrella a “‘whore’” during a monitored phone call, and he
told the child that she had “‘turned against [him].’” The
grandmother said the children needed counseling due to the
violence they witnessed and father’s “‘brainwashing.’”
Mother Returned to Colorado
As of April 14, 2020, mother had moved to Colorado with
the children. She told the CSW that she was doing things
differently this time because she pursued the restraining order
and called police each time father violated it. Mother said she
moved to Colorado to get away from father and to be close to her
family, not to flee from DCFS. She did not plan to return to
California or continue a relationship with father.
Interview with Father
Father called the CSW and said he was homeless and had
no phone or mailing address, but he provided an e-mail address.
Father acknowledged that there was a restraining order and that
he had been arrested for violating it. Regarding the March 24,
2020, incident, father said that he asked Estrella if she wanted to
“‘be a little slut?’” in front of the other children and then he and
mother argued. He denied pushing mother or calling her a
“‘whore.’”
On March 26, 2020, he did not want mother to take
Estrella to the laundromat due to COVID-19, and as he moved
from the bedroom to the living room, he “‘accidentally’” pushed
mother because he was a “‘heavy dude’” and it was a small space.
On March 30, 2020, he went to the mother’s home to get his
belongings, which he thought was within the parameters of the
emergency protective order. He denied any contact with mother
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and the children since March 30. He also denied pulling mother’s
hair, claiming she made it up.
Father said that mother returned to Los Angeles in October
2019 to be with her boyfriend, Walter, and to go back to school.
Per father, mother continued to contact him and he saw her
driving under the influence of alcohol, without the children.
Father said that mother had asked him to move back in in
November 2019, but mother vacillated between him and Walter.
Father moved in permanently in January 2020, but mother was
not happy and wanted to move back to Colorado in February
2020. By March 2020, mother asked father to move out, but
allowed him to stay until the COVID-19 crises resolved.
Father said mother had a habit of getting a restraining
order when she wanted to take the children from father. He
believed that mother was falsifying information so she could have
a reason to make father move out and return to Colorado.
Father confirmed a history of domestic violence with
mother. He said the 2008 and 2009 incidents occurred in
Colorado because of mother’s infidelity. He admitted that he
pushed mother, punched her all over her body with his fists when
he “‘went crazy,’” and he chased her in his car. Father said
mother pushed his head with her hands and called him a “loser’”
and “‘a piece of shit’” in front of the children. He denied punching
Enrique and worried about the child because he appeared
depressed, but mother minimized his concerns and said the child
would be fine. Father admitted trying to kill himself in 2002 by
hanging himself. He also admitted using multiple illicit
substances in the past, but denied using cocaine or threatening to
overdose on heroine. Father confirmed being diagnosed with
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lung cancer in Fall 2019, but his treatments reportedly stopped
because of COVID-19.
On April 17, 2020, DCFS obtained a court order to detain
the children from father. Father was concerned that he was the
only one being held accountable for the domestic violence. He
alleged that mother left the children alone with the maternal
grandmother, who abused alcohol and withheld meals for
punishment. Father also alleged that mother did not monitor
Estrella’s phone use. He wanted to continue a relationship with
the children, but not with mother.
Father’s criminal history in California indicated arrests for
Spousal Battery (3/26/20) and Contempt Violation of a Protective
Order (3/30/20). In Colorado, father was arrested for Assault
Third Degree Domestic Violence (8/2/08); Harassment Domestic
Violence, Child Abuse, and Reckless Driving (5/29/09), and False
Imprisonment Domestic Violence, Assault Third Degree Domestic
Violence, and Menacing (7/19/09).
Additional Information
DCFS noted that mother demonstrated a willingness to
separate from father by filing for a restraining order and
consistently calling the police, the children appeared to have
insight into the family’s problems and used each other as
support, and mother had support from maternal relatives.
Mother was adamant that she did not plan to rekindle her
relationship with father. While mother demonstrated protective
capacity, DCFS noted mother’s history of reneging on her plans
to separate from father, which indicated an ongoing risk to the
children. DCFS recommended that the children be detained from
father and remain in mother’s custody.
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Welfare & Institutions Code Section 3001 Petition and Detention
(Apr. 23 & 28, 2020)
On April 23, 2020, DCFS filed a section 300 petition on
behalf of the children, alleging that father and mother engaged in
violent altercations in the children’s presence and mother’s
failure to protect the children placed the children at risk of harm.
At the April 28, 2020, detention hearing, the juvenile court
found a prima facie case that Estrella, Enrique, Isiah, and Carlos
were children described by section 300 and detained them from
father and released them to mother’s custody. Father was given
monitored visits with Enrique, Isiah, and Carlos, but he was
ordered to have no contact with Estrella.
Last Minute Information for the Court (July 2020)
On July 9, 2020, the juvenile court was informed that
mother had obtained a three-year criminal protective order
restraining father from contact with mother and the children.
On or about July 21, 2020, the Colorado court declined to
assert home state jurisdiction and consented to California
exercising jurisdiction over the children.
Jurisdiction and Disposition (Oct. 2020)
In October 2020, DCFS reported that the children
remained under mother’s care, mother had returned to California
in August 2020, mother found employment, the children attended
school virtually, and there were no concerns. Mother was
awaiting Medi-Cal reinstatement in order to obtain services for
herself and the children. Father still had no stable housing, had
not enrolled in services, and had not visited the children in
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
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person, but had had FaceTime visits with them. Father said he
was aware of the criminal protective order and would not contact
mother or Estrella.
Parties were reinterviewed telephonically in October 2020
about the petition allegations.
Interview with Estrella
Estrella confirmed father pulled mother’s hair, pushed
mother, and always tried to control mother. Estrella said there
were other times when she saw father punch and push mother.
The parents argued all the time. Estrella also said father tried to
manipulate the children, made them feel guilty to take his side,
brainwashed Enrique and Isiah, and he talked “bad” about
mother. According to Estrella, it was a lot calmer now that
father was not around.
Interview with Enrique
Enrique denied seeing any physical violence between father
and mother, but confirmed they argued, called each other names,
and constantly disrespected each other. He just wanted the
fighting to stop.
Interview with Isiah
Isiah reiterated the same statements he made to the CSW
in prior interviews. He also said that the parents argued so
much he could not sleep, and he used to worry that the police
would come and take father away.
Interview with Carlos
Carlos said father and mother argued, mother yelled at
father and “‘that’s when he pulled her hair’” and pushed her.
Carlos said there were other times father pushed mother and
they argued so often that he could not remember how many
times. Carlos stated, “‘They get loud sometimes, it’s scary.’”
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Interview with Mother
Mother said she experienced father’s emotional and
physical abuse for most of their relationship and she was “‘tired’”
and had had enough. She did not expect father to change, but
she had to change for her children because her kids had seen
enough and she had to put their needs first. Mother confirmed
that father pushed her to the floor, pulled her hair, grabbed her
head, punched her, pushed her out the door, and called her
several derogatory names, all in the children’s presence. Mother
said that father was emotionally abusive, very jealous, insecure,
and he always blamed her when he was the one who always
snapped and then would ask for forgiveness. Mother did not
know why she stayed for so long and said, “‘I guess I was scared
to be alone.’” Mother again said father had gang ties and that
she had been intimidated by statements that they could hurt her
if she left father. According to mother, father was very
controlling and had isolated her from her family. She came back
to California in August 2020 because she could not find housing
in Colorado, but soon realized it was no different in California.
She had a full-time job in Colorado and she wanted to return
there to be near her family and have their support. Mother had
no plans to reconcile with father and planned on filing for divorce,
but she wanted the children to maintain a relationship with him,
within court rules.
Interview with Father
Father said, “‘None of those incidents ever happened’” and
he denied putting his hands on mother. Father said he grabbed
mother by the arms but left no bruising. He admitted pushing
mother while going through the door. Because he was a big guy,
he stated “‘so maybe [I] hurt her.’” Father said he last used drugs
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10 years ago and was never diagnosed with a mental illness
despite his suicide attempt in 2002. Father denied that there
were multiple prior incidents of domestic violence during his and
mother’s 16-year relationship, said mother exaggerated, and he
only acknowledged the incidents that were reported to the police.
Father said the prior domestic violence was usually related to
mother’s infidelity. Father also said mother’s family caused
problems between them. Father denied gang affiliation but said
his cousins were gang members.
Father reported that he was not criminally charged for the
referral incident and he had no pending criminal proceedings.
Father lived with different friends and was trying to stabilize his
housing. He believed mother was setting him up so she could
move on with another man, but father said his goal was to get
help to work out his relationship with mother and be a family
again.
Interview with the Maternal Aunt
The maternal aunt said she talked to mother almost every
day. The aunt last saw a domestic violence incident in July 2019
when father “‘left [mother] pretty marked up.’” Since then,
mother had told her about several other incidents where father
“‘put hands on her.’” The aunt was almost certain the children
witnessed the fights and father guilted the children and made
them choose sides. According to the aunt, father was obsessed
with mother and mother needed to return to Colorado where she
had more support. The aunt said mother was “‘serious this time
about leaving [father]’” because she got a restraining order and
seemed more focused about moving on and providing a stable
home for the children.
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DCFS Recommendation
DCFS noted a pattern of domestic violence that started in
2008, and DCFS remained concerned that mother had a history
of reneging on her plans to separate from father, but DCFS
recommended the children remain in mother’s care.
Last Minute Information for the Court (Nov. 16, 2020)
DCFS confirmed that mother and the children had moved
back to Colorado on November 2, 2020. A CSW traveled to
Colorado to verify the mother’s residence and check on the
children’s welfare.
Mother’s Statements
Mother reported the transition to Colorado was smooth, she
was gainfully employed, and Estrella watched the children while
mother was at work. Mother said this move was going to be
permanent and she had no intention of returning to Los Angeles.
According to mother, father had not communicated with
the children and she communicated with him via text messages.
He accused her of moving to Colorado to be with another man,
accused her of drinking alcohol, and claimed that she left the
children with other men. Mother said that she asked father to
stop texting her and denied his allegations. The CSW told
mother to stop responding to his texts and to contact law
enforcement because father was violating the restraining order.
The CSW observed that mother appeared to lack knowledge and
awareness about domestic violence, including the different types
of abuse, power and control issues, and the cycle of abuse. After
discussing these issues with the CSW, mother said she was
coming to terms with the fact that father was not willing to
change. Mother again stated she had no intention of being in a
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relationship with father, but she struggled with the guilt of
having the children grow up without a father.
Mother understood father’s behaviors negatively impacted
the children so she wanted to coparent with him in a healthy
manner. She planned to keep herself and the children away from
father until he decided to address his issues. Her maternal
family would create a strong support system for the children with
good influences. Mother planned to resume therapy for the
children with the same Colorado agency the children utilized in
the past, and she would also resume individual counseling and
domestic violence support groups for herself.
The Children’s Statements
All four children indicated that the move and transition to
Colorado was “good” and/or “‘okay.’” The children had not seen
father since they moved, and Enrique said that he missed him.
The children felt safe with mother.
CSW’s Report
The CSW did not see father or any of his belongings in the
home and mother’s lease agreement did not include father. The
CSW verified that the children were enrolled in school. She
advised mother to get the children into therapy as soon as
possible.
Interview with the Maternal Aunt
The maternal aunt reported that she and the maternal
family were very supportive of mother and the children in
Colorado. The aunt said that she would call the police herself if
she found out that father violated the restraining order. The
aunt did not believe father would travel to Colorado because he
had active Colorado warrants with probable jail time.
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Additional Information and DCFS Recommendations
DCFS had not known that in August 2020, while mother
and children were in California, mother had allowed father to
move in with them. Mother later admitted violating the
restraining order and said the children had really wanted to see
father. Mother said there were no domestic violence incidents
while father was in the home. DCFS was concerned about
mother’s continued lack of insight regarding the cycle of violence.
DCFS contacted Colorado’s Jefferson County CPS and requested
supervision while the family remained in Colorado. Jefferson
County CPS declined the referral because they believed there
was no immediate child safety concerns and/or recent incidents. 2
Ultimately, DCFS recommended sustaining the petition as
pled and terminating juvenile court jurisdiction because mother
and the children no longer resided in California. DCFS also
recommended joint legal custody of the children to both parents,
sole physical custody to mother, and monitored visits for father.
Jurisdiction and Disposition Hearing (Nov. 18, 2020)
After DCFS reports were admitted into evidence, DCFS’s
and the children’s counsel argued to sustain the petition in its
entirety.
Mother’s counsel argued to remove mother as a failure to
protect. Counsel indicated that mother was a victim in a volatile
and dangerous situation for herself and the children, but she had
obtained a criminal protective order, was cooperative, changed
her phone number, and moved back to Colorado where she had a
significant support system. Counsel added that mother had
2 DCFS had unsuccessfully attempted to transfer the case to
Jefferson County CPS in July 2000.
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finally obtained the tools and strength to stabilize herself and the
family in a different state. Counsel also noted that DCFS
allowed mother to move to Colorado, visited the family there, and
recommended terminating jurisdiction, all of which indicated
that DCFS was not worried about the children in mother’s care or
her protective capacities.
Father’s counsel argued to dismiss the petition in full
because father had been forthcoming throughout the case, which
counsel did not believe was consistent with a domestic violence
abuser. Counsel stated, “At worst, in terms of father, he’s in a
situation of mutual combat with the mother, who doesn’t keep
going back because he’s an abuser; she keeps coming back
because they’re equally situated.” Alternatively, counsel
requested the petition be amended to reflect mutual physical
altercations.
After reviewing the evidence and hearing argument, the
juvenile court sustained the domestic violence counts under
section 300, subdivisions (a) and (b), but amended mother’s
failure to protect language by interlineation to indicate mother’s
“‘inability’” to protect the children. In so ruling, the juvenile
court stated: “In terms of mother’s failure to protect, I think it’s
more inability to protect. She has come back into these
situations, and she’s made clear that the children are in the zone
of danger, that they’re percipient witnesses.
“And given the extent of the violence that’s been described,
I can’t say that they’re not at risk of serious physical harm, and
this gets acted out. And in addition to that, the ongoing risk for
father to come back into the home raises questions about the
effectiveness of any order of the court if it’s not going to be
complied with by both of the parents. [¶] . . . What I see is
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mother is largely the victim here, and has in many respects acted
as one who has had a long history of being abused. [¶] . . . She
waxes and wanes between protective and not, and it’s early on in
the process for her.”
The juvenile court immediately proceeded to disposition
and father’s counsel stated, “I do think my client would certainly
prefer the case stay open, especially given all of the visitation
issues that have been occurring, as the minors have been in
Colorado this entire time, and he’s not been able to see his
children or have contact with them.”
The children’s counsel joined DCFS and argued to
terminate jurisdiction because the children were living in
Colorado, enrolled in school there, and the move appeared
permanent.
After reviewing the evidence and considering argument,
the juvenile court declared the children dependents of the court,
and then terminated jurisdiction pending receipt of the Juvenile
Custody Order (JCO), which granted the parents joint legal
custody and mother sole physical custody of the children. The
juvenile court confirmed with counsel that the parents were going
to attend mediation to work out father’s visitation and case plan.
If the parties could not resolve those issues, they were ordered to
return in December.
Juvenile Custody Order Hearing (Dec. 8, 2020)
Mediation was unsuccessful, so the parties returned to
court on December 8, 2020. Regarding father’s case plan, father’s
counsel requested individual counseling for case issues, including
domestic violence, a parenting class, and unmonitored visits with
overnights. Counsel also requested that mother give father
notice of any change in her residence and that father be allowed
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six-hour weekly in-person visits and three weekly telephonic
visits for one hour with all of the children present, except Estrella
until the criminal protective order was modified.
Mother’s counsel indicated that mother was opposed to any
unmonitored contacts until father engaged in a court-ordered
case plan. Counsel argued that father’s interactions with the
children were not in their best interests until father came to
terms with what domestic violence meant, how to steer away
from it, and how to get out of that pattern. Counsel also
disagreed with mother having to provide father notice of her
residence changes.
After hearing argument, the juvenile court clarified that
the mediation was for the parents to work out visitation because
the court previously decided on joint legal custody for both
parents and sole physical custody to mother. It stated that the
JCO would also include father’s case plan that he participate in
individual counseling, parenting, a 26-week domestic violence
program, and upon completion of his case plan, father could go
into court to seek a modification of the custody order. It added:
“The order’s going to be that he have monitored visits . . . [¶]
. . . six-hour minimum per week for in-person . . . . If not, father
to have monitored phone contact with the three children. Father
to continue to comply with the [criminal protective order] with
respect to Estrella.”
Lastly, father’s counsel asked if father could visit Estrella if
the criminal protective order was modified. The juvenile court
replied that once the juvenile court terminated jurisdiction, the
criminal protective order would still remain in place and the
criminal court would address any modifications to the order,
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including visitation, so father would be able to seek a
modification in the criminal court directly.
The same day, the juvenile court signed the finalized JCO,
which indicated the parents shared joint legal custody of the
children, mother had sole physical custody, and father had
monitored visits with the children because he had not made
substantial progress in a domestic violence treatment program
for offenders, parenting classes, or individual counseling to
address case issues.
Notice of Appeal
Father’s timely appeal ensued.
DISCUSSION
I. Order Terminating Jurisdiction
Father does not challenge the juvenile court’s jurisdictional
findings. Instead, he assails the juvenile court’s order
terminating dependency jurisdiction. According to father, the
children were at a current and ongoing risk of harm,
demonstrating that continued supervision was necessary.
A. Relevant law
We review the order terminating jurisdiction either for an
abuse of discretion (In re Holly H. (2002) 104 Cal.App.4th 1324,
1327 [abuse of discretion]) or for substantial evidence (In re
Aurora P. (2015) 241 Cal.App.4th 1142, 1156 (Aurora P.)).
Where, as here, the juvenile court has not removed a child
from the parent having physical custody over the child (who in
this case was mother), section 364 provides that the court “shall
terminate its jurisdiction” unless DCFS or a parent “establishes
. . . that the conditions still exist which would justify initial
assumption of [dependency] jurisdiction” or are “likely to exist if
[juvenile court] supervision is withdrawn.” (§ 364, subds. (a) &
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(c); In re T.S. (2020) 52 Cal.App.5th 503, 512–513; In re J.F.
(2014) 228 Cal.App.4th 202, 209 [any “conditions” that “would”
justify jurisdiction suffice].) By specifying that the court “shall”
terminate jurisdiction “‘unless’” “‘conditions still exist,’” section
364 erects a “‘statutory presumption’” in favor of termination.
(Aurora P., supra, 241 Cal.App.4th at p. 1155.)
B. Analysis
Applying these legal principles, we conclude that the
juvenile court did not err in terminating jurisdiction with a
juvenile court custody order. Court supervision was no longer
necessary. Mother had obtained a three-year criminal protective
order; mother had moved to Colorado with no intention of
returning to California; mother had no desire to resume her
relationship with father; maternal relatives in Colorado were
involved and would call the police if father violated the protective
order; and father had active warrants in Colorado that would
deter his travel to that state. Even the local agency, Jefferson
County CPS, determined that there were no immediate child
safety concerns or any recent domestic violence incidents that
necessitated CPS intervention. The evidence also indicated that
father had abided by the protective order and stayed away from
mother and the children. And, the JCO contained protective
provisions, such as monitored visitation for father, a court-
ordered case plan including a 26-week domestic violence class for
offenders, parenting classes, and individual counseling to address
case issues. (In re Destiny D. (2017) 15 Cal.App.5th 197, 208
[juvenile court has authority to impose limitations on an
offending parent’s contact with a dependent child before
terminating jurisdiction]; In re Chantal S. (1996) 13 Cal.4th 196,
204 [“[t]he juvenile court’s determination, that continuation of
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dependency jurisdiction was at that time unnecessary for
[minor’s] protection, was in turn [properly] premised on the
existence of the court’s custody and visitation order”].)
Under these circumstances, the juvenile court’s order
terminating jurisdiction was proper.
II. Order for Monitored Visitation
Father argues that the juvenile court erred when it
restricted father to monitored visitation in the custody order.
A. Standard of review
The juvenile court is afforded wide discretion in
determining the appropriate terms and conditions of visitation
between dependent children and their parents. (In re Megan B.
(1991) 235 Cal.App.3d 942, 953.) Therefore, we review the
juvenile court’s visitation order for abuse of discretion. (In re
Julie M. (1999) 69 Cal.App.4th 41, 48–51.) We will not reverse
the visitation order “‘“unless the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations].”’” (In re Stephanie M.
(1994) 7 Cal.4th 295, 318.) “‘“When two or more inferences can
reasonably be deduced from the facts, the reviewing court has no
authority to substitute its decision for that of the trial court.”’”
(Id. at p. 319.)
B. Applicable law
Section 362.4, subdivision (a), provides, in relevant part:
“If the juvenile court terminates its jurisdiction over a minor
. . . and . . . an order has been entered with regard to the custody
of that minor, the juvenile court on its own motion, may issue
. . . an order determining . . . visitation with . . . the child.”
(§ 362.4, subd. (a).)
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“Visitation is a necessary and integral component of any
reunification plan. [Citations.]” (In re S.H. (2003) 111
Cal.App.4th 310, 317.) It is well-settled that visitation rights
arise from the very “fact of parenthood” and the constitutionally
protected right “‘to marry, establish a home and bring up
children.’” (In re Jennifer G. (1990) 221 Cal.App.3d 752, 756–
757.) However, a parent’s liberty interest in the care, custody
and companionship of children cannot be maintained at the
expense of the children’s well-being. (§ 362.1, subd. (a)(1)(B); In
re Joseph B. (1996) 42 Cal.App.4th 890, 900; In re T.M. (2016) 4
Cal.App.5th 1214, 1220.)
While visitation is a key element of reunification, the
juvenile court must focus on the best interests of the children
“and on the elimination of conditions which led to the juvenile
court’s finding that the child has suffered, or is at risk of
suffering, the harm specified in section 300.” (In re Moriah T.
(1994) 23 Cal.App.4th 1367, 1376.) This includes harm suffered,
or risk of harm, as a result of domestic violence between parents.
(See, e.g., In re Heather A. (1996) 52 Cal.App.4th 183, 194–195.)
C. Analysis
Applying these legal principles, we conclude that the
juvenile court acted well within its discretion in ordering that
father’s visits with the children remain monitored. The children
had witnessed the long-standing domestic violence between
father and mother, which, at times, required law enforcement
interventions; mother and Estrella witnessed father punch
Enrique in his lower back, a few times; and mother, Estrella, and
the maternal relatives reported that father manipulated the
children, talked badly about mother to them, told them intimate
details about mother and father’s relationship, and guilted the
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children into siding with him in his fights against mother. The
maternal grandmother said that the children needed therapy due
to the violence they had witnessed and father’s “‘brainwashing.’”
Moreover, father continued to minimize and deny engaging in
domestic violence against mother and as of November 16, 2020,
mother said that father continued to make false accusations
against her.
In light of the underlying case issues that brought the
children under the juvenile court’s jurisdiction, coupled with
father’s continued lack of insight and accountability, the juvenile
court’s order for monitored visits was proper.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
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