In re Donovan O. CA2/3 ( 2021 )

Filed 9/22/21 In re Donovan O. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re DONOVAN O., et al., Persons B311106
Coming Under the Juvenile Court Law.
_____________________________________
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. 19CCJP06979AB)
FAMILY SERVICES,
Plaintiff and Respondent,
v.
O.O.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Rashida A. Adams, Tamara Hall, Judges.
Affirmed.
John L. Dodd & Associates and John L. Dodd, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Navid Nakhjavani, Principal
Deputy County Counsel, for Plaintiff and Respondent.
_________________________
O.O. (father) appeals from a juvenile court exit order that
granted sole legal and physical custody of his two children to
their mother, Gloria K.-O. (mother). We find no abuse of
discretion, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
Father and mother were married in 2018 and are the
parents of twin boys, Donovan O. and Dominic O., who were born
in August 2019. The family came to the attention of the
Los Angeles County Department of Children and Family Services
(DCFS) in October 2019 when mother reported to law
enforcement that father had knocked her to the ground and
kicked her during an argument. A children’s social worker
(CSW) interviewed mother, who said that on October 1, after she
accused father of seeing another woman, father pushed her to the
floor and kicked her in the ribs, causing her to bleed vaginally. A
week later, mother and father argued about how to make the
babies’ formula, and father grabbed mother’s wrist and twisted it
while he was holding one of the babies. Mother also described an
incident in 2018, before the children were born, in which father
had thrown mother into the street and hit and punched her.
Father denied ever physically assaulting mother, but said
mother sometimes kicked him. He also accused her of using
cocaine daily. Mother appeared shocked by the accusation of
cocaine use and believed father’s accusations were retaliatory.
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On October 25, 2019, DCFS removed the children from
father.
On October 28, 2019, mother applied for a temporary
restraining order against father. In her application, mother said
that on October 13, father had come to the family’s apartment;
when he could not find the paperwork he was looking for, he
verbally assaulted mother, threatened to kill her, and then
bathed the babies in a very aggressive manner, saying that he
was not going to tolerate mother’s behavior any longer. Mother
begged him to put the children down and take a few minutes to
calm down, but he instead pushed mother out of the way and
continued roughly handling one of the babies. When mother
attempted to pick up the other child, father chased her out of the
house and threatened to damage her car. He subsequently
kicked her car, leaving a large dent in it.
On October 28, 2019, the superior court issued a temporary
restraining order protecting mother, the children, and the
maternal grandmother from father.
B. Petition; Jurisdiction and Disposition
On October 29, 2019, DCFS filed a petition alleging that
mother and father had a history of engaging in violent
altercations in the children’s presence, as follows: On October 1,
2019, father pushed mother and kicked her stomach; on October
9, 2019, father grabbed and twisted mother’s wrist while holding
one of the children in his arms; in November 2018, father threw
mother to the ground and struck her. Father’s violent conduct,
and mother’s failure to protect the children by allowing father to
live in the home, was alleged to give rise to juvenile court
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jurisdiction pursuant to Welfare and Institutions Code1 section
300, subdivisions (a) and (b) (counts a-1 and b-1).
On October 30, 2019, the juvenile court ordered the
children detained from father and released to mother. On
January 14, 2020, the court struck the language in the petition
alleging mother’s failure to protect, and otherwise sustained
counts a-1 and b-1 of the petition. The court ordered the children
to remain placed with mother until father obtained DCFS-
approved housing; thereafter, the parents would share physical
custody under DCFS supervision. The court further ordered
father to attend a 26-week domestic violence program, a
parenting class, and individual counseling to address case issues,
including conflict resolution, and it ordered mother to drug test
on reasonable suspicion of drug use, and to attend an anger
management class and individual counseling.
On March 25, 2020, DCFS reported that the children
continued to reside with mother, and father visited with the
children once per week at the DCFS office. Mother and father
reported they were in conjoint counseling and hoped to reconcile.
Father had completed parenting classes, had enrolled in a
domestic violence program, and was on a waiting list for
individual counseling. Mother had completed parenting classes,
was enrolled in weekly individual counseling, and was
participating in domestic violence/anger management classes.
C. Supplemental Petition
In a July 2020 status review report, DCFS reported that
the children continued to reside with mother, and father
1 All subsequent statutory references are to the Welfare and
Institutions Code.
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continued to have regular visits with the children. Mother was
continuing to participate in anger management classes and
individual counseling. Father had almost completed a 26-week
domestic violence program, but had attended only a few sessions
of individual counseling. Mother and father had been
participating in couples counseling and hoped to reunify and live
together with the children.
On June 26, 2020, the CSW visited mother and the children
at home. Mother appeared to be very anxious and the CSW
observed a bruise on her left arm. When the CSW asked what
had happened, mother began to cry and said father had hit her.
She went on to say that during the first week of June, father had
punched her with a closed fist on the back of the shoulder after
she asked him about his individual counseling. Mother could not
move or lift her arm for a week and was diagnosed with a
sprained rotator cuff. Then, on June 15, mother met with father
outside the family’s apartment to give him some of his clothing.
Father got angry with mother, took a belt from the trunk of his
car, and struck her ankle with it. Finally, on June 21, father
came to pick up the children, and mother asked where he was
taking them. Father was angered by the question and punched
mother on her arm, causing bruising. He then left without the
children. Mother said she had genuinely believed that father was
making positive changes as a result of the therapy and parenting
classes, but she now saw that father had not changed. The CSW
photographed the bruises on mother’s arm and ankle, and
subsequently obtained mother’s medical records, which showed
mother had gone to urgent care on June 9 and had been
diagnosed with a labral (shoulder) tear.
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The CSW met with father and told him that his future
visits with the children would be monitored. Father became very
emotional and said mother was lying and was the abusive
partner. He denied hitting mother, and he accused her of
regularly using crack cocaine.
On June 29, mother obtained a five-day emergency
restraining order against father. She said father had been calling
her repeatedly during the night from private numbers, but she
had not answered any of father’s calls or texts.
On July 13, 2020, DCFS removed the children from father’s
care, and on July 15, 2020, it filed a supplemental petition
alleging additional acts of domestic violence between mother and
father. On July 20, 2020, the juvenile court ordered the children
detained from father and placed with mother under DCFS
supervision.
On July 23, 2020, the juvenile court reissued a temporary
restraining order protecting mother, maternal grandmother, and
the children.
D. Subsequent Jurisdiction and Disposition Hearing
In September 2020, DCFS reported that mother had
completed parenting and anger management programs and was
continuing to participate in individual therapy. She did not
display any behaviors indicative of drug use and had tested
negative for drugs. The family preservation worker who met
with mother weekly reported that mother was engaged and
consistent, attentive to the twins, and asked questions indicating
her understanding of the learned content. Father had completed
a parenting program and most of his domestic violence classes,
but had attended only a few individual therapy sessions.
According to the CSW, he “displays typical [domestic violence]
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perpetrator behaviors such as raising his voice at CSW and
mother, control over mother, gets angry quickly, and ordered
mother to do certain things.”
At a September 15, 2020 adjudication hearing, the juvenile
court struck the allegation that mother failed to protect the
children, and otherwise sustained the amended petition. The
court specifically found that father’s claims against mother were
not credible and appeared designed to detract from his own
conduct. It further found that mother’s description of three
physical incidents in June 2020 were consistent with mother’s
medical records. Finally, the court found, “It does not take any
speculation to conclude that if left without any intervention, this
is the kind of conduct which inevitably will take place in the
presence of the children, as the parents have been needing to
exchange the children regularly for the shared custody, which
was the prior disposition order. The father has demonstrated no
insight as to his behavior, denies it. This is the type of conduct
which places the children at substantial risk of harm.”
As to disposition, the court ordered the children removed
from father and placed with mother. The court further ordered
father to participate in a 52-week domestic violence program, and
ordered mother to participate in a domestic violence victims
support group. Father was granted monitored visits with the
children.
E. Termination of Dependency Jurisdiction
In March 2021, DCFS reported that mother had made
significant progress, had completed all court-ordered programs,
and was continuing individual counseling, stating that she was
finding it helpful in all areas of her life. There continued to be no
suspicion that mother was using drugs or alcohol. Father had
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completed 35 sessions of a domestic violence program, but had
attended only one session of therapy and had stopped responding
to the therapist’s attempts to speak to him. Mother reported that
unless father successfully completed all of his programs and was
able to demonstrate that he had internalized the knowledge, she
would not consider being in a relationship with him. DCFS
therefore recommended that services be terminated with a family
law order giving mother sole legal and physical custody of the
children.
On March 10, 2021, DCFS, minor’s counsel, and mother’s
counsel requested that the court terminate the dependency
proceedings with an order giving mother sole legal and physical
custody. Father’s counsel urged that the court should order joint
legal custody and grant father unmonitored visits with the
children.
After hearing argument, the court ordered dependency
jurisdiction terminated and granted mother sole legal and
physical custody. It explained that its ruling was based on the
continued incidents of domestic violence between mother and
father, and father’s failure to fully comply with the requirements
of his case plan by engaging in individual counseling. The court
ordered that father’s most recent case plan be attached to the
juvenile custody order, and it stated that father “can seek
modification of this court’s order in family law court once he has
completed the 52-week domestic violence counseling and the
individual counseling.”
A final custody order was entered on March 16, 2021.
Father timely appealed.
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DISCUSSION
Father does not challenge the grant of sole physical custody
to mother, but he urges that granting mother sole legal custody
was an abuse of discretion because “there was no substantial
evidence father had not participated in any decisions concerning
the children or could not do so in the future.” For the reasons
that follow, father’s contention lacks merit.
“ ‘When the juvenile court terminates its jurisdiction over a
dependent child, section 362.4 authorizes it to make custody and
visitation orders that will be transferred to an existing family
court file and remain in effect until modified or terminated by the
superior court.’ ” (In re Chantal S. (1996) 13 Cal.4th 196, 203;
§ 362.4.) We review the juvenile court’s decision to terminate
dependency jurisdiction and to issue a custody order pursuant to
section 362.4 for an 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.)
It is well-established that the family law presumption
favoring joint custody does not apply to juvenile court custody
orders entered upon termination of jurisdiction. (In re Jennifer
R. (1993) 14 Cal.App.4th 704, 711–713.) To the contrary,
“ ‘[w]hen making a custody determination in any dependency
case, the court’s focus and primary consideration must always be
the best interests of the child. [Citations.] Furthermore, the
court is not restrained by “any preferences or presumptions.”
[Citation.] Thus, for example, a finding that neither parent poses
any danger to the child does not mean that both are equally
entitled to half custody, since joint physical custody may not be in
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the child’s best interests for a variety of reasons. [Citation.]’ ([In
re Nicholas H. (2003) 112 Cal.App.4th 251], 268.)” (In re Maya L.
(2014) 232 Cal.App.4th 81, 102–103.)
Based on the evidence in the record and the juvenile court’s
factual findings, the court did not abuse its discretion by
awarding mother sole legal custody of the twins. As DCFS notes,
the court sustained a dependency petition after three separate
incidents of domestic violence between the parents, at least two of
which were provoked by mundane household disputes. In the
months that followed, while the family was under DCFS
supervision—and after father had completed most of a 26-week
domestic violence program and conjoint counseling with mother—
father hit mother three more times, once so severely that she
required medical attention. Again, at least some of the incidents
appeared to be prompted by routine discussions intrinsic to co-
parenting. As the juvenile court noted, father continued to show
no insight into his behavior, instead blaming mother and
accusing her of misconduct. Under these circumstances, the
juvenile court did not abuse its discretion by concluding that
allowing father to jointly make parenting decisions with mother
was likely to lead to further incidents of violence that would put
both mother and the children at risk.
Father contends that the juvenile court’s order was
irrational because “there is no nexus between the fact father had
not completed individual counseling and legal custody, which is
the right to participate in decisions concerning the children.” We
do not agree. If father could not calmly engage with mother
about how to make baby formula or his plans for an outing with
the children, there is little possibility that he could safely discuss
and reach agreement with mother about more significant co-
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parenting matters, such as how to treat the children’s future
illnesses or injuries, or where and at what age to enroll them in
preschool. Father was ordered to engage in individual counseling
specifically to help him improve his conflict resolution skills, and
thus there was a direct nexus between his failure to engage in
individual counseling and the juvenile court’s custody order.
DISPOSITION
The juvenile court’s order granting mother sole legal and
physical custody of the children is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
HILL, J.*
* Judge of the Santa Barbara Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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