In re A.A. CA2/8 ( 2022 )

Filed 9/21/22 In re A.A. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re A.A. et al., Persons Coming B313354
Under the Juvenile Court Law.
______________________________ Los Angeles County
LOS ANGELES COUNTY Super. Ct. Nos. 19LJJP00760A,B
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
G.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Michael C. Kelley, Judge. Affirmed.
Leslie A. Barry, under appointment by the Court of Appeal,
for Defendant and Appellant G.M.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly Emling, Deputy County
Counsel, for Plaintiff and Respondent.
____________________
A father challenges a juvenile court custody order that had
ample evidentiary support and fell within the court’s broad
discretion. We affirm.
The 2019 dependency petition had allegations against the
mother and father of two young girls, then ages five and one. The
allegations against the father concerned domestic violence
between the parents, sexual abuse of the older child, and
untreated mental and emotional problems.
The juvenile court detained the children from the father
and released them to the mother. The father was jailed and later
was released. The court issued a temporary restraining order
protecting the mother and children from the father.
The investigation by the Los Angeles County Department
of Children and Family Services produced conflicting evidence
from the older child about her father’s conduct. At times the girl
reported he did not touch her private parts. Other times she
reported the father tickled, rubbed, and photographed her private
parts and put his fingers inside her.
A detailed overview of the underlying investigation and
proceedings is unnecessary due to the nature of the father’s
appellate challenge. So we skip to the settlement the parties
reached in November 2020.
As part of that settlement, the father pleaded no contest to
the following amended count:
“On prior occasions, the [children’s] father . . . failed to
establish appropriate physical boundaries with the [older child].
On prior occasions the father took photos of the child’s genitals.
On prior occasions the father slept naked with the children and
the [older child] slept naked with the father in the same bed. On
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prior occasions the father touched the child’s vagina with the
father’s toes. The father’s inappropriate touching of the child
endangers the child’s physical health and safety, placing the
[children] at risk of suffering serious physical harm, damage,
danger, and failure to protect[.]”
The court found this count true and ordered case plans for
the parents. The father’s plan included domestic violence and
anger management programs, individual and mental health
counseling, a psychological assessment, and a psychiatric
evaluation.
By spring 2021, the mother had completed her case plan,
and the children were doing well in her care. The father had not
completed his plan and, for various reasons, had had few
monitored therapeutic visits with his older child. Some of the
visitation obstacles appeared self-inflicted.
The Department sought to terminate jurisdiction.
The father testified at the April 2021 review hearing, as did
his therapist and the social worker handling the case. The father
admitted he failed to establish appropriate boundaries with his
children but denied other allegations in the sustained petition.
The juvenile court ultimately terminated jurisdiction. It
found the mother had completed her case plan and the children
were safe in her care. The court awarded the mother sole legal
and physical custody, granted the father visitation, and deferred
the mother’s request to move out of state. (See Welf. & Inst.
Code, § 362.4, subd. (a) [permitting custody orders in termination
proceedings].)
The father challenges only the legal custody ruling. He
claims no evidence supported the ruling, the juvenile court relied
on inapplicable Family Code presumptions, and the court
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improperly considered the existence of a restraining order and
earlier domestic violence.
The ruling was proper and no abuse of discretion. (See In
re C.W. (2019) 33 Cal.App.5th 835, 863 [abuse of discretion
standard governs review of juvenile court custody orders].)
The Department, the children’s counsel, and the mother’s
counsel were aligned in seeking sole legal custody for the mother.
The social worker cited the father’s interactions with the
Department, cooperation issues, his untimeliness in completing
services, and the inability to assess in-person visits. The
Department argued, among other things, the father was trying to
manipulate the mother through visitation and track the mother
inappropriately through the children and a third party, and joint
custody would facilitate this behavior.
Evidence provided at the review hearing supported the
Department’s argument and signaled the father had not gained
necessary insight.
The father had completed only a few therapy sessions.
Despite reaching a settlement at the adjudication phase of
the case, the father denied much of the conduct in the narrowed,
sustained petition.
The father also denied any history of domestic violence.
But the evidence showed the father had at least two domestic
violence criminal protective orders against him. It also showed
he violated restraining orders.
At the review hearing, the father implied the mother
prompted the dependency case against him so she could move out
of state. He blamed her for engaging in erratic and “surreptitious
behavior,” not facilitating visitation, and alienating him from his
children. This evidence portends problems in making shared
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decisions regarding the children’s upbringing. (See Fam. Code,
§ 3003 [defining joint legal custody].)
The juvenile court did not apply Family Code
presumptions, including the presumptions of section 3044
(concerning domestic violence) and section 3030 (concerning sex
offenders and murderers). (See In re C.M. (2019) 38 Cal.App.5th
101, 108–110 [Family Code presumptions inapplicable in
dependency proceedings].) It stated as much in its order and
identified factors beyond a history of domestic violence that bore
on its decision, including the sustained allegations of
inappropriate behavior by the father and the “serious concerns”
they raised regarding his ability to parent safely, the father’s
insufficient individual therapy and therapeutic visitation with
the older child, and his unfinished case plan.
Contrary to the father’s claims, the court’s ruling did not
reference a restraining order.
Factually distinct In re Jennifer R. (1993) 14 Cal.App.4th
704 does not show the juvenile court abused its discretion here.
The evidence we have outlined was relevant to the juvenile
court’s task—deciding whether allowing the father a joint say
with the mother in important decisions about the children’s
welfare was in the children’s best interests at that juncture. The
court’s legal custody ruling appropriately considered the totality
of the circumstances and fell within the court’s broad discretion.
(See In re C.M., supra, 38 Cal.App.5th at p. 109 [juvenile courts
consider the totality of the circumstances in issuing custody
orders in a child’s best interests]; In re Nicholas H. (2003) 112
Cal.App.4th 251, 265, fn. 4 & 268 [discussing the “best interests
of the child” standard and noting the juvenile court’s “broad
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discretion to make custody orders when it terminates jurisdiction
in a dependency case”].)
DISPOSITION
We affirm the custody order.
WILEY, J.
We concur:
GRIMES, Acting P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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