In re C.J. CA2/5 ( 2021 )

Filed 10/21/21 In re C.J. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
In re C.J., a Person Coming B310616
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. 20CCJP02587A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
T.J,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kristen Byrdsong, Judge Pro Tempore.
Affirmed.
Zaragoza Law Office and Gina Zaragoza, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Brian Mahler, Deputy County
Counsel for Plaintiff and Respondent.
____________________________
T.J. (father) appeals the juvenile court’s disposition order.
Father’s sole contention on appeal is that the juvenile court
abused its discretion when it made an order placing his daughter,
C.J. (minor), with C.H. (mother), rather than with father.1 The
Los Angeles County Department of Children and Family Services
(Department) contends the disposition order was within the
court’s broad discretion. Finding no abuse of discretion, we
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father separated when minor (born February
2011) was six months old. A December 2013 restraining order
protecting minor, mother, and maternal grandmother from father
was subsequently modified by a May 2014 family law order
giving father sole legal and physical custody of minor, with
mother having reasonable visitation. There is conflicting
evidence regarding subsequent interactions between mother and
father, but minor remained in California with mother when
father moved to Texas, where he remarried. At the time minor
1 Mother is not a party to this appeal.
2
was placed with father in May of 2020, father had a stepson (age
13) and two sons (ages 6 and 8). The two younger boys are
minor’s half-siblings.
Minor has diagnoses for autism, ADHD, anxiety, emotional
disturbance, and mild intellectual disability. The Department
previously investigated mother after minor, who was seven at the
time and enrolled in a special needs class, reported that mother
hits her and calls her bad names. The referral was closed as
unfounded.
Mother was arrested on May 6, 2020, after a physical
altercation between mother and maternal grandmother. Minor
and maternal grandmother reported that mother was repeatedly
hitting minor with a charging cord, and after maternal
grandmother intervened, mother became violent towards
maternal grandmother. Minor reported that when mother drinks
alcohol, she becomes very irritable and hits minor. Maternal
grandmother reported that mother drinks frequently, to the point
of passing out. Mother denied any alcohol use. Mother provided
father’s name and stated he lived in Texas, but could not provide
his birthdate or contact information.
A social worker spoke with father by telephone on May 8,
2020. Father reported there was no custody order. He said he
had frequent phone contact with minor, but did not suspect any
abuse. Father wanted what was best for minor and wanted to
provide minor with a safe, stable home in Texas. Father later
told the Department he was granted full custody of minor in
2013, but mother never released minor to him.
During a subsequent call a few days later, father said he
was aware of minor’s disabilities and was willing and able to care
for her. He acknowledged he had not taken steps to visit minor
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since she was six months old. Father had a forty-hour work
week, working nights. His current wife (stepmother) would be
the one caring for minor when he was at work or not available.
Stepmother spoke to the social worker and reported she was
aware of minor’s mental health and developmental issues, and
she was willing to care for minor as if minor was stepmother’s
own child.
Father did not appear at the detention hearing on May 13,
2020, but the court ordered minor detained from mother, and
declared father to be minor’s presumed father. The court also
made services available to mother, including individual
counseling, parenting, and substance abuse counseling and
testing. On May 21, 2020, the court ordered minor released to
father after the Department conducted the appropriate
background checks. The court ordered monitored telephone or
video visits for mother, as well as monitored in-person visits if
mother was able to travel to Texas and a monitor was available.
The court also ordered the Department to work with father to
obtain a developmental assessment and a medication review with
a psychiatrist to ensure minor’s medications were correct and
necessary.
The appellate record does not contain any reports from the
Department between May and October 2020.
On October 5, 2020, the Department filed a First Amended
Petition, adding allegations that father had obtained an order for
custody of minor, failed to obtain custody, and failed to protect
minor from mother’s physical abuse when he knew or reasonably
should have known of the abuse. On the same day, the
Department filed a supplemental report. According to the report,
mother was enrolled in classes and, as of September 10, 2020,
4
had completed seven parenting classes and five anger
management classes. Father was inconsistent with making
minor available for phone or video visits with mother. The social
worker expressed concern that father may be coaching minor;
father had stated minor was afraid of mother and did not want to
return to her care, but minor’s statements were different during
calls with mother. The Department reported concerns about
whether father had been truthful about his residence address.
When father was not reachable in connection with a scheduled in-
person visit by mother in August 2020, the police conducted a
welfare check at father’s given address and were told that father
did not reside there. Father eventually made minor available for
an in-person visit. Although there was no evidence that mother
was a flight risk, father claimed he was scared mother would flee
with the child. The Department also expressed “concern that the
father is more focused on proving the mother wrong and giving
mother a hard time than addressing the needs of the child.
Father appears to minimize and not understand the significance
of the child’s emotional and mental needs.” Minor had a mental
health assessment scheduled for September 14, 2020, and her
enrollment in therapy was pending.
On October 8, 2020, the court ordered the Department to
assess the appropriateness of minor’s placement with father,
based on concerns that father might be interfering with mother’s
reunification efforts and was not responsive to contacts by the
Department.
On October 13, 2020, the Department reported that father
was not adequately addressing minor’s mental health needs, as
she was not enrolled in therapy or taking any psychotropic
medications, even though minor needed ongoing support and
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services to address her emotional and behavioral issues. Mother
was in contact with minor’s prior school, a non-public school
designed for children with special needs. Mother was remorseful
for physically abusing minor. She planned to enroll minor in
joint behavioral therapy and regional center services. Based on
the Department’s assessment, it appeared to be in minor’s best
interests to return to mother, with intensive services and
unannounced visits.
On November 3, 2020, the Department reported that father
had enrolled minor in special education at a new school on
October 20, 2020. According to father, minor has been to the
doctor and the dentist, and needed to be re-evaluated for mental
health services, but father had not provided any records
documenting this information. Father was not enrolled in any
services and failed to consistently make the minor available. The
social worker monitoring mother’s phone visits with minor
reported that minor wanted to return to mother’s care.
Father took minor for a mental health evaluation in Texas
on October 29, 2020. Father completed an intake form denying
minor had any behavioral issues, aggression, or outbursts since
being placed with her father in May/June 2020. Her only
reported symptoms were nightmares and sleep difficulties
revolving around abuse by mother, and anxiety involving going
back to mother. The chief complaint involved concern about
minor being overly medicated and getting the right treatment for
her trauma.
At the November 10, 2020 adjudication hearing, mother
entered a no contest plea to amended allegations that she used
inappropriate physical discipline and engaged in a violent
altercation with maternal grandmother. Minor was adjudicated
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a dependent under Welfare and Institutions Code section 300,
subdivision (b), based upon mother’s plea.2 The court dismissed
the count alleging mother’s alcohol abuse. Over father’s
objection, the court sustained the allegation that father failed to
protect minor from mother’s actions.
At the request of counsel for minor and the Department,
and over the father’s objection, the court ordered a 29-day visit
for minor with mother, subject to frequent unannounced visits by
the Department to ensure minor’s safety.
When the social worker arrived in Texas on November 16,
2020, minor declined to go back to California with the social
worker. A different social worker was able to bring minor to
California on November 24, 2020. Although minor was initially
reluctant, she was excited upon arriving at the airport, and spoke
with mother extensively by phone. According to a December 1,
2020 last minute information, minor was doing well with no
concerns since arriving in California.
During an interview on November 30, 2020, minor
disclosed statements by father and stepmother that increased the
Department’s concerns about minor remaining in father’s care.
According to minor, father was always at work and she was
sometimes left in the care of her 13-year-old stepbrother, who
asked her if she wanted to have sex. When she said no, he called
her vulgar names, and body slammed and hit her. Minor
reported that stepmother told minor not to tell the social worker
anything and “if my kids get taken its gone [sic] be a problem.”
Minor heard father tell stepmother that if the Department picks
2 All statutory references are to the Welfare and
Institutions Code, unless stated otherwise.
7
minor up, he would never see her again. The Department
recommended that minor be returned to mother’s care, as such
an arrangement would be in minor’s best interests.
In a last minute information report dated December 8,
2020, the Department reported that minor again stated
stepbrother had been verbally abusive towards her, and
stepmother said if minor said anything about any of her children
to the social worker, stepmother would have to threaten the
social worker, and she would not let minor ruin her life. Minor
wanted to be able to stay with mother, but also visit father.
When the social worker asked father about minor’s statements
about her stepbrother, father accused the social worker of
reporting false information and suggested minor should take a
polygraph test, as she might be a habitual liar like her mother.
Father denied leaving minor at home alone with stepbrother, but
minor reported father would leave stepbrother in charge when
father had overtime. Father also told the social worker that
minor was his worst child because she had not been raised in his
home with structure; father recounted an incident where minor
made a sexualized statement at school.
A January 4, 2021 last minute information report stated
that on November 13, 2020, just days after the dependency
court’s November 10, 2020 order authorizing a month-long visit
with mother, father filed a child support determination in Texas
using the 2014 custody order, with no mention of the current
dependency proceedings.
A January 12, 2021 last minute information report
recounted that when the social worker called on November 24,
2020 to inform father that she would be traveling to Texas the
following day to pick up minor for her visit with mother, father
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began to scream and yell, saying, “you ain’t shit. You have no
heart. I got something for you, you better watch out.” On
November 30, 2020, minor told the social worker she was scared
because father had said mean things about the social worker and
that he was going to shoot the social worker with a glock-9.
A January 27, 2021 last minute information report
summarized an unannounced visit on January 19, 2021 by a new
social worker. Minor was eating and sleeping well, and taking
her medications with no adverse reactions. Minor wanted to
have a visit with her father, and reported having normal sibling
fights when she previously lived in Texas. The Department
learned father had enrolled in parenting and counseling sessions.
Father felt the prior social worker was biased against him and
did not keep him informed about his daughter’s case. Father also
felt minor was not safe with mother, and he should be given the
opportunity to care for minor.
At the January 27, 2021 disposition hearing, father’s
attorney called minor and father as witnesses. Minor initially
had difficulty testifying, but ultimately testified that she liked
visiting with her father, but she did not like the treatment she
received from her stepbrother, who called her names and hit her.
Minor also testified about the social workers who came to Texas
to take her to visit mother, and described mother as being mean
to minor when minor expressed a desire to live with father.
When asked if her father said mean things about mother, minor
initially said she was too scared to answer the question, but then
testified that father was mad at mother for taking minor away.
On cross-examination by mother’s attorney, minor testified that
her stepmother told minor not to tell the social workers what was
happening in the home because stepmother did not want her sons
9
taken away. Minor also testified she told a therapist that father
had threatened to hurt mother if minor said she didn’t want to
live with father.
On direct examination by his attorney, father testified that
he had given the correct address to social workers, that the
confusion about minor’s return to California was due to lack of
communication by the social workers, and minor was never left
alone in the home. He also testified that based on what minor
said during phone visits, he did not think minor would be safe
staying with mother. On cross-examination by mother’s attorney,
father denied certain statements in the Department reports;
father testified the social worker had falsely reported that minor
accused his stepson of making advances, and denied discussing
case issues with minor or telling the social worker that minor
was his worst child.
The court expressed concern that both parents were putting
their own agendas before minor’s best interest, and minor’s
testimony revealed that she seemed scared of disappointing
either parent. The court admonished both parents to put minor’s
well-being first. The court found there were reasonable means to
prevent removal, so long as the parents were in 100 percent
compliance with their court-ordered case plans. The court noted
that while both households had a lot of issues, “the child will best
be served remaining primarily in the home-of-parent/mother
because the Department is in a position to make frequent
unannounced home visits.” The court ordered minor’s primary
residence with mother, with father having custody for one
weekend in February and all of summer break. In addition,
parents would alternate custody of minor on Thanksgiving and
Christmas, switching each year. When mother asked the court to
10
require that minor not be alone with stepbrother when she was
visiting father in Texas, father initially protested that conditions
were being imposed based on something that never happened,
but then agreed. Father filed a timely notice of appeal.
DISCUSSION
Father contends that the trial court’s “home of parent”
order placing minor with mother, rather than with father, was an
abuse of discretion. We disagree.
Relevant law and standard of review
After the juvenile court has declared a child to be a
dependent described by section 300, “the court may limit the
control to be exercised over the dependent child by any parent.”
(§ 361, subd. (a).) The court has the power to issue “all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of [a dependent] child” and to “direct
any reasonable orders to the parents or guardians of [that] child.”
(§ 362, subds. (a) & (d).) “In making its disposition orders the
court has broad discretion to resolve issues regarding the custody
and control of the child, including deciding where the child will
live while under the court’s supervision.” (In re Anthony Q.
(2016) 5 Cal.App.5th 336, 346 (Anthony Q).) “‘The juvenile court
has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order
accordingly.’” (In re Briana V. (2015) 236 Cal.App.4th 297, 311.)
“‘The best interest of the child is the fundamental goal of the
juvenile dependency system, underlying . . . child safety, family
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preservation, and timely permanency and stability.’ [Citation.]
‘“‘Its purpose is to maximize a child’s opportunity to develop into
a stable, well-adjusted adult.’”’ [Citation.] Stability and
continuity of care are primary considerations in determining the
child’s best interest. [Citation.] Custody determinations in
dependency proceedings are ‘committed to the sound discretion of
the juvenile court,’ and such rulings ‘should not be disturbed on
appeal unless an abuse of discretion is clearly established.’
[Citation.]” (In re J.M. (2020) 44 Cal.App.5th 707, 718.) “‘“The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason. 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.”’”
(In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)
Analysis
We find no abuse of discretion in the court’s decision to
place minor with mother, rather than father. We reject father’s
attempt to apply family law custody principles to a dependency
case in the juvenile court. We also reject father’s effort to
highlight evidence against mother to show an abuse of discretion,
while father’s argument simultaneously minimizes evidence
showing placement with father would not be in minor’s best
interests.
1. Family law principles do not apply in juvenile law.
Father’s first argument is that the family law court had
already granted father custody of minor in 2014, and that the
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dependency court placed minor in father’s physical custody after
the May 2020 hearing. Acknowledging that family law principles
regarding custody do not apply in dependency proceedings, father
nevertheless cites to a family law case, arguing that once a
custodial arrangement has been determined to be in a child’s best
interests, custody should not be re-examined unless there is a
significant change that “‘“indicates that a different arrangement
would be in the child’s best interests.” [Citation.]’” (In re
Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.) However, as
father himself points out, when making its decision about minor’s
placement, the juvenile court “has a special responsibility to the
child as parens patriae and must look to the totality of a child’s
circumstances.” (In re Chantal S. (1996) 13 Cal.4th 196, 201
(Chantal S).) “Although both the family court and the juvenile
court focus on the best interests of the child significant
differences exist. . . . The presumption of parental fitness that
underlies custody law in the family court just does not apply to
dependency cases. Rather the juvenile court, which has been
intimately involved in the protection of the child, is best situated
to make custody determinations based on the best interests of the
child without any preferences or presumptions.” (In re Jennifer
R. (1993) 14 Cal.App.4th 704, 712; see also In re C.M. (2019) 38
Cal.App.5th 101, 108 [while both family and juvenile courts make
decisions on custody and visitation, they “operate under separate
statutory schemes and serve distinct purposes”].)
Once a child has been adjudged a dependent, the juvenile
court has broad discretion to make placement and custody orders
that are in the child’s best interests, taking the totality of the
circumstances into consideration. (Chantal S., supra, 13 Cal.4th
at p. 201; Anthony Q., supra, 5 Cal.App.5th at p. 346.)
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Accordingly, presumptions applicable to family law custody
determinations are not applicable or relevant here.
2. Considering the totality of circumstances, father has not
shown an abuse of discretion.
Father takes a multi-pronged approach to arguing that the
dependency court’s placement decision was an abuse of
discretion. He first points to mother’s statements denying she
abused alcohol and denying she physically harmed minor,
arguing that her statements contradicted well-documented
evidence that she used alcohol and became verbally and
physically abusive when she was drinking. Next, he argues that
he—not mother—was the parent best situated to protect and care
for minor. He also points to the times in minor’s testimony where
she stated a preference to live with father. Finally, without
citing legal authority to support his position, father argues that
the court abused its discretion when it based its decision on the
Department’s ability to make unannounced home visits. None of
father’s arguments persuade us that the dependency court
exceeded its broad discretion to make disposition orders that
serve minor’s best interests.
The totality of minor’s circumstances in this case were
quite complex. Minor had several mental health and behavioral
diagnoses before the case began, and there was conflicting
evidence on the extent to which father had been involved in
minor’s care before the Department became involved. Father
focuses on evidence that mother called minor vulgar names and
would become abusive when she drank alcohol, arguing mother
had failed to correct these problems. However, there was also
14
evidence that mother sought father’s assistance before the
dependency case began, and he had not responded. In addition,
by the time of the disposition hearing, mother appeared
remorseful for her actions and motivated to change. She was
enrolled and actively participating in services and had engaged
with minor’s service providers. In contrast, although minor was
in father’s custody beginning in May 2020, she did not have a
mental health evaluation until late October 2020. Father
testified his 13-year-old stepson was never left alone with minor
unsupervised, and father believed minor had falsely accused the
stepson of sexual advances and aggressive behavior. Father also
testified the social worker lied about minor’s statements and
father’s responsiveness to mother’s visits and other concerns; in
announcing its decision, the court stated it found father’s
testimony on these points not credible. As a reviewing court, we
do not resolve evidentiary conflicts or evaluate the credibility of
witnesses. (In re Caden C. (2021) 11 Cal.5th 614, 640.)
While minor did testify she wanted to live with father, she
also testified that her stepbrother had previously acted abusively
towards her and she was scared of him. The court observed that
it was challenging to discern the truth from minor’s testimony, as
she appeared to be scared of disappointing either parent.
Rather than giving a balanced appraisal of the evidence
underlying the court’s decision, the argument portion of father’s
brief focuses on evidence highlighting mother’s flaws. The
sustained allegations, as well as the court’s admonitions to both
parents at the disposition hearing demonstrate that the court
was fully aware of mother’s challenges, but was equally aware of
the risks posed to minor’s best interests if the court placed minor
with father in Texas. We find the court acted well within its
15
broad discretion when it ordered minor placed with mother
during the school year, with frequent unannounced visits to
ensure minor’s safety, and specified visits with father in Texas,
including for a lengthy time period over the summer.
DISPOSITION
The juvenile court’s disposition order placing minor with
mother is affirmed.
MOOR, J.
We concur:
RUBIN, P.J.
BAKER, J.
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