In re Abel L. CA2/1 ( 2021 )

Filed 12/16/21 In re Abel L. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re ABEL L., JR. et al., B309571
Persons Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct. No. 20LJJP00221)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff,
v.
ABEL L., SR.,
Defendant and Respondent;
GUADALUPE S.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Stephanie M. Davis, Judge Pro Tempore. Affirmed.
Donna P. Chirco, under appointment by the Court of
Appeal, for Defendant and Appellant.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Respondent.
___________________
Guadalupe S. (mother) appeals from the juvenile court’s
custody and visitation orders granting Abel L., Sr. (father) sole
physical and legal custody over two of her three children, the
other of whom had reached majority during the pendency of the
case. Although father was residing in a different county, he had
previously shared custody of the two children under a family law
order. The juvenile court took jurisdiction over the children, and
eventually removed them, because mother and her wife had had
a series of violent altercations in the presence of the children.
Mother argues the court abused its discretion in granting
father sole custody when it terminated jurisdiction because she
had taken responsibility for her actions, was committed to
providing a safe household, her children desired to live with her,
and father was an unsafe guardian. Her contentions are
unsupported by the record.
Mother ignored the juvenile court’s order that her wife was
not to reside in the family home. She disregarded the
requirement not to take the children outside California and,
again in their presence, engaged in additional domestic violence
with her wife. Mother never enrolled in court-ordered services
and was obstructive in her interactions with the Department of
Children and Family Services (the Department). The juvenile
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court pointedly described mother’s conduct as follows: “From
start to finish [mother] has been uncooperative,” “refuse[d] to
participate in services,” “ha[d] no regard for court orders,” and
exhibits a “complete lack of insight.”
The record reveals ample support for the juvenile court’s
custody and visitation orders, and it did not abuse its discretion
in issuing them. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading up to Dependency Jurisdiction
On March 15, 2013, the Superior Court of Fresno County
ordered joint legal and physical custody of Abel L., Jr. and
Adrian L. to mother and father, with the children’s primary
residence to be with mother.
Approximately seven years later, on February 17, 2020, the
Department received a referral alleging emotional abuse of Abel
(12 years old), Adrian (11 years old), and Jennifer M. (17 years
old) by mother and an adult sibling, Andrew G. The referring
party stated that on the previous day mother became upset with
her wife, Maria J., and threw rubbing alcohol into Maria’s face,
pulled her hair, and bit her shoulder, leaving teeth marks,
bruises, and scratches. The referring party stated that mother
then asked her adult child Andrew to beat up Maria, and Andrew
hit Maria with a stool and punched her in the face.
That same day, a children’s social worker (CSW) responded
to the home. The CSW interviewed Andrew, who stated that he
heard mother and Maria arguing and saw Maria hit and push
mother. The fighting lasted for one hour; some glass and the
television were broken. Abel and Adrian were not present; they
were in the backyard playing.
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Jennifer confirmed the fight between mother and Maria
took place, and added that on previous occasions, she had been
required to physically separate mother and Maria while they
fought. Jennifer stated that there had been four physical fights
since December 2019. Jennifer witnessed every incident. The
CSW also interviewed Adrian and Abel. They were outside the
home when the fighting began, but then peeked through the
window and saw the two adults throwing things. Adrian said
“they fight mostly every day.” Adrian felt safe with his mother
but not when she resided with Maria. Adrian saw Maria get
drunk and act unstable and passed out from drinking. Abel told
the CSW that he saw Maria scream at his mother and that there
had been many fights. Abel too did not feel safe with Maria
living in the home.
A few days later the CSW interviewed mother. Mother
stated she and Maria had been married for one year and that
there had been more than six incidents of physical domestic
violence. Regarding the February 16 referral incident, she denied
throwing alcohol on Maria’s face or pulling her hair, but admitted
to biting Maria on the leg, explaining that she was defending
herself. Mother indicated she intended to obtain a restraining
order and to start the process of divorce.
On March 12, 2020, the CSW obtained a minute order
involving a hearing between mother and Maria which stated,
“The petitioner’s request for restraining order is discharged. All
temporary restraining orders, if any, are dissolved. The case [is]
dismissed.” The CSW then interviewed mother, and mother
stated she was in fact awarded a restraining order against Maria.
The CSW asked mother to verify this, but the following day,
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mother responded she actually did not file to obtain a restraining
order because Maria had moved to Mexico.
B. The Petition for Jurisdiction
On April 6, 2020, the Department filed a Welfare and
Institutions Code section 300 petition, under subdivisions (a) and
(b)(1),1 alleging that Adrian, Abel, and Jennifer,2 were at risk due
to mother’s domestic violence with Maria. The petition contained
allegations concerning the February 16, 2020, incident, as well as
three others that had taken place between 2019 and 2020.
On April 9, 2020, at an initial non-detained hearing, father
was found to be the presumed father of Abel and Adrian. The
court concluded there were reasonable services available to
prevent detention and, in light of those services, found it would
not be detrimental to release the minors to the home of parents.
The court ordered the primary residence to be with mother.
Family maintenance services were ordered. The court ordered
that the minors were to have no contact with Maria, and that the
minors were not to be removed from Southern California.
C. Subsequent Investigation
On October 21, 2020, in its combined
jurisdiction/disposition report, the Department notified the court
that mother was continuing to allow Maria to live in the home
while Jennifer, Abel, and Adrian were present. The Department
had also discovered that, in April 2020, the family (with Maria)
1Subsequent undesignated statutory citations are to the
Welfare and Institutions Code.
2Because Jennifer turned 18 during the proceedings, her
case was dismissed, and she is not a subject of this appeal.
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had traveled to Wisconsin, and during that trip, mother and
Maria continued to fight. Adrian reported that during one of
these altercations, Maria physically hurt him by striking him in
the stomach.
Although Mother had previously indicated she intended to
start the process of divorce, she had yet to provide any
documentation to the Department that she had begun to follow
through on that process.
Father reported that he had financially supported Abel and
Adrian since they were born and that he was eager to provide a
stable and safe home environment for them. He stated he was
unaware mother and Maria were fighting. In late April 2020,
mother informed father she was struggling financially and could
not provide for the minors, and asked him to pick up the boys.
Father stated that, on April 25, 2020, he arrived to pick up
the boys, and that they thereafter resided with him until
August 21, 2020. They left father’s home, however, because they
missed their mother. The Department noted that while residing
with father, the children enrolled in school and reported they felt
safe. They reported father was cooperative with their efforts to
maintain contact with mother, and father made his home
available to the Department for monthly home visits.
The CSW also reported that during the time the children
resided with father, mother refused to allow the Department to
conduct monthly home visits, refused to discuss case-related
issues, and did not provide any documentation as to enrollment,
participation, or completion of services. Mother told the CSW
that she would not participate in services unless ordered to do so.
In a last minute information report prepared for the
December 4, 2020 hearing, the Department further reported that
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mother was continuing to refuse to cooperate with their
investigation and was also declining services.
As to father, he stated that the children had transitioned
back to his care and were doing well. The boys were enrolled in
school and currently attending in-person classes at their
respective schools in Fresno County. Father believed Adrian
needed therapy and would benefit from mental health services.
Father had asked Adrian’s school if it would be able to refer
Adrian to counseling services and was waiting to hear back.
D. Adjudication and Disposition
On October 21, 2020, the juvenile court held a contested
adjudication hearing in which it sustained the allegations of the
section 300 petition. The court also concluded that the father
was a non-offending parent.
On November 3, 2020, the Department filed an ex parte
application, pursuant to section 385,3 requesting detention of the
minors from mother pending the disposition hearing. The
request recommended the minors be released to father with
monitored visitation for mother. The court granted the request
on November 6, detaining the minors from mother and ordering
placement with father.
On December 4, 2020, the court held a contested disposition
hearing at which the court declared the minors to be dependents
of the juvenile court, removed them from mother’s custody, and
ordered them released to the home of father. The court
terminated jurisdiction with a custody order giving father sole
3 Section 385 provides: “Any order made by the court in the
case of any person subject to its jurisdiction may at any time be
changed . . . as the judge deems meet and proper . . . .”
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legal and physical custody, with monitored visitation to the
mother.
The court stayed its order until December 8, 2020, and filed
an amended custody order on December 10, 2020.
Mother timely appealed.4
DISCUSSION
A. Applicable Law and Standard of Review
We review the juvenile court’s custody and visitation orders
under section 362.4 for abuse of discretion. (Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300.) Under this
deferential standard, we uphold the challenged order “unless the
court ‘ “ ‘exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination
[citations].’ ” ’ [Citations.]” (Ibid.)
Under section 362.4, when a juvenile court terminates
jurisdiction over a dependent child, it may make custody and
visitation orders that become part of any family court proceeding
concerning the same child. (In re T.H. (2010) 190 Cal.App.4th
1119, 1122-1123.) “ ‘When 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 the child’s best interests for a variety of
4 By letter filed June 8, 2021, the Department notified this
court that it would not appear on this appeal because the juvenile
court terminated jurisdiction.
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reasons. [Citation.]’ [Citation.]” (In re Maya L. (2014) 232
Cal.App.4th 81, 102-103.)
B. The Juvenile Court Did Not Abuse Its Discretion in
Issuing Custody and Visitation Orders Under Section
364.2
Mother argues that the best interests of the children are
served by a custody order that would provide for joint legal and
joint physical custody. She highlights the following from the
record in support of her argument: Adrian was bonded to mother
and feels safe with her; Adrian did not have a bed when he
initially went to live with father and he does not get along with
his stepmother; he says that father yells at him and their
relationship is strained; and he does not like father’s
neighborhood. Mother notes that Abel requested the juvenile
court to allow him to stay with mother. As to both children, she
argues that Abel’s choice to live with mother should have been
given deference given his “advanced age” of 12.
Mother states she herself is the victim of domestic violence
at father’s hands when they lived together. Although father was
arrested for battery of a spouse in 2009, mother concedes the case
was dismissed. Notwithstanding, she asserts “there is no
evidence that father addressed these concerns.” Mother claims to
have “acknowledged her mistake, expressed regret, recognized
the impact on the children, and vowed to be a better mother.”
Based upon all of these factors, mother concludes the
juvenile court’s custody order as to both children was “arbitrary,”
and warrants reversal.
Mother’s analysis minimizes the significant evidence of
repetitive domestic violence episodes between her and Maria,
many of which occurred while the children were present and/or in
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the home. In February 2020, mother, Abel, Adrian, and Jennifer
stated there had been multiple incidents of physical violence
between mother and Maria over the course of the year since the
two had been married. By mother’s own account, there had been
more than a half dozen incidents of physical violence during that
period.
Regarding the February 16, 2020 incident, by looking
through a window, the minors witnessed the violent altercation,
which resulted in injuries to mother and Maria. Adrian also
reported that Maria got drunk, acted crazy and was on the couch
because she had been drinking too much. Neither minor felt safe
in the home with Maria there.
Mother also lied to social workers about Maria remaining
in the family home, thereby permitting her to reside in the family
home over a specific court order requiring that Maria remain
outside the home. She also took the minors to Wisconsin, also
with Maria, without notifying the Department or obtaining
permission, in defiance of the court’s order that she not remove
the children from Southern California.
Mother chose not to participate in court-ordered services.
Even as late as the hearing on December 4, 2020, mother had not
provided proof of enrollment in any service or cooperated with the
Department to establish a written visitation plan. At that point
the case had been opened for no less than eight months.
Although the children unsurprisingly expressed their love
for mother and a desire to live with her, their wishes must be
taken in context. The children’s counsel disagreed that they
would be safe with mother because, as we have said, she
disobeyed court orders, refused to expel Maria from the home,
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traveled out of state without permission, and never enrolled in
any services.
Whereas mother contends “there is no evidence that father
addressed these concerns” arising out of incidents from 2009 and
2010, the record contains no evidence of any subsequent domestic
violence by father. Moreover, father told the CSW that he
decided to end his relationship with mother as a result of these
earlier domestic violence incidents.
We highlight the observations of the bench officer who had
the benefit of several contested hearings to assess mother’s
credibility, the impact of her behaviors on the children, as well as
her willingness to pursue services and obey court orders: “From
start to finish [mother] has been uncooperative and continues to
refuse to participate in services, whether they’re court ordered or
not. She has no regard for court orders as she did, as indicated,
take the children out of the State of California in defiance of a
court order and allowed the children to see Maria [J.], the person
which the court specifically indicated the children were to have
no contact with.”
The juvenile court went on to observe that mother’s lack of
participation in any case plan or services and refusal to
participate in any services, demonstrated “a complete lack of
insight,” which created a substantial risk of harm to the minors.
The court also found that mother’s lack of participation in any
domestic violence services justified sole legal and physical
custody.
On the other side of the equation, by the time of the
disposition hearing on December 4, 2020, father had already
taken affirmative steps to mitigate his children’s psychological
harm sustained by their exposure to violence in the maternal
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home by seeking out counseling referrals for Adrian, and
connecting the children to services in Fresno County.
The juvenile court did not abuse its discretion in issuing
the custody and visitations orders for the children, which are
amply supported by the record.
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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