In re N.C. CA4/2 ( 2022 )

Filed 7/26/22 In re N.C. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re N.C., a Person Coming Under the
Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT
OF PUBLIC SOCIAL SERVICES, E078217
Plaintiff and Respondent, (Super. Ct. No. RIJ2100079)
v. OPINION
S.L.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Cheryl C. Murphy, Judge.
Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal, for Defendant
and Appellant.
Teresa K.B. Beecham, County Counsel, and Julie K. Jarvi, Deputy County
Counsel, for Plaintiff and Respondent.
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I.
INTRODUCTION
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S.L. (Father) and J.C. (Mother) are the parents of 12-year-old N.C. Following
family maintenance services, the juvenile court terminated dependency jurisdiction over
N.C. and entered exit custody orders granting Mother sole physical custody of N.C., joint
legal custody to Mother and Father, and reasonable visitation to Father. Father appeals,
arguing the juvenile court abused its discretion when it granted sole physical custody to
Mother, thereby creating a removal custody order from Father. We disagree and affirm
the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and her daughters, N.C. and T.C., lived together. Father provided for, and
visited his daughter, N.C., on weekends. The family came to the attention of the
Riverside County Department of Social Services (DPSS) on December 28, 2020, after a
referral was received with allegations of general neglect and sexual abuse. Mother had
called the crisis support line and requested help for her children after she discovered her
then 16-year-old daughter T.C. had sexually assaulted her then 11-year-old daughter N.C.
Specifically, N.C. reported that T.C. gave her a substance via a vape pen and then forced
herself onto her, touched her vagina, and performed oral sex on her. T.C. had also asked
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Mother also has an 18-year-old daughter, T.C., who is not a subject of this
appeal.
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N.C. to get into bed with her and pretend she was a friend. N.C. did not know how to
stop T.C. and was scared. Mother noted that T.C. had been a victim of sexual abuse as a
child and that T.C. had a history of anxiety, depression, and taking psychotic medication.
Mother also stated that T.C. had also been involuntarily committed four or five times in
the past.
DPSS’s investigation revealed that the girls shared a bedroom but had separate
beds. After the incident, Mother separated the girls and removed the bedroom door. T.C.
was hospitalized at a mental health hospital due to suicidal ideations and disclosed
wanting N.C. to feel the same pain she felt when she was sexually abused as a child.
Mother planned to install cameras in the household and make new sleeping arrangements
for the girls. A safety plan was eventually developed whereby T.C. would be supervised
by Mother’s boyfriend’s relatives. Later, because N.C. no longer felt comfortable
residing in the same home with T.C., Mother, Father, and Mother’s boyfriend agreed that
T.C. would move out of the home and live with a relative of Mother’s boyfriend.
N.C. saw her father every Saturday at his residence and actively participated in her
life. Mother and Father did not have a family law order; instead they had a mutual
agreement that N.C. would visit Father every Saturday. Father was consistent,
adequately provided provisions for N.C., and paid child support. Mother reported that
she had asked Father to help more with supervising N.C., but he stated he could only help
on the weekends. Father confirmed that because he worked a lot that he was unable to
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help more with supervising N.C. other than on the weekends, even though he wanted
more visits with N.C.
Mother disclosed that N.C. had been “‘bothered’” by a situation with Father.
Specifically, Father had recently married without informing N.C. or involving N.C.,
causing N.C. to be very emotional about the situation. Father reported that N.C. had not
wanted to visit with him the past two weekends. He also noted that N.C. came with a bad
attitude to visits and that she did not like it when he took her out. Father believed that
N.C. did not enjoy spending time with him. He shared that he had requested that N.C.
reside with him, but N.C. refused. Father denied the need for custody orders.
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On February 11, 2021, a Welfare and Institutions Code section 300 petition was
filed on behalf of T.C. and N.C. pursuant to section 300, subdivisions (b) (failure to
protect), (d) (sexual abuse), and (g) (T.C.’s father’s failure to provide support). N.C. was
not detained and remained in the parents’ care.
On February 26, 2021, the juvenile court found a prima facie showing had been
made that N.C. came within section 300, subdivisions (b) and (d) and maintained N.C. in
the parents’ care.
The social worker interviewed N.C. on March 4, 2021. N.C. reported that she
wanted to remain with Mother and an adult sister in the home. She did not want to have
contact with T.C. and did not want T.C. to return to the home. N.C. rolled her eyes when
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All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
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asked about Father. She stated that she did not like to visit her father because there was
“drama” with his wife’s two daughters who lived in Father’s home. N.C. also asserted
that there was also “drama” with Father’s wife’s niece, that she did not like them, and
that Father did not invite her when he got married. N.C. reported that she had last visited
Father on “New Year’s” (January 1, 2021). Mother intervened and stated that Father had
visited the home and dropped off items since then, but N.C. chose not to visit with him.
Mother also indicated that N.C. chooses when she wants to visit with Father as she does
not get along with his wife’s family and noted that N.C. talks to Father on the phone three
to four times a week.
On May 11, 2021, T.C. was detained from Mother because there was no caretaker
available to care for her and her ongoing mental health issues and behaviors were too
much for the family friend to manage. T.C. was therefore placed into a group home.
On June 4, 2021, the juvenile court found true the allegations in the second
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amended petition and declared the children dependents of the court. The court
maintained N.C. in the parents’ custody and provided them with family maintenance
services.
By the six-month review hearing, DPSS recommended that the parents continue to
receive family maintenance services. DPSS also recommended that the dependency be
terminated as to N.C. upon Mother’s completion of her case plan and that N.C. continue
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Father was not present at the jurisdictional/dispositional hearing. As to Father,
the court found true that he knew or reasonably should have known that N.C. was
sexually abused by T.C. and failed to intervene to protect her.
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to reside with Mother. In October 2021, Father indicated that he did not have time to
participate in his case plan and/or to be in contact with DPSS. He also noted that N.C.
chose when she wanted to visit with him as she did not get along with his wife’s family.
Father was referred to therapy, but never enrolled in the program because he did “‘not
hav[e] time’ to deal with this court case.” Although the parents had a verbal agreement
that Father would visit N.C. every Saturday, Mother and N.C. reported that they had no
contact with Father for weeks.
On December 9, 2021, the juvenile court held a contested family maintenance
hearing in N.C.’s case. Father was not present in court. Father’s counsel requested that
the dependency be terminated with joint legal and physical custody to the parents and that
Mother be provided with primary physical custody. Father’s counsel also requested that
visitation or shared custody time be arranged between the parents. DPSS’s counsel
requested joint legal custody with sole physical custody to Mother with reasonable
visitation to Father, noting that Father from the inception of the case had stated he was
not going to complete services and was not visiting N.C. Father’s counsel disagreed,
arguing that the court had never removed N.C. from Father’s care under section 361,
subdivision (c). The juvenile court acknowledged that “there were no removal findings
made for the father,” but explained that Father was not participating in services or
regularly visiting N.C. The court granted Father’s request to terminate the dependency
with Mother having sole physical custody and the parents having joint legal custody of
N.C. with reasonable visitation for Father. Primary custodial time was to be with Mother,
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and Father’s custodial time was to be reasonable and arranged between the parents. The
court also ordered the dependency to be terminated upon the filing of the juvenile custody
orders. The court found that there were no removal orders. Father timely appealed.
III.
DISCUSSION
Father contends the juvenile court abused its discretion in entering exit custody
orders granting Mother sole physical custody, thereby creating a removal of custody from
him. We disagree.
The juvenile court has broad discretion to make custody orders when it terminates
jurisdiction in a dependency case. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 265.)
The decision to terminate dependency jurisdiction and to issue custody and visitation
orders pursuant to section 362.4 is reviewed for abuse of discretion, and we will not
disturb that decision unless “‘“the trial court has exceeded the limits of legal discretion by
making an arbitrary, capricious, or patently absurd determination.”’” (In re Stephanie M.
(1994) 7 Cal.4th 295, 318 (Stephanie M.).) “‘“The appropriate test for abuse of
discretion is whether the trial court exceeded the bounds of reason.”’” (Id. at pp. 318-
319.) As a reviewing court, we do not substitute our judgment for that of the juvenile
court or weigh the credibility of the witnesses or resolve conflicts in the evidence. (Id. at
p. 319; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 839.)
When a juvenile court terminates its jurisdiction over a dependent child, it may
issue family law orders governing custody or visitation, commonly referred to as “exit
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orders.” (§ 362.4, subd. (a); see In re Kenneth S., Jr. (2008) 169 Cal.App.4th 1353,
1358.) These exit orders are transferred to the family court to become part of the relevant
family law case file or, if no proceedings are pending in family court, “may be used as
the sole basis for opening a file in the superior court of the county in which the parent,
who has been given custody, resides.” (§ 362.4, subd. (c); see In re John W. (1996) 41
Cal.App.4th 961, 970, fn. 13.)
A juvenile court terminating dependency jurisdiction and making custody or
visitation orders “does so as a court with ‘a special responsibility to the child as parens
patriae and [it] must look to the totality of a child’s circumstances when making
decisions regarding the child.’ [Citation.]” (In re J.T. (2014) 228 Cal.App.4th 953, 963;
accord, In re Chantal S. (1996) 13 Cal.4th 196, 201 [court “must look to the totality of a
child’s circumstances when making decisions regarding the child.”].) In making custody
orders, the court must “make an informed decision concerning the best interests of the
child” (In re John W., supra, 41 Cal.App.4th at p. 972), and its primary concern must be a
determination of “what would best serve and protect the child’s interest.” (In re Gabriel
L. (2009) 172 Cal.App.4th 644, 652.)
The order must be filed in the superior court and may be modified in a family law
proceeding if the parent shows a significant change of circumstances and establishes that
modification of the order is in the best interest of the child. (§§ 302, subd. (d), 362.4,
subds. (b), (c); Fam. Code, § 3021; Heidi S. v. David H. (2016) 1 Cal.App.5th 1150,
1165.)
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There is no presumption in favor of joint custody when a juvenile court is making
a family law exit order. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712; accord, In re
Chantal S., supra, 13 Cal.4th at p. 206.) Family law presumptions favoring joint custody
do not apply in the dependency context. (In re Chantal, supra, at p. 206 [“application of
a family-law-based joint custody presumption would be inconsistent with the purpose of
juvenile court law”].) Rather, as previously noted, a “juvenile court has broad discretion
to make custody orders when it terminates jurisdiction in a dependency case” (In re
Nicholas H., supra, 112 Cal.App.4th at p. 265, fn. 4.), and these orders will not be
disturbed unless an abuse of discretion is clearly established (Stephanie M., supra, 7
Cal.4th at p. 318).
Based on a review of the record, we cannot say the juvenile court acted arbitrarily
in awarding Mother sole physical custody with reasonable visitations to Father. “In any
custody determination, a primary consideration in determining the child’s best interests is
the goal of assuring stability and continuity.” (Stephanie M., supra, 7 Cal.4th at p. 317.)
Here, the court reasonably could infer that a joint physical custody arrangement would
disrupt the stable environment N.C. enjoyed with Mother. In fact, as the record reflects,
N.C. did not want to see or visit Father. And Father did not want to participate in the
case, including services to mend his relationship with N.C. There was no evidence in the
record to suggest that Father was capable of managing N.C.’s emotional well-being,
health, education, and welfare or that granting joint physical custody was in N.C.’s best
interest. At the time the juvenile court terminated jurisdiction, Father had not
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participated in any services and failed to regularly visit N.C. It also appeared that Father
had no interest in the matter as evidenced by his statements and failure to attend
important court hearings. Under these circumstances, the court reasonably concluded
joint physical custody was not in N.C.’s best interest.
Father presents no argument to the contrary and fails to explain how shared
custody would actually be in N.C.’s best interest. Instead, Father relies on the facts that
he was not the cause leading to the dependency action, he had continued to support N.C.,
he was sensitive to N.C.’s well-being, and there was a mutual agreement between him
and Mother. However, the court’s order was essentially tantamount to the parents’ de
facto arrangement that had already been in place. In any event, Father failed to
participate in services to mend his relationship with N.C., which would have been in
N.C.’s best interests. Although he had been referred to therapy, he never enrolled in the
program. Instead, Father stated that he did not want to participate in the case or contact
DPSS because he was too busy with work.
Moreover, contrary to Father’s assertion, Mother’s sole physical custody of N.C.
does not mean that N.C. was removed from Father’s care pursuant to section 361,
subdivision (c), or that the court found him unfit to retain his custodial rights. Before
physically removing a child from his or her parent, the court must find, by clear and
convincing evidence, that the child would be at substantial risk of harm if returned home
and that there are no reasonable means to protect the child without such removal. (§ 361,
subd. (c)(3); In re Cole C. (2009) 174 Cal.App.4th 900, 917; In re Kristin H. (1996) 46
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Cal.App.4th 1635, 1654.) The focus of the statute is on averting harm to the child. (In re
Cole C., supra, at p. 917.) Granting Mother sole physical custody is not the same as a
finding of unfitness and a removal of custody from Father under section 361, subdivision
(c). The juvenile court specifically found that there were no removal orders in regard to
Father. The court did not abuse its discretion in awarding Mother sole physical custody
and joint legal custody to Mother and Father.
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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