In re A.D. CA2/1 ( 2022 )

Filed 8/1/22 In re A.D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.D., A Person Coming Under B316962
the Juvenile Court Law.
_________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. CK85451)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
S.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael C. Kelley, Judge. Affirmed.
Jacques Alexander Love, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
Appellant S.D. (Mother) appeals from a juvenile court
custody and visitation order the juvenile court entered at the
conclusion of dependency proceedings regarding her daughter,
A.D., now age 16. The challenged order awarded sole custody
of A.D. to A.D.’s father, R.J. (Father) and afforded Mother
monitored visits. Mother first contends that permitting her joint
legal custody and unmonitored visits would help preserve A.D.
and Mother’s relationship. But by the time the court issued
the challenged orders, Mother’s reunification services had been
terminated for years, and A.D. had already been placed with one
parent, so reunification with Mother was no longer a goal of the
proceedings.
The court’s decisions regarding custody and visitation were
instead appropriately guided by A.D.’s best interests. As a result
of Mother’s failure to provide the court with any information
about her current circumstances, as well as her failure to contact
DCFS for over a year leading up to the challenged order, the
record contains virtually no current information regarding
Mother, her relationship with A.D., or how preserving that
relationship might benefit A.D. The court had before it
information regarding substance abuse and domestic violence
issues that had, at an earlier point in the proceedings, warranted
denying Mother custody and requiring Mother’s visits be
monitored. Mother offered no evidence to suggest that, since that
earlier determination, she had addressed these issues. Rather,
the court had before it only general reports from Father and A.D.
that Mother’s monitored visits with A.D. over the approximately
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18 months leading up to the challenged ruling had been
“periodic” and that Father and A.D. reported “no concerns”
about the visits. On this record, we cannot say the trial court
abused its discretion in concluding Mother had not addressed
the issues that had previously warranted removal and monitored
visitation, and that it therefore was not in A.D.’s best interests
for Mother to have any custodial rights or unmonitored visits.
Accordingly, we affirm.
FACTS AND PROCEEDINGS BELOW
In separate dependency proceedings initiated in 2011,
the juvenile court sustained a Welfare and Institutions Code
section 3001 petition based on Mother’s history of substance
abuse and inappropriate physical discipline of A.D.’s older
half sibling that placed A.D. at risk of harm. In 2012, the case
was terminated with the children in Mother’s sole custody.
The instant dependency proceedings stem from a
sustained 2013 section 300 petition alleging that domestic
violence between Mother and her boyfriend (not Father) placed
A.D. and three of Mother’s other children at risk of harm.
Mother informed DCFS she did not know the identity of A.D.’s
father. The court initially placed A.D. with Mother and ordered
family maintenance services. Mother struggled to cooperate with
DCFS, however—at one point to such an extent that DCFS was
unaware of Mother and A.D.’s whereabouts for an extended
period of time, necessitating an arrest warrant for Mother and
a protective custody warrant for A.D. In July 2016, the court
granted a DCFS request under section 387 to remove A.D. from
1Subsequent unspecified statutory references are to the
Welfare and Institutions Code.
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Mother, based on her lack of compliance with court orders and
lack of cooperation with DCFS. Thereafter, the court ordered
monitored visits with A.D.
In January 2017, DCFS reported Mother had begun
consistently visiting A.D. and had a “positive parent[-]child bond”
with A.D. During the following year, DCFS continued to report
the visits went well, that Mother and A.D. shared a bond, and
that A.D. wanted to live with Mother. By September 2018, the
visits became sporadic. When the visits occurred, however, they
went well. A.D. was beginning to understand she may not be
returning to live with Mother, but she still appeared to have a
“close bond” with her. In 2019, Mother’s visits continued to be
sporadic but also continued to go well when they occurred.
Mother’s visits continued to be monitored. In April 2019,
the juvenile court terminated Mother’s reunification services
based on Mother’s failure to comply with drug testing and her
minimal progress in services.2 In September 2019, Mother was
arrested for assault with a deadly weapon and possible great
bodily injury, and was incarcerated.
Sometime in 2020, DCFS was able to locate Father, and
a paternity test established he was the biological father of A.D.
According to Father, Mother had told him he was not A.D.’s
father when A.D. was a baby, and Father thus previously had
not been involved in A.D.’s life. Father was not an offending
parent in the dependency proceedings. In September 2020, the
court removed A.D. from her foster placement and placed her in
2 The court initially denied Mother reunification services,
but this court reversed that denial. (See S.D. v. Superior Court
(Sept. 11, 2017, B281851).)
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Father’s custody with family maintenance services. The court
later granted Father presumed father status.
Because A.D. had been placed with one parent, the court
held regular hearings pursuant to section 364, to determine
“whether continued [juvenile court] supervision [wa]s necessary.”
(§ 364, subd. (c).) In connection with the first such hearing,
in April 2021, DCFS reported that Father “ha[d] been able to
maintain a suitable household for him and [A.D.],” but was not
fully complying with DCFS. Specifically, Father’s work as a
truck driver caused him to be frequently out of town, and DCFS
expressed concerns about A.D. frequently being in the care of
other relatives and even, on one occasion, with relatives outside
the county, in violation of court orders. Father also missed
several DCFS check-in appointments and was difficult to reach.
“There [was also] concern that . . . [F]ather ha[d] not provided
DCFS with any verification that [A.D.’s] needs ha[d] been met,
including being current on medical and dental exams,” and
DCFS’s inability to confirm that A.D. was attending high school
as both she and Father reported.
Mother did not contact DCFS after being released from
prison in April 2020, so the DCFS reports after this date
contain no information about her lifestyle, living situation, or
relationship with A.D., save general statements by Father and
A.D. that Mother “periodic[ally]” had monitored visits with
A.D. (monitored by Father), and that A.D. and Father had “no
concerns” about the visits.
In July 2021, Mother filed a section 388 request to change
the court’s earlier order terminating her reunification services,
removing A.D. from her custody, and requiring her visits be
monitored. Section 388 permits a parent to, “upon grounds of
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change of circumstance or new evidence, petition the court in”
dependency proceedings “for a hearing to change, modify, or set
aside any order of court previously made” based on that change
being in the child’s best interest. (§ 388, subds. (a)(1) & (b)(1);
see id., subd. (b)(1) [request must allege why the requested
change is “in the best interest of the dependent child”].) Mother
cited as the changed circumstances and new evidence supporting
her request that Mother had completed various classes, had been
“consistently attending” counseling, that Mother and A.D. shared
a “close bond,” and that Mother had been “consistently having
great visits with [A.D.]” The court denied the request, and
Mother did not appeal that denial.
In a November 2021 report submitted in advanced of the
final section 364 hearing, DCFS reported that Mother’s housing
and employment status were still unknown, because she still
had not made contact with DCFS. DCFS thus “kn[ew] little
about this family” and Mother’s “true relationship and
involvement with [A.D.] [were likewise] not known.” According
to Father, Mother continued to “periodic[ally]” visit A.D. under
Father’s supervision at Father’s home or in a neutral public
setting. Neither A.D. nor Father reported any problems with
the visits, but also did not provide any further detail.
DCFS further reported that Father was in “partial
compliance” with court orders. DCFS had confirmed A.D.’s
enrollment in school, albeit a month late. Father still had
not taken A.D. for a regular dental or medical visit since being
placed with Father, although he assured DCFS he would do
so, and had already secured her some optometric care. Father
and A.D. had declined counseling, but DCFS also reported that
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neither appeared to need mental health services, even if
counseling would likely benefit their new relationship.
Despite Father’s partial compliance, DCFS recommended
the court terminate its jurisdiction and place A.D. in Father’s
sole custody. DCFS explained that Father was nonoffending,
that “[A.D.], age 15, has been in . . . [F]ather’s care for over one
year” without significant problems, and that “[A.D.] has always
presented as self-sufficient, responsible and mature. [A.D.]
has maintained that she is well-cared [for] and never reported
any concerns or issues with being in . . . [F]ather’s care or home.”
DCFS also “recognize[d] that . . . [F]ather stepped up when he
discovered that [A.D.] is his biological daughter,” which allowed
her to avoid continuing foster care, and that Father “ha[d]
demonstrated a commitment to caring for [A.D.] and her basic
needs appear to be met.”
Mother offered no evidence at the November 16, 2021
section 364 hearing, and the court thus considered only the
DCFS report and argument from counsel. Mother did not oppose
terminating juvenile court jurisdiction, but objected to and
argued against DCFS’s recommendations that the court award
full legal and physical custody of A.D. to Father and that
Mother’s visits be monitored.
The court terminated juvenile court jurisdiction and issued
a custody and visitation order in accordance with the DCFS
recommendations. The court noted its ruling was based on the
fact that “reunification services . . . for Mother were terminated
back in 2019[,]” that “her contact with the child ha[d] been
periodic at best,” and that “Mother ha[d] not been in contact with
[DCFS].” Mother timely appealed.
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DISCUSSION
Mother argues on appeal that the court erred both in
denying her joint legal custody3 of A.D. and in requiring that
Mother’s visits be monitored. We review custody and visitation
orders in dependency proceedings for an abuse of discretion. (In
re Stephanie M. (1994) 7 Cal.4th 295, 318; Bridget A. v. Superior
Court (2007) 148 Cal.App.4th 285, 300.)
When, as here, “the child remains in a parent’s home,
the court reviews the status of the case every six months under
section 364; under such review, the court is not concerned
with reunification, but in determining ‘whether the dependency
should be terminated or whether further supervision is
necessary.’ [Citations.] This is so because the focus of
dependency proceedings ‘is to reunify the child with a parent,
when safe to do so for the child. [Citation.]’ [Citation.]” (In re
Pedro Z. (2010) 190 Cal.App.4th 12, 20 (Pedro Z.).)
“[T]he juvenile court has broad discretion to make custody
[and visitation] orders when it terminates jurisdiction in a
dependency case.” (In re Nicholas H. (2003) 112 Cal.App.4th 251,
265, fn. 4 (Nicholas H.).)
Generally speaking, “[w]hen making a custody [and, by
extension, visitation] determination in any dependency case, the
court’s focus and primary consideration must always be the best
interests of the child.” (Nicholas H., supra, 112 Cal.App.4th at
p. 268; In re Chantal S. (1996) 13 Cal.4th 196, 206.)
Mother notes that, despite Mother’s struggles and
inconsistent visits with A.D., A.D. has “remained bonded to . . .
[M]other and [their] visits were always reported to have gone
3Mother does not challenge the court’s award of full
physical custody to Father.
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well.” She argues that granting Mother joint legal custody and
unmonitored visits would preserve and strengthen this bond with
A.D. without endangering A.D., consistent with the “purpose” of
the dependency scheme to “preserve and strengthen the minor’s
family ties whenever possible.” (See § 202, subd. (a).) But this
is only an independent goal of dependency proceedings until the
court terminates reunification services (see In re Marilyn H.
(1993) 5 Cal.4th 295, 309), which occurred in this case two years
before the challenged custody and visitation ruling. Moreover,
as noted, the court’s goal in a section 364 hearing generally is
not reunification, as the child has already reunified with at least
one parent. (Pedro Z., supra, 190 Cal.App.4th at p. 20; In re
Adrianna P. (2008) 166 Cal.App.4th 44, 59 [“the focus of the
proceedings is to reunify the child with a parent, when safe to
do so for the child”].)
We thus cannot conclude the trial court abused its
discretion solely because it did not choose the path most likely
to strengthen and preserve A.D.’s relationship with Mother.
Nor can we conclude that, based on the record before it, the
court abused its discretion in concluding that it would not be
in A.D.’s best interests to facilitate a continuing relationship
with Mother through unmonitored visits and joint legal custody.
In determining the best interests of the child, a court should
consider possible benefits from preserving the maternal
bond. (See In re Kimberly F. (1997) 56 Cal.App.4th 519, 530
[disapproving of a best interest analysis that does not “address
the child as a whole person, including his or her formative years
with a natural parent”]; see also In re J.M. (2020) 50 Cal.App.5th
833, 848–849 [considering benefits of retaining ties with
biological family in conducting best interest analysis].) But the
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court did not have a record based on which the court could assess
any such benefit and weigh it against possible risks. Mother
offered no evidence at the final section 364 hearing. Because she
did not maintain contact with DCFS in the 18 months leading up
to the hearing, DCFS’s reports in advance of the hearing contain
no information about her current lifestyle, living situation, or
employment. This means the court had no basis on which to
determine the extent to which, if at all, Mother has addressed
the substance abuse and domestic violence issues that led the
juvenile court to previously remove A.D. from her care and order
Mother’s visits be monitored—restrictions the court concluded
were still necessary as of June 2021 when it denied Mother’s
section 388 petition. That section 388 determination—which
Mother did not appeal—reflects a conclusion that granting
Mother unmonitored visits and partial custody would not
have been in A.D.’s best interest as of June 2021. (See § 388,
subds. (b)(1) & (d); In re Christopher L. (2022) 12 Cal.5th 1063,
1080 [section 388 petition depends in part on showing that
requested change in child’s best interest].) The only relevant
information in the record about what happened since June 2021
is that Mother periodically visited A.D. without incident under
Father’s supervision. That is a far from sufficient basis on which
the court could have concluded that the monitored visits and
custody arrangement that were in A.D.’s best interests as of June
2021 no longer were. Thus, in large part due to an informational
deficit of Mother’s own making, the record amply supports the
court’s conclusion that permitting Mother unmonitored visits
and/or partial legal custody would not be in A.D.’s best interests.
Mother also points to compliance difficulties DCFS has
encountered with Father in arguing granting her partial legal
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custody would be in A.D.’s best interest. Namely, she notes
Father failed to timely enroll A.D. in school or schedule her
medical and dental checkups. She argues that, were Mother
to share custody with Father, she could help meet these needs.
To support this proposition, she points to A.D. having had no
medical or dental issues and having attended school consistently
while in Mother’s sole custody. This argument amounts to
an incomplete comparison between one aspect of Mother and
Father’s respective parental abilities. Arguments that Father
will not properly provide for A.D.’s needs do not support
the conclusion that Mother will do so. And even if Mother’s
involvement would cause Father to better meet A.D.’s
educational and medical needs, this does not address or
neutralize the concerns that motivated the court to deny
Mother legal custody and unmonitored visits in June 2021.
Based on the information available to the court at the
final section 364 hearing, we cannot say the court abused its
discretion in issuing the challenged order.
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DISPOSITION
The order of the juvenile court is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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