In re Russell E. CA2/2 ( 2024 )

Filed 1/2/24 In re Russell E. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re RUSSELL E., a Person B327145
Coming Under the Juvenile Court (Los Angeles County
Law. Super. Ct. No.
22CCJP04085A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
NAOMI P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Nancy Ramirez, Judge. Affirmed and remanded with
directions.
Gina Zaragoza, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kelly G. Emling, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Naomi P. (mother) appeals from the juvenile court’s order
terminating jurisdiction over her son, Russell E. (Russell, born
Oct. 2013), pursuant to section 361.2 of the Welfare and
Institutions Code.1 She also challenges the exit order, which
gives sole legal and physical custody to Robert E. (father) with
twice monthly monitored visitation for mother.
We agree that the matter must be remanded so that the
juvenile court can set forth, in the exit order, its reasons for
removing Russell from mother’s custody and limiting her
visitation rights. In all other respects, the orders are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Family
Mother and father share one child, Russell. The pair
separated when Russell was three or four years old. In
November 2018, the family court issued an order granting the
parents joint legal and physical custody. The order established a
2-2-5 custody schedule.2
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 A 2-2-5 custody schedule gives each parent custody for two
fixed weekdays and alternating weekends.
2
In February 2022, the family court found “a significant
change in circumstances based on the parties[’] continued failure
and inability to . . . select a mental health therapist[]” for Russell.
Accordingly, the court awarded father “tie breaking authority
over all medical decisions[,]” and ordered him to “select a
therapist” to provide “therapy twice per month” to Russell.3
II. Referral and Investigation
On October 11, 2022, the Los Angeles County Department
of Children and Family Services (DCFS) received an anonymous
telephone referral alleging that mother physically abused
Russell. The caller said that mother had requested that Russell
be placed on a psychiatric hold pursuant to section 5585, claiming
that he had run into a busy street. Conversely, Russell told the
caller that mother “was hitting him and punched him in the
mouth[,]” prompting him to leave the house.
An emergency room social worker later reported that,
although the attending doctor did not “feel there was a reason” to
put a hold on Russell, the facility decided to place the hold “since
[Russell] was stating he did not want to return home with
. . . mother and . . . mother was refusing to take [Russell] home[.]”
Mother refused to provide the facility with father’s contact
information, and accused father of hitting Russell.
A. Interview with Russell
When a social worker located Russell at a behavioral health
facility, Russell told her that mother had punched him in the
face, cutting his upper lip. He then left mother’s house and safely
3 DCFS obtained copies of both family law orders and
submitted them to the juvenile court. Although the juvenile court
ordered DCFS to obtain the family law case file, DCFS reported
that it could not find further records.
3
walked to a nearby market so that he could try to use their phone
to call father. When mother found Russell, she took him to the
emergency room.
Russell claimed that mother had physically abused him
since he was six years old. In the past, she had kicked him,
choked him, and “flick[ed] [him] on [his] mouth and ears.” The
abuse often left him with marks and bruises. He also showed the
social worker a bruise on his arm, which he attributed to mother
grabbing him and dragging him down a hallway.
Russell also said that mother did not consistently feed him;
on one occasion he rationed the only food he was given, a single
bagel, thinking it might have to last him for two days. Mother
also denied him prescribed medication for his diagnosed attention
deficit hyperactive disorder (ADHD), which she “d[id]n’t believe
he ha[d].”
B. Interview with Father
Father spoke to the social worker shortly after arriving at
the hospital. He said that when Russell stayed with mother,
father went to Russell’s school in the morning to bring him fresh
clothes, food, and medication, since mother often failed to provide
these necessities.
At the social worker’s request, father sent DCFS a three-
and-a-half-page list that Russell had written during a therapy
session “of all the things that mother had done that ma[d]e him
scared or sad.” The list included items such as “[t]hreatening to
punch” and “kill me”; “[k]icking” and “[p]ushing me” and
“[t]hrowing me on the ground[;]” “giv[ing] me marks and bruises
and doesn’t care about it[;]” “[w]ants me and my dad to be dead
(especially me)[,]” and “[m]akes me feel dizzy and lightheaded
because she doesn’t give me food and water[.]”
4
C. Attempts to Interview Mother
Mother left the hospital shortly after the social worker
arrived. When the social worker reached mother by phone, she
said that she was too busy to speak but volunteered to submit to
an interview the following day. Mother called a DCFS hotline
later that same day to complain about father’s alleged
misbehavior, but rebuffed the social worker’s multiple attempts
to interview her over the next two days.
III. Removal and Jurisdiction Petition
On October 13, 2022, Russell was removed from mother’s
custody and released to father. The juvenile court ordered
monitored visitation for mother.
Four days later, DCFS filed a dependency petition under
section 300, subdivisions (a) (nonaccidental physical harm), (b)(1)
(failure to protect) and (c) (emotional harm). Counts a-1 and b-1
alleged that mother “physically abused” Russell by, among other
things, “str[iking] him with a closed fist on [his] mouth resulting
in [him] sustaining injury to [his] upper lip” and “not feed[ing]”
him. Count b-2 added that mother “failed to dispense
. . . prescribed medication to” Russell. And count c-1 alleged that
mother “emotionally abused” Russell by, among other things,
“threatening to kill” him. This “physical abuse”, “medical
neglect”, and “emotional abuse” “endanger[ed] [Russell’s] physical
and emotional health and safety and place[d] [him] at risk of
serious physical and emotional harm.”
IV. Subsequent Reports
DCFS filed a last minute information notifying the juvenile
court that mother had finally submitted to an interview on
October 20, 2022. Mother “denied hitting [Russell] at all and
denied knowledge of the injury.” She accused Russell of “‘lying
about any incident’” and said that he had “‘abus[ed]’” her “‘just
like his father.’” She also denied the allegations of food
5
deprivation, saying that Russell is “being controlled and
manipulated by his father.”
DCFS subsequently filed a jurisdiction report which stated
that Russell had undergone a forensic examination and “provided
clear and consistent statements regarding physical abuse, stating
[mother] punched and flicked his mouth, resulting in a laceration
on his lip.” (Bolding omitted.) When a social worker interviewed
Russell on November 9, 2022, he said “‘I just don’t want to go
back to live with [mother], please let me stay with [father]. I feel
safe with [father] and I get food and medication. I’m happy
here[.]’”
The report noted that Father “has been cooperative with
[DCFS],” “appears to have a strong bond with” Russell, and “took
appropriate action to protect [Russell] once he became aware of
the allegations.” In father’s custody, Russell saw a therapist
weekly, and his behavioral issues at school improved.
Lastly, DCFS filed an addendum report in which it
described a second interview with mother, who again denied all
the allegations and accused Russell of lying. DCFS noted that
mother was neither cooperative nor communicative with DCFS,
and would not provide proof of enrollment in the services she
claimed to be voluntarily attending.
DCFS ultimately “recommend[ed] that the [juvenile] [c]ourt
terminate jurisdiction granting father sole physical and legal
custody in order to ensure [Russell’s] medical and mental needs
are being met without any barriers[,]” with mother “to further
have monitored visits[.]”
V. Adjudication Hearing
On January 30, 2023, the juvenile court held a contested
adjudication hearing. After hearing argument and accepting
evidence from DCFS and mother, the juvenile court sustained all
counts alleged in the jurisdiction petition, noting that it found
6
“Russell’s statements” on the abuse he endured in mother’s
custody “to be very credible” and “consistent.” Accordingly, the
juvenile court declared Russell a dependent and removed him
from mother’s custody. The court then released Russell to father
and terminated jurisdiction pending the issuance of a revised
custody order.
The following day, the juvenile court issued an exit order
granting father sole legal and physical custody. The order
allowed mother to have “only supervised visitation” “[a]s
arranged by the parents, but no less than . . . 3 hour(s), 2 times
per . . . month[.]” The order did not give a reason for restricting
mother’s custody and visitation rights.
VI. Appeal
Mother timely appealed.
DISCUSSION
I. Termination of Jurisdiction
A. Relevant Law and Standard of Review
Section 361.2, subdivision (b)(1), states that if the juvenile
court places a child with a parent with whom the child was not
residing at the time that the events or conditions arose that
brought the child within the provisions of section 300, the court
can terminate jurisdiction over the child. (§ 361.2, subd. (b)(l).)
In considering that option, the juvenile court’s primary focus is
the best interests of the child. (In re John W. (1996)
41 Cal.App.4th 961, 965.)
We review the order terminating jurisdiction either for an
abuse of discretion (In re Holly H. (2002) 104 Cal.App.4th 1324,
1327) or for substantial evidence (In re Aurora P. (2015)
241 Cal.App.4th 1142, 1156). Accordingly, we will not disturb the
juvenile court’s decision unless “‘“the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citation].”’” (In re Stephanie M.
7
(1994) 7 Cal.4th 295, 318.) Where substantial evidence supports
the trial court’s order, there is no abuse of discretion. (In re
Daniel C.H. (1990) 220 Cal.App.3d 814, 839.)
B. Analysis
After the juvenile court placed Russell with father, a
nonoffending parent, it was fully authorized to terminate
jurisdiction if termination would be in Russell’s best interest.
Here, the record provided numerous indications that Russell was
happy and thriving under father’s care, and there were no
outstanding safety concerns requiring the juvenile court’s
ongoing supervision of that placement. Therefore, the juvenile
court did not abuse its discretion in terminating jurisdiction.
Mother raises three arguments against our conclusion, all
of which are unavailing. First, she argues that the juvenile court
“lack[ed] vital information as to [Russell]’s best interest prior to
terminating jurisdiction[]” because it failed to obtain and review
the entire case file from the prior family law case. As mother
concedes, she waived this argument by failing to make any
objections regarding the case file before the juvenile court.4 (In re
Anthony Q. (2016) 5 Cal.App.5th 336, 345 [“[T]he failure to object
to a disposition order on a specific ground generally forfeits a
parent’s right to pursue that issue on appeal”].)
Mother’s argument also fails on the merits. Assuming
arguendo that the juvenile court erred by terminating jurisdiction
without first reviewing the complete case file, mother has not
demonstrated how she was prejudiced by that error; she neither
describes the allegedly “vital information” contained in the case
file, nor explains what effect it could have had on the juvenile
4 Mother urges us to exercise our “discretion to consider
forfeited claims[,]” but does not offer any reason for us to do so.
8
court’s ruling.5 (See In re R.F. (2021) 71 Cal.App.5th 459, 474
[“[T]he ‘harmless error’ test [citation] applies in dependency
matters, and therefore a judgment in a dependency case should
not be set aside unless it is reasonably probable the result would
have been more favorable to the appealing party but for the
error”]; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1322–1323
[“The burden is on the appellant in every case affirmatively to
show error and to show further that the error is prejudicial
. . . .’”].)
Second, mother contends that terminating jurisdiction was
not in Russell’s best interest, because mother had been his
custodial parent since birth, the two shared a loving relationship,
and termination of jurisdiction deprived Russell of the
opportunity to receive services for his ongoing behavioral issues.
Mother ignores that, by the time of the adjudication hearing, her
relationship with Russell had been substantially damaged by
years of abuse; by removing Russell from her care, the juvenile
court expressly found that this abuse was detrimental to him.
(Cf. In re Liam L. (2015) 240 Cal.App.4th 1068, 1085 [“‘What is in
the best interests of the child is essentially the same as that
which is not detrimental to the child.’ [Citation.]”].) Moreover,
Russell was already receiving therapeutic services and showing
behavioral improvement while in father’s custody.
Third, mother contends that the juvenile court’s
termination of jurisdiction deprived her of an opportunity to
receive services and reunify with Russell. However, if a child is
5 Mother suggests that the case file contains relevant
information because counsel was appointed for Russell in the
family law matter, and the statutory role of minor’s counsel is to
gather evidence bearing on a child’s best interests (Fam. Code,
§ 3151). However, she does not argue that Russell’s counsel
actually uncovered any relevant evidence.
9
already placed in the custody of a parent, the juvenile court “is
not concerned with reunification” (In re Pedro Z. (2010)
190 Cal.App.4th 12, 20), as the goal of dependency proceedings “is
to reunify the child with a parent.” (In re Adrianna P. (2008)
166 Cal.App.4th 44, 59 [italics added].) Instead, the court must
determine “whether . . . dependency [jurisdiction] should be
terminated or whether further supervision is necessary.” (In re
Joel T. (1999) 70 Cal.App.4th 263, 267.)
“When deciding whether to terminate jurisdiction, the court
must determine whether there is a need for continued
supervision, not whether the conditions that justified taking
jurisdiction in the first place still exist.” (In re Janee W. (2006)
140 Cal.App.4th 1444, 1451.) In this case, the juvenile court
appropriately determined that its supervision was no longer
necessary; it was therefore justified in terminating jurisdiction.
II. Custody Orders
A. Applicable Law and Standard of Review
“When a juvenile court terminates its jurisdiction over a
dependent child, it is empowered to make ‘exit orders’ regarding
custody and visitation.” (In re T.H. (2010) 190 Cal.App.4th 1119,
1122; see also §§ 364, subd. (c), 362.4.) After placing a child with
a nonoffending parent pursuant to section 361.2, the juvenile
court is expressly authorized to issue exit orders providing “that
the [nonoffending] parent become legal and physical custodian of
the child[,]” and “may also provide reasonable visitation by the
noncustodial parent.” (§ 361.2, subd. (b)(1).)
We review these exit orders “‘for abuse of discretion
[citation] and may not disturb the order unless the court
“‘“exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination [citations].”’”’” (In
re M.R. (2017) 7 Cal.App.5th 886, 902.)
10
B. Analysis
Mother argues that the exit order is impermissibly vague
for two reasons: (1) it “improperly delegates to” father the
authority to determine “when or if visitation between [mother]
and [Russell] will occur[;]” and (2) the exit order “provides no
guidance on the basis for the . . . order[], nor of the treatment
that [mother] would need to participate in to request a change in
order.” For the reasons below, we agree with the latter
argument.6
1. Delegation
“‘The power to determine the right and extent of visitation
by a noncustodial parent in a dependency case resides with the
court and may not be delegated to nonjudicial officials or private
parties. [Citation.] This rule of nondelegation applies to exit
orders issued when dependency jurisdiction is terminated.
[Citations].’” (In re A.C. (2011) 197 Cal.App.4th 796, 799.)
Although “[a] visitation order may delegate to a third party the
responsibility for managing the details of visits, including their
time, place and manner[,]” it may not “delegate discretion to
determine whether visitation will occur, as opposed to simply the
management of the details.” (In re T.H., supra, 190 Cal.App.4th
at p. 1123.)
Mother contends that by including language that visitation
shall be “as arranged by the parents, but no less than
. . . 3 hour(s), 2 times per . . . month[,]” the exit order “essentially
results in a situation where [father] can decline to arrange
visits.” To the contrary, the juvenile court’s language establishes
a minimum number of visits at a fixed duration; while father can
determine the time and place of mother’s visits, he must facilitate
6 In its reply brief, DCFS did not respond to mother’s
argument regarding the exit order’s lack of guidance.
11
at least two three-hour visits per month. (Contra, In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 [“[L]eaving the
frequency and duration of visits within the legal guardian’s
discretion allows the guardian to decide whether visitation
actually will occur”].)
Citing In re T.H., supra, 190 Cal.App.4th 1119, mother
argues that the visitation order is “nearly unenforceable,”
because, unlike in the prior 2-2-5 custody order, it “is unclear as
to what days and times that [mother] will visit with [Russell],
[and] this is a situation where the parents will not agree upon an
arrangement.” Although mother and father, like the parents in
In re T.H., “do not get along” (In re T.H., supra, at p. 1123), this
case is otherwise distinguishable. In In re T.H., the juvenile
court’s exit order provided supervised visitation for the
noncustodial parent “only upon the ‘agreement of the parents[,]’”
“effectively delegat[ing] to [the custodial parent] the power to
determine whether visitation w[ould] occur at all.” (Ibid.) The
juvenile court’s abuse of discretion in that case was not in giving
the custodial parent the power to schedule visits, but rather
“framing its order in a way that gave [the custodial parent] an
effective veto power over” the noncustodial parent’s visitation
rights. (Id. at p. 1124.)
Here, the exit order does not allow father to curtail
mother’s visitation rights beyond a set minimum; it merely allows
him to “manage[] . . . the details” of visits. (In re T.H., supra,
190 Cal.App.4th at p. 1123.) It is thus a proper delegation of
authority. If father were to act in a way that thwarts mother’s
visitation rights, she would be free to seek enforcement or
modification of the order in the family court. (Contra, ibid. [the
noncustodial parent’s “ability to . . . modif[y] or enforce[] . . . the
order in the family court does not solve the problem of this
unauthorized delegation”] [italics added].)
12
2. Lack of guidance
When a juvenile court grants custody to the nonoffending
parent and terminates jurisdiction, the court must prepare and
file an exit order (Judicial Council Forms, form JV-200) in
accordance with rule 5.700 of the California Rules of Court.
Among other things, “‘[t]he orders need to provide specific
direction to the parents and other parties to facilitate compliance
and reduce the potential for conflict[.]’” (In re Anna T. (2020)
55 Cal.App.5th 870, 878.)
In addition, the final custody orders “‘must address the
circumstances that led to the juvenile court’s child custody and
parenting time orders to enable a family court to determine
whether circumstances have changed to a degree that justifies
considering whether the requested modification is in the best
interests of the child. The child custody orders need to serve
these functions without disclosing juvenile case information that
should remain confidential, because juvenile court child custody
orders, including attachments, are not themselves confidential.
(§ 362.4.)’ [Citation.]” (In re Anna T., supra, 55 Cal.App.5th at
pp. 878–879.)
As discussed above, the record in this case amply supports
the juvenile court’s decisions to remove Russell from mother’s
custody and to restrict her visitation rights. Unfortunately, the
exit order memorializing those decisions is deficient. While the
juvenile court properly used the JV-200 form and attached forms
JV-205 and JV-206, the information provided on the JV-206 form
is inadequate. Instead of setting forth the juvenile court’s
reasons for restricting mother’s parental rights, the order merely
reiterates that mother is entitled to “only supervised visitation.”
The juvenile court checked a box indicating that mother “has not
completed . . . court-ordered programs[,]” but does not specify
13
which services or programs mother needed to complete.7
Nowhere does the juvenile court address the circumstances that
led to mother losing custody and having limited visitation.
Under these circumstances, the matter must be remanded
so that the juvenile court can amend the exit order to include the
reasons for its custody and visitation orders. (See, e.g., In re A.C.,
supra, 197 Cal.App.4th at pp. 799–800 [after termination of
jurisdiction, juvenile court is empowered to make exit orders
regarding visitation].)
DISPOSITION
The juvenile court’s orders are affirmed. The matter is
remanded to the juvenile court with directions to set forth, in the
JV-206 form, its reasons for removing Russell from mother’s
custody and limiting her to twice monthly monitored visitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
7 We note that the record does not indicate that mother was
ever ordered to participate in services.
14