In re J.M. CA2/3 ( 2024 )

Filed 5/21/24 In re J.M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
B326138
In re J.M., a Person Coming
(Los Angeles County
Under the Juvenile Court Law.
Super. Ct. No. 22CCJP00010B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Craig Barnes, Judge. Affirmed, in part,
vacated in part, and remanded with directions.
John P. McCurley, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
J.M. (father) appeals from the juvenile court’s custody and
visitation order issued following the termination of dependency
jurisdiction over his son, J.M. Father argues the juvenile court
abused its discretion when it granted sole physical custody to
mother and awarded father only monitored visitation. He further
contends that the juvenile court’s visitation order contained
impermissible conditions on the family court’s future modification
of the order. We vacate the portion of the juvenile court’s
visitation order purporting to restrict the family court’s
modification of the order. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
J.M.’s family came to the attention of the Department of
Children and Family Services (DCFS) in December 2021, when
his maternal half sister, M.S., reported to a teacher that J.M.’s
paternal grandfather had sexually abused her from kindergarten
through fourth grade, with the last incident occurring around
December 2020. M.S. provided detailed reports of the abuse to
DCFS, law enforcement, and medical professionals. Paternal
grandfather denied the allegations.1
1 Previously, mother, M.S., J.M., and father lived with the
paternal grandparents. In late 2018 or early 2019, mother and
the children left and moved in with mother’s family. In January
2
A year earlier, M.S. had told mother that paternal
grandfather touched her over her clothes. At that time, mother
confronted father and paternal grandmother. Father did not
believe M.S. and asserted that maternal aunt’s boyfriend was the
abuser.2
In December 2021, when mother learned of the full extent
of paternal grandfather’s abuse, she was cooperative with DCFS
and enrolled M.S. in therapy. Father denied M.S.’s allegations
and continued to deny them throughout the pendency of the case.
In late December 2021, DCFS detained J.M. from father and
placed him with mother.
In the January 2022 detention report, DCFS reported that
father conceded he previously used methamphetamine. He
reported being “ ‘hooked on it for a little bit.’ ” Mother said father
used methamphetamine for years and it was an issue in their
relationship. Father denied any current use of alcohol or drugs
except for marijuana. Mother admitted she occasionally uses
marijuana. In December 2021, mother tested negative for drugs
and alcohol.
The January 2022 detention report also indicated father
was concerned about J.M. living with mother. According to
father, mother’s brothers were gang-affiliated. Father also
reported that maternal uncle D.B., with whom mother lived, had
an arrest relating to soliciting a minor on the internet. When
DCFS asked D.B. whether he could move out of the maternal
2021, J.M. (then two years old) returned to live with father and
the paternal grandparents.
2 DCFS later investigated this claim and concluded the
maternal aunt’s boyfriend had not abused M.S.
3
family home, D.B. said his only relevant parole condition was he
could not be alone with the children.
Petition, Detention, Jurisdiction, and Disposition
In January 2022, DCFS filed a Welfare and Institutions
Code section 300 petition on behalf of J.M. and M.S.3 The
petition alleged paternal grandfather had sexually abused M.S.,
father had a history of substance abuse and was a current abuser
of marijuana, and mother had failed to protect the children from
paternal grandfather’s abuse and father’s substance abuse.
In April 2022, the juvenile court sustained the petition
based on mother’s failure to protect the children and father’s
history of substance abuse and current abuse of marijuana. The
court removed J.M. from father, released him to mother, and
ordered monitored visitation for father.
The court further ordered family maintenance services for
mother and family enhancement services for father. In father’s
written case plan, his services were listed as a drug/alcohol
program with aftercare, random or on-demand drug/alcohol
testing, a 12-step program, sex abuse awareness counseling, and
housing assistance. Mother was required to complete sex abuse
awareness counseling, attend individual counseling, enroll M.S.
in therapy, and attend joint therapy sessions with M.S. if
recommended by the therapist.
Parents’ Participation in Services
Mother participated in all of her court-ordered services and
ensured the children no longer had contact with maternal uncles.
She completed her court-ordered sex abuse awareness counseling
in October 2022. She also regularly attended therapy. Mother
3 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
4
enrolled M.S. in therapy and attended joint counseling with her.
In September 2022, mother informed DCFS that she and the
children no longer lived with any maternal uncles, and DCFS
visited the home to confirm.4
Father complied with his court-ordered drug testing. He
tested positive for marijuana on numerous occasions between
December 2021 and February 2023. He also completed his court-
ordered six-month outpatient substance abuse program in
February 2023. The letter confirming his completion stated that
while father continued to use cannabis to treat his back pain, he
had not tested positive for any other substance during his six-
month treatment. In February 2023, father enrolled in a
recovery support program. Father also completed other
programs, including a parenting class and an anger and stress
management class, in February 2023. There is no indication that
father enrolled in sex abuse awareness counseling.
Father’s Complaints About Mother
In February 2022, mother told the social worker that
another child threw a toy at J.M., cutting his cheek, so she took
him to urgent care. The social worker informed father, who
responded that “ ‘these things never happen under his care.’ ”
In March 2022, father told DCFS that J.M. said mother and
mother’s babysitter hit J.M. Father provided videos of J.M.
making these accusations. The social worker visited J.M. and
found no concerns as to any physical abuse.
In August 2022, when father’s visitation monitor and
mother exchanged custody of J.M. at a police station, J.M. told
4 DCFS further verified that mother did not live with any
maternal uncles in November 2022, February 2023, and May
2023.
5
the police, “ ‘My mommy hits me.’ ” At home, J.M. apologized to
mother and said father “made him” make the statement to the
police.
According to DCFS’s January 2023 interim review report,
father would “become[ ] extremely upset” when J.M. had the flu
or a cold and would “blame mother [for] being negligent,” despite
the social workers explaining J.M. fell ill from being in contact
with other children in day care.
On a single day in March 2023, father sent five videos of
J.M. to a social worker. In one video, father accused mother of
not taking care of J.M. and said J.M. was never sick in his care.
Father also accused mother of being a “dead beat.” He recorded
himself interviewing J.M., asking him things like, “Why are you
still sick[?]” One video depicted father interviewing J.M., and
J.M. stating “ ‘[M]y mom wasn’t behaving good . . . .’ ”
Later in March 2023, father sent a social worker an email
asserting: “[Y]ou guys are killing my son ever since you took him
from my care he[ ] gotten beat[e]n and abused and has been sick
even had an opened wo[und] on his cheek and now he has
as[th]ma this has gone to[o] far already my son was safe with me
he is also saying bad words now and behaving aggressively he
never behaved like this when he was with me . . . .”
Throughout the case, father believed a DCFS social worker
was connected to mother and accused the social worker of
conspiring with mother against him.
In April 2023, DCFS asked father what he had learned
from his enhancement services, and father replied he had learned
to cope with his anger and stress and to understand J.M., among
other things. He also said he learned not to hit his son, “unlike
‘his mother who has no patience.’ ” He then “shifted the focus” to
6
saying “negative things about mother like [her] neglecting his
son, laying a hand to his son, [and] mother having emotional and
mental health problems.” In addition, father still believed
paternal grandfather had not abused M.S. and that it had been
the maternal aunt’s boyfriend.
Final Review Hearing and Juvenile Custody Order
In May 2023, DCFS filed a status review report
recommending the juvenile court terminate jurisdiction and
grant mother sole physical custody. The report stated J.M. had a
strong bond and relationship with both parents and was safe in
mother’s home. DCFS had no concerns about J.M.’s health or
development in mother’s care. D.B. no longer lived with mother
and had no contact with J.M., and mother continued to follow
court orders and comply with DCFS. Father only communicated
with DCFS through text and email, and DCFS found it “difficult
. . . to engage” with father. Often, father did not respond to the
social worker’s attempts at contact and assistance.
At the May 2023 final review hearing, father requested sole
physical custody of J.M. Father’s counsel argued father had
made progress in substance abuse treatment, paternal
grandfather had moved out of the paternal family home,5 and
father had significant concerns about mother’s brothers and her
treatment of J.M. DCFS responded that father had made the
same allegations about mother throughout the case, it had
investigated, and there were no “safety concerns” with J.M. in
5 In January 2023, father submitted a handwritten letter to
the court, purportedly from a landlord, which stated paternal
grandfather had a six-month lease that would terminate in July
2023.
7
mother’s care. J.M.’s counsel asked the court to grant mother
sole physical custody.
The court ordered joint legal custody and awarded sole
physical custody to mother, with monitored visits for father. In
explaining the order, the court cited father’s “attacks” on mother
“throughout the case,” and the court’s resulting concerns about
father’s ability to co-parent. Father’s counsel then requested an
expansion of father’s visitation rights, which the court denied,
reasoning father’s progress with services had been “somewhat
inconsistent.” Father’s comments regarding mother indicated to
the court that father had “more to do,” and that he would need to
demonstrate progress to modify the visitation order. The court’s
written order provided: “Father is to demonstrate case plan
compliance and progress before the visitation orders can be
changed.”
After reviewing the juvenile court’s written orders, father’s
only objection was to the contents of a page titled, “Reasons for no
or Supervised Visitation.” The document indicated father had
not completed and not made substantial progress in his sex abuse
awareness counseling, drug abuse treatment with random
testing, and individual counseling. Father argued he did not
know he was required to complete sex abuse awareness
counseling; his social worker had not instructed him to enroll,
and he had made substantial progress in his drug abuse
treatment program. However, father’s counsel acknowledged
father’s written case plan required a sex abuse awareness
counseling. The court denied father’s request to modify the
written order.
Father timely appealed.6
6 Mother is not a party to this appeal.
8
DISCUSSION
I. The Juvenile Court Did Not Abuse Its Discretion by
Ordering Sole Custody to Mother and Monitored
Visitation for Father
Father argues the juvenile court abused its discretion in
awarding mother sole physical custody, and granting father only
monitored visitation, because the orders were based on an
inaccurate determination that father failed to make progress in
his services. He also asserts that he had reason to voice his
concerns about mother and the maternal uncles, and he
reasonably disbelieved M.S.’s sexual abuse allegations against
paternal grandfather. We find no basis for reversal.
A juvenile court has broad discretion to make custody and
visitation orders tailored to the child’s best interests when it
terminates jurisdiction in a dependency case. (§ 362.4; In re
Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) In
determining how parental visitation and custody should continue
after dependency jurisdiction is terminated, the juvenile court
must consider the best interests of the child under the totality of
the circumstances. (In re J.M. (2023) 89 Cal.App.5th 95, 115
(J.M.).)
We review juvenile custody orders for abuse of discretion.
(In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 (Cole Y.).)
Accordingly, we do not disturb the orders unless the juvenile
court exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination. (In re
M.R. (2017) 7 Cal.App.5th 886, 902.) If two or more reasonable
inferences may be drawn from the facts, we will not substitute
our discretion for that of the juvenile court. (In re J.N. (2006) 138
Cal.App.4th 450, 459.)
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The juvenile court did not abuse its discretion here. At the
time of the May 2023 status review hearing, J.M. had lived
exclusively with mother for over a year. He had a strong bond
with mother and DCFS had no concerns about mother’s care.
Mother no longer lived with her brothers, and the children had no
contact with D.B. Although father argues on appeal that the
custody order was inappropriate because mother failed to protect
the children from sexual abuse, there was evidence that by the
time the juvenile court terminated jurisdiction, mother was
ensuring M.S. was in therapy, mother had completed her sex
abuse awareness counseling, and mother was enrolled in
individual therapy. Moreover, while mother contemporaneously
confronted father and paternal grandmother when M.S. reported
paternal grandfather’s sexual abuse, there is no indication father
took any steps to protect M.S. or J.M. when he learned of M.S.’s
accusations. Unlike mother, father did not investigate the
alleged abuse, and, in May 2023, he still denied M.S.’s
allegations, despite evidence indicating she was credible.
Moreover, father continued to test positive for marijuana as
late as February 2023, after consistently testing positive for
months. And when father finished his outpatient substance
abuse program, the program officer reported he continued to use
marijuana. Accordingly, the juvenile court reasonably concluded
father had not yet resolved or made substantial progress in
addressing his marijuana abuse. In addition, father had not
completed his sex abuse awareness counseling. Father asserts
that DCFS never referred him to sex abuse awareness
counseling; however, his written family enhancement service
plan included sex abuse awareness counseling, as his counsel
conceded. The juvenile court reasonably considered the parents’
10
relative progress in their services as a reason for granting mother
sole custody. (See In re Jennifer R. (1993) 14 Cal.App.4th 704,
710 [sole custody to parent who established more progress with
services].)
Further, there was substantial evidence father was unable
or unwilling to effectively share parenting responsibilities with
mother. Father made numerous accusations against mother,
which DCFS investigated and found unsubstantiated. Father
accused mother of allowing J.M. to be beaten and abused; of
neglecting J.M., thus causing frequent illness; of being a “dead
beat”; and of continuing to live with her brother, who was a
registered sex offender. Father also subjected J.M. to father’s
disputes with mother. He coached J.M. to make accusations to
the police and in videos father sent to DCFS. Based on father’s
unfounded accusations, and his repeated actions involving J.M.
in those accusations, the court was within its discretion in
determining sole physical custody to mother was appropriate
because father was unable to co-parent. (In re Maya L. (2014)
232 Cal.App.4th 81, 103, 104 [sole custody to father where
mother accused father of unsubstantiated child neglect and abuse
and caused child to feel “ ‘caught in between her parents,’ ” so
mother could not “coparent effectively”]; J.M., supra, 89
Cal.App.5th at p. 115 [sole custody to mother where father
blamed mother and DCFS for his relationship issues with the
child].)
Considering the totality of the circumstances, the juvenile
court did not abuse its discretion when it determined joint
physical custody was not in J.M.’s best interests. Nor was it an
abuse of discretion for the court to conclude that father’s visits
should be monitored. Father does not make any specific
11
argument as to why monitored visits were inappropriate, and
monitoring was reasonable to minimize father’s ability to
continue using J.M. as a pawn in his disputes with mother.
The juvenile court did not abuse its discretion in its orders
awarding sole physical custody to mother and monitored
visitation to father.
II. The Visitation Order Is Vacated to the Extent It
Purports to Limit the Family Court’s Modification
Authority
Father also argues the juvenile court erred when it imposed
conditions on the family court’s future modification of the
visitation order. We agree and vacate that portion of the order.
When a juvenile court terminates dependency jurisdiction,
it may issue a final order determining custody of and visitation
with the minor child. (§ 362.4, subd. (a); In re Chantal S. (1996)
13 Cal.4th 196, 203–204 (Chantal S.).) These custody and
visitation orders are then transferred to a family court file.
(§ 362.4, subd. (c).) Pursuant to section 302, subdivision (d), the
juvenile court’s order “shall remain in effect after that
jurisdiction is terminated. The order shall not be modified in a
proceeding or action described in Section 3021 of the Family Code
unless the court finds that there has been a significant change of
circumstances since the juvenile court issued the order and
modification of the order is in the best interests of the child.”
Therefore, “the decision to modify an exit order [is] within the
province of the family court, and then only upon a finding of
‘significant change of circumstances’ and that the modification is
in ‘the best interests of the child.’ ” (Cole Y., supra, 233
Cal.App.4th at p. 1456.)
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The juvenile court may impose requirements on parents as
part of a custody or visitation order, and it may issue an order
“conditioning custody or visitation on a parent’s participation in a
counseling program.” (Chantal S., supra, 13 Cal.4th at p. 204,
citing §§ 362.4, 362, subd. (c); Cole Y., supra, 233 Cal.App.4th at
p. 1456 [“juvenile courts may require participation in counseling
and other programs in an exit order”].) However, a juvenile court
may not impose conditions on the family court’s modification of
the order because doing so would exceed its authority. (Cole Y.,
at p. 1456 & fn. 4.) Thus, in Cole Y., the court held that the
juvenile court “did not have authority to condition the family
court’s modification of the exit order upon Father’s completion of
drug and parenting programs and counseling.” (Id. at p. 1456.)
The order in this case is similar to the one at issue in Cole
Y. Rather than simply ordering father to complete certain
programs (see, e.g., In re D.B. (2020) 48 Cal.App.5th 613), the
order expressly purported to limit future modification, stating,
“Father is to demonstrate case plan compliance and progress
before the visitation orders can be changed.” (Italics added.) This
is akin to the impermissible restriction in Cole Y. that
conditioned modification of the order on father’s completion of
programs. (Cole Y., supra, 233 Cal.App.4th at p. 1456.) While
the juvenile court was entitled to order father to demonstrate
case plan compliance and progress, it could not impose conditions
on the family court’s future modification of the custody and
visitation order.7
7 DCFS asserts father forfeited his argument that the
custody and visitation order impermissibly restricted the family
court by failing to object on that basis in the juvenile court. We
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DISPOSITION
The portion of the juvenile court’s May 8, 2023, order
limiting future modification is vacated. The matter is remanded
with directions to strike the language: “Father is to demonstrate
case plan compliance and progress before the visitation orders
can be changed.” In all other respects, the order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ADAMS, J.
We concur:
EDMON, P. J.
EGERTON, J.
note the court in Cole Y. addressed and rejected this same
argument, reasoning: “Father’s failure to object below . . . does
not disable us from addressing whether the juvenile court erred
in imposing conditions to the exercise of a family court’s
modification of an exit order absent the statutorily required
finding. The issue goes to the allocation of jurisdiction between
the dependency and family courts, a legal issue that, contrary to
DCFS’s assertion, cannot be forfeited.” (Cole Y., supra, 233
Cal.App.4th at p. 1456, fn 4.) Irrespective of whether the issue is
a jurisdictional one that cannot be forfeited, we agree that the
question is a legal one, and that we have the discretion to
consider it on appeal, even if not raised below. We do so here.
14