In re R.B. CA4/3

Filed 2/10/22 In re R.B. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re R.B. et al., Persons Coming Under
the Juvenile Court Law.
ORANGE COUNTY SOCIAL
SERVICES AGENCY,
G060641
Plaintiff and Respondent,
(Super. Ct. Nos. 20DP1110 &
v. 20DP1111)
M.B., OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Jeremy D. Dolnick, Judge. Affirmed.
Michelle D. Peña, under appointment by the Court of Appeal, for
Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Aurelio Torre,
Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
* * *
INTRODUCTION
In August 2021, the juvenile court terminated the dependency proceedings
involving 10-year-old R.B. and eight-year-old S.B. (collectively the children). The
court’s exit orders granted joint legal and physical custody to the children’s parents, M.B.
(father) and S.J. (mother), and placed the children’s primary residence with mother.
Father appeals the exit orders. We affirm.
The Orange County Social Services Agency (SSA) concedes on appeal
there was ample evidence that would have supported an order establishing father’s home
as the primary residence. However, the juvenile court did not err because substantial
evidence also amply supported its findings, and the court’s orders did not exceed the
limits of its discretion. The juvenile court praised mother’s performance on her case plan
and questioned father’s credibility. At the hearing terminating the dependency
proceedings, the children’s trial counsel supported the juvenile court’s decision.
Father also contends that SSA and the juvenile court failed to follow the
proper notice procedures under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901et seq.) (ICWA). Because the children were never placed in foster care or in an adoptive
home, but rather were removed from the custody of one parent and placed in the custody
of the other, the requirements of ICWA were never at issue here.
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STATEMENT OF FACTS AND PROCEDURAL HISTORY
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In September 2020, SSA filed a petition alleging that R.B., S.B., and B.R.
came within the jurisdiction of the juvenile court pursuant to Welfare and Institutions
Code section 300, subdivision (b)(1). (Further undesignated statutory references are to
the Welfare and Institutions Code.) The petition alleged, among other things, mother
may have a substance abuse problem and did have ongoing mental health issues; when
mother took medication she would go to sleep and the children would have to take care of
themselves; mother and B.R.’s father had engaged in acts of domestic violence, and
arguments in the presence of the children; mother and father had a history of domestic
violence; and B.R.’s father had a substance abuse problem.
At the detention hearing, mother and father denied any American Indian
heritage. All three minors were removed from mother’s care; the children were placed
with father, and B.R. was placed with the maternal grandmother.
Before the jurisdiction hearing, father advised SSA that he was registered
with the Oneida Indian Nation, but could not provide an enrollment number. Father also
stated that his father (the children’s paternal grandfather) was registered with the Oneida
Indian Nation, and provided the paternal grandfather’s birthplace, but was unable to
provide his birthdate, further family information, or contact information for other
relatives who might be able to provide additional information. SSA contacted the Oneida
Indian Nation, and was informed that father and the children were neither enrolled nor
eligible for enrollment in the tribe.
At the jurisdiction hearing, both mother and father pled no contest to the
petition, as amended by interlineation, and the juvenile court found the allegations of the
amended petition true by a preponderance of the evidence. At the disposition hearing, the
1
B.R. is the children’s half sibling; B.R.’s parents are mother and J.R. B.R.’s status is
not at issue in this appeal.
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court declared the children to be dependents of the juvenile court, and found that
reasonable efforts had been made to prevent or eliminate the need for removal of the
children from their home, that the children’s physical, mental health, developmental, and
educational needs were being met, and that continued placement was necessary and
appropriate.
After a contested evidentiary six-month review hearing, the juvenile court
terminated the dependency proceedings, ordered that mother and father would have joint
legal and physical custody of the children, and that the children’s primary residence
would be with mother. Father filed a timely notice of appeal from the exit orders.
DISCUSSION
I.
PLACEMENT IN MOTHER’S HOME
When it terminated dependency over the children, the juvenile court entered
an order pursuant to section 362.4 determining that the children’s primary residence
would be with mother. We review this order for abuse of discretion. (In re C.W. (2019)
33 Cal.App.5th 835, 863.) We may not disturb an order under section 362.4 “unless the
court ‘“‘exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination [citations].’”’” (Bridget A. v. Superior Court (2007) 148
Cal.App.4th 285, 300.)
Father argues that placing the children’s primary residence with mother was
not in the children’s best interest. SSA concedes that “Father makes a legitimate
argument for custody within his present claim. The [children] were by all accounts safe
and secure in his home . . . and there was much to commend as to Father’s immediate and
sustained attention to their needs after their initial removal from Mother’s care in late
2020.”
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At the disposition hearing in February and March 2021, the social worker
testified that “there should be minimal disruption to the children. They have adjusted
well to the father, and they’re doing well in the care of the father. However, . . . we are
not opposed to the 50/50 [custody]” if mother completed her case plan and finished all
requirements set for her.
In a June 2021 status review report, the social worker provided the
following assessment and evaluation:
“The father has continued to maintain a stable home for the children during
this period of supervision. The father has completed the majority of the current case
plan. The undersigned has continued to complete monthly contact visits to the home and
during the visits both children have expressed that they have no issues continuing to live
with the father at his home. The undersigned has observed the father’s interaction with
both of the children, and they seem to be thriving in his care. The undersigned has no
concerns regarding the safety of the children in the father’s care at this time.
“The mother has also continued to maintain a stable home for both children
during this period of supervision. The mother has also completed most of the current
case plan. The undersigned has also been to the home of the mother when the children
are visiting her and has no concerns regarding the mother’s interaction with both children
or for the safety of the children while they are in her care.
“The mother and father have mitigated the majority of the issues that
brought the children to the attention of the Court. The undersigned has observed the
mother and father taking care of the children and they both seem very attentive and
connected to them. The risk of the children being removed from the home of the father is
very low at this time due to the father’s continued stability.
“Though the mother and father continue to disagree regarding the mother’s
visitation, there are no further child welfare concerns present with this case to justify that
it remain open.”
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At the six-month review hearing, SSA requested that the juvenile court
terminate the dependency cases and order that mother and father share legal and physical
custody with a 50/50 split of parenting time “to the extent that that is achievable.”
Mother argued for a 50/50 parenting split, but she requested that her home be the primary
residence “if the court is not inclined to grant a 50/50 custody arrangement” so that the
children “can live with their mother, can attend a well-funded safe school, and also live
with their two other siblings.” Father requested he be made the “primary parent.”
The children’s counsel argued that the children’s need for stability
outweighed the benefits of a 50/50 custody arrangement. The children’s counsel also
agreed with father that the time being spent travelling between mother’s and father’s
homes during the week “is not in their best interest.” The children’s counsel then stated:
“So with that in mind, I’m now in a position where I have to argue which full-time home
and school I believe would be in the [children’s] best interest. At this time I do believe a
more primary home should be with the mother.” This recommendation was based on the
resources available at the school near mother’s home; mother’s recovery, dedication to
the children, insight into how the case started, and remorse; and the children’s exposure
to father’s negative communications regarding mother and B.R.’s father.
The juvenile court granted joint legal and physical custody with primary
residence to the mother. The court concluded this arrangement was in “the best interest
of the [children],” and stated that its ruling was based on findings regarding father’s
history of domestic violence and mother and father’s inability to cooperate during the
dependency proceedings; mother’s progress with her case plan and progress in addressing
the issues leading to the dependency proceeding; and mother’s credibility as a witness
vis-à-vis father. All of these findings are supported by substantial evidence in the record.
In 2019, father was convicted of violating Penal Code section 243,
subdivision (e)(1) (battery against a domestic partner) against mother in 2017. A
restraining order was issued against father in 2018 to protect mother and the children.
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Father claimed mother had lied to the police about the battery, but he had pled guilty to
the charge “just to move forward as he hadn’t seen the children in 2 years.”
Mother testified that, while the children were in father’s car on one of the
days during the six-month review hearing, father telephoned mother and in “a very loud
abrasive tone” told mother she did not care about the children, the children were only
temporary and mother’s newborn took precedence over them in her life, mother did not
care about the children and was “a horrible f’ing mother,” and mother and B.R.’s father
were drug addicts. Father refused to release the children to B.R.’s father and yelled
obscenities at him. Father admitted in court he refused to release the children to B.R.’s
father because “he’s a drug addict.”
On a previous occasion, father told a visitation supervisor, in front of the
children, that mother steals father’s money, is a drug addict, and doesn’t care about the
children. Father denied ever having disparaged mother in front of the children. The
juvenile court found that testimony not credible: “The father, on the other hand, could
not give a straight answer to any question that was posed before him.”
At the six-month review hearing, father testified: “I’ve only moved twice
in the past eight years. [Mother] has moved double or triple that in the past five. I think
there’s too much inconsistency happening over there, as well as recovering drug addicts,
two of them, in the same household.” Father also testified that mother “continually lied
about her address,” and attempted to testify mother filed her tax returns late.
The juvenile court rejected father’s attempts to besmirch mother: “The
father took every opportunity to criticize or shoot down the mother, even if it was
inconsistent with the evidence before the court, and frankly was nonresponsive to the
question being posed. [¶] The father seemed less focused on the best interest of the
[children] . . . than ensuring that the mom was seen by the court as being incompetent,
being hooked on drugs currently, and that the [children] did not want to be around her in
the first place, which is not consistent with the evidence.” The court further noted it had
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“concerns that the father’s resentment of the mother is affecting her relationship with the
[children].”
As for mother’s progress during the dependency proceedings, the record
fully supports the juvenile court’s findings that “Mom has passed this court’s
requirements with flying colors. [¶] She has completed her case plan, she has been
deemed safe by the social services agency and by this court for sometime.” SSA noted in
a June 2021 status review report that mother’s cooperation with the case plan and efforts
and progress toward alleviating or mitigating the issues leading to dependency had been
substantial. Mother completed the court-ordered parenting classes: “[D]uring the
in-home parenting coach sessions the mother was very engaged and followed directions
well. The mother was also very consistent in attending with all the sessions with the
program and by the end of the parenting coach session was observed to be utilizing many
of the skills that she was taught during the in-home parenting coach sessions.” Mother
also completed individual therapy: “The mother apparently has completed the entire
program and made great progress in the program. In case notes read to the undersigned it
stated that the mother had addressed her issues of substance abuse quite openly and
gained insight and addressed the different reasons the child[ren were] taken into
protective care.” Mother also enrolled, participated in, and completed a substance abuse
outpatient treatment program: “[M]other had addressed her issues of substance abuse
quite openly and . . . she addressed her triggers with substance abuse during the program.
[¶] Further, the mother will be attending the aftercare part of the program one time per
month so that the mother can continue to gain insight with her sobriety.” All of mother’s
substance abuse tests were negative. Mother had unsupervised visitation with the
children every other weekend. The children “love visiting the mother” and “seem very
connected to the mother.”
Father offers evidence from the record supporting his contention that the
children should have been placed in his primary care. In June 2021, B.R. slipped and fell
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into a jacuzzi while mother was holding her newborn, and R.B. pulled B.R. out of the
jacuzzi. A child abuse report was taken, and was determined to be unfounded. Father
contends this incident continued mother’s previous pattern of being overwhelmed when
caring for all her children, and of parentifying R.B. Father’s home was safe and stable
for the children. Father had prepared for the children to attend school near his home
2
starting in August 2021, and had a 504 plan in place for S.B., who had attention deficit
hyperactivity disorder and learning disabilities. But even accepting all of the evidence
offered by father, we cannot say that the juvenile court’s decision to make mother’s home
the children’s primary residence was an abuse of discretion.
In his reply brief, father argues that the juvenile court failed to consider the
children’s best interest and the totality of the circumstances in placing the children with
mother. We reject both of these arguments. The juvenile court specifically stated on the
record that its orders were based on the children’s best interest, and a review of the
court’s reasoning proves the truth of that statement. Further, the court reviewed and
considered all SSA reports which addressed the jacuzzi incident, as well as the testimony
of all witnesses. That the court did not specifically address the jacuzzi incident in
announcing its decision does not mean the court did not consider it.
Father also argues he was prejudiced by the juvenile court’s order because
he will have to meet a heightened burden challenging the custody order in the family
court than he would have faced in the juvenile court. Section 302, subdivision (d)
provides: “Any custody or visitation order issued by the juvenile court at the time the
juvenile court terminates its jurisdiction pursuant to Section 362.4 regarding a child who
has been previously adjudged to be a dependent child of the juvenile court shall be a final
2
“Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.) and the federal
implementing regulations require public schools to provide a plan of accommodation for
children with qualifying disabilities to satisfy their special needs.” (In re I.B. (2020) 53
Cal.App.5th 133, 144, fn. 4.)
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judgment and 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.” (Italics added.)
Father challenges the exit orders, not the order terminating the dependency
proceeding. Therefore, even if we were to reverse the order under section 362.4
regarding making mother’s home the children’s primary residence, the custody issue
would be remanded to the family law court, not the juvenile court. “While remand to a
court different from the one which issued the judgment appealed from is, to say the least,
unusual, such a result is necessarily inherent in section 362.4, which expressly
contemplates future proceedings in the family courts. By providing that the exit order be
filed in any dissolution case between the parents, the Legislature has demonstrated an
intent that any future court proceedings in which custody is in issue be in the family
court. When the merits of a section 362.4 exit order are at issue (as distinct from the
validity of termination itself), the time lag inherent in the appellate process itself means
that any remand must necessarily be directly to the family court. Who else is there when
juvenile court jurisdiction has been correctly terminated?” (In re John W. (1996) 41
Cal.App.4th 961, 976-977; see In re Alexandria M. (2007) 156 Cal.App.4th 1088,
1098-1099 [affirming order terminating dependency jurisdiction, reversing juvenile
court’s order regarding custody, visitation, and child support, and remanding those issues
to the family court]; In re Phoenix B. (1990) 218 Cal.App.3d 787, 794-795 [“juvenile
court does not have jurisdiction to resolve custody disputes concerning nondependent
children”; complaining parent’s remedy is in a family court proceeding].)
Father cites two cases that he contends establish that if orders made at a
hearing under section 362.4 are reversed, remand is to the juvenile court. These cases,
however, are distinguishable. The court in In re Elizabeth M. (2008) 158 Cal.App.4th
101551, 1560 reversed the judgment terminating the dependency proceeding, not the exit
orders; remand to the juvenile court was therefore required. The appellate court in that
case noted that, after the juvenile court modified its judgment to incorporate the father’s
visitation schedule, “[a]ny change from that schedule in the family court will require the
notice and evidence [the father] was promised.” (Ibid., italics added.) In In re T.H.
(2010) 190 Cal.App.4th 1119, 1122-1123, the court held: “When a juvenile court
terminates its jurisdiction over a dependent child, it is empowered to make ‘exit orders’
regarding custody and visitation,” which “become part of any family court proceeding
concerning the same child and will remain in effect until they are terminated or modified
by the family court.” The appellate court remanded the visitation order to “the trial
court,” while all previous references in the opinion regarding the dependency proceedings
were to the “juvenile court” or the “court.” (Id. at p. 1124.) At best, it is unclear whether
the remand was to the juvenile court or the family court.
II.
ICWA DUTIES OF INQUIRY AND NOTICE
Father argues that the juvenile court’s orders must be reversed because the
court failed to follow the proper procedures under ICWA. A juvenile court’s ICWA
findings are reviewed for substantial evidence. (In re Josiah T. (2021) 71
Cal.App.5th 388, 401.)
Given the children’s placement, ICWA never came into play in this matter.
“By its own terms, the act requires notice only when child welfare authorities seek
permanent foster care or termination of parental rights; it does not require notice anytime
a child of possible or actual Native American descent is involved in a dependency
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3
proceeding.” (In re Alexis H. (2005) 132 Cal.App.4th 11, 14.) Here, the children were
never placed in foster care or in an adoptive home. After being removed from mother’s
custody, the children were placed with father and remained in his custody and care until
the juvenile court issued its exit orders. “ICWA and its attendant notice requirements do
not apply to a proceeding in which a dependent child is removed from one parent and
placed with another.” (In re M.R. (2017) 7 Cal.App.5th 886, 904; see In re A.T. (2021)
63 Cal.App.5th 267, 274-275.)
In his reply brief, father contends that, with proper notice, the tribe might
have intervened in the dependency proceedings to opine on whether father’s home was a
better placement for the children than mother’s home. Father fails to provide any
authority to support this claim.
If we were to reach the merits of father’s claim of improper ICWA notice,
we would nevertheless reject his argument. When the juvenile court or social worker has
“reason to believe” an Indian child is involved in a dependency proceeding, the
designated agent of the identified tribe must be contacted by “telephone, facsimile, or
electronic mail” by “sharing information identified by the tribe as necessary for the tribe
to make a membership or eligibility determination, as well as information on the current
status of the child and the case.” (§ 224.2, subd. (e)(2)(C).) This procedure was followed
in this case, where SSA contacted the Oneida Indian Nation’s designated agent and
provided all information obtained from father, and the tribe confirmed that neither father
nor the children were enrolled or eligible for enrollment. There was no “reason to know”
3
In relevant part, ICWA states: “[I]t is the policy of this Nation to protect the best
interests of Indian children and to promote the stability and security of Indian tribes and
families by the establishment of minimum Federal standards for the removal of Indian
children from their families and the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture.” (25 U.S.C. § 1902.)
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the children were Indian children, so the greater notice requirements of section 224.3
never came into play.
DISPOSITION
The judgment is affirmed.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MARKS, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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