In re Hailey G. CA2/8

Filed 1/24/23 In re Hailey G. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re HAILEY G., a Person B315529
Coming Under the Juvenile Court
Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 20CCJP02062A
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Etan Z. Lorant, Juvenile Court Referee. Affirmed.
Liana Serobian, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, Interim County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
**********
Mother N.M. appeals the juvenile court’s exit order pursuant
to Welfare and Institutions Code section 362.4 allowing her only
monitored visits with her daughter, Hailey G. The order reflects no
abuse of the juvenile court’s discretion, so we affirm.
BACKGROUND
This dependency proceeding began in 2020, when Hailey was
10 years old. At the time of the petition, a 2016 family law order
governed Hailey’s parents’ custody and visitation rights. The
parents shared joint legal custody, father had primary physical
custody, and mother had unmonitored visitation on alternating
weekends and two nights per week.
The family came to the attention of the Los Angeles County
Department of Children and Family Services (Department) based
on reports of mistreatment by mother and certain female maternal
relatives during Hailey’s unmonitored visits with mother. These
included verbal abuse, physical abuse, and inappropriate touching
of Hailey’s vagina. Mother denied some of these reports but
acknowledged physically disciplining Hailey and touching her
vagina for hygienic purposes while showering together. Hailey
reported that being with mother made her mad and sad, and caused
her to consider self-harm and suicide.
Based on the alleged abuse and at the Department’s request,
the juvenile court ordered Hailey removed from mother. It then
ordered Hailey released to father and detained from mother while
allowing mother monitored visits.
In its ensuing investigation, the Department gathered further
information corroborating the abuse alleged. Hailey underwent a
forensic interview in which she gave statements consistent with
prior reports about female maternal relatives touching her vagina.
However, she disclaimed earlier statements about suicidal
ideations, explaining she had made these in order to get the
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attention of the Department and to achieve her objective of living
exclusively with father.
In August 2020, the juvenile court sustained an amended
petition against mother only and ordered services. Even before the
dispositional hearing, mother had begun parenting classes and
individual therapy pursuant to referrals made after detention.
Mother’s short-term goals focused on her own mental health to
permit improved relations with Hailey. Her long-term goal was to
reunify. Mother’s court-ordered case plan was designed to further
these objectives, and included a parenting program, individual
counseling, conjoint counseling with Hailey, and monitored
visitation, with the Department having discretion to liberalize
mother’s visits.
Per status reports dated March and September 2021, mother
complied with her case plan and made progress on the issues that
brought Hailey to the Department’s attention. Mother gained a
better understanding of boundaries and learned coping and
communication techniques to improve interactions with Hailey and
father. Mother demonstrated success in applying these skills in
monitored visitation. However, they remained untested in an
unmonitored in-person visitation setting (such as those where the
abuse prompting intervention by the Department occurred).
Mother’s skills were tested in a trial run of three unmonitored video
calls in May 2021, but mother requested that monitoring resume
after Hailey raised issues that mother felt were better suited for
conjoint therapy. As of September 2021, mother remained “not
comfortable . . . with unmonitored visitation with Hailey . . . .”
Further, as of September 2021, mother and Hailey had yet to
attempt conjoint therapy.
Nonetheless, the Department recommended the juvenile court
terminate jurisdiction and grant sole legal and physical custody of
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Hailey to father, with monitored visitation for mother. This
recommendation took into account, among other things, Hailey and
father’s shared desire that the case be closed; mother’s recognized
need to “set appropriate boundaries for herself and to eventually
participate in conjoint therapy with Hailey as part of a re-building
of their relationship”; mother’s continuing discomfort with
unmonitored visits; and mother’s concession “that father should
have full custody going forward.”
At the hearing to terminate jurisdiction, mother’s counsel
argued for unmonitored visitation subject to Hailey and mother
starting conjoint therapy. The juvenile court rejected this request
while recognizing that mother could bring a request to modify
visitation with the family court. It entered, among others, its
visitation order, and mother timely appealed.
DISCUSSION
1. Governing Law and Standard of Review
Welfare and Institutions Code section 362.4, subdivision (a)
authorizes a juvenile court to issue family law orders governing
custody or visitation when terminating jurisdiction over a
dependent child. (Ibid.) “An order entered pursuant to
section 362.4 is commonly referred to as an ‘ “exit” ’ order.”
(In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455.)
In fashioning an exit order, “ ‘the court’s focus and primary
consideration must always be the best interests of the child.’ ” (In
re T.S. (2020) 52 Cal.App.5th 503, 513.) In ascertaining those
interests, the court “ ‘must look to the totality of a child’s
circumstances when making decisions regarding the child.’ ” (In re
J.T. (2014) 228 Cal.App.4th 953, 963.) Juvenile courts exercise
“broad discretion” in fashioning exit orders. (See In re Nicholas H.
(2003) 112 Cal.App.4th 251, 265, fn. 4.)
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Although they constitute a final judgment of the juvenile
court, exit orders are subject to modification or termination in a
later family law proceeding. (Welf. & Inst. Code, §§ 302, subd. (d),
362.4, subd. (b).)
We review exit orders issued pursuant to Welfare and
Institutions Code section 362.4 for abuse of discretion. We will not
disturb a juvenile court’s decision unless it “ ‘ “exceed[s] the limits of
legal discretion by making an arbitrary, capricious, or patently
absurd determination.” ’ ” (In re Stephanie M. (1994) 7 Cal.4th 295,
318; see also Bridget A. v. Superior Court (2007) 148 Cal.App.4th
285, 300–301 [exit orders reviewed for abuse of discretion].)
2. The Exit Order Reflects No Abuse of Discretion
Mother asserts in a heading that “the court abused its
discretion in ordering monitored visitation for mother as opposed to
unmonitored visitation,” but she fails to acknowledge the limits of
abuse of discretion review or explain how the order fell outside the
realm of the juvenile court’s discretion. This alone is a sufficient
basis on which to affirm the order. (See Ewald v. Nationstar
Mortgage, LLC (2017) 13 Cal.App.5th 947, 948 [“ ‘ “Arguments
should be tailored according to the applicable standard of appellate
review.” [Citation.] Failure to acknowledge the proper scope of
review is a concession of a lack of merit’ ”].)
Shortcomings in briefing aside, the juvenile court did not
abuse its discretion in limiting mother’s visits to monitored visits.
At the time of the hearing, the juvenile court had before it evidence
that mother herself “ha[d] expressed she [wa]s not comfortable at
th[at] time with unmonitored visitation with Hailey.” Mother’s
claim of abuse of discretion in the face of her own statements is
simply untenable.
Perhaps recognizing this, mother ignores the Department’s
contemporaneous report on her attitude toward unmonitored visits
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and misstates the status of visitation leading up to the exit order.
According to mother, “the Department deemed [unmonitored
visitation] safe and had already permitted mother to have
unmonitored visitation with Hailey since May 2021 prior to the
termination hearing with no reported concerns.” But the record
citations she provides for this assertion say no such thing. Rather,
they reflect that the Department, in consultation with the family,
authorized unmonitored video calls in May 2021, and after three
such visits, mother opted out. She “reported she did not feel
comfortable visiting with Hailey unmonitored at [that] time after all
and would be willing to discuss [issues Hailey had raised during the
calls] in conjoint therapy when it occur[red].” The record reflects no
in-person unmonitored visits at any time and no unmonitored video
calls in the five months preceding the exit order.
Mother argues in her brief that her desire for monitored
visitation was motivated by self-protection only. Mother argues she
was concerned that Hailey would intentionally misrepresent to
others (father, for example) what transpired during visits with
mother to advance Hailey’s own family objectives. Hailey admitted
to having done so before, and mother feared that further false
reports could jeopardize mother’s parental rights to her new baby.
Assuming it is true that mother’s misgivings about
unmonitored visits were out of concern for herself only, the juvenile
court could reasonably consider those misgivings in determining
whether unmonitored visits were in Hailey’s best interest when the
court issued its exit order. As the Department’s counsel argued to
the court, “mother not wanting to have the unmonitored visits . . .
speaks to the . . . lack of progress on mother’s part . . . .”
Mother’s appeal is effectively a request for us to substitute
our judgment for that of the juvenile court, which had before it
other evidence reasonably weighing in favor of its monitored
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visitation. That is not our role in abuse of discretion review. (See,
e.g., In re J.P. (2019) 37 Cal.App.5th 1111, 1123 [“The existence of
evidence supporting mother’s position does not demonstrate that
the juvenile court abused its discretion. Our role is not to
substitute our judgment for that of the juvenile court or reweigh the
evidence”].) Based on the totality of the circumstances reflected in
the record, including mother’s stated discomfort with unmonitored
visits; the lack of unmonitored in-person visits to date; the abuse
that arose in the context of unmonitored visits prior to the
commencement of the proceedings; the unfulfilled case plan of
mother and Hailey participating in conjoint therapy; and the
availability of the family court to consider liberalizing visitation in
the future, the visitation terms of the juvenile court’s order are not
arbitrary, capricious, or patently absurd.
DISPOSITION
The juvenile court’s order terminating parental rights is
affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
VIRAMONTES, J.
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