In re Grace H. CA2/2

Filed 11/18/21 In re Grace H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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not been certified for publication or ordered published for purposes of rule 8.1115.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 GRACE H., a Person B311037
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 19CCJP02992B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
BRYAN H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Affirmed.
Suzanne M. Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
******
Appellant Bryan H. (father) appeals from the juvenile
court’s February 11, 2021 order terminating jurisdiction over his
daughter Grace H. (born 2018) and granting sole legal and
physical custody over Grace to her mother, Yancy R. (mother).
We affirm the order.
BACKGROUND
Detention and Welfare and Institutions Code section 300
petition
While investigating a related case in March 2019, the Los
Angeles County Department of Children and Family Services
(the Department) received information concerning possible
substance abuse by father. Mother told the Department’s social
worker that father was Grace’s biological father, and that she
had separated from him in January 2019. Father went to visit
Grace at mother’s home on March 21, 2019, and took the child
from the home without mother’s consent. Father appeared to
mother to be under the influence of drugs at the time because his
eyes were red and he was sweaty.
Mother disclosed that she had mental and emotional health
issues as well. Mother told the social worker that she was
currently suffering from postpartum depression and that she had
been similarly depressed after giving birth to Grace’s older half-
2
sibling, Anthony.1 Mother sought treatment for her depression in
January 2019 and was prescribed medication.
The social worker spoke by telephone with mother’s
psychiatrist on March 27, 2019. The psychiatrist reported that
mother was assessed in January 2019 after an attempted suicide.
Mother had purposely overdosed on Tylenol and was placed on a
hospital hold for several days. Mother was referred for weekly
therapy, but she had not yet called to schedule a session. The
psychiatrist opined that mother was highly functioning and there
were no concerns regarding the children’s well-being at this time.
Father met with the social worker on March 27, 2019, and
initially denied any substance abuse issues. He subsequently
admitted that he began using methamphetamine in
January 2019 and had used methamphetamine the previous
week. Father insisted he was not an addict and said he had only
used methamphetamine six times.
Father told the social worker that mother’s attempted
suicide occurred after she confronted him with another woman.
Father and mother then returned home. While the children were
asleep in the home, mother told father, “watch what I’m going to
do.” She then shook a bottle of pills and swallowed a handful of
them. Father observed mother losing consciousness, but he did
nothing to help her. The maternal grandparents arrived at the
home shortly thereafter and took mother and the children with
them. Father said that mother had also cut her wrists on the day
of her overdose. He did not see mother do so but observed that
her wrists were bleeding.
1 Anthony is not a subject of this appeal.
3
Father tested positive for marijuana on March 28, 2019,
but negative for all other substances. Mother tested negative for
all substances, including alcohol.
Mother contacted the social worker in April 2019 to report
that she was commencing therapy and had signed consent forms
authorizing the therapist to speak with the Department. Mother
also transmitted a note from her psychiatrist stating that mother
was compliant with her medication, had no suicidal or homicidal
ideations, and was not a risk to the children.
The social worker contacted father on April 8, 2019, and
asked him to drug test the following day. Father said he was
working and could not do so. The social worker contacted father
about drug testing again on April 30, 2019. Father said he was
unable to do so because of work, that he was not addicted to
methamphetamine, and that he had not used methamphetamine
for more than a month.
In a May 5, 2019 interview, mother told the social worker
she had previously disclosed father’s substance abuse because
she was afraid the children would be removed from her. Mother
stated that father began using methamphetamine in November
or December 2018 and was a frequent user. She said father did
not help during her January 2019 attempted suicide because he
was “so drugged.”
On May 8, 2019, the juvenile court issued a removal order
authorizing Grace’s removal from father. Both parents were
present at the May 14, 2019 detention hearing at which the
juvenile court ordered Grace detained from father and released to
mother under the Department’s supervision. Father was granted
monitored visits two times per week for two hours per visit.
4
On June 4, 2019, the Department filed a first amended
petition that alleged, under Welfare and Institutions Code2
section 300, subdivision (b), that father’s history of substance
abuse and current abuse of methamphetamine and marijuana
rendered him incapable of providing regular care and supervision
for Grace; that on prior occasions, father was under the influence
of drugs while Grace was under his care and supervision; and
that father’s substance abuse and mother’s failure to protect
Grace from father placed the child at risk of serious physical
harm. The amended petition further alleged that mother’s
mental and emotional problems, including her attempted suicide
by consuming large quantities of Tylenol and cutting her wrists
with a kitchen knife, her subsequent involuntary hospitalization,
and father’s failure to assist mother when he knew of her
attempted suicide placed Grace and Anthony at risk of harm.3
Jurisdiction and disposition
In its June 2019 jurisdiction/disposition report, the
Department reported that father had not visited Grace since the
child was detained from him. According to mother and the
maternal relatives, father had asked several times for
unsupervised visits with the child.
Father told the social worker in a May 2019 interview that
he began using methamphetamine out of “curiosity.” He said he
2 All further statutory references are to the Welfare and
Institutions Code.
3 The first amended petition added allegations to the
previously filed May 18, 2019 petition that mother’s attempted
suicide included cutting her wrists with a kitchen knife and that
father knew of the attempted suicide but failed to call for
assistance.
5
could not remember when he began using methamphetamine or
when he had last used either methamphetamine or marijuana.
He minimized his drug use, saying he did not understand the
relevance of the Department’s investigation because he was not
an addict. Father failed to appear for drug testing on May 23,
2019, but tested negative on May 30, 2019. Regarding mother’s
attempted suicide, father said mother had cut her wrists before
she confronted him with another woman. When mother and
father returned home that evening, father witnessed mother’s pill
overdose. When asked why he did not call for help, father
responded, “I didn’t call because I didn’t.”
Maternal aunt Yoselin R. told the social worker she had
attended high school with father and she had always known
father to consume drugs. The maternal grandfather told the
social worker that father’s drug use was evident because father
was irritable and losing weight rapidly. The maternal
grandfather had urged father to enroll in a drug rehabilitation
program, but father had denied any drug use.
Both parents were present at the June 19, 2019
adjudication hearing. Mother did not contest the allegations of
the amended petition. The juvenile court sustained the
allegations against father and ordered Grace removed from his
custody and placed with mother under the Department’s
supervision. The court ordered family reunification services for
mother and enhancement services for father. Father’s case plan
included a full drug and alcohol program with aftercare, weekly
random drug testing, a 12-step program, and parenting and
individual counseling to address case issues. The juvenile court
granted father monitored visits and gave the Department
discretion to liberalize the visits.
6
Review period
In a December 18, 2019 status review report, the
Department noted that Grace and Anthony remained in mother’s
custody. Mother was taking her prescribed medication but had
not yet enrolled in parenting classes or individual counseling.
Father had failed to drug test or to enroll in any court-
ordered programs. He visited with Grace on the weekends, and
the visits were monitored by a paternal great-aunt.
In June 2020, the Department reported that Grace was
healthy and meeting all age-appropriate milestones. Mother was
in compliance with her case plan. Mother’s psychiatrist had
approved discontinuing psychotropic medication.
Father had failed to drug test or to enroll in any court-
ordered programs. He told the social worker that he would not
complete any programs because they were not important, and his
priority was his employment. Father had not visited with Grace
since December 2019.
In February 2021, the Department reported that Grace was
receiving regional center services because she was not meeting
developmental milestones. Father had failed to enroll in any
court-ordered programs or to appear for any drug testing. Father
had not visited with Grace and had not contacted mother about
visits or to inquire about Grace. Father had also failed to keep in
touch with the Department. Father did not respond to the
Department’s e-mails and letters, and his last known telephone
number was no longer in service.
Termination of jurisdiction and custody order
Both parents attended the February 5, 2021 hearing at
which the juvenile court stated its intent to terminate jurisdiction
and to issue a custody order granting mother full physical and
7
legal custody over Grace. Father’s counsel objected to the
proposed order and requested joint legal custody. The juvenile
court denied that request.
On February 11, 2021, a custody order was filed
terminating dependency jurisdiction and granting mother sole
legal and physical custody of Grace. The order accords father
monitored visits a minimum of two times per week for two hours
per visit.
This appeal followed.
DISCUSSION
I. Applicable law and standard of review
“When the juvenile court terminates its jurisdiction over a
dependent child, section 362.4[4] authorizes it to make custody
and visitation orders that will be transferred to an existing
family court file and remain in effect until modified or terminated
by the superior court.” (In re Roger S. (1992) 4 Cal.App.4th 25,
30.) “When making a custody determination in any dependency
case, the court’s focus and primary consideration must always be
4 Section 362.4 states in relevant part: “If the juvenile court
terminates its jurisdiction over a minor who has been adjudged a
dependent child of the juvenile court prior to the minor’s
attainment of the age of 18 years, and . . . an order has been
entered with regard to the custody of that minor, the juvenile
court on its own motion, may issue . . . an order determining the
custody of, or visitation with, the child. [¶] . . . Any order issued
pursuant to this section shall continue until modified or
terminated by a subsequent order of the superior court. . . .”
(§ 362.4, subds. (a), (b).)
8
the best interests of the child.” (In re Nicholas H. (2003) 112
Cal.App.4th 251, 268.)
We review a juvenile court’s custody order for abuse of
discretion. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th
285, 300.) Under this standard, a reviewing court may not
disturb the custody order “unless the trial court has exceeded the
limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.” (In re Stephanie M. (1994) 7
Cal.4th 295, 318.)
II. No abuse of discretion
Father does not challenge the order granting mother sole
physical custody of Grace, nor does he challenge the juvenile
court’s jurisdictional findings. Those findings, the evidence
supporting them, and father’s conduct throughout the case
support the juvenile court’s finding that father should not be
granted joint legal custody allowing him to make decisions
concerning Grace’s health, education, and welfare.
Grace was removed from father’s custody because of his
substance abuse, including methamphetamine and marijuana;
being under the influence of drugs while caring for Grace; and
failing to protect Grace when he witnessed mother’s attempted
suicide and did nothing to help mother. Father minimized his
drug use, failed to enroll in any court-ordered services, and failed
to appear for a single drug test after May 30, 2019. Although
father was accorded monitored visits, he attended no visits with
Grace throughout 2020 and early 2021. He demonstrated no
interest in Grace’s welfare and did not call mother or the
maternal relatives to inquire about Grace when he failed to visit.
In light of father’s behavior, the juvenile court reasonably
9
determined that granting father joint legal custody was not in
Grace’s best interests.
In re Ma.V. (2021) 64 Cal.App.5th 11, on which father
relies, does not support his position. The court in that case
reversed jurisdictional and dispositional orders removing three
minor children from the mother’s custody for lack of substantial
evidence. The juvenile court had assumed jurisdiction and
removed the children from the mother’s custody based on a
history of domestic violence between the mother and a former
male companion, the mother’s marijuana use, the mother’s
failure to address a child’s mental health issues, and the mother’s
uncooperative behavior with the social services agency. The
appellate court found that all of the conditions that were the
basis for dependency jurisdiction had been addressed by the time
of the adjudication hearing. (Id. at pp. 21-23.) As to the mother’s
purportedly uncooperative behavior, the appellate court noted
that the mother had no obligation to complete a verified case plan
because all of her services were voluntary, and that the agency
had failed to interview the mother’s service providers. (Id. at
p. 24.)
Here, in contrast, father’s case plan was mandatory, not
voluntary, and he failed to complete any part of it. Father did not
visit with Grace for more than a year and demonstrated no
interest in her welfare. The juvenile court did not abuse its
discretion by denying father’s request for joint legal custody of
Grace.
10
DISPOSITION
The order granting mother sole legal and physical custody
of Grace is affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
11