In re Carlos D. CA2/7

Filed 5/16/16 In re Carlos D. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re CARLOS D., a Person Coming Under B266474
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK90770)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County, Julie F.
Blackshaw, Judge. Affirmed.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County
Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
____________________
A.C. (Mother) appeals from the juvenile court’s order terminating jurisdiction over
her three children and awarding full legal custody to Carlos D., Sr. (Father) and joint
physical custody to Mother and Father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2012 Mother and Father’s three children, Carlos D., Alexa D. and
Samantha D., were declared dependents of the juvenile court arising from Father’s
physical abuse of Samantha. The children remained in Mother’s care under a family
maintenance plan while Father received enhancement services. In April 2013 jurisdiction
was terminated. Mother and Father were granted joint legal and physical custody of the
children with the primary residence at Mother’s home.
In August 2013 the Los Angeles County Department of Children and Family
Services (Department) initiated new dependency proceedings on behalf of the children
(then 10 years old, eight years old and three years old) pursuant to Welfare and
Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to
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protect) and (j) (abuse of sibling). The petition alleged Mother had hit Carlos with a belt
and her hands as well as pulled his hair. The petition further alleged Mother had yelled at
Carlos and called him demeaning names, placing him at substantial risk of suffering
serious emotional damage pursuant to section 300, subdivision (c). The subdivision (c)
count also alleged that Mother and Father emotionally abused Carlos by frequently
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engaging in verbal altercations in his presence.
Mother admitted to the social worker she had hit Carlos with her hand and a belt,
but explained it was to punish him for stealing money and breaking a window with a
BB gun. She also admitted she had called Carlos a “fat-ass” out of frustration, but
regretted doing so. At the detention hearing on August 9, 2013 the court declared Father
the presumed father of Carlos, Alexa and Samantha, found a prima facie showing had
1 Statutory references are to this code unless otherwise indicated.
2 The petition was also filed on behalf of the children’s 14-year-old half sibling J.S.,
who is not a party to this appeal.
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been made the children came within section 300 and ordered the children released to
Father. Mother was permitted monitored visits.
At the combined jurisdiction and disposition hearing on September 27, 2013 the
court sustained the section 300, subdivisions (a) and (j), allegations, finding true Mother
had physically abused Carlos, but dismissed the physical abuse allegation under
subdivision (b) and the emotional abuse allegation under subdivision (c). The children
were placed with Father with a home-of-parent order under a court-supervised family
maintenance plan. The court ordered Mother to receive family reunification services and
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monitored visits.
In a report for the six-month review hearing the Department stated, “A constant
theme for this family has been mother and father’s inability to ‘see eye to eye.’” Father
described Mother as “very difficult to get along with,” and Mother would report to the
Department that Father drank too much and Samantha engaged in inappropriate behavior
suggesting sexual abuse, allegations the children and Father denied. Notwithstanding this
conflict, Father asked that Mother be permitted unmonitored overnight visits to relieve
him of constant childcare. At the review hearing on March 12, 2014 the court ordered
family maintenance services for both parents and granted Mother unmonitored visits with
discretion to the Department to permit overnight visits.
As described in a report for the September 8, 2014 review hearing, Father
expressed concern during the beginning of the period that Mother had been traumatizing
Alexa and Samantha by constantly taking them to doctors and reporting child abuse by
Father and inappropriate conduct by one of Samantha’s teachers. Although the
Department was in the process of filing a section 388 petition to change Mother’s visits
to monitored, in late July Father reported Mother had made a dramatic change and they
were able to effectively communicate. In August 2014 the Department permitted
overnight visits. At the review hearing on September 8, 2014 the court ordered Mother
and Father to continue to participate in all previously ordered services.
3 J.S. was returned to Mother with a home-of-parent order.
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In a report for the March 9, 2015 status review hearing, the Department
recommended, as it had in connection with the September 8, 2014 review hearing, the
court terminate jurisdiction with a family law order giving sole legal custody to Father
and joint physical custody to Mother and Father. The Department explained, “It is
evident both parents love their children very much. However, it is also evident that
parents do not have an amicable relationship with one another. . . . [Department social
worker] has spoken with each parent about setting aside any ongoing resentment issues
due to [this] ‘previous’ history. [Department social worker] has asked parents to focus
and learn to communicate their wants and needs in a healthy and positive manner for the
children’s well being.” At the hearing on March 9, 2015 Mother requested a contest on
the issue of legal custody. A hearing was set for May 28, 2015.
The May 28, 2015 hearing was continued until June 10, 2015 due to court
congestion. Although Mother had attended all prior hearings, she was not present for the
June 10, 2015 hearing. Her attorney argued Mother wanted to be involved in all aspects
of the children’s lives and “[t]he fact that the parents may have difficulties
communicating is not an issue that . . . should prohibit the mother from being involved in
legal decisions.” In response to the court’s question how the parents, as a practical
matter, would be able to do that given their history, counsel suggested another family
member could “mak[e] the final call” if they could not agree. Father responded he did
believe any of his family members would want to “deal” with Mother. In response to the
court’s question whether Father was making decisions about the children’s education
with Mother or by himself, Father said Mother had been uncooperative providing him
with birth certificates and other materials required to enroll them in school when he
initially obtained custody and had made things difficult, so Father ended up doing it
without her assistance.
Counsel for the children asserted Carlos and Alexa, to the extent they could
understand, wanted Father to have sole legal custody, and contended Mother did not
demonstrate she was responsible when it came to simple things like dropping the children
off or picking them up and had not been “a presence in their school in terms of
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participating.” In supporting the Department’s recommendation legal custody remain
with Father, who had been making the “important decisions regarding the children,”
counsel argued, “When an important decision does need to be made, you do need a parent
that has shown responsibility and is going to be active in making that decision.”
The court awarded Father sole legal custody of the children, basing the decision on
the fact Mother, in addition to not participating, “has apparently even been an
impediment and unhelpful as to some of these aspects.” After additional argument, the
court stated, “Another reason that I’m making the decision . . . on sole legal custody, the
mother isn’t even here today.” The court further ordered Mother and Father have joint
physical custody with the primary residence at Father’s home.
DISCUSSION
Section 362.4 authorizes the court to issue a custody and visitation order when it
terminates dependency jurisdiction. “When making a custody determination in any
dependency case, the court’s focus and primary consideration must always be the best
interests of the child.” (In re Nicholas H. (2003) 112 Cal. App. 4th 251, 268.)
We review a custody (or “exit”) order for abuse of discretion. “[R]eversal is warranted
only if there is no reasonable basis upon which the trial court could conclude that its
decision advanced the best interests of the child.” (In re Marriage of Melville (2004)
122 Cal. App. 4th 601, 610; see Bridget A. v. Superior Court (2007) 148 Cal. App. 4th 285,
300-301 [we “may not disturb the order unless the court ‘“‘exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd determination
[citations]’”’”].)
“‘Sole legal custody’ means that one parent shall have the right and the
responsibility to make the decisions relating to the health, education, and welfare of a
child.” (Fam. Code, § 3006.) “‘Joint legal custody’ means that both parents shall share
the right and the responsibility to make” those decisions. (Fam. Code, § 3003.) To be
workable, joint legal custody requires the parents’ willingness to cooperate in making
medical, educational, and psychological decisions. (See In re Marriage of McLoren
(1988) 202 Cal. App. 3d 108, 115-116 [in most circumstances, children’s best interests are
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served by joint legal custody, but where there is acrimony “the reality of their parents’
conflicts unavoidably hampers the realization of that goal”].)
Mother argues the juvenile court abused its discretion in awarding Father sole
legal custody because, although the case may have started out a “high-conflict case,” by
June 2015 there had been no incidents of conflict for at least a year and Father’s most
significant complaint was that Mother would drop the children off late. Mother also
contends her absence from the contested hearing was not a basis to deny her legal
custody because she had appeared at every other hearing and there was no evidence in the
record she had been notified the May 28, 2015 hearing had been continued until June 10,
2015.
To be sure, Mother and Father’s relationship had improved, and Mother was
making progress with her case plan. However, as of the date of the March 9, 2015 status
review report, the Department had not yet received a parenting education progress report
or certificate of completion from Mother; and she had only begun individual therapy in
November 2014 as recommended by the Department. (Mother had been receiving
counseling from her church pastor.) Additionally, although the conflict between Mother
and Father had abated, by no means had they demonstrated the kind of cooperative
relationship necessary for joint legal custody. According to the Department’s submission
for the March 9, 2015 status review hearing, Father reported he did not have an amicable
relationship with Mother. Mother complained Father had raised his voice at her on
several occasions, and she had concerns about his temper.
Conflict between the parents is not the only criterion by which legal custody is
determined; the best interest of the children is a much broader standard. In that respect,
both Alexa and Carlos reported Mother was not a responsible parent. For example,
Alexa, who indicated she had a good relationship with Mother and enjoyed spending
weekends with her, stated there were times when the children were late to school because
Mother would not wake up on time. She told the Department she “need[ed] consistency
in her life.” The record amply supports the implied finding Father was providing that
kind of consistency for the children and they were thriving.
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Finally, the court’s observation that Mother’s absence from the hearing lent some
additional support to its conclusion she had failed to demonstrate sufficient responsibility
to warrant shared legal custody was not arbitrary or irrational. Although Mother argues
there is no evidence she received notice of the continued hearing, the May 28, 2015
submitted case form indicating the hearing had been changed was signed by Mother’s
attorney. Additionally, although Mother may have attended every other hearing, this by
far was the most significant one; and there was no suggestion from her attorney that an
emergency, illness, conflict with work or other legitimate excuse existed that would
justify her absence. Although we commend Mother for the progress she has made, the
juvenile court’s finding it was in the best interest of the children to award Father sole
legal custody at this juncture was well within its discretion. If there is a significant
change in circumstances and it is in the children’s best interest, Mother may obtain a
modification of the custody order in family law proceedings. (§§ 302, subd. (d), 362.4.)
DISPOSITION
The order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
BLUMENFELD, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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