In re S.L. CA2/2

Filed 10/2/20 In re S.L. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.L. et al., Persons B304423
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. Nos.
19CCJP06870A
19CCJP06870B)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
B.B.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant B.B.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, appellant B.B. (mother)
challenges the juvenile court’s orders granting the father of her
two daughters, C.L. (father), sole physical custody of their
daughters and tie-breaking authority with respect to legal
custody issues. Mother argues the juvenile court abused its
discretion because its custody orders vary from a preexisting
family law order and, therefore, necessarily violate mother’s
agreement to enter a no contest plea to the dependency petition
below. Mother’s argument is unsupported by both the appellate
record and the law. Accordingly, we affirm.
BACKGROUND
1. Mother and Father’s Family Law Case
Prior to the instant dependency proceedings, mother and
father shared joint custody of their two daughters, seven-year-old
S.L. and five-year-old C.L. (daughters). The daughters stayed
primarily with father, who lived in Apple Valley in San
Bernardino County. Mother lived in Los Angeles.
In 2018, father sought to obtain full custody of daughters.
Father explained mother and her boyfriend Jonathan H. had
engaged in a serious domestic violence incident, during which
mother “pulled a gun.” After learning of that incident, father
filed for custody of daughters in San Bernardino County family
law court. In January 2019, the San Bernardino County family
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law court issued an interim order denying father’s request for
sole physical custody and set the matter for an evidentiary
hearing. The court’s minute order (family law order) stated, “The
existing time share the parties have been following shall remain
in place.” The family law order also required the maternal
grandparents to supervise daughters “at all times” when in the
presence of mother and Jonathan together. As of September
2019, mother and father’s joint custody arrangement remained in
effect.
Despite the shared custody agreement, daughters visited
mother only a couple times a month because mother lived far
from father. The daughters spent time with their maternal
grandparents, who lived closer to father. Father had no concerns
for daughters’ safety when they were with mother alone but he
expressed concerns for their safety if they were with mother and
Jonathan together.
2. Events Preceding Dependency Petition
At the time these proceedings began, mother and Jonathan
had been in a relationship for approximately 18 months, were
living together, and had a seven-month-old son, J.S., together.1
They also were business partners launching a honey water
company.
Mother and Jonathan had a volatile relationship, involving
numerous incidents of domestic violence. For example, in 2018,
when mother was approximately nine weeks pregnant with J.S.
she was arrested after she shot Jonathan, grazing his elbow,2 and
1This appeal pertains to neither Jonathan nor J.S. We
address facts related to them to the extent relevant.
2 This was the 2018 incident that prompted father to file for
sole custody of daughters.
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in August 2019, law enforcement was called to their home
following a physical altercation, during which Jonathan
reportedly pulled mother’s hair while she was holding J.S. and
tried to strangle both of them.
The night of the August 2019 altercation, a referral was
made to the Los Angeles County Department of Children and
Family Services (Department). The next day a Department social
worker spoke with mother at her home. Mother told the social
worker she and Jonathan were arguing the night before because
Jonathan believed mother was cheating on him. Jonathan
became physical and, among other things, tried to strangle
mother and squeezed the back of J.S.’s neck with two fingers.
When mother told Jonathan to stop touching J.S., Jonathan
applied more pressure to the child’s neck and tried unsuccessfully
to grab him out of mother’s arms. Mother called the police and,
by the time they arrived, Jonathan was gone. Paramedics
checked J.S. at the scene and mother also took him to the
hospital. He was reported to be fine, although mother said she
and J.S. both had a few marks on their bodies after the
confrontation.
Mother also told the Department social worker there had
been previous incidents of domestic violence between mother and
Jonathan. Mother explained she had not previously called law
enforcement because Jonathan had never before touched J.S.
Mother reported Jonathan was “very paranoid” and they usually
fought when he accused her of cheating or taking his money.
According to mother, prior to the August 2019 altercation,
Jonathan had raped her multiple times; choked her several
times; tried to suffocate her with a pillow; hit her head with a
gun; hit and slapped her; pulled her hair, slammed her head into
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the floor, or otherwise injured her many times; locked her in a
bedroom for two days without food, liquids or a phone and raped
her; and threatened to shoot himself and mother because mother
allegedly cheated on him. Mother stated she previously had hit
or kicked Jonathan and explained that in 2018 she accidentally
shot him in the elbow during an argument when she was trying
to leave the house. J.S. was present for some of the violent
episodes. Daughters were present for some verbal arguments
between mother and Jonathan and saw Jonathan throw a
Christmas tree down the stairs. Mother also reported Jonathan
used cocaine recreationally, which made him more paranoid.
Mother agreed daughters should not be around Jonathan
and agreed to obtain a restraining order against Jonathan with
J.S. as the protected person. The maternal grandmother told the
social worker Jonathan was “a bully” and mother “always goes
back to him.”
The Department social worker met with Jonathan in
October 2019. Jonathan admitted that during the 2018 incident
when mother shot him, he had “slapped the shit out of her and
told her to get the fuck out.” He stated, “slapping mother was
probably the wrong thing to do.” Jonathan also stated mother
was “crazy,” threw things and “[b]lacks out” when angry,
instigated the August 2019 altercation, and on other occasions
purposely hurt herself and then told others he hurt her.
Jonathan said he never touched J.S. or hurt him. He told the
social worker he had not seen mother or J.S. since the August
2019 altercation. When asked about a recent business event he
and mother had both attended in North Carolina, he replied they
were both there but did not interact with one another.
5
In October 2019, the social worker again spoke with
mother, who had been difficult to contact and refused to provide
her current address. Mother told the social worker she and
Jonathan did not have a history of domestic violence and what
she previously had said was untrue. She said she lied before
because “I thought he was going to leave me so it was a power
trip.” She denied Jonathan had tried to choke J.S. during the
August 2019 altercation and stated instead Jonathan “just
grabbed the child from the back of his neck.” She said she and
Jonathan did not want to resume their relationship and she had
no restraining order in place.
In mid-October 2019, the juvenile court granted the
Department’s request for an expedited removal order detaining
daughters from mother and J.S. from mother and Jonathan.
Daughters were placed with father and J.S. was placed with the
maternal grandparents.
3. Petition and Detention
On October 23, 2019, the Department filed a six-count
Welfare and Institutions Code section 300 petition on behalf of
daughters and J.S. (petition).3 The petition stated counts under
subdivisions (a), (b) and (j) of section 300. In particular, the
petition alleged the children were at risk of serious physical harm
due both to the ongoing domestic violence between mother and
Jonathan and Jonathan’s drug use. Father was not named in the
petition.
At the detention hearing held the next day, the juvenile
court ordered daughters detained from mother and released to
father. The court granted mother monitored visits with
3 Undesignated statutory references are to the Welfare and
Institutions Code.
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daughters and ordered Jonathan not to have any contact with
daughters.
4. Adjudication, Disposition, and Termination of
Dependency Jurisdiction
a. Further Investigation and Recommendations
Prior to adjudication, the Department continued its
investigation. A Department social worker spoke with mother.
Mother said she was living with a friend at the time but did not
give the address. Mother told the social worker she did not want
to be in a relationship with Jonathan but hoped they could co-
parent J.S. Mother also said she did not want a restraining order
against Jonathan because she had to communicate with him for
work. She had, and only wanted, a stay away order. Mother also
offered more details of the many instances of domestic violence
between her and Jonathan, which started soon after they began
dating and living together in March 2018. Mother downplayed
Jonathan’s cocaine use, stating it was “just an ‘LA’ thing and not
a habit.” As to daughters, mother told the social worker she was
“in favor of the girls remaining with their father and having their
DCFS and Dependency case closed. She reported she would
continue to visit with the girls and abide by the visitation order.”
The social worker also spoke with father. He explained he
had allowed—in violation of the family law order—daughters to
visit mother in Los Angeles for unmonitored overnight visits
during the summer 2019. He said mother had been too busy to
come to them so he let them stay with her. He indicated he
understood he should not have allowed their visits to be
unmonitored. Father stated he did not know whether mother
was able to stay away from Jonathan. Father believed the
dependency case should be closed as to daughters because he was
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protective and they did not need Department services or
supervision.
The social worker also interviewed maternal grandmother,
with whom J.S. was placed. Maternal grandmother told the
social worker mother visited multiple times a week but would not
tell maternal grandmother where she was living. Maternal
grandmother stated the longest time mother had stayed apart
from Jonathan was three weeks, stating, “I don’t know why she
goes back. It’s like a fatal attraction between the two.” She said
mother tried to hide her injuries from the domestic violence, but
on more than one occasion maternal grandmother saw bruises on
mother’s body. Maternal grandmother believed the dependency
case should be closed and father granted custody of daughters.
Finally, the social worker spoke with the Department social
worker who first had worked on the case. That social worker
reported mother had said she wanted to recant her allegations
against Jonathan in order to get her children back. The social
worker believed mother and Jonathan minimized the seriousness
of their domestic violence, which the social worker believed was
“extreme and scary.”
On November 26, 2019, the Department filed its
jurisdiction and disposition report with the juvenile court. In its
report, the Department stated, “Mother and [Jonathan] minimize
their extensive and violent history of domestic violence and fail to
recognize how their actions, including verbal and physical
altercations, exposed the children to an unhealthy environment
with high levels of stress that posed a threat to the immediate
physical safety and emotional wellbeing of the children.” As to
daughters, the Department recommended the juvenile court
declare daughters dependents of the court, terminate jurisdiction
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as to them, and issue a family law order granting father sole
physical custody, mother and father joint legal custody, and
monitored visitation for mother. It was also recommended
Jonathan have no contact with daughters.
In a December 2019 last minute report for the court, the
Department noted its concern that mother remained in a
relationship with Jonathan. Mother refused to provide the
Department with her current address and continued to be in a
business relationship with Jonathan. In addition, mother had
told a Department social worker Jonathan’s mother was moving
to Los Angeles to take care of J.S. and mother planned to live
with her. Maternal grandmother also believed mother was still
in a relationship with Jonathan or at least violating the stay
away order. Maternal grandmother said when she spoke with
mother on the phone, she could hear Jonathan in the background.
By January 7, 2020, Jonathan’s mother had moved to Los
Angeles and mother was living with her.
In a January 2020 report, the Department stated mother
recently had forced her way into the maternal grandparents’
home, tried to physically assault them, called them vulgar
names, and cursed at them. Mother blamed the maternal
grandparents for the fact the juvenile court had not returned the
children to her care. After the incident at their home, the
maternal grandparents requested visits with J.S. occur in a
public setting (although, eventually, they worked out their
differences sufficiently that mother resumed visits at the home).
The maternal grandparents also told a Department social worker
“mother is still in a relationship with [Jonathan] and that they
are actively violating the restraining order.” Maternal
grandfather also revealed Jonathan told him in December 2019
9
that he and mother had another physical and verbal altercation,
during which mother threw and hit Jonathan and his car with a
container of orange juice.
Around the same time, mother contacted a Department
social worker to complain about the maternal grandparents. In
contrast to what the maternal grandparents had reported,
mother told the social worker maternal grandmother had
“attempted to come at her physically.” Mother said she would
rather have J.S. placed in a foster home than live with the
maternal grandparents. Mother also said she was participating
in a domestic violence group and counseling. The Department
attached letters from mother’s programs to its report to the court.
In its January 2020 report, the Department also noted its
“concerns about any possible progress mother could be making in
her programs considering she is still in a relationship with
[Jonathan], but denying this to [the Department]. Further, the
last that the Department knew, there is a restraining order
between mother and [Jonathan], which the Department is aware
that mother and [Jonathan] actively violate. In addition, the
Department has learned of at least one physical altercation that
occurred between mother and [Jonathan] [in December 2019],
which is concerning since mother is reportedly attending
domestic violence counseling.” The Department also noted
Jonathan had “yet to make contact with” Department social
workers.
In its January 2020 report, the Department repeated its
November 2019 recommendation as to daughters. Namely, the
Department recommended the juvenile court declare daughters
dependents of the court, terminate jurisdiction as to them, and
issue a family law order granting father sole physical custody,
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mother and father joint legal custody, and monitored visitation
for mother.
b. Hearing
The adjudication hearing was held on January 16, 2020, at
which time the juvenile court announced the parties had reached
an agreement. The court stated, “All right. We have an
agreement reached between the parties. This was set for an
adjudication. [¶] I have the waiver of rights juvenile dependency
forms for [Jonathan] and [mother].” In addition to waiver of
rights forms, mother and Jonathan each filed a plea of no contest
to the petition. The juvenile court found mother and Jonathan
understood “the nature of the conduct alleged in the petition and
the possible consequences of their pleas.” In its minute order
from the hearing as to daughters, the court held mother’s waivers
were “knowingly, intelligently and voluntarily made” and “[a]ll
counsel join in the plea and waivers and stipulate to the courts
[sic] finding that there is a factual basis for said plea.” Neither
the waiver of rights, plea of no contest, written agreement
between the parties (to the extent there was one), nor description
of the parties’ agreement is in the record on appeal.
The juvenile court dismissed counts a-2, b-1, b-2, and the
subdivision (j) count, and sustained the remaining subdivision (a)
and (b) counts as amended. The sustained counts concerned the
unresolved history of domestic violence between mother and
Jonathan and Jonathan’s drug use. The court declared
daughters dependents of the court, removed them from mother,
and released them to father.
The court then addressed termination of its jurisdiction and
entry of a custody order as to daughters. Although counsel for all
parties agreed the court should terminate jurisdiction, counsel
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disagreed as to the resulting custody arrangement. Counsel for
the Department argued the juvenile court should terminate
jurisdiction and enter a family law order granting sole legal and
physical custody of daughters to father and monitored visits for
mother. Although counsel for mother agreed the juvenile court
should terminate its jurisdiction, mother’s counsel urged the
court “to revert back to the original family law order, which was
joint, joint between the parents.” Mother’s counsel added,
however, “At the very least, we would like the joint legal to stay
in place. There’s no evidence that these parents can’t work
together; that mother has done anything that shouldn’t warrant
her ability to make decisions for these girls.” Counsel for father
argued father should be given sole physical custody of daughters,
but father was “okay with joint legal” custody of daughters.
Counsel for the children joined in the Department’s request that
the court grant sole physical and legal custody to father but
stated joint legal custody would be acceptable if father were
granted tie-breaking authority.
Over mother’s objection, the juvenile court ordered sole
physical custody of daughters to father and, over the
Department’s objection, ordered joint legal custody with father
having tie-breaking authority. Mother’s counsel twice raised her
objection to the order, stating, “that is a change in the original
family law order.” The court noted mother “can go back to the
family law court and modify that, but the court is going to order
terminating jurisdiction with the family law order of joint legal,
sole physical to the father; monitored visits with the mother, but
[Jonathan] is not to be present during those visits with the . . .
children.” As to mother’s objection, the juvenile court explained
“there are intervening events that have occurred since the
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original family law order.” The court also ordered no contact
between Jonathan and daughters.
The next day, January 17, 2020, the juvenile court
terminated its jurisdiction and entered the family law order
consistent with its orders entered the previous day.
5. Appeal
Mother appealed the juvenile court’s January 16, 2020
orders.
DISCUSSION
Mother challenges the juvenile court’s dispositional orders,
arguing the court abused its discretion when, over mother’s
objection and allegedly without evidentiary analysis, it granted
father sole physical custody and tie-breaking authority as to legal
custody issues. Mother claims her “voluntary out-of-court
agreement with the parties . . . was intended by all parties to
resolve both jurisdictional and dispositional matters, and then
[the juvenile court] made dispositional orders (custody and
visitation orders) that the parties did not contemplate when
Mother agreed to waive her trial rights. Her waiver and ‘no
contest’ plea were conditioned on the reinstatement or reissuance
of the terms of the previous family law orders.” Mother’s position
is not supported by the record or the law.
1. Applicable Law and Standard of Review
At the disposition hearing, “the juvenile court enjoys wide
discretion to make any orders necessary to protect the dependent
child (§ 361, subd. (a)), including ‘all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child’ (§ 362, subd. (a)) and those orders directed to the
parents of a dependent child that it ‘deems necessary and proper
for the best interests of or for the rehabilitation of the minor’
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(§ 245.5). That authority necessarily includes, in an appropriate
circumstance, discretion to terminate dependency jurisdiction
when the child is in parental custody and no protective issue
remains.” (In re Destiny D. (2017) 15 Cal. App. 5th 197, 207.)
“[W]hen a court has made a custody determination in a
dependency proceeding, ‘ “a reviewing court will not disturb that
decision unless the trial court has exceeded the limits of legal
discretion by making an arbitrary, capricious, or patently absurd
determination [citations].” ’ ” (In re Stephanie M. (1994) 7
Cal. 4th 295, 318.) “ ‘ “The appropriate test for abuse of discretion
is whether the trial court exceeded the bounds of reason. When
two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for
that of the trial court.” ’ ” (Id. at pp. 318–319.)
2. No Error
We cannot agree with mother’s position on appeal. First,
the appellate record simply does not support mother’s claim she
conditioned her waiver of rights and no contest plea on the
juvenile court reinstating or reissuing the family law order. The
parties’ out-of-court agreement is not in the appellate record and
no one described the agreement on the record at the January
2020 hearing. Thus, we do not know for example whether the
parties’ agreement addressed disposition orders or whether
mother conditioned her agreement on such unidentified orders.
At the disposition hearing, mother’s counsel objected to the
juvenile court’s custody orders because they conflicted with the
family law order. Mother’s counsel never stated or implied the
court’s custody orders conflicted with the parties’ agreement. In
fact, mother’s counsel indicated mother would be amenable to
father having sole physical custody if joint legal custody
14
remained. In addition, almost two months before the
adjudication and disposition hearing and again just before the
hearing, the Department’s reports to the court clearly stated the
Department’s recommendation that father be granted sole
physical custody of daughters. Thus, it is not reasonable to
believe mother or her counsel was surprised when the juvenile
court considered and then ordered sole physical custody to father.
As such, mother’s argument on appeal finds no support in the
record.
Second and similarly, it is unreasonable to suppose, as
mother argues we should, that she “obviously would not have
knowingly relinquished her right to a contested hearing had she
known the court would change the previously-existing family law
custody orders.” By pleading no contest, mother submitted to the
juvenile court’s jurisdiction based on true findings her children
were at risk due to her unresolved and serious history of domestic
violence with Jonathan. Although possible, it is far from a
foregone conclusion that after making its jurisdictional findings
the juvenile court would then terminate its jurisdiction and order
the family back to the status quo—a status quo that included
shared physical custody of daughters. (See In re Destiny D.,
supra, 15 Cal.App.5th at p. 211 [“[I]t will be an unusual case
when protections imposed at disposition will be sufficient to
permit the conclusion that termination is appropriate. It will be
rarer still for a juvenile court to reach that conclusion when the
parent with whom the child remains has been found to be an
offending parent.”].)
Finally, the juvenile court did not abuse its discretion in
making its custody orders. The court stated its custody orders
were based on “intervening events” that occurred after the family
15
law order was entered. Although the juvenile court did not
itemize the intervening events it had in mind, the record contains
clear and substantial evidence of such events, not the least of
which is the fact the juvenile court declared daughters
dependents of the court based in part on mother’s conduct.
Additionally, following entry of the family law order, mother and
Jonathan admittedly engaged in domestic violence incidents, one
of which occurred the month before the adjudication and
disposition hearing and months after the children had been
removed from mother’s care. Similarly, during the investigation
below, mother described multiple incidents of serious domestic
violence that do not appear to have been before the family law
court. Moreover, assuming the parties had agreed to a particular
set of disposition orders, mother cites no authority for her
assertion the juvenile court lacked discretion to diverge from such
an agreement. We conclude the juvenile court did not abuse its
discretion in making its custody orders.
Finally, we are not persuaded by mother’s reliance on In re
Michael W. (1997) 54 Cal. App. 4th 190, where Division One of this
district reversed the juvenile court’s order terminating
jurisdiction and ordering physical and legal custody to the father.
There, before terminating jurisdiction and making its custody
orders, the juvenile court refused to hold an evidentiary hearing,
twice denying the mother’s requests for such a hearing. (Id. at
p. 193.) In contrast here, and as mother admits, mother did not
request an evidentiary hearing below and, in any event as the
Department notes, the juvenile court did receive evidence of
mother’s participation in a domestic violence group and
counseling. As discussed above, the record here amply supports
the juvenile court’s rulings based on “intervening events.”
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DISPOSITION
The January 16, 2020 orders are affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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