In re Z.R. CA2/3

Filed 11/30/20 In re Z.R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE
In re Z.R., a Person Coming B305504
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF Super. Ct.
CHILDREN AND FAMILY No. 19CCJP020307A)
SERVICES,
Plaintiff and Respondent,
v.
ANITA H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Kim L. Nguyen, Judge. Affirmed.
Amy Z. Tobin, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Brian Mahler, Deputy County Counsel, for
Plaintiff and Respondent.
_________________________
Anita H. (mother) appeals from the order of the juvenile
court terminating its jurisdiction over her son Z.R. pursuant to
Welfare and Institutions Code1 section 364. She contends that
the court proceeded under the incorrect statute at the six-month
review hearing and that in any event the evidence does not
support the findings. We affirm.
BACKGROUND
Z.H. was age 10 and living with his mother at the time they
came to the attention of the Department of Children and Family
Services (DCFS) because of unsafe and unsanitary living
conditions. The two lived in a trash-filled hotel room and shared
a bed. During its investigation, DCFS discovered that the child
was malnourished. He was extremely underweight and had very
little body mass. Z.H. was not receiving medical care at the time,
but once doctors examined him, they suspected that malnutrition
had affected the child’s growth. Z.H. was isolated because,
although he claimed he was home schooled, he was actually
spending most of his day “looking at memes online.” Further,
mother tried to interfere with the child’s contact with father.
Mother appeared to be trying to fulfill her unmet emotional needs
through the child by confiding in, and seeking validation from,
him. Z.H. wore a diaper, displayed severe anxiety and
withdrawal, and feared father. DCFS filed a section 300 petition.
1 All further statutory references are to the Welfare and
Institutions Code.
2
The juvenile court detained Z.H. from mother and released
him to father.
On July 19, 2019, mother pleaded no contest to two counts
in the first amended petition alleging Z.H.’s malnutrition,
medical neglect (§ 300, subd. (b)(1)), mother’s interference with
the child’s relationship with father, and her emotional
manipulation of Z.H., causing the child to suffer serious
emotional damage (§ 300, subd. (c)). Father was nonoffending
because the court dismissed the petition’s counts naming him.
The court removed the child from mother’s custody (§ 361, subd.
(c)), and ordered him placed with father. The court ordered
enhancement services for mother, involving parenting classes
and conjoint and individual counseling, and family maintenance
services for father.
At the close of the contested six-month review hearing held
in March 2020, the juvenile court found “that those conditions
which would justify the initial assumption of jurisdiction
under . . . Section 300 no longer exist and are not likely to exist if
supervision is withdrawn and the Court terminates jurisdiction
with a juvenile custody order awarding joint legal custody of
minor to parents and sole physical custody of minor to father.”
Mother received monitored visitation for two hours twice weekly
and monitored telephone calls twice weekly. The court stayed
termination pending receipt of the custody order. The ensuing
exit order filed with the termination order on March 20, 2020
specified that mother’s “monitor shall be mutually agreed upon,
monitor selected by the father or the mother to incur the cost of
paid professional monitor.” Mother appealed.
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DISCUSSION
I. The statutory framework
Mother first contends that the juvenile court erred by
proceeding under section 364 rather than under section 366.21.
A. The custody and disposition orders
When the juvenile court removes a dependent child from
the custody of the parent with whom the child is living, the court
determines “whether there is a parent of the child, with whom
the child was not residing at the time that the events or
conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child. If that
parent requests custody, the court shall place the child with the
parent” unless it finds that such a placement would be
detrimental to the child. (§ 361.2, subd. (a).)
If the court places the child with the noncustodial parent, it
“may terminate its jurisdiction over the child (§ 361.2, subd.
(b)(1)), maintain jurisdiction pending a home visit (§ 361.2, subd.
(b)(2)), or maintain jurisdiction with court supervision (§ 361.2,
subd. (b)(3)). ‘In enacting subdivisions (a) and (b) of section
361.2, the Legislature envisioned a two-step process: under
subdivision (a), the court examines whether it would be
detrimental to temporarily place a child with the nonoffending
noncustodial parent; under subdivision (b), the court decides
whether that placement should become permanent and whether
the court’s jurisdiction should be terminated.’ ” (In re Liam L.
(2015) 240 Cal.App.4th 1068, 1081.)
If the juvenile court places a dependent child with the
previously noncustodial parent and opts to maintain jurisdiction
with court supervision under section 361.2, subdivision (b)(3), it
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has three choices regarding services. First, it “may order that
reunification services be provided to the parent or guardian from
whom the child is being removed.” (§ 361.2, subd. (b)(3).)
Second, “the court may order that services be provided solely to the
parent who is assuming physical custody in order to allow that
parent to retain later custody without court supervision.” (§ 361.2,
subd. (b)(3), italics added.) Third, the court may order “that
services be provided to both parents, in which case the court shall
determine, at review hearings held pursuant to Section 366,
which parent, if either, shall have custody of the child.” (§ 361.2,
subd. (b)(3).) “The decision whether to provide services and to
which parent is discretionary to the court because the child is not
out of the home, but in placement with a parent.” (In re Gabriel
L. (2009) 172 Cal.App.4th 644, 651.)
Mother’s brief is centered on her belief that, because the
court awarded her enhancement services, it was proceeding
under the third service-related choice, namely that if services are
provided to both parents, the court must assess at the section 366
hearing which parent will have custody. (§ 361.2, subd. (b)(3).)
For example, mother argues that a “parent’s level of participation
in services are valid and relevant considerations when the
juvenile court is reviewing a section 361.2 placement to consider
which parent should have custody and whether further court
supervision is warranted.” However, we conclude that the court
opted for the second service-related choice.
The reason is that the juvenile court removed Z.H. from the
custody of mother, with whom he had been living, and placed him
with father under its supervision and so the child was not placed
out of the home. As the disposition plan shows, the court ordered
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enhancement services for mother.2 However, unlike reunification
services, which are designed to “ ‘facilitate the return of a
dependent child to parental custody’ ” (In re Jaden E. (2014) 229
Cal.App.4th 1277, 1281) or maintenance services, whose purpose
is to “maintain the child in his or her own home” (§ 16506),
enhancement services are “not designed to reunify the child with
the parent, but instead to enhance the child’s relationship with
that parent by requiring the parent to address the issues that
brought the child before the court” (1 Seiser & Kumli, Cal.
Juvenile Courts Practice and Procedure (2020) § 2.129, italics
added; see Earl L. v. Superior Court (2011) 199 Cal.App.4th 1490,
1497, fn. 1; In re A.C. (2008) 169 Cal.App.4th 636, 642, fn. 5).
Mother did not challenge any part of the disposition order and so
it is final.
It follows from the disposition order that awarded services
designed to enable father only to maintain custody while
arranging for mother simply to enhance her relationship with
Z.H. (see § 361.2, subds. (a) & (b)(3)), that the court proceeded
under the second service-related choice and assessed whether
father could retain later custody without court supervision (see
§ 361.2, subd. (b)(3)). The court never intended to consider
whether to give mother custody pursuant to the third service-
2 Although the disposition minute order directed DCFS to
“Provide Family Maintenance Services to the minor and parents,”
the order also stated that the “disposition case plan
is . . . incorporated herein.” On the incorporated case plan, the
juvenile court specifically inked in the word, enhancement before
court ordered case plan, demonstrating that with specific
reference to mother, the court intended that the services she
receive be for enhancement and not reunification or maintenance.
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related choice or it would have awarded mother reunification
services.
B. The six-month review and order terminating
jurisdiction
“ ‘If a child has been declared a dependent of the juvenile
court and placed under court supervision, the status of the child
must be reviewed every six months.’ [Citation.] The applicable
standards at the six-month review hearing differ depending on
the child’s placement.” (In re Maya L. (2014) 232 Cal.App.4th 81,
98.) Generally, however, the custodial parent has the
opportunity to regain physical custody of the child at each review
hearing. (In re Liam L., supra, 240 Cal.App.4th at p. 1081.)
Section 366.21, subdivision (e)(6) governs instances where
the child has been “placed under court supervision with a
previously noncustodial parent pursuant to Section 361.2.” In
contrast, section 364, subdivision (a) applies when “the child is
not removed from the physical custody of his or her parent or
guardian.” (Italics added.) As the juvenile court placed Z.H. with
the previously noncustodial parent under section 361.2,
subdivision (a), and neither returned the child to mother’s
custody nor awarded the parents shared custody, the governing
statute at the six-month review hearing was section 366.21,
subdivision (e)(6) and not section 364. Therefore, mother is
correct that the court committed legal error in proceeding under
section 364.
Nonetheless, we conclude that the error was harmless. The
reason is that the standards applicable to a six-month review
hearing for a child placed with a noncustodial parent under
section 366.21, subdivision (e)(6) “are similar to the standards
applicable to a section 364 six-month review hearing for a child
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who was not removed from a custodial parent.” (In re Maya L.,
supra, 232 Cal.App.4th at p. 99.)
Section 366.21, subdivision (e)(6) provides that “the court
shall determine whether supervision is still necessary. The court
may terminate supervision and transfer permanent custody to
[the previously noncustodial] parent, as provided for by
paragraph (1) of subdivision (b) of Section 361.2.” (Italics added.)
Section 361.2, subdivision (b)(1) authorizes the court to order that
“the parent become legal and physical custodian of the child. The
court may also provide reasonable visitation by the noncustodial
parent. The court shall then terminate its jurisdiction over the
child.”
Likewise, the test under section 364, subdivision (c), is to
“determine whether continued supervision is necessary. The court
shall terminate its jurisdiction unless the social
worker . . . establishes by a preponderance of evidence that the
conditions still exist which would justify initial assumption of
jurisdiction under Section 300, or that those conditions are likely
to exist if supervision is withdrawn.” (Italics added.)
Accordingly, both sections 366.21, subdivision (e)(6) and
364, subdivision (c) require the juvenile court to determine
whether supervision remains necessary. The only difference is
that for a child placed with a noncustodial parent under section
361.2, subdivision (a), such as here, the court need not also
“consider whether ‘ “the conditions still exist which would justify
initial assumption of jurisdiction under Section 300” ’ ” (In re
Maya L., supra, 232 Cal.App.4th at p. 99) as would be required
under section 364.
The juvenile court here made the expanded finding under
section 364, subdivision (c), both that the conditions causing the
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initial assumption of jurisdiction no longer existed and that those
conditions were not likely to exist if supervision were withdrawn.
Regardless of whether the court made the findings under section
364 or section 366.21, subdivision (e), the result is the same: the
court found that its supervision over Z.H. was not still necessary.
(See In re Maya L., supra, 232 Cal.App.4th at p. 101; In re Janee
W. (2006) 140 Cal.App.4th 1444, 1452 [we may affirm if
substantial evidence supports finding even if juvenile court used
language of § 364 not § 366.21].) Therefore, the error was
harmless.
II. Substantial evidence supports the finding.
Mother next contends that the evidence does not support
the finding that continued supervision was unnecessary.
Although we generally review orders terminating juvenile
court jurisdiction under an abuse of discretion standard, we
review the court’s factual findings for substantial evidence. (In re
A.J. (2013) 214 Cal.App.4th 525, 535, fn. 7; In re Janee W., supra,
140 Cal.App.4th at p. 1452.) “Substantial evidence is evidence
that is reasonable, credible, and of solid value.” (Los Angeles
County Dept. of Children & Family Services v. Superior Court
(2012) 211 Cal.App.4th 13, 20.) When assessing whether
continued juvenile court supervision is necessary, courts focus on
the dependent children and determine whether in the custody of
the nonoffending parent they are still at risk of harm and remain
in need of the protection of the juvenile court. For example, in In
re Janee W., at page 1452, the appellate court cited the agency’s
reports that unambiguously praised how well the children were
doing, and how safe, clean, and happy they were. The appellate
court in In re Sarah M. (1991) 233 Cal.App.3d 1486 at pages 1499
to 1500, observed that the child was no longer at risk at the final
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hearing and no longer needed the court’s protection. (See In re
A.J., at p. 535 [evidence supported termination order because
there was no “ ‘protective issue’ ”].)
Z.H. was a dependent of the juvenile court because with
mother, he was malnourished, medically neglected, emotionally
manipulated, and suffered severe anxiety, withdrawal, and fear
of father. By the time of the final hearing, DCFS reported that
Z.H. had adjusted “very well” to father’s custody where he was
both physically and emotionally thriving. Z.H. had developed a
“special bond” and a close relationship with father and
stepmother, who he sought out for comfort, assistance, and
validation. He had gained weight and was sleeping through the
night. The child was enrolled in school where he was “content”
and doing very well academically and socially. He helped father
with the family business and was looking forward to the family
vacation and to starting summer camp. He was comfortable with
social interaction. Z.H.’s personal hygiene had improved, he was
no longer wearing a diaper, he had received physical and dental
exams and was doing very well in therapy. DCFS recommended
to the juvenile court that it terminate jurisdiction as Z.H. did “not
display any emotional, behavior or developmental concerns that
were present at the beginning of the case.” This evidence more
than amply supports the finding that continued court supervision
of Z.H. was not still necessary.
Mother argues for continued supervision reasoning that the
juvenile court had not received the results of her psychological
evaluation or allowed a reasonable period for conjoint therapy
with Z.H., and she was close to completing counseling and a
parenting class. She notes that DCFS reported that she
continued to struggle with the issues that brought the family into
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the juvenile court. But, as noted, under sections 361.2,
subdivision (b)(3) and 366.21, subdivision (e)(6), the court
assesses whether the child requires continuing court supervision
in the custody of the nonoffending parent.
Effectively mother is contending that the juvenile court
should have continued its jurisdiction because mother could not
pay for conjoint therapy or a monitor. She argues that without
the juvenile court’s “ongoing supervision, conjoint counseling was
virtually an impossibility. [Mother] testified she would not be
able to afford it.” However, the court in In re Sarah M., supra,
233 Cal.App.3d at pages 1499 to 1500 rejected the noncustodial
parent’s contention that continued supervision was necessary
because visitation problems caused the child emotional distress
and there were concerns about who would pay for conjoint
therapy. The Sarah M. court reasoned that such arguments were
“not a cry for continued supervision, but rather a plea for
financial aid.” (Id. at p. 1500.)
Finally, mother argues that withdrawing supervision will
render visitation meaningless because of difficulties in agreeing
on a monitor. Exit orders are not the same thing as permanent
family law custody and visitation orders. “Juvenile court exit
orders . . . are in the nature of pendente lite orders in family law.”
(In re John W. (1996) 41 Cal.App.4th 961, 973, fn. omitted.) Such
exit orders are modifiable. Section 362.4, subdivision (b) provides
that any “order issued pursuant to this section shall continue
until modified or terminated by a subsequent order of the
superior court.” Mother may always seek modification of the exit
order in the family court. However, a problem between the
parents about scheduling visitation is not a reason to retain
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juvenile court jurisdiction under section 366.21, subdivision
(e)(6).
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
EDMON, P. J.
LAVIN, J.
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