In re Adrian D. CA2/5

Filed 5/19/16 In re Adrian D. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
In re ADRIAN D., a Person Coming Under B266860
the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK97517)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
HUGO G.,
Defendant and Appellant,
ANGEL R.,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles County, Emma
Castro, Commissioner. Affirmed.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Respondent
Angel R.
No appearance for Plaintiff and Respondent.
Hugo G. (father) appeals from juvenile custody and visitation orders granting sole
legal custody of his son, Adrian D., to Angel R. (mother), joint physical custody to both
parents, and weekend visitation for father. The order was made after a status review
hearing under Welfare and Institutions Code section 364.1 Father contends the
dependency court abused its discretion in granting sole legal custody to mother. Mother,
as respondent,2 contends order granting her sole physical custody of Adrian was within
the court’s discretion. We affirm.
1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2Counsel for the Los Angeles County Department of Children and Family
Services notified this court that the Department would not be filing a respondent’s brief.
Mother filed a respondent’s brief.
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STATEMENT OF FACTS AND PROCEDURE3
January 2013 to February 20154
In early 2013, when Adrian was seven years old, the Los Angeles County
Department of Children and Family Services (Department) began dependency
proceedings with respect to Adrian and his two younger stepbrothers. 5 Based on alleged
domestic violence between mother and her then-husband, Aldo C., all three children were
detained from parental custody and placed with Aldo C.’s parents. On May 13, 2013, the
court found the three children to be minors described by section 300, subdivision (b),
sustaining an allegation of domestic violence between mother and Aldo C. The court
dismissed the remaining petition allegations, including allegations relating to domestic
violence between mother and father.
Mother and father had separated when Adrian was two years old, and in February
2013, Adrian told a social worker he did not know who father was. Father had a number
of criminal convictions, and had not visited Adrian in the past year. At disposition, the
court found substantial risk of detriment6 prevented placement with either parent, and
3“In accord with the usual rules on appeal, we state the facts in the manner most
favorable to the dependency court’s order.” (In re Janee W. (2006) 140 Cal. App. 4th
1444, 1448, fn. 1.)
4 The text of this section is a verbatim excerpt from our January 2016 unpublished
opinion affirming the court’s March 2015 orders granting physical custody of Adrian to
mother and continuing jurisdiction. (In re Adrian D. (January 14, 2016, B263298)
[nonpub. opn.].) Our inclusion of this excerpt does not signify that we consider the
factual and procedural summary to be law of the case binding the dependency court’s
decision making.
5Adrian’s stepbrothers are not party to this appeal, and the court has already
terminated the portion of the dependency case involving them.
6Father appealed on June 11, 2013, and the Department cross-appealed. Our
opinion dated August 12, 2014, affirmed the court’s orders, reasoning that father was
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ordered monitored visits and reunification services for mother and father.
Father began visiting Adrian regularly during the next year, and by March 2014,
he began having overnight weekend visits. Father completed parenting, domestic
violence, and anger management classes. Mother was attending domestic violence and
parenting classes and was on a waiting list for a psychological evaluation. At a March
21, 2014 six-month review hearing, the court placed Adrian in father’s custody.
During the next reporting period, mother completed her domestic violence and
parenting classes and was in substantial compliance with her individual counseling and
mental health assessments. Father was compliant with court-ordered services, but had
not substantially participated in conjoint therapy with Adrian as recommended by
Adrian’s therapist. Father first forgot to request a letter from the therapist, and later only
attended two sessions of conjoint counseling, claiming his two jobs made it difficult to
arrange conjoint counseling.
Adrian consistently indicated he missed mother and wanted to continue to have a
relationship with her. Mother complained that father was not making Adrian available
for visits. An October 2014 report noted that “[f]ather appears to be questioning his
commitment to Adrian in light of his frustrations in dealing with mother.” The same
report quoted father as saying, “I want Adrian to live with me, but if I have to share 50%
[sic] percent custody with [mother], I will have no choice and close[] the case.” Father
claimed to have heard that mother was prostituting herself, but would not identify the
source of his information. Mother testified father would not return her phone calls, and
her only way of communicating with him about visitation was through text messaging.
Text messages reveal significant hostility and disrespect between mother and father.
By February 2015, Adrian was expressing a desire to live with mother. Mother
was employed and living with maternal grandmother, and the Department had conducted
a home inspection. The Department permitted mother to have unmonitored overnight
estopped from claiming the detriment finding was made in error because father’s counsel
prompted the court to make the finding.
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visits on weekends beginning February 21, 2015, but due to problems in communication
between mother and father, visits did not occur on the following two weekends.
Nonetheless, the Department recommended that the court terminate jurisdiction, granting
joint legal custody to mother and father, with father retaining primary legal custody. 7
March 2015 to August 2015
At a review hearing in March 2015, the court awarded mother primary physical
custody of Adrian during the week, with father to have weekend visits three times a
month. The court continued jurisdiction, setting another hearing under section 364 for
June 19, 2015, and emphasizing: “I strongly believe that Adrian’s strongest bond with
the two parents is with . . . mother, and that is because . . . mother had custody of Adrian
for most of his life except for last year. . . . [¶] . . . [¶] I intend to only continue this order
for 90 days.” It found that placing Adrian with mother would not create a substantial risk
of detriment, and described the factual basis for its finding as “child’s close bond to his
mother, the child’s desire . . . to return to the custody of his mother, the mother’s
compliance with the case plan, and the mother’s ongoing, unmonitored visitation with the
child which has not demonstrated to the court any safety or health concerns for the child.”
The court ordered that father and mother both continue to receive family maintenance
services. Father appealed, and on January 14, 2016, we affirmed the court’s orders
granting primary physical custody to mother and continuing jurisdiction over the case.
(In re Adrian D. (January 14, 2016, B263298) [nonpub. opn.].)
In the meantime, the Department reported on June 19, 2015, that mother was in
substantial compliance with the court-ordered case plan, and observed that Adrian was
doing well in his mother’s home. He was responsible, loving, and caring towards his
mother, and was also independent and comfortable in his home environment and his new
school. Adrian’s visits with his father went well during the month of April, he had no
7 This ends our excerpt from the January 14, 2016 unpublished opinion.
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visits in May, and then an overnight visit on June 5, 2015. Mother claimed father was not
returning her texts. The social worker tried to call father to discuss visitation, but father’s
phone had been disconnected. Counsel for all parties appeared in court on June 19, 2015,
but neither father nor Adrian were present. The court continued the matter to July 23,
2015 for a mediation, and a hearing on the same day if the matter was not settled in
mediation. The court ordered father’s counsel to notify father of the new court date, and
that the court would make orders in his absence if he did not appear.
On July 23, 2015, father did not appear for the mediation or the hearing. Mother
sought sole legal custody of Adrian, but had no objection to continued visitation with
father, so long as father confirmed the visits in advance. In response to questioning by
the court, Adrian said the last time he had called his father was a few months earlier. He
had stopped calling or leaving messages because he knew his father would not answer the
phone. Father’s attorney argued that it would be in the child’s best interests to maintain
joint legal and physical custody, and the Department also recommended joint physical
and legal custody. After mentioning the importance of parents cooperating when they
have joint legal custody and noting that father had failed to appear for mediation, the
court made an order for joint physical custody, with primary physical custody to mother
and visitation for father, but it also granted sole legal custody to mother. The final
custody and visitation order was entered on August 7, 2015.
DISCUSSION
Father contends the dependency court erroneously granted mother sole legal
custody of Adrian. We find no abuse of discretion.
When the dependency court terminates jurisdiction, it has authority to make orders
addressing custody and visitation. (§ 362.4; In re T.H. (2010) 190 Cal. App. 4th 1119,
1122–1123.) We review those orders for abuse of discretion. (Bridget A. v. Superior
Court (2007) 148 Cal. App. 4th 285, 300.) Custody determinations are not disturbed in a
dependency proceeding in the absence of an arbitrary, capricious, or patently absurd
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exercise of discretion. (In re Stephanie M. (1994) 7 Cal. 4th 295, 318–319; In re Maya L.
(2014) 232 Cal. App. 4th 81, 102.) “It is not our function to weigh the credibility of the
witnesses or resolve conflicts in the evidence. [Citation.] Rather we must indulge in all
reasonable inferences to support the findings of the juvenile court and must review the
record in the light most favorable to the juvenile court’s orders.” (In re Daniel C. H.
(1990) 220 Cal. App. 3d 814, 839.) “‘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.’ [Citations.]” (In re Stephanie M., supra, 7 Cal.4th
at pp. 318–319.)
The dependency court’s custody and visitation orders focus on the child’s best
interests. (In re Chantal S. (1996) 13 Cal. 4th 196, 206; In re Nicholas H. (2003) 112
Cal. App. 4th 251, 268.) On custody issues, while family law has a presumption favoring
joint custody, the California Supreme Court has held that “application of a family-law-
based joint custody presumption would be inconsistent with the purpose of juvenile court
law.” (In re Chantal S., supra, 13 Cal.4th at p. 206.) Instead, the dependency court,
“which has been intimately involved in the protection of the child, is best situated to
make custody determinations based on the best interests of the child without any
preferences or presumptions.” (In re Jennifer R. (1993) 14 Cal. App. 4th 704, 712.)
Here there was substantial evidence supporting the court’s decision to give mother
sole legal custody of Adrian. Father’s argument emphasizes that Adrian had been living
with him for a year, and was doing well during that time. But because there is no
presumption in favor of joint custody in dependency cases, those facts alone do not
establish that the court’s decision was an abuse of discretion. The sole legal custody
determination was supported by Adrian’s closely bonded relationship with his mother,
particularly when viewed in light of father’s hostile attitude towards mother and his
apparent unwillingness to communicate with her or participate in the dependency case.
Father has not demonstrated that the court’s decision so exceeded the bounds of reason as
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to constitute an abuse of discretion. (In re Stephanie M., supra, 7 Cal.4th at pp. 318–
319.)
DISPOSITION
The custody and visitation orders are affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
BAKER, J
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