IN RE: JUAN M. et al.

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Court of Appeal, Second District, California.

IN RE: JUAN M. et al., Persons Coming Under the Juvenile Court Law. _ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JUAN M., SR., Defendant and Appellant.

B218754

Decided: June 25, 2010

Janette Freeman Cochran, under appointment by the Court of Appeal, for Defendant and Appellant. James M. Owens, Assistant County Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Father Juan M., Sr., appeals from a juvenile court order continuing juvenile dependency jurisdiction and awarding joint physical custody of their two children to him and to Mother Felicia H. Father claims that the trial court erroneously continued juvenile dependency jurisdiction and erroneously granted him and Mother joint physical custody of their children in alternate weeks.   We conclude that substantial evidence supported the order continuing juvenile dependency jurisdiction.   We also find that the order granting joint physical custody of the children to Mother and to Father in alternate weeks was not an abuse of the juvenile court's discretion.   We affirm the order.

FACTUAL AND PROCEDURAL HISTORY

Detention:  Juan M., Jr., age six, and Juanita M., age four, were detained on October 2, 2008 after the Department of Children and Family Services (DCFS) responded to a referral that Juan was a victim of physical abuse by his maternal grandmother and general neglect by Mother, and that Juanita was at risk because of sibling abuse.   Juan called law enforcement to report that his maternal grandmother choked him and pushed him down because he had difficulty with his homework.   Police officers took the children into custody.

On October 7, 2008, the juvenile court found a prima facie case was established for detaining the children and showing that Juan and Juanita were persons described by Welfare and Institutions Code section 300, subdivisions (a) and (b) 1 and that Juanita was also a person described by section 300, subdivision (j).  The juvenile court ordered the children detained from Mother and released to Father.   The juvenile court set the matter for a contested adjudication hearing on November 25, 2008.

Petition:  On October 7, 2008, the DCFS filed a section 300 petition alleging that Juan and Juanita were persons described by section 300, subdivisions (a) [children suffered, or risked suffering, serious physical harm inflicted nonaccidentally by parent] and (b) [children suffered or risked suffering serious physical harm or illness because of parent's failure, inability, or willful or negligent failure to supervise or protect the child from the conduct of the custodian with whom the child has been left].

Adjudication and disposition:  On January 26, 2009, the juvenile court sustained the petition, found that the children were persons described by section 300, subdivisions (a) and (b), declared Juan and Juanita dependent children of the juvenile court, ordered them placed in Father's home under DCFS supervision, and ordered the DCFS to provide family maintenance services.   The juvenile court ordered Mother to attend parent education class and to participate in individual counseling to address case issues including domestic violence, self-esteem, and inappropriate protection and discipline.   Father was ordered to attend individual counseling to address case issues including domestic violence and anger management and possessive behavior with Mother.   Mother and Father were ordered to attend Parents Beyond Conflict.   The matter was set for a six-month review hearing on June 4, 2009.

Six-Month Review:  For the six-month review hearing, the DCFS reported that the DCFS, Mother, and Father met in two team decision meetings on February 18 and 25, 2009, to address issues to foster stability and reduce conflict between the parents.   Mother and Father disagreed on the care and custody of the children, however, and tension continued to exist between them.

Mother continued to live with maternal grandmother.   The children visited Mother on weekends at the house of Mother's friend because of the court order not to have visits with maternal grandmother present.   Because of conflict between the parents, Mother and Father met at a police station to drop off and pick up the children.   Several incidents had occurred between the parents at the police station.   On April 11, 2009, the parents had an argument about Juanita's hair not being combed when she returned from a visit with Mother, and the police had to intervene and quell the argument.

Both parents had completed parent education programs and a Parents Beyond Conflict class.   Maternal grandmother also completed the Parents Beyond Conflict class.   A Family Preservation meeting was held on January 10, 2009, but no in-home counseling services were available to the children.   Father refused referrals to Kedren Mental Health Center and L.A. Child Guidance Center, but Father refused to consider those agencies, which provided counseling only at their sites.   Father refused to attend a second meeting, stating that it was a waste of time.   Because of Father's refusal to attend a second meeting and several missed visits with the in-home counselor, the Family Preservation case was terminated on April 8, 2009.   Father refused to provide documentation regarding the children's physical and dental examinations, and told a CSW that he did not think the court needed that information and he could not take the children for those examinations because they would have to miss school.

At a February 25, 2009, team decision meeting, Father agreed to enroll the children in individual counseling, but Father was adamant that the children receive only in-home counseling and refused to consider counseling outside the home.   Father was not successful in enrolling the children in any individual counseling and the children were not attending individual counseling.

Both parents attended weekly individual counseling.   On May 27, 2009, Father's therapist reported that he began individual therapy on April 16, 2009, and participated in six sessions, but had not addressed issues of domestic violence and anger management because Father did not want to discuss those issues.

The DCFS reported that the children were healthy, clean, well supervised, and well fed in Father's care, and both children attended school on a daily basis.   The children, however, appeared to be confused and saddened by their parents' inability to live together, and stated that they would like to live with both parents.   Juan stated that he wanted to live with Father;  Juanita said that she wanted to live with Mother.   Currently Mother and Father did not communicate and the DCFS coordinated the children's weekend visits with Mother.   The DCFS recommended a joint home-of-parent order, with the children being allowed to spent half the time with each parent.   The DCFS also recommended that the juvenile court order child welfare services, that the children attend individual counseling, that Father and Mother continue in individual counseling to address issues of domestic violence and anger management, and that family maintenance services be provided for both parents and the children.

On June 4, 2009, the DCFS reported that the children were scheduled to spend the weekend with Mother beginning at 6:00 p.m. on May 29, 2009.   A CSW was present at the pick-up location at the police station.   Mother arrived with Paris, her boyfriend's six year-old daughter.   Juan and Juanita began to cry when they saw Paris, and Juan refused to go with Mother on the visit, stating that he did not want to go because he did not like Paris.   Juan left with Father.   Juanita went with Mother.

A contested hearing was held on July 30, 2009.   For that hearing, the DCFS reported that Juan and Juanita were enrolled in weekly individual counseling, and had attended three sessions.   As of July 22, 2009, Father was reported to have begun individual therapy on April 16, 2009, to have participated in 12 therapy sessions, to be punctual and consistent in attendance and cooperative and willing to engage in conversations involving his life and children, and to have started to discuss issues such as parenting, conflict management, appropriate communication, and career goals.   As of July 27, 2009, Juan's individual therapist from the Los Angeles Child Guidance Clinic reported that Father had diligently worked with the therapist to provide services for Juan and Juanita.   Individual sessions, family sessions, and collaborations occurred once a week during July 2009.

At the July 30, 2009, hearing, counsel for the DCFS requested that the juvenile court retain jurisdiction and give joint legal and physical custody to both parents.   The children's counsel supported that request, arguing that shared custody would be in the children's best interest.   The children's counsel agreed that the juvenile court should continue jurisdiction, as both Juan and Juanita needed therapy.   Mother's counsel joined with the request of counsel for the DCFS. Father's counsel, however, urged the juvenile court to close the case under section 364, arguing that the court could not find by a preponderance of the evidence that conditions still existed that would justify the initial assumption of jurisdiction or that those conditions would exist absent DCFS involvement.   Father requested that the court terminate jurisdiction and award sole physical custody to Father and joint legal custody.

The juvenile court found Mother and Father in compliance with the case plan, and that maternal grandmother had sufficiently complied with the parenting class requirement and no longer presented a risk if the children were to visit in her home.   The juvenile court, however, stated that there was a continuing risk and that conditions continued to exist that would justify the court taking jurisdiction.   The juvenile court cited a very hostile relationship between Mother and Father, with the children being dropped off and picked up for visits at the police station.   The children were suffering serious emotional damage because of this serious conflict between the parents.   The juvenile court retained jurisdiction over the children to make sure they received the therapy they required, and because of the still volatile relationship between the parents.   The juvenile court ordered family maintenance services for the children with both parents, joint physical custody of the children for Mother and Father, with the children to be with one parent every other week and with the other parent the other week.

Father applied for rehearing, arguing that joint physical custody was not appropriate while Mother lived with maternal grandmother.   Father also argued that under section 364, subdivision (c), conditions that justified the initial assumption of jurisdiction no longer existed, and requested the juvenile court to terminate jurisdiction with a family law order giving Father sole physical custody of the children.   The juvenile court denied this application.

Father filed a timely notice of appeal.

ISSUE

Father claims on appeal that the juvenile court erroneously continued jurisdiction and ordered joint physical custody of the children.

DISCUSSION

Father claims that the juvenile court abused its discretion by granting Mother joint physical custody of the children and retaining dependency jurisdiction.

A. Substantial Evidence Supported the Order Continuing Jurisdiction

Section 364 authorizes review hearings in juvenile dependency matters when a child is not removed from parental custody.  (In re Gabriel L. (2009) 172 Cal.App.4th 644, 649.)   At this hearing, the juvenile court determines whether continued supervision is necessary.  (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 304.)   Section 364, subdivision (c) states that at a six-month review hearing, “[a]fter hearing any evidence presented by the social worker, the parent, ․ or the child, the court shall determine whether continued supervision is necessary.   The court shall terminate its jurisdiction unless the social worker or his or her department 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.   Failure of the parent ․ to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.”   In reviewing an order determining whether to terminate or continue juvenile court jurisdiction, this court looks to the entire record for substantial evidence to support the juvenile court's findings.  (In re N.S. (2002) 97 Cal.App.4th 167, 172.)

The juvenile court assumed jurisdiction based on section 300, subdivisions (a) and (b).  The conditions that justified initial assumption of jurisdiction under section 300, subdivision (a) were that Mother had inappropriately disciplined Juan and Juanita, including striking their bodies with belts, causing them unreasonable pain and suffering.   The conditions that justified initial assumption of jurisdiction under section 300, subdivision (b) were, first, that maternal grandmother had abused Juan by choking him while covering his mouth, and had struck him with belts on prior occasions, and Mother knew maternal grandmother was physically abusing Juan and failed to take action to protect him.   Second, maternal grandmother abused Juanita by striking her body with belts, and Mother knew maternal grandmother was physically abusing Juanita and failed to take action to protect her.   Third, Mother and Father had a history of domestic violence in which Father struck Mother in Juan's presence.

As section 364, subdivision (c) states, “[f]ailure of the parent ․ to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary.”   At the January 26, 2009, adjudication and dispositional hearing, Father was ordered to attend individual counseling to address case issues including domestic violence, anger management, and positive behavior with Mother, and to attend Parents Beyond Conflict.   As of May 27, 2009, Father's therapist reported that Father had participated in six therapy sessions, but had not addressed issues of domestic violence and anger management because he did not want to discuss those issues.   As of July 22, 2009, Father's therapist could only report that Father had “started discussing issues such as parenting, conflict management, appropriate communication, and career goals.”   Domestic violence, anger management, and positive behavior with Mother may or may not have been included in these discussions, but in any case Father had only “started discussing” such issues in therapy.

Although Father (and Mother) completed the Parents Beyond Conflict course, the juvenile court found that Parents Beyond Conflict had not helped in this case.   The juvenile court found that a very hostile relationship continued to exist between Mother and Father, the children were being dropped off for visits at the police station, the relationship between Mother and Father was volatile, and that the children were suffering emotional damage because of the conflict between the two parents.   Substantial evidence supported the finding that the conditions that justified initial assumption of jurisdiction under section 300, subdivision (b) would be likely to exist if juvenile court supervision were withdrawn, and the juvenile court properly continued dependency jurisdiction.

B. The Joint Custody Order Was Not an Abuse of Discretion

Father claims that the trial court abused its discretion by ordering joint physical custody of the children with Mother and with Father.   Father argues that placing the children in alternate weeks with Mother, who lived with maternal grandmother, and finding they were not at risk in maternal grandmother's home, was an abuse of discretion.   Father also argues that Juan and Juanita had done well in his home, but Mother created a problem when she brought her boyfriend's six-year-old daughter Paris to a visit, causing Juan and Juanita to cry and causing Juan to refuse to go with Mother for the visit.   Father argues that the juvenile court should have terminated jurisdiction with a family law order awarding Father sole physical custody of the children.

This court reviews a juvenile court's custody placement orders under the abuse of discretion standard of review;  the custody order will not be disturbed absent a manifest showing of abuse.   This standard defers to the juvenile court judge, with whose order this reviewing court interferes only if it finds under all the evidence, viewed most favorably in support of the juvenile court's order, no judge could reasonably have made that order.  (Alicia B. v. Superior Court (2004) 116 Cal.App.4th 856, 863.)

Maternal grandmother had completed a Parents Beyond Conflict course.   The juvenile court found that maternal grandmother had sufficiently complied with the parenting course requirement that she no longer presented a risk if the children were to visit in her home.   Father has not shown an abuse of discretion in the order granting joint physical custody of the children to him and to Mother.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code.  FN1. Unless otherwise specified, statutes in this opinion will refer to the Welfare and Institutions Code

KLEIN, P. J. ALDRICH, J.