IN RE: A.S. (2011)

B. Custody Order

The father argues the juvenile court erred when it granted the mother sole legal and physical custody of the child rather than joint custody.   We disagree.

The juvenile court's decision to terminate jurisdiction and issue a custody order pursuant to section 362.4 is reviewed for abuse of discretion and may not be disturbed “unless the court ‘ “ ‘exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].’ ” ' ”  (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300, quoting In re Stephanie M., supra, 7 Cal.4th at p. 318;  In re Jennifer R. (1993) 14 Cal.App.4th 704, 711.)  “[T]he juvenile court, ․ is best situated to make custody determinations based on the best interests of the child without any preferences or presumptions.”  (In re Jennifer R., supra, 14 Cal.App.4th 704 at p. 712.)  “In any custody determination, a primary consideration in determining the child's best interest is the goal of assuring stability and continuity.”  (In re Stephanie M., supra, 7 Cal.4th at p. 317;  In re John W. (1996) 41 Cal.App.4th 961, 973 [“in making exit orders, the juvenile court must look at the best interests of the child”].)

The juvenile court did not abuse its discretion in granting the mother legal and physical custody of the child because it was in the child's best interest to have continuity and stability by being with her mother and half-brothers.   Although the father makes much of the mother's prior drug abuse and contends that shared custody will permit him to “catch” the child if the mother relapses, it is questionable whether the father would do so given that the father had previously left the child in the mother's care despite the mother's substance abuse problem.

The mother had taken steps to address parenting and her drug problems.   She had complied fully with her case plan and the conditions which had justified removal no longer existed.   The mother had completed her drug treatment program, tested clean without missing a test, and attended weekly counseling sessions and aftercare programs.

Furthermore, the minor expressed feeling safe and happy in the mother's care, was doing well in school and enjoyed being with her mother and half-brothers.   While the child enjoyed spending time with the father and wanted to spend more time with him, she did not want to live with him as she would miss her family.

The father was, for the most part, absent from the child's life.   The father admitted he lived with the child for only one and one-half years and visited her a mere ten times in the four years she lived in California.   Although the father contends that the mother misled him as to the contents of the November 2009 certified letter sent by the department, it is undisputed that he was aware of the notice because he contacted the department social worker after receiving it.   The father only visited the child once in December 2009 after learning about the dependency proceedings and failed to contact the department to arrange for more visits until July 1, 2010.

The father explained that he was absent for seven months because he was helping his mother move.   However, when the department social worker reminded him that in December 2009, he had reported that his mother had already moved, he then stated he was helping his mother with her dialysis treatment.   Regardless of his reason for not returning the social worker's calls, the father did not make any effort to spend more time with the minor.   Moreover, the father did not call the child regularly even though he had the mother's cell phone number.   The child could not remember the last time she spoke to him on the phone because an extended period of time had passed.

Finally, it was in the best interest of the child to give the mother legal and physical custody because there is evidence the father was violent and might not be able to take care of her.   The father disputes that he was physically abusive towards the mother but his criminal record shows he was arrested for domestic violence and later fled to Georgia.   The mother stated that the father was abusive towards her during their approximately three-year relationship.   He kicked her in the stomach while she was pregnant with the child simply because she ate a breakfast sandwich.   The mother eventually left the father when he had beaten her so badly she could not walk.   In addition, the mother described the father being verbally abusive, ripping her shirt and breaking her finger when he tried to take off her ring during a trip to Georgia.   The maternal grandmother confirmed the father was “very violent.”

Although the mother did not think the father would abuse the child, she thought he did not set a good example because he cursed, yelled and did not wake up early enough to attend to the child.   Likewise, the maternal grandmother questioned the father's ability to take care of the child because he had done nothing for her for the past eight years.

Given the father's absence from the child life, his prior history of domestic violence, the mother's full compliance with the case plan, and the child's desire to live with her mother and half-brothers, the court did not abuse its discretion in awarding the mother sole legal and physical custody of the child.

IV. DISPOSITION

The juvenile court's August 19, 2010 and August 20, 2010 orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KUMAR, J.^* .

We concur:

MOSK, Acting P. J.

KRIEGLER, J.

FOOTNOTES

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.