IN RE: KHLOE S. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In this dependency proceeding, Keith S. (Father) challenges an order requiring that his visitation with his then two-year-old daughter be monitored.   The juvenile court made this visitation order at the time it terminated dependency jurisdiction, awarding sole physical custody of the child to Kelly J. (Mother) ¹ and legal custody to both parents.   Father does not challenge the custody order or the order terminating jurisdiction.   Finding no abuse of discretion in the restriction on Father's visitation, we affirm.

BACKGROUND

Father and Mother married in July 2007.   Their daughter, Khloe S., was born in August 2008.   Father and Mother separated in or about April 2009.

On August 6, 2009, the Los Angeles Sheriff's Department (LASD) contacted the Los Angeles County Department of Children and Family Services (DCFS) and asked DCFS “to conduct an independent investigation into allegations of felony child endangerment” against Father and Mother.   LASD had served a search warrant as part of a drug investigation at a motel in Gardena, California where Father, Mother, and one-year-old Khloe were present.   Father was arrested for possession of rock cocaine for sale.   Mother was arrested for possession of rock cocaine.   DCFS took Khloe into protective custody.

Through its investigation, LASD learned (1) that the motel was known as a place where narcotics were sold and (2) that Father matched the description of the person selling narcotics.   When members of the LASD Gang and Narcotics Enforcement Team arrived at the motel on August 6, 2009 to serve the search warrant, Father was standing outside the motel/residence with another man.   Mother also was standing outside, holding Khloe.   The “entry team,” which included deputies, detectives and a sergeant, exited a van.   According to the incident report, when Father saw the officers, he ran inside the residence and into a bathroom.   Detectives followed Father and saw him throw in the toilet what appeared to be rock cocaine.   Father flushed the toilet.

LASD detained Father, Mother and the other man.   A deputy asked Mother if she lived at the motel/residence.   According to the deputy, Mother stated that she and Khloe occasionally stayed there.   Mother explained that she was at the motel on August 6, 2009 to visit her husband (Father).   The deputy also asked Father if he lived at the motel/residence.   According to the deputy, Father stated that he, Mother and Khloe had been staying there for two weeks.   The deputy saw female and baby clothing and other baby items inside the residence.   Father also told the deputy that he was on parole in a case involving a firearm charge.

During a search of the living room area of the residence, a detective found on top of a dining table a white substance which looked like rock cocaine.   Next to that substance, the detective found a razor and a box of sandwich baggies.   Another detective found gang photographs and other gang-related items in a bedroom closet.   Father's cell phone was located on a dresser in the same bedroom.   According to LASD, Father and the other man who was detained at the motel were known members of the “Legend Crips” street gang.

A sergeant used a narcotics dog to search the area around the residence.   The dog alerted the sergeant to Mother's purse.   The sergeant recovered “a large amount of U.S. currency” from a small white “ ‘Johnson's & Johnson's' ” box inside Mother's purse.

Mother told a deputy that she owned a car parked at the motel.   Detectives searched Mother's car and found in the center console area a white substance which looked like rock cocaine.

A DCFS social worker arrived at the scene and spoke to Mother.   Mother denied knowledge of Father selling drugs.   Mother stated that Father might use marijuana, but she did not believe that he used other drugs.   Mother denied that she lived with Father, but stated that she brought Khloe to visit Father two or three times a week.   Mother told the social worker that she was unemployed and in the process of looking for a job and a place to live.   She had been living with her sister temporarily.

Mother had an adult daughter, and two sons who were 13 and 12 years old, from prior relationships.   Her sons had been living with their maternal grandmother in Moreno Valley, California for a year, since Mother became unemployed.   After assessing the home, DCFS placed Khloe in the home of her maternal grandmother.

On August 11, 2009, DCFS filed a dependency petition under Welfare and Institutions Code section 300,² alleging, in pertinent part, the “endangering and detrimental home environment” caused by Father's and Mother's possession of cocaine in the home, “within access of the children” (Khloe and Mother's two sons).

At the detention hearing on August 11, 2009, Father appeared in custody.³  The juvenile court found that Father is Khloe's presumed father.   The court ordered Khloe and Mother's two sons detained in the home of the maternal grandmother.   The court granted reunification services to both parents and ordered DCFS to provide referrals for a drug rehabilitation program with random testing, parenting education and individual counseling.   The court also ordered monitored visitation for both parents.

On August 21, 2009, a dependency investigator interviewed Mother's two sons.   Both stated that Mother and (Khloe's) Father did not do drugs.   The boys did not believe that Mother and Father had possessed drugs on August 6, 2009.   The older son added that he felt safe with Mother and Father and sometimes called Father “ ‘dad,’ ” even though Father was not his biological father.

The investigator interviewed Father on August 24, 2009 at the correctional facility where he was incarcerated.   Father stated that the motel where he was arrested was not his residence.   He had been living with his mother in Pasadena, California.   Father admitted, however, that he had been staying at the motel temporarily, but denied that Mother had been staying there with him.   He stated that Mother had been living with her mom, and she came to the motel for a visit on August 6, 2009.   Father maintained that he was staying in his friend Tyler's motel room, and that LASD was “ ‘looking for’ ” Tyler when the team arrived to serve the search warrant.⁴  Father claimed that the officers planted the drugs on him because he was a gang member.   Father denied that he ran to the restroom and flushed anything down the toilet.   He stated:  “I have been in and out of jail my whole life, and it has never been for drugs․”  Father added that he was “ ‘trying to change [his] life.’ ”   According to the jurisdiction/disposition report, prepared on or about August 26, 2009, Father informed DCFS that he had “never had a job” and had “never looked for employment.”

The investigator interviewed Mother by telephone on August 24, 2009.   Mother was no longer in custody.   Apparently the District Attorney declined to prosecute Mother.   Mother told the investigator that Father sometimes stayed at the motel where they were arrested, and she had visited him there before.   She denied that the motel was her “ ‘home’ ” or Father's home.   She stated that Father lived with his mother in Pasadena.   Mother claimed that Father earned money “ ‘as an unlicensed tattoo artist.’ ”   Mother denied knowledge of Father using or selling drugs.   She described Father as “ ‘a good father,’ ” who had never put her or her children in danger.   Mother asserted that she did not know how rock cocaine wound up in her car.

At a hearing on September 9, 2009, Father's counsel informed the juvenile court that Father had enrolled in a parenting class.   On October 16, 2009, the correctional facility where Father was incarcerated verified that he was enrolled in an education program which included classes entitled “Parent–Child Communication” and “Family Members Interaction.” ⁵  Also on October 16, 2009, DCFS submitted a report to the court, stating that a drug education program was “available to inmate[s] that qualify” at the correctional facility where Father was incarcerated.   By October 27, 2009, Father had completed the 25–session parenting class and the 16–session family and personal relationships class.   Thereafter, he was transferred to a prison which did not offer any counseling programs.

On November 6, 2009, the juvenile court adjudicated the petition.   Mother called three witnesses to testify at the hearing.   First, Detective Darryl Hast, a narcotics investigator from the LASD Gang and Narcotics Enforcement team, testified.   He explained that his team conducted surveillance at the motel for two weeks prior to the service of the search warrant.   Detective Hast and a partner conducted the search of Mother's car.   They used a narcotics dog, but the dog did not alert them to the presence of any narcotics.   Next they conducted a “hand search” of Mother's car, and Detective Hast found “a small amount” of a substance “resembling rock cocaine” on the passenger side of the car “between the floor and the center console.”   Detective Hast did not see Mother enter the motel room on the day his team served the search warrant or during the period of surveillance.   Mother was standing outside the motel room on August 6, 2009, when the team arrived to serve the search warrant.

Mother testified at the hearing.   She admitted that she had stayed at other motels with Father, but denied that she had ever stayed with Father at the motel where they were arrested.   She stated that she went to that motel twice—on the day of the arrest and the day before the arrest—to pick up Father so that he could visit with Khloe.   She denied knowing anything about the drugs found in the motel room or the drugs found in her car.   She stated that Father also used her car.   Mother testified that she had $2,000 inside a first aid kit in her purse at the time of her arrest.   Mother claimed that she had been saving her money and planned to use it to secure a place to live and to purchase items for Khloe's first birthday party.

Father also testified at the hearing.   He stated that he had been staying at the motel room where he was arrested for two or three weeks prior to the arrest.   He was staying there with his friend Tyler, Tyler's girlfriend and Tyler's baby.   The baby clothes in the motel room were for Tyler's baby.   Mother had not stayed with him at that motel room.   She came to see him there twice—on the day of the arrest and the day before the arrest.   Father stated that he had driven Mother's car “[a] lot of times.”   He was a passenger in Mother's car the day before the arrest when he went to the park with Mother and Khloe.

Father's counsel argued that the juvenile court should strike the allegation in the petition against Father.   Counsel stated that Father denied the allegation.   Counsel also represented that Father was not convicted of drug sales or drug possession based on the incident on August 6, 2009.⁶

The juvenile court commented on Father and Mother's “story,” concluding that it was “just ludicrous.”   The court found that Father, Mother and Khloe were staying at the motel room where Father and Mother were arrested and that they possessed cocaine.

The juvenile court sustained the allegation in the petition (b–1) which states that Father and Mother “established an endangering and detrimental home environment for the children [Khloe and Mother's two sons] in that on or about 8/6/09, [Mother and Father] possessed cocaine in the children's home, within access of the children.   On or about 8/6/09, [Mother] possessed cocaine in [Mother]'s vehicle.   Such an endangering and detrimental home environment established for the children by [Mother and Father] endangers the children's physical and emotional health and safety, placing the children at risk of physical and emotional harm, damage and danger.”

The juvenile court declared Khloe to be a dependent of the court under section 300, subdivision (b).  The court ordered reunification services for Father to include a drug rehabilitation program with random testing and individual counseling to address case issues including drug awareness.⁷  The court stated:  “I am informing the parents that failure to participate regularly and make substantial progress in court-ordered treatment could result in the termination of reunification services to you on May 7th, 2010, and that your parental rights could be terminated if custody is not returned to you by that date.”   The court also ordered monitored visitation for Father to commence after his release from custody.

Father was released from custody on April 3, 2010 and went to live with his mother.   In a status review report, prepared on or about May 5, 2010, DCFS reported that Father called the social worker on April 19, 2010 and requested referrals.   Father stated that he wanted to see Khloe and would do whatever programs the court ordered him to do.   On April 30, 2010, Father enrolled in an outpatient drug awareness program at Shields for Families, which was scheduled to begin on May 10, 2010.   The 52–session program was to include individual counseling, parenting, drug awareness and random drug testing.   Father informed the social worker that he would be reporting to his parole officer on a regular basis.   The social worker called the parole officer to inquire about the terms and conditions of Father's parole.   The social worker left a message, but did not hear back from the parole officer.

On May 2, 2010, Father had a four-hour monitored visit with Khloe and Mother's sons at the maternal grandmother's home.   Father planned to visit the children on weekends.

In an interim review report, prepared on or about June 24, 2010, DCFS stated that Khloe and Mother's sons were on “an extended stay” at Mother's apartment in Los Angeles.   The children's placement, however, remained with the maternal grandmother.   DCFS informed Mother and Father that Mother would be permitted to monitor Father's visits.   Mother and Father told the social worker that although they were separated, they maintained a “ ‘good’ relationship” and were “committed to caring for their children.”

Mother monitored Father's visits on June 6, 8, 12, 14, 16, 17 and 20, 2010.   The visits typically lasted between three and three-and-a-half hours and occurred at Mother's apartment.   Father attended a graduation ceremony and a birthday party for Mother's adult daughter.   He also accompanied the family to a restaurant for dinner on Father's Day.

At a contested review hearing on June 29, 2010, the juvenile court terminated the suitable placement order and ordered the children placed in Mother's home.   Mother had complied with her case plan.   The court found that Father's compliance with the case plan had been “partial.”   The court continued Father's reunification services, finding that Father had been “participating in services ․ since his release from incarceration.”

In a report prepared on or about December 5, 2010, DCFS recommended that the juvenile court terminate jurisdiction, grant sole physical and legal custody of the children to Mother and order monitored visitation for Father.   DCFS reported on Father's progress since June 2010.

On July 6, 2010, the social worker met with Father and Mother during one of Father's visits with the children.   Father stated that he had been attending drug awareness, parenting and individual counseling at Shields for Families since May 13, 2010.   He was trying to find employment, but found it “difficult to find work due to his criminal record.”   Mother reported that Father was visiting regularly and was “ ‘good with the kids.’ ”

On October 12, 2010, Father informed the social worker that he was no longer attending drug awareness classes or individual counseling at Shields for Families, but continued to drug test for his parole officer.   The social worker reviewed with Father the juvenile court's November 6, 2009 order requiring him to complete his case plan.   Father responded that he “was focused on trying to find employment, but would resume participation with Shields for Families soon.”   The social worker called Father's parole officer multiple times to inquire about Father's drug testing, but the parole officer did not return the calls.

On November 10, 2010, the social worker again reviewed the case plan with Father.   The social worker advised Father that he needed to participate in random drug testing because “he was no longer in a drug program, and because his parole officer had not provided the Department with their drug test results.”   On November 12, 2010, the social worker delivered to Mother's home referrals for Father for drug education classes and individual counseling.   Father confirmed that he would pick up the referrals during his visit with the children, and that he would “follow up and pursue the services.”

On November 12, 2010, the social worker spoke to the program manager at Shields for Families.   The program manager reported that, although Father was enrolled in the program as of May 13, 2010, “he had not attended any classes or counseling sessions, nor had he submitted to any drug testing.”   The program manager explained that Father could still participate in the program, and that the program “had a sliding pay scale available.

The social worker arranged for Father to begin drug testing, and provided Father with the address and telephone number of the facility and instructions for calling in each day.   Father failed to show for a random test scheduled for November 23, 2010.

In the December 2010 report, DCFS stated that Father maintained regular visitation with Khloe and Mother's boys.   Mother reported that, during the three-hour visits, Father “would often play various board games with the children, help with homework, change the diapers of his daughter Khloe, and have a meal with the family.”   Father also read to Khloe.   The social worker observed numerous visits between Father and the children and reported that “it appears the children enjoy his company and are comfortable and at ease in his presence.”   The social worker also formed the “impression” that “the children feel safe with [Father], trust him, and have a mutual bond” with him.

At a review hearing on December 21, 2010, Father's counsel reported:  “[Father]'s done parenting.   He's been testing through probation and indicates that the social worker told him that that was okay.  [¶] And he indicates that in his conversations with the social worker that the conversation[s] have always been that he needs to do testing, not that he needs to be in a rehab program, so he's not in one.   And he indicates to me that he didn't know he needed to be in one.”   The juvenile court inquired about individual counseling.   Father responded that when he went to Shields for Families to begin classes, he was told that he did not qualify because he was on parole.   Father also stated that his parole officer had agreed to provide him with referrals, but did not follow through.   The court commented that Father “was here when the court made the disposition orders;  and therefore he's well aware of what the court orders were.”   The court set the matter for a contested hearing under section 364 regarding DCFS's recommendation that jurisdiction over Khloe be terminated and a family law order issue awarding sole physical and legal custody to Mother and monitored visitation to Father.⁸

At a trial setting conference on February 2, 2011, the juvenile court informed the parties:  “But at this point, based on the reports, unless Father can show the court compliance with the case plan my tentative is to go with the Department's recommendation for the family law order, which includes monitored visits to the father.”

On February 9, 2011, DCFS submitted a report regarding Father's progress.   As of January 19, 2011, Father was enrolled and participating in individual counseling.   He was scheduled to attend weekly, and had participated in three sessions, “focused on addressing [his] re-entry into a more productive life, and learning to manage anger appropriately and engaging in positive interactions with others.”   According to the therapist, Father also was “focused [on] his ultimate goal of gainful employment and [the] ability to adequately care for his children.”

On February 4, 2011, the social worker learned that Father was working with a counselor to find “no-to-low-cost” drug and alcohol education classes.   Father also enrolled in a seven-month telecommunications course at a technical college, which he attended five days a week.

On February 18, 2011, the juvenile court held the contested section 364 hearing.   By that date, Father had attended three more individual counseling sessions, for a total of six sessions since January 19, 2011.   DCFS recommended that Father's visits remain monitored.   Counsel for DCFS argued:  “At this point Khloe is only two years old.   While [Father] appears to be doing everything he can at this point to comply with the prior case plan, there's still a few things that he needs to do.   And given her young age, the Department is asking to exit with a monitored visitation order.”   Counsel for Khloe joined in DCFS's recommendation for monitored visitation for Father.   Mother's counsel informed the court that Mother wanted Father to have unmonitored visitation because she had no concerns about his visits.

Father's counsel represented to the court that Father was in compliance with his parole and that the parole officer had reported no violations.   Counsel stated that Father had not attended a drug treatment program because “he doesn't have the means to do so.”   Father was continuing to work with his counselor to locate an affordable program.   He requested that his visits be unmonitored.

On February 18, 2011, the juvenile court terminated jurisdiction and issued a family law order awarding sole physical custody of Khloe to Mother, legal custody to both parents and ordering monitored visitation for Father “until he completes [a] random drug testing program.”   The court cited Father's lack of progress with his case plan.

DISCUSSION

Father contends that the juvenile court abused its discretion when it ordered monitored visitation for him at the time it terminated dependency jurisdiction and issued the family law “exit order.”

Under section 362.4, “When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor's attainment of the age of 18 years, and proceedings for dissolution of marriage, ․ or for legal separation, of the minor's parents ․ are pending in the superior court of any county, or an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue ․ an order determining the custody of, or visitation with, the child.”   This statute vests the juvenile court with broad discretionary authority to make custody and visitation orders when terminating dependency jurisdiction.   (In re Chantal S. (1996) 13 Cal.4th 196, 203–204;  In re Roger S. (1992) 4 Cal.App.4th 25, 30–31.)   Such “exit orders,” as they are commonly called, remain in effect until modified or terminated by the family law court.  (In re John W. (1996) 41 Cal.App.4th 961, 970.)

The juvenile court's primary consideration in deciding custody and visitation is the best interests of the child.  (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.)   The court “must look to the totality of a child's circumstances” and issue orders that are in the child's best interests.  (In re Roger S., supra, 4 Cal.App.4th at pp. 30–31.)

We review a juvenile court's exit order for abuse of discretion.  (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)  “ ‘ “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.” ’  [Citation.]”  (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319.)

On November 6, 2009, the juvenile court sustained an allegation in the petition regarding the “endangering and detrimental home environment” caused by Father's and Mother's possession of cocaine in the home, “within access of the children.”   That same date, the court ordered Father to complete a drug rehabilitation program with random testing and individual counseling to address case issues including drug awareness.

Father asserts that he “had largely complied with his case plan” by the time the juvenile court issued the exit order.   The record does not support Father's assertion.   Father was released from custody in April 2010.   By February 18, 2011, Father still had not participated in any type of drug program or drug counseling.   From May to October 2010, Father represented to the social worker that he was participating in a drug program at Shields for Families (Shields).   The social worker learned from Shields that Father had enrolled but had never participated in the program.

Father continually represented to the social worker and the juvenile court that drug testing was a condition of his parole.   But there is no proof of these tests in the record.   Moreover, the record indicates that the social worker reminded Father that he needed to participate in a random drug testing program even if he was testing for his parole officer.   The parole officer had not provided DCFS with information about any testing, despite numerous requests for such information from DCFS.

Father claims that he did not have notice that his visits would be liberalized to unmonitored only if he completed his case plan.   The juvenile court's jurisdiction over Khloe was based on the finding that Father possessed cocaine in Khloe's home.   Father had done nothing to show that he had resolved the issues which led to jurisdiction.   At the November 6, 2009 adjudication/disposition hearing, the juvenile court notified Father that it could terminate his parental rights if he did not “participate regularly and make substantial progress in court-ordered treatment.”   It should have come as no surprise to Father that the juvenile court would not grant him unmonitored visitation with Khloe if he failed to participate in a drug program with random drug testing.

Father argues that “the juvenile court should have issued an ‘exit order’ that, at a minimum, provided Father with monitored visitation with DCFS discretion to liberalize or, alternatively that set out specific steps for moving from monitored to unmonitored visitation.”   The court's order states that Father's visitation is to be monitored “until he completes [a] random drug testing program.”   The court informed Father that if he participated in a program and was testing clean, he could seek a change of order from the family law court.   The court clearly set forth what Father needs to do if he wants to have unmonitored visitation with Khloe.   Granting DCFS discretion to liberalize Father's visitation would not have been appropriate given that the court terminated dependency jurisdiction.

In considering the totality of the circumstances, and evaluating Khloe's best interests, the juvenile court did not abuse its discretion in ordering monitored visitation for Father.   Father needs to demonstrate that he does not have a problem with drugs, and that drugs will not present a safety issue for Khloe.   As set forth above, the court's order does not forever bar Father from having unmonitored visits with Khloe.   He may seek a modification of the order in the family law court if his circumstances change and warrant such a modification. (§ 362.4;  In re Chantal S., supra, 13 Cal.4th at pp. 212–213.)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. Mother is not a party to this appeal..  FN1. Mother is not a party to this appeal.

FN2. Further statutory references are to the Welfare and Institutions Code..  FN2. Further statutory references are to the Welfare and Institutions Code.

FN3. Mother also appeared.   We discuss the proceedings involving Mother only to the extent they also relate to Father and to the issue on appeal..  FN3. Mother also appeared.   We discuss the proceedings involving Mother only to the extent they also relate to Father and to the issue on appeal.

FN4. Tyler was the man who was detained and arrested with Father and Mother at the motel..  FN4. Tyler was the man who was detained and arrested with Father and Mother at the motel.

FN5. Mother was enrolled in services, including parenting and a drug program which included random drug and alcohol testing..  FN5. Mother was enrolled in services, including parenting and a drug program which included random drug and alcohol testing.

FN6. It is not clear from the record what charge led to Father's incarceration from August 2009 to April 2010.   The record does indicate that Father was on parole at the time of the August 6, 2009 incident.   DCFS reported on Father's lengthy criminal history, which did not include arrests or convictions for drug crimes..  FN6. It is not clear from the record what charge led to Father's incarceration from August 2009 to April 2010.   The record does indicate that Father was on parole at the time of the August 6, 2009 incident.   DCFS reported on Father's lengthy criminal history, which did not include arrests or convictions for drug crimes.

FN7. The court also ordered reunification services and monitored visitation for Mother..  FN7. The court also ordered reunification services and monitored visitation for Mother.

FN8. The court terminated jurisdiction over Mother's sons..  FN8. The court terminated jurisdiction over Mother's sons.

ROTHSCHILD, Acting P. J. JOHNSON, J.