In re Alysa F.

Filed 4/5/06 In re Alysa F. CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed.

Angela F. is the mother of Alysa F. and Elijah F. In September 2005, the juvenile court awarded sole legal and physical custody of Alysa to her father, Gilbert R.; awarded sole physical custody of Elijah to his father, William M., with joint legal custody to Angela and William; and terminated dependency jurisdiction. Angela appeals Alysa's legal custody order. She contends the only reason that Alysa's order differs from Elijah's is that Gilbert requested sole legal custody while William did not. Angela concludes there is no substantial evidence that Gilbert's sole legal custody was in Alysa's best interest. We affirm.

BACKGROUND

In August 2004, the San Diego County Health and Human Services Agency filed dependency petitions for three-year-old Alysa and seven-year-old Elijah. The petitions alleged that Angela threw a large toy at her son Jacob F.,^[1] causing a large bruise and swelling on his forehead; she left Alysa and Elijah without adult supervision for three days until the police detained them; Alysa and Elijah were dirty and hungry; Angela had a history of leaving her children unattended; and her whereabouts were unknown. In September, the court entered true findings on the petitions. Elijah and Alysa were detained in Polinsky Children's Center, then detained and placed in foster homes together.

In March 2005, Elijah was placed with William, Alysa started a 60-day trial visit with Gilbert, and Angela was jailed in the midwest on racketeering and drug transportation charges. In June, Elijah began a visit with William's parents in Minnesota, where William planned to relocate. In August, Angela was sentenced to five years in prison.

At the September 2005 hearing, Gilbert's counsel asked that Gilbert be given sole legal custody of Alysa and that Gilbert's address be confidential from Angela.^[2] Angela's counsel argued: "[D]epriving a parent of joint legal custody is a very serious step. We do not think that [Angela]'s behavior is really appropriate for that remedy. These orders do function as permanent custody orders and are very difficult to change. Even though she is in custody, she does want[] to continue to be involved in the children's life and to be involved in the important decisions. The important educational decision and important health decisions. This isn't a neglect case and it's a drug use case. It's not physical abuse. She . . . did not injure the child. We would request that this court allow her joint custody and allow her to be involved in the child's life to the fullest extent possible." Gilbert's counsel responded, "[P]ractically speaking, it's difficult for [Gilbert] to contact [Angela] if there is a need not emergency but some type of school change or medical change or anything like that."

The court stated, "Well, I have to say I go with the practicality of the situation. I understand that in theory, certainly, [Angela] should be able to share the joint legal responsibility, but at the end of the day, someone needs to make these decisions. She is not even in the state. I'm sure it would be extremely difficult for [Gilbert] to get in contact with her to find out that she needs to take care of Alysa. So although I think that [Angela's counsel] is probably technically correct, I think the right answer is for sole custody for [Gilbert]."

William, who was acting in propria persona, did not mind if Angela knew his address. The following dialogue occurred between the court and William regarding legal custody of Elijah:

"THE COURT: What about sharing joint legal custody?

"[WILLIAM]: Decision making is that what that regards?

"THE COURT: I think that's right. I think it would be with regards to making sort of the big issues.

"[WILLIAM]: Yes.

"THE COURT: Medical, big medical, big educational would be my shorthand. I'm sure it's more complicated than that.

"[WILLIAM]: That's fine."

DISCUSSION

" 'Sole legal custody' means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child." (Fam. Code, § 3006.) " 'Joint legal custody' means that both parents shall share th[at] right and the responsibility . . . ." (Fam. Code, § 3003.) "In making an order of joint legal custody, the court shall specify the circumstances under which the consent of both parents is required to be obtained in order to exercise legal control of the child and the consequences of the failure to obtain mutual consent. . . ." (Fam. Code, § 3083.) Angela complains that she wants her consent required in all circumstances. In the juvenile court, however, her attorney mentioned only decisions about education and health. In any case, Angela cannot prevail.

Angela asserts that "it is not in Alysa's best interest to have a limited relationship with [Angela] when no reason was provided for such a limitation except Gilbert's preference." This is equivalent to an assertion that giving Gilbert sole legal custody is not in Alysa's best interest because the court's only stated reason was Gilbert's preference. This makes no sense. Furthermore, Angela's premise is inaccurate. In announcing Alysa's legal custody order, the court cited not Gilbert's preference for sole legal custody, but rather the extreme difficulty he would face in trying to contact Angela.

Angela also argues, "[i]t is obvious that if the court found no reason to award sole legal custody to William that no such reason existed to grant sole legal custody to [Gilbert]." Here, her unstated premise is that Elijah's and Alysa's best interests are identical because she is their mother. She ignores the obvious fact that each child is a unique individual with unique interests. For example, because at the time of the hearing Alysa was four years old while Elijah was eight and one-half years old, decisions about Alysa's education might have been more pressing than decisions about Elijah's education. In short, even if William's and Angela's joint legal custody is in Elijah's best interest, it does not necessarily follow that Gilbert's and Angela's joint legal custody is in Alysa's best interest. Moreover, Angela's logic can be transposed to yield the statement that if there was no reason to award joint legal custody to Gilbert, then there was no reason to award joint legal custody to William.

Angela contends that "there was no evidence presented that sole legal custody for Alysa was in her best interest." The record, however, shows otherwise, through ample evidence that it would be difficult for Gilbert to include Angela in the process of making decisions about Alysa. Although he was not a part of Alysa's life when she was a baby because Angela moved often, he enthusiastically welcomed Alysa into his home and formed a strong bond with her. Angela's transient ways did not change, however. Shortly before these dependency petitions were filed, she left her infant daughter Marianna B. with Marianna's paternal grandmother. There was no word from Angela in the ensuing two weeks and the grandmother had no way of contacting her to obtain vaccination records and medical consent. In this case, Angela gave the social worker two telephone numbers, but never responded when the social worker called them. Angela's first meeting with the social worker occurred in November 2004, when she fortuitously showed up at a relative's home while the social worker was there. In January 2005, Angela attended a hearing for the first and last time. She apparently visited Alysa only twice. Now, Angela's whereabouts are ascertainable because she is in prison. Even if she serves her entire five-year sentence, however, when she is released Alysa will be only nine years old, with nine years of parental custody remaining.

The juvenile court's purpose "is to protect children who have been seriously abused, neglected or abandoned by their parents" by providing the state a forum to restrict parental behavior and remove children from parental custody. (In re Chantal S. (1996) 13 Cal.4th 196, 201, 207.) "The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child." (Id. at p. 201.) Upon termination of dependency jurisdiction pursuant to Welfare and Institutions Code section 362.4, there is no presumption that joint legal and physical custody is in the child's best interest. (Id. at p. 206, citing In re Jennifer R. (1993) 14 Cal.App.4th 704, 712.) Here, the court did not abuse its discretion by impliedly finding that Gilbert's sole legal custody was in Alysa's best interest. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

DISPOSITION

The order is affirmed.

McCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

IRION, J.

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^[1] Jacob was five years old. This appeal does not involve him.

^[2] Gilbert intended to use his father's address for mail communication with Angela. Angela's counsel agreed with this and stated, "But we're not waiving her right to know where the children are, we just think family court is the appropriate venue."

Angela asserts that it would be a hardship for her to seek modification of Alysa's custody order in family court. Although her attorney noted that juvenile court "custody orders . . . are very difficult to change," he referred three times to the suitability of family court as a forum in which to litigate her "right to know where the children are." The difficulty of obtaining a family court modification is not a sufficient reason for reversal.