Filed 3/29/22 In re S.G. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County, Michael D. Abzug, Judge. Affirmed.

Joseph D. Mackenzie, under appointment by the Court of Appeal, for Appellant.

Konrad S. Lee, under appointment by the Court of Appeal, for Respondent.

INTRODUCTION

D.G. (father) appeals from a juvenile court exit order granting sole legal custody to A.G. (mother). We find no abuse of discretion, and thus we affirm.

BACKGROUND

Father and mother were married in 2005 and are the parents of S.G., who was born in December 2009. In October 2017, the Department of Children and Family Services (Department) filed a petition alleging the parents were emotionally abusing S.G. causing him to experience suicidal ideation, self-harming ideation, and exhibit severe anxiety, depression, withdrawal, and aggressive behaviors towards himself and others. The Department alleged the emotional abuse by both parents gave rise to juvenile court jurisdiction pursuant to Welfare and Institutions Code[1] section 300, subdivision (c). At the subsequent detention hearing, the juvenile court ordered S.G. placed with father and detained from mother. Moreover, it ordered S.G. be placed in therapy immediately and an evaluation be completed by a psychiatrist or psychologist.

Consequently, psychologist Dr. A. Crespo evaluated S.G. and his parents. S.G. reported he suffered from headaches and would harm himself because his parents were always fighting. Additionally, S.G. could not understand why his parents could not get along and felt “caught in the middle.” Moreover, S.G. stated he had witnessed his parents engage in physical violence many times, including father slapping mother’s face and mother punching father. Crespo noted father had withdrawn consent for S.G.’s therapy sessions over a payment dispute with mother. Father refused to allow the therapy sessions to continue, even after mother agreed to pay for them. As a result of his evaluations, Crespo recommended shared physical custody, but sole legal custody to mother so there would be no disputes concerning S.G.’s access to psychotherapy.

In December 2017, the Department filed an amended petition adding section 300, subdivisions (a) and (b) allegations that the parents’ history of domestic violence placed S.G. at risk. The juvenile court subsequently found the amended petition true, placed S.G. with father, and ordered reunification services for the parents.

In August 2018, the juvenile court held a section 364 review hearing where it ordered S.G. to continue in father’s care and ordered additional family maintenance services. Moreover, it ordered joint custody.

In October 2018, the conflict between mother and father had escalated. Additionally, S.G. was experiencing suicidal and homicidal ideation, aggressive behaviors towards himself and others, impulsive behaviors and verbally and physically attacking students at his school. As a result, the juvenile court granted the Department authority to remove S.G. from father’s home and to place him with a paternal aunt and uncle. The Department later filed a section 387 petition alleging placement with father was ineffective because the parents continued to emotionally abuse S.G. by exposing him to ongoing post-marriage conflict. At the subsequent adjudication hearing, the juvenile court sustained the petition in its entirely, removed S.G. from parental custody and placed him under the supervision of the Department. The court ordered S.G. to remain with paternal aunt and uncle and ordered family reunification services and monitored visitation for the parents.

In June 2019, the court held a six-month review hearing under section 366.21, subdivision (e). There, the juvenile court found mother’s participation in services had been substantial and ordered S.G. returned to her care. The juvenile court further found visitation for father was to remain monitored, and ordered services for both parents. Moreover, the juvenile court ordered father not to contact mother or to be within 100 feet of her, her home, or S.G’s school. In August 2019, at a subsequent review hearing, the juvenile court ordered S.G. returned to home of mother. In November 2019, the court held another review hearing where it liberalized Father’s visitation to be unmonitored.

In anticipation of a February 2020 progress report hearing, the Department filed a status review report. Among other things, it recommended the juvenile court terminate jurisdiction over S.G. and grant parents shared legal and physical custody. At the progress report hearing, the juvenile court authorized father to have overnight visits with S.G., but continued the home of mother custody order.

In September 2020, father filed a section 388 petition requesting S.G. be placed in his care and that the juvenile court terminate the dependency case. In the petition, he argued the Department’s involvement was damaging to S.G.’s mental health. At the subsequent hearing in November 2020, the juvenile court granted joint physical custody to the parents. In addition, it ordered the parents to mediation so they could negotiate and agree upon the terms of a final custody and visitation order. The juvenile court set a section 364 termination hearing for December 2020 where the parents were to submit the signed mediation agreement. The juvenile court indicated it would most likely order shared physical and legal custody in the final order.

At the December 364 hearing, the parents admitted they did could come to an agreement in mediation. After hearing arguments from both parents, minor's counsel, and the Department, the juvenile court granted the parents joint physical custody, and mother sole legal custody. Father timely appealed.

DISCUSSION

On appeal, father challenges only the court’s award of sole legal custody to mother. For the reasons that follow, we reject father’s challenge and affirm the exit order.

1. The Juvenile Court did not Abuse its Discretion in Awarding Mother Full Legal Custody
   1. General Principles and Standard of Review

The juvenile court entered the exit order pursuant to section 362.4, which provides that when the court terminates its jurisdiction, it may enter orders “determining the custody of, or visitation with, the child.” (§ 362.4, subd. (a); In re Roger S. (1992) 4 Cal.App.4th 25, 30.) Such an order may be transferred to a family court file, and it remains in effect until modified or terminated by the superior court. (In re Chantal S. (1996) 13 Cal.4th 196, 203; § 362.4.)

In the absence of a statutory directive, appellate courts have held that when making exit orders under section 362.4, “‘the [juvenile] court’s focus and primary consideration must always be the best interests of the child.’” (In re T.S. (2020) 52 Cal.App.5th 503, 513, italics added, quoting In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; accord, 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”]; In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 [upon terminating its jurisdiction, juvenile court shall make custody and visitation determinations “based on the best interests of the child without any preferences or presumptions”].)

It is well-established that the family law presumption favoring joint custody does not apply to juvenile court custody orders entered upon termination of jurisdiction. (In re Jennifer R., supra, 14 Cal.App.4th at pp. 711–713.) To the contrary, “‘[w]hen making a custody determination in any dependency case, the court’s focus and primary consideration must always be the best interests of the child. [Citations.] Furthermore, the court is not restrained by “any preferences or presumptions.” [Citation.]’” (In re Maya L. (2014) 232 Cal.App.4th 81, 102–103.) We also note the exit order is subject to modification by the family court in the event father demonstrates a “significant change of circumstances.” (§ 302, subd. (d), 362.4, subd. (b); Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163.)

The juvenile court issues custody and visitation orders “pursuant to its authority under the Welfare and Institutions Code, guided by the totality of the circumstances in issuing orders that are in the child’s best interests.” (In re C.M. (2019) 38 Cal.App.5th 101, 109.) Custody determinations are not disturbed in a dependency proceeding unless the decision exceeds the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318–319; In re Maya L., supra, 232 Cal.App.4th at p. 102.) “‘“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.”’” (In re Stephanie M., supra, at p. 319.)

We review the juvenile court’s decision to terminate dependency jurisdiction and to issue a custody order pursuant to section 362.4 for an abuse of discretion “and may not disturb the order 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.)

1. 2. Analysis

Father contends the juvenile court abused its discretion by awarding sole legal custody[2] to mother because (1) the parents retained joint legal custody throughout most of the dependency matter, (2) the juvenile court failed to consider all evidence related to the legal custody matter, and (3) the order was punitive towards father. For the reasons discussed below, we hold the juvenile court could have reasonably concluded it would be difficult for mother to coordinate medical decisions about S.G. with father as the parents continually disagreed throughout the dependency matter. Thus, we find the juvenile court did not abuse its discretion in awarding mother full legal custody.

First, father appears to argue the juvenile court abused its discretion by giving mother full legal custody because the juvenile court ordered joint legal and physical custody at the November 2020 hearing on his section 388 petition and the parents shared legal custody throughout the course of the dependency matter. Therefore, even if the juvenile court ordered joint legal custody in November, or at any other time, it retained the power to modify the custody order at the December hearing. Moreover, we note that while the Department initially requested joint legal custody in November, by the time of the December hearing, it changed its recommendation to sole legal custody to mother. The Department, joining in minor’s counsel’s argument, requested mother have full legal custody because the parents continued to disagree about S.G.’s therapy. Considering the totality of circumstances, including S.G.’s severe mental health issues and father blocking mental health services for S.G. in the past, the juvenile court did not abuse its discretion in granting mother full legal custody. On the record before us, we see nothing arbitrary, capricious, or patently absurd in the juvenile court’s determination giving mother full legal custody.

Second, father appears to argue the juvenile court abused its discretion in awarding mother sole legal custody because the juvenile court was unfamiliar with the facts of the case and decided the matter on argument, not evidence.

We are required on appeal to follow the fundamental principles that a trial court’s judgment is presumed correct, all presumptions are indulged to support it on matters as to which the record is silent, and the appellant must affirmatively demonstrate error. (In re Julian R. (2009) 47 Cal.4th 487, 498-499.) We also presume that the juvenile court was aware of and followed the applicable law. (Id. at p. 499; People v. Stowell (2003) 31 Cal.4th 1107, 1114.) Thus, “when ‘a statement of reasons is not required and the record is silent, a reviewing court will presume the trial court had a proper basis for a particular finding or order.’” (In re Julian R., supra, 47 Cal.4th at p. 499; Evid. Code, § 664 [it is presumed that an official duty has been regularly performed].)

Here, there is nothing in the record of the custody hearing to rebut the presumption that the juvenile court was aware of its obligation to consider the best interests of the child, and duly considered those interests, prior to making its order. The fact that the judge who presided over the matter from March 2018 through November 2020, was not the judge who issued the order in dispute is not alone enough to rebut the presumption. Moreover, father’s argument that there was no evidence to support Judge Abzug’s claim he “actually reviewed all of the documents with regard to the whole history of this matter”[3] is unsupported by citations to the record. Father therefore has failed to demonstrate an abuse of discretion.

Finally, father argues Judge Abzug’s grant of full legal custody to mother was punitive to both father and S.G. We disagree. Father fails to cite, and we cannot find, anything in the record to show the juvenile court entered the custody finding to punish father. Moreover, father does not cite to specific harm caused by the custody order. As noted above the juvenile court’s paramount concern in determining custody is the best interests of the child based on the totality of the circumstances (Nicholas H., supra, 112 Cal.App.4th at p. 268)—not fairness to parents. Here, the juvenile court properly concluded it was reasonably likely that father would block further mental health services to S.G., endangering both his physical and psychological health. The juvenile court, therefore, could reasonably infer that awarding sole legal custody to mother provided stability and continuity for S.G., thus serving his best interests. (In re Stephanie M., supra, at p. 317 [“In any custody determination, a primary consideration in determining the child’s best interests is the goal of assuring stability and continuity”].)

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

CURREY, J.

We concur:

WILLHITE, Acting P.J.

MICON, J.*

[1] All subsequent statutory references are to the Welfare and Institutions Code.

[2] “‘Joint legal custody’ means that both parents shall share the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.” (Fam. Code, § 3003.)

[3] We note father misquotes the record. The statement attributed to Judge Abzug was made by a different judge.

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