Filed 2/10/22 In re A.P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.

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Joseph P. (father) appeals from the juvenile court’s order terminating jurisdiction over his children and granting sole physical custody to their mother, and monitored visitation to father. On appeal, father argues the juvenile court abused its discretion in denying his request for unmonitored visitation. We affirm.

BACKGROUND[1]

1. Dependency petition

Father and mother are the parents of A.P. (born June 2018) and J.P. (born March 2020). The family first came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in early March 2020, when the probation department searched the apartment where the family was residing to conduct a compliance check on paternal uncle.

Upon entry to the apartment, the deputies noticed the strong, potent smell of marijuana. The deputies found an unregistered loaded semi-automatic handgun in a locked safe in the bedroom closet where mother confirmed she lived with father and A.P. The deputies found large amounts of CBD merchandise throughout the apartment, including CBD gummies and CBD boxes appearing to be packaged and ready for sale. The deputies also found $545, a scale, baggies commonly used in the sale of marijuana, and a backpack containing a large plastic bag of marijuana and a credit card with father’s name. A jar of marijuana buds lay in the living room next to a baby bottle cap within A.P.’s reach. In addition, lying within reach of A.P. in her crib was a bottle containing gel infused with cannabis oil.

The deputies reported having a reasonable suspicion that father was selling drugs out of the apartment. They arrested father for possessing a gun and ammunition in violation of his probation, but did not confiscate the drugs, and notified DCFS. Mother, who was nine months pregnant with J.P., agreed to move out of the home. J.P. was born three days after father’s arrest.

DCFS filed a dependency petition on behalf of A.P. and J.P. under Welfare and Institutions Code[2] section 300, subdivisions (b)(1) and (j). The petition, as amended, alleged that the parents failed to protect the children by creating a dangerous home where drugs were left within A.P.’s reach and where a loaded gun and drug paraphernalia consistent with drug sales were found. It also alleged that father had a history of substance abuse and that mother, knowing about father’s substance abuse, allowed him access to A.P. The juvenile court detained the children from father and released them to mother on the condition that they reside with the maternal grandmother. The court ordered monitored visits for father.

2. Jurisdiction and disposition hearing

In their respective interviews with DCFS, the parents made a number of conflicting statements regarding their living situation and the allegations in the petition. Mother reported both that father smoked marijuana approximately twice a day, and that he smoked twice a week. Having initially stated that the family lived in the apartment, mother later asserted that father lived next door with the paternal grandmother, and that the bedroom in which she and A.P. slept belonged to the paternal uncle. To explain the presence of so many CBD products in the apartment, mother claimed that father attended “a lot of CBD events lately,” but she denied that father used the CBD. While mother stated that she did not think father was a drug dealer, she also reported that she did not discuss money with him because she could not afford to pay rent by herself.

Father first reported to DCFS that the family lived in the apartment. He denied that there were weapons in the home and that he was a drug dealer. He also denied that he smoked marijuana inside the home. Father claimed he had worked at a marijuana dispensary that closed in 2019, and he had a new job setting up for events. Father then changed his story and stated that mother did not live with him; she was visiting when the deputies came and “had no knowledge of what was going on in the house.” In a later interview, father stated both that mother and A.P had been living in the apartment with him for the six previous months and that he did not live with the family in the apartment but with paternal grandmother next door.

Prior to the jurisdiction hearing, both mother and father completed parenting classes. Mother was actively participating in family preservation services and individual therapy. Although father registered for a substance abuse treatment program, his start date was delayed by a glitch with MediCal. He consistently produced test results showing low levels of marijuana, including a level of 149 ng/ml on November 20, 2020.

On December 11, 2020, the juvenile court held the jurisdiction and disposition hearing. The court sustained the allegations in the amended petition that the parents created a detrimental and endangering home environment by leaving a loaded firearm, drug products, and drug paraphernalia consistent with drug sales inside the family’s home; that father’s history of substance abuse and current abuse of marijuana rendered him incapable of providing the children with regular supervision and care; and that mother failed to protect the children from father’s substance abuse by allowing him to reside in the home and have unlimited access to A.P. The court declared the children dependents under section 300, subdivisions (b) and (j), removed them from father’s custody, and released them to mother.

The juvenile court ordered mother to attend individual counseling to address case issues, to complete a parenting program, and to participate in family preservation services. The court also ordered father to attend individual counseling to address case issues and to submit to random drug testing. Father was allowed to test positive for low levels of marijuana if he had a medical marijuana card. He would be required to complete a full drug and alcohol program if he missed a test. The court granted father monitored visitation with the children a minimum of six hours per week with discretion given to DCFS to liberalize the visits.

3. Six-month review hearing

In its May 2021 status review report, DCFS stated that the children continued to reside with mother in a studio back house at the maternal grandmother’s home. The children were meeting their developmental milestones and doing well in mother’s care. Mother had fully complied with her case plan. She completed individual therapy and a parenting program, and consistently tested negative for drugs and alcohol. She also continued to participate in family preservation services, and was responsive and engaged during the weekly visits with her in-home outreach counselor. Mother reported that father provided some financial assistance for the children when he was able to work, which supplemented her public assistance benefits.

Father was residing at the paternal grandmother’s home. He was working for an event services company and was hopeful that more employment opportunities would arise as COVID-19 restrictions were lifted. Father enrolled in individual counseling in March 2021 and had attended seven sessions. His therapist reported that father was engaged during his sessions and was making progress toward his goals, which included strengthening parenting skills, drug and alcohol awareness, conflict resolution, and healthy relationship building. Father told DCFS that he had learned in therapy about being patient and trusting the process regarding his current family situation and that he wanted to focus on growing as a person and as a parent.

Father had been forthright with DCFS about his marijuana usage from the beginning of the case. He reported that he used marijuana for medicinal purposes to treat back pain and to help him sleep. He indicated, however, that he was no longer smoking marijuana due to his asthma and was instead using a marijuana lotion. Father stated that he only used the lotion at night and kept it in a locked bag.

Father’s drug test results had fluctuated since the jurisdiction and disposition hearing. He missed two tests in December 2020 because he needed to reenroll in testing. He missed a test in mid-January 2021 for unspecified reasons, and another test later that month due to having COVID-19 symptoms. Between February and April 2021, father tested positive for marijuana at the following levels: (1) 89 ng/ml on February 22; (2) 1,293 ng/ml on March 1; (3) 1,341 ng/ml on March 15; (4) 1,330 ng/ml on April 1; and (5) 882 ng/ml on April 22.

Father missed a drug test in May 2021. He claimed he missed the test because he was working outside the area and there was traffic. Although DCFS requested proof of his work schedule so that it could schedule a make-up test, father failed to provide any proof. Because of the missed test, DCFS informed father that he would be required to complete a full drug and alcohol program. Father was given referrals but had not provided proof that he was enrolled in a program.

Father had been attending monitored visits with the children six hours per day, four days per week. His visits previously had been scheduled for three hours twice per week. A paternal uncle was the approved monitor for the visits, and reported that they were going well. The children were closely bonded with father, and A.P. would smile and hug father when she saw him. Father was fully engaged with the children and tended to their needs. He came to the visits prepared with formula, bottles, diapers, and healthy snacks for the children. Since the visits had been extended, father also cooked for the children and shared educational games and videos with them. The social worker had observed a March 2021 monitored visit, and noted that the children had a strong bond with father. J.P. looked to him for comfort, and father was hands-on in caring for the child. The social worker did not observe any concerns with father during the visit.

Father told DCFS that he wanted to have unmonitored visits with the children, including overnight stays. He added, “I understand [it] is a process and I need to be patient and do what I need to do to keep my family together.” Mother expressed that she wanted to be able to co-parent with father. She also wanted father to have unmonitored visits with the children so that he could pick them up and keep them overnight. Mother stated, “I know Joseph will never hurt his children, he has always been a good father to his children, and [he’s] missing out seeing them grow, because of the visitation restrictions.”

In its report, DCFS explained it had not liberalized father’s visits to unmonitored because he had only recently enrolled in therapy, he had shown a recent rise in his marijuana levels, and he had an unexcused missed drug test. DCFS recommended the juvenile court terminate its jurisdiction over the children with an order granting joint legal custody to both parents, sole physical custody to mother, and monitored visits to father. The agency noted that father could seek a change in the custody order from the family court once he completed his case plan, including individual counseling and a full drug and alcohol program.

On May 28, 2021, the juvenile court held a six-month review hearing pursuant to section 364. Counsel for DCFS and counsel for the children joined in requesting the court terminate jurisdiction and issue a custody and visitation order in accordance with DCFS’s recommendation. Counsel for DCFS noted that the court had permitted father to test positive for low levels of marijuana at a time when his levels were in the “low hundreds,” and that father’s marijuana levels recently had risen to around a “thousand.” Father’s counsel asked the court to terminate jurisdiction and grant father unmonitored visits. His counsel argued that father’s marijuana levels had been fairly consistent in his most recent drug tests, and did not indicate a high level of usage.

The juvenile court ordered the termination of jurisdiction over the children pending the receipt of a custody order. The custody order granted joint legal custody to both parents, sole physical custody to mother, and monitored visitation to father a minimum of six hours per week. The order provided that father was not to be under the influence of drugs while caring for the children and that he was required to show low levels of marijuana usage. In denying father’s request for unmonitored visits, the court found that father had not fully complied with his case plan because his recent marijuana levels had been “very high,” he missed some drug tests, and he had not completed an individual counseling program. On June 3, 2021, the court signed the custody order and terminated its jurisdiction.

Father filed a timely appeal.

DISCUSSION

On appeal, father solely challenges the portion of the juvenile court’s custody order granting him monitored visits with the children. He contends the court abused its discretion in denying his request for unmonitored visits because it was in the children’s best interests to have a reasonable amount of unsupervised contact with father.

1. Governing legal principles

“Once a child has been adjudged a dependent of the juvenile court pursuant . . . to section 300, . . . ‘any issues regarding custodial rights between his or her parents shall be determined solely by the juvenile court . . . so long as the child remains a dependent of the juvenile court.’ ” (In re Anna T. (2020) 55 Cal.App.5th 870, 876; § 302, subd. (c).) Section 364, subdivision (a) requires the juvenile court to conduct a review hearing every six months for a dependent child who has been placed in the physical custody of a parent. (See In re T.S. (2020) 52 Cal.App.5th 503, 512.) At a hearing held pursuant to section 364, the juvenile court must terminate jurisdiction over the dependent child unless the conditions that initially justified jurisdiction still exist or are likely to exist if supervision is withdrawn. (§ 364, subd. (c).)

When terminating jurisdiction over a dependent child, section 362.4, subdivision (a) authorizes the juvenile court to issue “an order determining the custody of, or visitation with, the child.” Section 362.4, subdivision (b) specifies that the order “shall continue until modified or terminated by a subsequent order of the superior court,” and directs that the order be filed in a pending family court proceeding (id., subd. (b)) or, if there is none, as part of a new family court file (id., subd. (c)).

In making a custody or visitation order pursuant to section 362.4, the court’s “ ‘focus and primary consideration must always be the best interests of the child.’ ” (In re T.S., supra, 52 Cal.App.5th at p. 513.) The juvenile court is not restrained by any preferences or presumptions that are ordinarily applicable in family court. (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268; accord, In re C.M. (2019) 38 Cal.App.5th 101, 110 [“ ‘presumption of parental fitness that underlies custody law in the family court just does not apply to dependency case’ ”].) We review a juvenile court’s custody order for abuse of discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863; In re M.R. (2017) 7 Cal.App.5th 886, 902.) We “ ‘may not disturb the order unless the court “ ‘ “exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination.” ’ ” ’ ” (In re M.R., at p. 902.)

2. The juvenile court did not abuse its discretion in ordering monitored visitation for father

Father argues the juvenile court abused its discretion in denying his request for unmonitored visitation because he had positive visits with the children since the start of the case and there were no reported safety concerns during the visits. Based on the totality of the record, however, we conclude the juvenile court acted within its broad discretion in ordering that father’s visits with the children remain monitored.

The record reflects that father had a recent history of drug involvement that included marijuana sales, regular marijuana usage, and leaving marijuana products within access of his very young daughter, A.P. In granting reunification services to father at the December 2020 jurisdiction and disposition hearing, the juvenile court ordered him to participate in individual counseling to address case issues, including protective capacities, drug use awareness, and a safe environment. The court also ordered father to submit to random, on-demand drug testing. While father was allowed to test positive for marijuana at low levels based on his asserted use of the drug for medicinal purposes, the court required him to complete a full drug and alcohol program if he missed any on-demand tests.

As of the May 2021 review hearing, father had only recently begun participating in individual counseling. He told DCFS that he had learned about being patient with the dependency process, but did not express any insight about drug use awareness or how to ensure a safe environment for his children. Moreover, during the six-month review period, father tested positive for marijuana at increased levels, including three consecutive tests with levels of marijuana around 1,300 ng/ml. Father also failed to appear for his most recent drug test, and he did not submit any proof to support his claimed excuse in response to DCFS’s express request. Although father’s missed test required him to complete a full drug and alcohol program, he had not enrolled in such a program as of the review hearing.

Father does not dispute that he had shown only partial compliance with his case plan during the review period. Rather, he asserts that unmonitored visits were warranted because he appropriately parented his children during the monitored visits, and the children were observed to have a strong bond with him. The record does show that father was an engaged and attentive parent during the monitored visits and that the children enjoyed spending time with father and were closely bonded to him. While father’s positive interactions with the children are encouraging, they do not establish that the juvenile court made an arbitrary or irrational decision in ordering that the visits remain monitored while father worked on his substance abuse issues.

Father also suggests the juvenile court improperly reduced his visitation time with the children from six hours per day, four days per week to a total of six hours per week. The record reflects that, prior to the review hearing, the court had ordered monitored visitation for father a minimum of six hours per week with discretion given to DCFS to liberalize the visits. The court maintained that same level of visitation when it terminated its jurisdiction and issued the custody order. The court never reduced the amount of time that father could spend with the children, but rather continued to set the minimum amount of visitation at six hours per week.

Given the young age of the children and father’s lack of compliance with his case plan, the juvenile court reasonably could conclude that it was in the children’s best interest to maintain monitored visits with father until he made more progress in addressing the issues that led to the dependency proceedings. Father will be able to seek modification of the visitation order from the family court as his progress hopefully continues. On this record, the juvenile court’s order for monitored visitation was not an abuse of discretion.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

LIPNER, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

[1] A portion of the factual and procedural background is taken from this court’s prior opinion in In re A.P. (Aug. 12, 2021, B310514) [nonpub. opn.]. We previously granted father’s request to take judicial notice of our prior opinion.

[2] All further statutory references are to the Welfare and Institutions Code.

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