Filed 5/10/22 In re H.P. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Sophia Ahmad, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Six-year-old H.P. was removed from the custody of her mother, C.P., and the subject of a juvenile dependency case under Welfare and Institutions Code section 300.[1] At the time of the 12-month status review hearing (§ 366.21, subd. (f)), the juvenile court terminated jurisdiction and dismissed the dependency proceedings, ordering sole legal and physical custody be granted to H.P.’s father, T.P., with mother to have supervised visitation. Mother appeals the visitation portion of the juvenile court’s “exit order,” contending the court erred by ordering mother’s visits be supervised as opposed to unsupervised. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2019, the Mariposa County Health and Human Services Agency (Mariposa agency) received a referral involving mother and her four minor children, 13‑year-old J.A., 11-year-old A.P., 10-year-old Tr.P., and four-year-old H.P., who is the subject of this appeal.[2] Mother and presumed father of all the children, J.P., were both arrested for driving under the influence of methamphetamine with the children in their vehicles, with the substance in the children’s reach. Law enforcement placed H.P. and her siblings into protective custody and the Mariposa agency placed them together with a relative.

On December 30, 2019, the Mariposa agency filed a petition on behalf of H.P. and her siblings alleging they came within the jurisdiction of the juvenile court under section 300, subdivisions (a) (serious physical harm), (b)(1) (failure to protect), and (g) (no provision for support) due to the risks posed by the incident and the fact that both parents were incarcerated. The Mariposa agency listed T.P. as an alleged father of H.P. in the petition and alleged his whereabouts were unknown at that time.

The detention hearing was held on January 2, 2020. Mother had been released from custody, but J.P. remained incarcerated. Mother testified T.P. was H.P.’s biological father but that he and H.P. had had no contact with one another; she further testified that J.P. was listed on H.P.’s birth certificate. J.P., who was present in court, indicated he held H.P. out as his child. The juvenile court found J.P. presumed father of all the children, and T.P. remained an alleged father of H.P. H.P. and her siblings were ordered detained from mother and J.P. Mother and J.P. were ordered to have supervised visits with the children.

At the jurisdiction hearing on January 29, 2020, the court sustained the petition and found the children were described by section 300, subdivisions (a), (b), and (g).

The Mariposa agency eventually was able to locate T.P., who resided in Idaho. In February 2020, T.P. was found to be H.P.’s biological father.

Mother disclosed to the Mariposa agency that she and J.P. had been married for 11 years, and she had known him for 13 years. She disclosed there had been domestic violence throughout the duration of the relationship, and it had occurred in the presence of the children. The children also reported domestic violence occurring in their presence. Mother disclosed that J.P. had “assaulted” her on the previous Thanksgiving and Christmas Eve. In the dispositional report, the social worker reported that “[y]ears of domestic violence appear to have made [mother] normalize and minimize [J.P.]’s previous and current abusive behaviors.”

At the disposition hearing on April 22, 2020, the juvenile court adjudged the children dependents of the court and ordered them removed from mother and J.P. Mother and J.P. were ordered to be provided with reunification services. Mother and J.P. were each ordered to participate in a domestic violence program, a 52-week child endangerment program, a drug and alcohol assessment along with treatment recommendations, and random drug testing.

In May 2020, mother and J.P., who had been released from jail, moved to Stanislaus County, signing a year-long lease for a mobile home space. Mother and J.P. participated in daily video phone calls with the children while COVID-19 restrictions were in place, and resumed in-person supervised visits with the children in May. During a supervised visit in May, H.P. was observed telling mother she remembered J.P. “being mean,” to which mother responded that she and J.P. had changed. T.P. reported to the Mariposa agency he was excited to begin a relationship with H.P.

According to the Mariposa agency’s six-month status review report, mother was compliant with her case plan and had provided her first negative drug test in May 2020. J.P. had participated in some of his case plan but tested positive for amphetamine and methamphetamine since being released from jail. J.P. and mother reported working on their communication. As mother and J.P. had moved to Stanislaus County, they requested the case be transferred.

At the six-month review hearing on July 1, 2020, T.P. was present and was appointed counsel. The court continued mother and J.P.’s reunification services, continued the order for supervised visitation, and set a transfer-out hearing for transferring the case to Stanislaus County.

The Mariposa agency’s transfer-out report dated August 26, 2020, indicated that J.A. was placed with her biological father on a trial visit in Nevada in August 2020. The report further indicated mother and J.P. had begun having unsupervised visitation with A.P., Tr.P., and H.P. and had an overnight visit planned for September 4, 2020. Visitation was reported as being “appropriate” and the parents were reported as being engaged with the children throughout the visits. On September 9, 2020, the court ordered the case to be transferred to Stanislaus County.

On September 23, 2020, the Stanislaus County Superior Court accepted transfer and set the matter for a transfer-in review. The Stanislaus County Community Services Agency (agency) prepared a transfer acceptance report dated November 17, 2020. It indicated T.P. had maintained regular telephone/video calls since being found to be H.P.’s biological father. The calls went well, and T.P. and his wife traveled from Idaho to have their second in-person visitation with H.P. in November.

The agency worked on getting mother and J.P. referred to Stanislaus County services to comply with their case plan. Upon reviewing the case, the agency identified gaps in the parents’ case plans, which had hindered their progress in domestic violence and substance abuse issues. The parents had participated in few domestic violence services. Mother had not completed a substance abuse assessment based on an apparent inadvertent misunderstanding. She was participating in individual therapy, however, where she was working on safety, becoming independent, setting boundaries, and gaining communication skills but not substance abuse issues. Nonetheless, both mother and J.P. both tested negative for drugs. In the report, the social worker expressed confusion as to how the Mariposa agency had not confirmed mother had completed her substance abuse assessment and received substance abuse services despite drug abuse being the reason for the children’s removal, as well as how mother and J.P. had progressed to unsupervised visits.

At a transfer-in review hearing conducted on November 20, 2020, the court elevated T.P.’s status to H.P.’s presumed father and ordered that he be provided reunification services. The court declared the children dependents of Stanislaus County and set the matter for a 12-month status review hearing.

The parents had been having unsupervised weekend visits since September with H.P., Tr.P., and A.P. without incident. However, following a weekend overnight visit in December 2020 between mother, J.P., and the children, including J.A. who was visiting from her trial visit with her biological father in Nevada, J.A. reported that she witnessed J.P. kick mother after arguing with her. The agency suspended overnight visitation in light of J.A.’s report, and visits were again to be supervised.

When asked about the incident, A.P. and Tr.P. denied that J.P. kicked mother, but H.P. stated that he did. Mother and J.P. both denied the allegation. Mother reported she did not know why J.A. would say that it happened but that J.A. does get confused sometimes as she has an intellectual disability, bipolar disorder, and ADHD.[3] After this incident, J.A. expressed she did not want to visit with mother and J.P.

On January 27, 2021, mother phoned the social worker and advised her she thought it was best for she and J.P. to separate. Mother reported she wanted to enter a sober living facility. Mother also admitted the December domestic violence incident J.A. reported had occurred.

A contested 12-month status review hearing was held on April 13 and 15, 2021. The placement specialist testified that J.A. was afraid to talk to mother after witnessing the domestic violence incident in December. Since the incident, J.A. agreed to talk to mother once on the condition that J.P. not be on the call but refused thereafter. J.A. was adamant she did not want to talk to J.P. in any capacity.

Another social worker on the case testified that the December 2020 domestic violence incident resulted in a substantiated emergency response referral. The social worker testified that the agency still had concerns regarding domestic violence. Mother and J.P. had stated to the agency they were no longer in a relationship, but the agency could not be sure of it based on mother’s initial dishonesty about the December 2020 domestic violence incident. In the social worker’s view, mother needed to demonstrate an understanding of how the domestic violence affected the children.

Mother testified that she did not admit the December 2020 domestic violence incident until late January because she had had a lack of knowledge about domestic violence issues, and her domestic violence counseling helped her understand how to identify issues and remove herself from situations in order to create a safer home for herself and her children. She testified that since the December 2020 incident, she had separated from J.P., and continued to focus on the impacts domestic violence had on her and the children. She and J.P. no longer lived together though he was the registered owner of the RV in which she lived.

The court asked mother specifically what happened during the December 2020 incident and mother stated she and J.P. got into an argument outside while the children were inside the house. When the court asked mother if anything physical happened, mother responded, “No. It was all words back and forth.” Counsel for J.A.’s biological father reiterated, “So you contend that there was no physical violence that occurred on that date?” to which mother responded, “No. It was all verbal.” On cross-examination, minors’ counsel asked mother, “It’s your testimony that [J.P.] did not kick you on 12-26 of ’20; is that correct?” Mother responded by saying she had “acknowledged the incident.” The court pressed mother to answer the question, and mother began to answer, “I have not given the specific details to --,” at which point counsel objected to her answer as nonresponsive, which the court sustained. The court advised mother to answer “yes or no.” Minors’ counsel asked mother, “Did [J.P.] kick you on December 26th, 2020? Yes or no?” Mother responded, “Yes.” On further cross-examination by J.A.’s father’s counsel, mother testified her testimony regarding the physical component of the incident was inconsistent because she was nervous and having a hard time understanding the questions.

Mother was examined on past domestic violence in her relationship with J.P. Mother testified that she had a domestic violence restraining order filed against J.P. in 2014 that she dropped in 2015. Between 2015 and 2019, there was no restraining order. In November 2019, mother took the children and left J.P. after he threw a screwdriver, breaking a window. She obtained another restraining order against him based on that incident. A month later (and apparently just before the incident that led to the underlying dependency proceedings), J.P. kicked in a locked motel room door where mother and the children were staying. In February 2020, mother went to court to modify the restraining order to allow peaceful contact. Mother moved back in with J.P. in March 2020 with hopes that he would change.

After hearing the evidence and argument, the court terminated jurisdiction over J.A. and granted her father sole physical and legal custody. The court ordered that J.P. have one phone call with J.A. per month. As to mother, the court ordered two telephone/Zoom calls per week and one weekend visit per month in J.A.’s county of residence in Nevada. As to the other children, the court found a lack of reasonable services from July 2, 2020 to October 2, 2020, as a result of failings of Mariposa County and trailed the 12-month status review hearing for a period of 90 days. The agency was given discretion to begin a trial visit between H.P. and T.P.

Shortly after the hearing, H.P. began her trial visit with T.P. in Idaho. The agency’s second 12-month status review report dated July 9, 2021, indicated H.P. was doing well with T.P. in Idaho. The recommendation was that dependency be dismissed as to H.P. and full physical and legal custody be granted to T.P., with supervised visitation to mother. The parents had been participating in domestic violence services.

In July 2021, J.A. reported that J.P. was attending visits with mother in Nevada. She stated he has been at visits with mother five times. During the last visit, mother and J.P. started fighting in J.A.’s presence. J.A. reported she had told mother she did not want to see J.P. during visits. Both mother and J.P. denied that J.P. had visited J.A.

Mother requested a contested hearing on the issue of visitation, which was held on August 17, 2021. Mother wanted one weekend, in-person, overnight visit with H.P. per month. Mother testified she and J.P. separated at the end of January or the beginning of February, and she had had minimal contact with him since then. She did not intend to bring anyone with her to visits with H.P. and had no problem with a specific condition that she and J.P. were not to visit together. She was aware of J.A.’s report that J.P. had been present at visits five times. She stated this was incorrect because she had only been to see her three times and denied that J.P. was ever with her. She stated that because J.A. had a learning disability, she may not fully understand the concept of time.

After hearing the evidence and argument from the parties, the court continued reunification services for H.P.’s siblings and terminated jurisdiction and dismissed the proceedings as to H.P. The court granted sole legal and physical custody of H.P. to T.P. The court found there would still be significant risk of detriment if H.P. were to be returned to the care of mother or J.P. due to there being recent domestic violence and they were still working on their case plans. The court ruled that mother would be entitled to one visit per month at a minimum of two hours but up to four hours supervised by a supervising agency or for up to six hours in the community by a suitable supervisor agreed upon by T.P. Mother was further entitled to reasonable supervised telephone contact. J.P. was ordered to have one minimum two-hour visit per month supervised by a supervising agency. Mother and J.P. were ordered not to be at each other’s visits.

DISCUSSION

Pursuant to section 362.4, “[w]hen a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make ‘exit orders’ regarding custody and visitation. [Citations.] Such orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court.” (In re T.H. (2010) 190 Cal.App.4th 1119, 1122–1123.)

When deciding custody and visitation in any dependency case, the juvenile court’s primary consideration must always be the best interests of the child. (In re Chantal S. (1996) 13 Cal.4th 196, 206; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) The juvenile court is not restrained by “ ‘any preferences or presumptions’ ” prescribed by the Family Code in fashioning exit orders pursuant to section 362.4. (Chantal S., at p. 206; Nicholas H., at p. 268.) Instead, the court must be guided by the totality of the circumstances and issue orders that are in the child’s best interests. (Chantal S., at p. 206.)

We review the juvenile court’s custody and visitation exit orders for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) A court abuses its discretion when it exceeds the bounds of reason by making a decision that is arbitrary, capricious or patently absurd. (Stephanie M., at p. 318.) Under the abuse of discretion standard, when two or more inferences reasonably can be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Id. at pp. 318‒319.)

Under the circumstances of this case, the juvenile court did not abuse its discretion by ordering mother’s visits to be supervised. Domestic violence with J.P. in the presence of the children was the reason her unsupervised visits were suspended in December 2020, and the court was not unreasonable in determining mother had not since ameliorated the issue to the extent it was safe to order unsupervised visits with H.P. Shortly before the second 12-month status review hearing, mother had demonstrated unsafe behavior after being allowed unsupervised visits with J.A. by allowing J.P. to visit with her. Doing so was in violation of the court’s order that J.P. was only to have telephone contact with J.A. and was against J.A.’s express wishes not to see him. This incident demonstrated mother’s disregard for the court’s order as well as a disregard for J.A.’s best interests and undermined her report that she and J.P. had separated. Though mother denied the incident occurred, attributing J.A.’s report to her special needs, and testified she had not had contact with J.P., the court was not compelled to accept this testimony or rely on it to order unsupervised visits with regard to H.P.

Indeed, the record supports an inference that mother was not being forthcoming with the court, as mother had previously asserted J.A. had made a false report of domestic violence as a result of her special needs before later admitting that J.A. had been accurate in her report. Further, the extent to which mother had experienced domestic violence and was entrenched in her relationship with J.P. was substantial and thus not an easy problem to solve. By mother’s own reports, she had a long history of domestic violence with J.P., including previous unsuccessful attempts to leave the relationship as evidenced by her having two restraining orders against him over the course of their relationship. According to her testimony at the first 12-month status review hearing, she was separated from J.P. and had a restraining order against him in place when the dependency proceedings were initiated. During the pendency of the proceedings, however, she modified the order to include peaceful contact, reunified with him, and signed a year-long residential lease with him. It was not until after unsupervised visitation was suspended that she reported they had separated. Despite this report, there is no indication on the record she produced any legal separation or divorce documents nor that she sought to obtain a restraining order or modify any existing restraining order in conjunction with her attempt to end the relationship. The juvenile court could reasonably rely on this history, as well as J.A.’s report mother and J.P. had visited together, to conclude that despite mother’s report she and J.P. were separated, there was still a significant risk that H.P. may be exposed to domestic violence, justifying supervised visitation.

Notably, in her appeal, mother does not, in any capacity, address the fact she visited J.A. with J.P. in violation of the court’s visitation order, nor did she file a reply brief to address the agency’s discussion of it. Rather, she argues that because the couple had separated, “[t]he risk of domestic violence between them in front of the children had been removed.” As we have explained, the record belies mother’s claim.

We acknowledge the difficulties of removing oneself from a violent relationship and hope mother continues with her domestic violence services and counseling, but the juvenile court’s primary consideration is and must be the best interest of the children. Here, the record supported the juvenile court’s conclusion that supervised visitation was in H.P.’s best interest at the time the order was made. The court did not abuse its discretion by ordering mother’s visits with H.P. to be supervised.

DISPOSITION

The juvenile court’s August 17, 2021 findings and order are affirmed.

* Before Levy, Acting P. J., Meehan, J. and De Santos, J.

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

[2] Though the appeal only pertains to visitation between mother and H.P., we include facts regarding other aspects of the underlying dependency proceedings, including J.A.’s case, to the extent they are relevant to the issue on appeal.

[3] The reports indicate that J.A. was a regional center client due to her “substantially handicapping developmental disability, specifically an intellectual disability,” but was not receiving services during the dependency proceedings. Her most recent IEP assessment indicated her academic skills were categorized in the “Low to Very Low range” in comparison to her peers. She displayed “Inattentive and Hyperactive/Impulsive behaviors” at school and may have been on the Autism spectrum.