California Court of Appeal Oct 31, 2013 No. E057787MUnpublished
Filed 10/31/13 In re W.N. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re W.N., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057787
Plaintiff and Respondent, (Super.Ct.No. RIJ100291)
v. ORDER MODIFYING OPINION AND DENYING W.N. et al., PETITION FOR REHEARING
Defendants and Respondents; [NO CHANGE IN JUDGMENT]
W.N.,
Appellant.
The petition for rehearing is denied. The opinion filed in this matter on October
10, 2013, is modified as follows:
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1. In the “Discussion” section “A,” the first paragraph on page 10 is deleted
and replaced by the following:
Next, Minor asserts the juvenile court erred because it abdicated its responsibility
to Minor as parens patriae.2 Minor contends the court had a duty to protect him from
Mother and it abdicated that responsibility by telling Father he had the option to seek
custody orders in the family court. Minor’s argument is not persuasive because this court
has concluded ante, that the evidence supports the juvenile court’s finding that Mother
did not pose a risk of detriment to Minor. In particular, we have explained ante, “there is
evidence reflecting that Mother voluntarily left the family home and only visited on a
single occasion over a period of months, [therefore making it] reasonable for the juvenile
court to conclude that Mother did not pose a risk of real detriment to [Minor].” Since the
record supports the juvenile court’s finding that the detriment findings related to Mother
have been resolved, it would be contradictory for the juvenile court to issue exit orders
limiting Mother’s contact with Minor under a parens patriae theory. Given the potential
contradiction, we find Minor’s argument to be unpersuasive.
2 “‘“‘Parens patriae,’ literally ‘parent of the country,’ refers traditionally to [the] role of [the] state as sovereign and guardian of persons under legal disability . . . .”’” (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 776, fn. 14.)
2
Except for this modification, the opinion remains unchanged. The modification
does not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
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Filed 10/10/13 (unmodified version)
NOT TO BE PUBLISHED IN 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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re W.N., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E057787
Plaintiff and Respondent, (Super.Ct.No. RIJ100291)
v. OPINION
W.N. et al.,
Defendants and Respondents;
W.N.,
Appellant.
APPEAL from the Superior Court of Riverside County. Jacqueline C. Jackson,
Judge. Affirmed.
Lisa A. Raneri, under appointment by the Court of Appeal, for Appellant.
Pamela J. Walls, County Counsel, Julie Koons Jarvi, Deputy County Counsel, for
Plaintiff and Respondent.
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No appearance for Defendants and Respondents.
Defendants and respondents T.L. (Mother) and W.N (Father) (collectively,
“Parents”) share a son, appellant W.N. (Minor). Through the juvenile court, the family
was placed on a maintenance plan. At a review hearing, the juvenile court placed Minor
in Father’s physical custody and terminated the dependency case. Minor contends the
juvenile court erred by not entering custody and visitation exit orders that would have
restricted Mother’s contact and visitation with Minor. Alternatively, Minor asserts the
juvenile court erred by denying his request for a continuance. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Mother’s daughter, D.L., was removed from Mother’s custody by the County of
Riverside Department of Public Social Services (the Department) when D.L. tested
positive for opiates at her birth in October 2000. Mother was unable to reunify with
D.L., and D.L.’s adoption was finalized in 2002. P.A. was D.L.’s alleged father.
In February 2012, Mother and Minor tested positive for cocaine and marijuana
when Minor was born. Mother was referred to Family Preservation Court. After
entering the program, Mother “continuously tested positive for marijuana and/or
opiates.” The Family Preservation Court placed Mother on a 30-day behavioral
contract, which provided Mother would be terminated from the program if she did not
follow the terms of the contract. In March 2012, Mother was terminated from the
program for failing to call or check-in.
A Department social worker went to Parents’ house. Parents had a
boyfriend/girlfriend relationship—they were not married. Mother was unemployed, and
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Father was the sole financial provider for Mother, Minor, and Father’s two teenage sons
from a previous relationship. Mother admitted to smoking marijuana for 22 years and
abusing heroin in the past. However, Mother explained that the recent positive drug test
results were due to taking narcotic pain medication after a car accident. Mother stated
that she failed to call the preservation program because she was hospitalized. Father
denied ever abusing drugs or alcohol; however, Father’s criminal history reflected
Father previously abused drugs. Father’s two teenage sons denied ever seeing Mother
abuse drugs or be under the influence of drugs.
The Department filed a petition alleging Mother failed to protect Minor by
(1) consuming drugs before and after Minor’s birth; (2) having a “chronic and untreated
history” of abusing drugs; (3) losing her parental rights to D.L.; and (4) having a
criminal history that included a drug-related arrest. (Welf. & Inst. Code, § 300, subd.
(b).)1 The petition alleged Father failed to protect Minor because he should have known
Mother was abusing drugs. (§ 300, subd. (b).)
The juvenile court found the Department presented a prima facie case. The court
ordered Minor remain in Parents’ physical custody, but that Parents participate in family
maintenance services, such as counseling for Father and drug testing for Mother.
At the jurisdiction/disposition hearing, the juvenile court found the four
allegations related to Mother to be true. The court found the allegation concerning
Father to be untrue. The court adjudged Minor a dependent of the court, but placed
1 All subsequent statutory citations will be to the Welfare and Institutions Code unless otherwise indicated.
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Minor in Parents’ care. The court ordered Parents to participate in family maintenance
services.
Mother enrolled in a drug abuse treatment program in April 2012. In May 2012,
Father asked Mother to move out of their home because Mother continued to abuse
drugs. Parents ended their romantic relationship. Mother stopped participating in the
drug treatment program and was discharged in June 2012. When a Department social
worker contacted Mother, Mother said “she did not have time to deal with this.”
Mother “occasionally” called Father to check on Minor. Mother visited with Minor for
an hour on one occasion when she came to Father’s house to retrieve her mail.
In a written document filed prior to the review hearing, the Department
recommended the juvenile court “[t]erminate [the] dependency upon family law
orders.” At the review hearing, Minor’s attorney recommended the Department file a
supplemental petition (§ 387) concerning Mother, and that the court “give [Father]
appropriate custody orders.” Mother’s attorney asserted that Mother “disassociate[d]
herself from the family,” so no other orders were needed. Father’s attorney requested
the juvenile court enter “family law orders where [Father] has sole legal, sole physical
[custody],” while ordering supervised visits for Mother.
Mother’s attorney asserted the juvenile court could not legally take physical and
legal custody of Minor away from Mother because there were never findings made
concerning removing Minor from Mother’s care, so Mother had no notice of the
possible custody orders. Minor’s attorney agreed with Mother’s attorney saying,
“[Y]ou can’t even make protective orders on the family law order because there’s been
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no removal because the Department hasn’t filed a 387. So I’m opposed to terminating.”
Minor’s attorney argued that the Department could file a supplemental petition and
request family law orders, but that it would be inappropriate to close the instant
dependency case without an order restricting Mother’s contact with Minor.
The juvenile court said, “[T]he Court is going to move forward with termination.
The Court’s going to recommend to father that if he wishes to have sole custody,
physical and legal, of the baby, that you need to go to Family Law Court. [¶] Okay.
[Father’s attorney] can let you know how that works, but I’m not able to do that today.”
The juvenile court ordered Minor be placed “in [the] care and custody of his father.”
The court found the “conditions justifying the initial assumption of jurisdiction under
Section 300 no longer exist and are unlikely to recur[.]” The court terminated the
dependency case.
DISCUSSION
A. EXIT ORDERS
Minor contends the juvenile court erred by terminating the dependency case
without entering exit orders granting Father sole legal and physical custody of Minor,
and restricting Mother’s visitation with Minor.
“When the juvenile court terminates its jurisdiction over a minor who has been
adjudged a dependent child of the juvenile court . . . the juvenile court on its own
motion, may issue a protective order as provided for in Section 213.5 or as defined in
Section 6218 of the Family Code, and an order determining the custody of, or visitation
with, the child.” (§ 362.4.) These orders are typically referred to as “‘exit orders.’” (In
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re T.H. (2010) 190 Cal.App.4th 1119, 1122.) However, “[c]hild custody disputes
between . . . parents, neither of whom pose a risk of real detriment to the child, should
not be waged at taxpayers’ expense in the juvenile courts.” (In re John W. (1996) 41
Cal.App.4th 961, 965.)
A juvenile court’s decisions concerning terminating dependency jurisdiction and
issuing exits orders is typically reviewed for an abuse of discretion, which means the
court’s ruling may not be disturbed unless it is “arbitrary, capricious, or patently
absurd.” (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.)
At the review hearing, Minor’s attorney argued that it was unclear whether
Mother would return to the home when the Department stopped supervising the family.
Minor’s attorney expressed concern that Mother had been at the house visiting Minor
when it appeared Mother was not receiving treatment for her drug abuse issues.
Mother’s attorney argued that Mother voluntarily left the home and “disassociate[d]
herself from the family,” so there was no need for exit orders. Father’s attorney
asserted Mother’s visit to the family home “was a one-time incident,” and Father had
not seen Mother for two months. Father’s attorney argued, “[I]t appears that father
[has] done everything to protect this child. There’s no risk to this child.”
Minor’s attorney argued Mother was “coming over to the home randomly.” The
juvenile court remarked, “Well, on one report we have her at the home, but I have an
oral addendum on behalf of the Department that says that was an isolated incident. [¶]
We have a public health nurse that goes weekly [to the house] and never saw mom
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there. The social worker that goes monthly and never saw mom there. I have to weigh
that too.”
Minor’s attorney asserted that Parents knew when the nurse was coming to the
house; implying that Mother would have time to leave the house before the nurse
arrived. The juvenile court then terminated jurisdiction without entering exit orders and
recommended Father seek assistance in the family law court.
It appears from the record that the juvenile court thoughtfully weighed the
evidence concerning whether Mother posed a risk of real detriment to Minor. The court
considered the evidence supporting the speculative possibility that Mother was regularly
visiting Minor or could, in the future, regularly visit Minor. The court also considered
the evidence that Mother had only visited the home on a single occasion and had not
returned to the house for two months. Given that the trial court carefully considered the
evidence, the court’s decision does not appear to be arbitrary or capricious.
Further, since there is evidence reflecting that Mother voluntarily left the family
home and only visited on a single occasion over a period of months, it was reasonable
for the juvenile court to conclude that Mother did not pose a risk of real detriment to
Minor. Additionally, the juvenile court found Father was protective and properly cared
for Minor. Since neither parent posed a risk of real detriment to Minor, it was
reasonable for the juvenile court to decline to enter exit orders and refer Father to the
family court. Accordingly, we conclude the juvenile court did not abuse its discretion.
Minor contends the juvenile court erred because it “appear[s] to have operated
under the incorrect notion” that a supplemental petition needed to be filed before the
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court could make an exit order restricting Mother’s custody and contact with Minor.
We interpret the record differently than Minor. Our reading of the record reflects a
discussion amongst the court and the attorneys concerning the issue of whether Mother
posed a risk of real detriment to Minor, such that a protective order or custody order
should be issued. For example, the juvenile court remarked on the evidence reflecting
that Mother had been found at the house only one time despite a nurse visiting the house
on a regular basis. Given the discussion, it appears to this court that the juvenile court
was aware of its authority to issue exit orders, but the juvenile court concluded the
family court was the better venue for making custody orders.
In support of his argument, Minor cites the following comment by the juvenile
court: “‘The Court’s going to recommend to father that if he wishes to have sole
custody, physical and legal, of the baby, that you need to go to Family Law Court. [¶]
Okay. [Father’s attorney] can let you know how that works, but I’m not able to do that
today.’” (Italics added.) Minor asserts this comment reflects the juvenile court’s belief
that it did not have the authority to issue exit orders because a supplemental petition had
not been filed. We interpret this comment as reflecting the juvenile court could not
issue custody and visitation orders because it found Mother did not pose a risk of real
detriment to Minor, thus making the orders an issue for the family court. Accordingly,
we find Minor’s argument to be unpersuasive.
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Next, Minor asserts the juvenile court erred because it abdicated its responsibility
to Minor as parens patriae.2 Minor contends the court had a duty to protect him from
Mother and it abdicated that responsibility by telling Father he had the option to seek
custody orders in the family court. Minor’s argument is not persuasive because he is
not appealing the juvenile court’s finding that “conditions justifying the initial
assumption of jurisdiction under Section 300 no longer exist and are unlikely to recur if
supervision is withdrawn.” Since all the “true” findings related to Mother, it would be
contradictory for the juvenile court to issue exit orders limiting Mother’s contact with
Minor under a parens patriae theory, while at the same time having a finding in place
reflecting that all the problems leading to the dependency have been resolved. Given
the potential contradiction, we find Minor’s argument to be unpersuasive.
B. CONTINUANCE
Minor contends the juvenile court erred by denying his attorney’s implied
request for a continuance of the review hearing so the Department could file a
supplemental petition concerning Mother.
“Continuances are discouraged [citation] and we reverse an order denying a
continuance only on a showing of an abuse of discretion. [Citation.]” (In re Ninfa S.
(1998) 62 Cal.App.4th 808, 810-811.)
2 “‘“‘Parens patriae,’ literally ‘parent of the country,’ refers traditionally to [the] role of [the] state as sovereign and guardian of persons under legal disability . . . .”’” (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 776, fn. 14.)
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During the discussion between the juvenile court and the attorneys, Minor’s
attorney said, “I think the Department should file a 387 on this case so we have some
idea about mom’s situation and give dad appropriate custody orders if we are closing
the case.” The attorney continued, “So at this point, I’m opposed to termination. If the
Court wishes to do so, I just would ask my objection be noted.”
It appears from the record that Minor’s attorney did not make an implied request
for a continuance. Rather, he expressly stated his reasons why the court should not
terminate jurisdiction and explained that he was objecting to termination. Given that a
continuance was not requested, we conclude the juvenile court acted reasonably in not
granting a continuance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
10
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in terminating dependency jurisdiction without issuing exit orders, as the court reasonably found that the mother no longer posed a risk of real detriment to the minor.
Issues
Did the juvenile court err by terminating dependency jurisdiction without entering exit orders regarding custody and visitation?
Did the juvenile court err by failing to grant a continuance to allow for the filing of a supplemental petition?
Did the juvenile court abdicate its parens patriae responsibility by referring the father to family court for custody orders?
Disposition. affirmed
Quotations verified verbatim against the opinion
“Since neither parent posed a risk of real detriment to Minor, it was reasonable for the juvenile court to decline to enter exit orders and refer Father to the family court.”
“Given that a continuance was not requested, we conclude the juvenile court acted reasonably in not granting a continuance.”