California Court of Appeal May 6, 2015 No. D067033Unpublished
Filed 5/6/15 In re Alexandra M. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re ALEXANDRA M., et al., Persons Coming Under the Juvenile Court Law. D067033 SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, (Super. Ct. No. EJ3745A-B) Plaintiff and Respondent,
v.
WILLIAM M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Diego County, Gary M. Bubis,
Judge. Affirmed.
Monica Vogelmann, under appointment by the Court of Appeal for Defendant and
Appellant.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Emily K. Harlan, Deputy County Counsel, for Plaintiff and Respondent.
William M. appeals orders terminating dependency jurisdiction over his minor
daughters, Alexandra M. and Sierra M.; granting sole legal and physical custody to their
mother K.M.; and denying visitation to William. William contends that the juvenile court
abused its discretion under Welfare and Institutions Code section 362.4 by denying
visitation.1 We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On October 31, 2013, the San Diego County Health and Human Services Agency
(the Agency) petitioned the juvenile court under section 300, subdivision (b), on behalf of
11-year-old Alexandra and nine-year-old Sierra. The petitions alleged that K.M. failed to
provide a suitable home for Alexandra and Sierra. Their home was filthy and unsanitary,
with piles of dog feces in every room, smeared feces on walls and door frames, trash
covering the floor of the kitchen, and brown water in the bathtub. The smell of feces was
overpowering. The petitions alleged that the home had been in this condition since the
middle of 2013, including in April and August 2013. The Agency concluded that
Alexandra and Sierra were at substantial risk of suffering serious physical harm or illness
as a result of K.M.'s failure to provide adequate shelter.2
K.M. married William in 2009. They had been in a relationship for approximately
10 years before then. K.M. told the Agency that William abused cocaine and had brief
1 Further statutory references are to the Welfare and Institutions Code.
2 K.M.'s son, Devan E., also lived in the home. The Agency did not seek to bring him under the protection of the juvenile court because of his age (17 years) and his ability to care for himself. William is not Devan's biological father. 2
periods of sobriety. William pushed and hit K.M. occasionally. William had a long
criminal history from 1989 onward, including arrests for domestic violence, drug
possession, theft, burglary, and criminal threats. In January 2012, William was arrested
on misdemeanor battery charges after an altercation involving him, K.M., and Devan.
K.M. told police that she and William were arguing because K.M. did not want William
to take the family truck into town to buy drugs. William spit on K.M. and pushed her
several times. Devan attempted to intervene. William resisted, pulled K.M.'s hair, and
left the house. After his arrest, William was ordered to attend anger management classes.
William did not do so, and a bench warrant was issued for his arrest in February 2013.
The warrant was outstanding at the time the petitions were filed. After another incident
of domestic abuse in September 2012, K.M. obtained a criminal protective order against
William prohibiting him from having "negative contact" with her or with Devan.
Despite the protective order, William continued to live with K.M. and the children.
After another fight, in July 2013, William returned to his home state of Florida. While
there, he harassed K.M. with telephone calls and text messages. In a sworn declaration,
K.M. said that she had received more than 5,000 text messages from William between
July and September 2013. Over a period of 16 days in October, K.M. received more than
1,000 text messages from him. K.M. said that many of the messages were threatening.
One text message said, "I'm coming for you bitch." K.M. said that William told her that
he was going to "snatch" his daughters from K.M., or that he would kill them all. In
Facebook posts, William called K.M. a "fucking whore" and a "bitch." William also
called a child abuse hotline alleging abuse and neglect of Alexandra and Sierra.
3
Before filing the petitions, an Agency social worker contacted William. William
yelled and cursed at the social worker, telling her "You need to go get my kids out of the
apartment you bitch." After the social worker was unable to calm William down, she
ended the phone call. In a subsequent conversation, William claimed that K.M. was a
chronic drug abuser and a hoarder, that she had been a drug courier for the Hell's Angels
motorcycle gang, that her boyfriend was a drug abuser, that Devan openly smoked
marijuana at home, that K.M. and Devan tie Sierra down in a bathtub, and that K.M.'s
mother's home (where Alexandra and Sierra were then staying) was in severe disrepair.
William also claimed to have been sober himself for five months. He stated that he had
suffered eight heart attacks and had only a year to live.
Text messages that William sent to K.M. indicated that he was homeless. He
would not provide a residential address in Florida to the Agency. He sent K.M. text
messages indicating that he was using drugs: "I think the guy knows I'm high as fuck
though. The lines in the road look all squiggly, god I'm still so high." He sent another
message later the same day claiming that he would "[p]arty until my heart explodes."
William told the Agency that he wanted custody of Alexandra and Sierra.
At the detention hearing, the court found that the Agency had made a prima facie
showing under section 300, subdivision (b), and ordered that Alexandra and Sierra be
detained in out-of-home care. The court later sustained the allegations of the petitions.
At the disposition hearing, the court removed Alexandra and Sierra from K.M.'s custody
and ordered reunification services for K.M. and William. During court hearings, William
4
was disruptive, angry, and inappropriate. At K.M.'s request, the juvenile court issued a
three-year restraining order against William.
K.M. made progress with her services. She tested negative for drugs and alcohol
on multiple occasions. Agency inspections revealed that she restored her home to a more
sanitary state. Alexandra and Sierra began a 60-day trial visit, which was successful. In
advance of the six-month review hearing, the Agency recommended that jurisdiction be
terminated despite some lingering concerns.
An Agency social worker contacted William regarding services, and he reacted
violently. He screamed at the top of his lungs, stated that he would not participate in
"[a]ny fucking drug treatment program," and refused to take a drug test. When the social
worker tried to explain that services would help him reunify with his children, William
screamed "[y]ou can suck my d...k" and hung up the phone. William did not participate
in any services.
William had supervised telephone visitation with Sierra on several occasions.
(Alexandra did not wish to speak with William.) During these visits, he was generally
appropriate and loving toward Sierra, who is severely cognitively impaired and
nonverbal. When he turned his attention to the supervising social worker, however,
William was hostile and inappropriate. After several calls, William decided not to
continue with visitation. With Sierra on the line, William told the social worker, "I give
up, you win, you can have them, I can't do this anymore, and don't worry about calling
anymore."
5
By the time of the six-month review hearing, William was in law enforcement
custody in Florida. K.M. reported that he would not be released for a couple of years.
William sent a letter to the court apologizing for his behavior during the dependency
case. He wrote that he wanted K.M. to have "permanent reunification" with Alexandra
and Sierra.
At the six-month review hearing, the court terminated jurisdiction over Alexandra
and Sierra and granted sole legal and physical custody to K.M. William asked for
"visitation, however structured." The court denied this request. The court stated, "I'll
also find by clear and convincing evidence that it would be . . . detrimental for the
children to visit with [William]. He's in custody in a different state. There's a criminal
protective order in place in this state. He has done nothing with regard to his
reunification plan . . . ." The court issued custody orders accordingly. William appeals.
DISCUSSION
William contends that the juvenile court abused its discretion under section 362.4
by denying him visitation with Alexandra and Sierra following termination of
jurisdiction. That section provides, in relevant part, as follows: "When the juvenile court
terminates its jurisdiction over a minor who has been adjudged a dependent child of the
juvenile court prior to the minor's attainment of the age of 18 years, and proceedings for
dissolution of marriage, for nullity of marriage, or for legal separation, of the minor's
parents . . . are pending in the superior court of any county, or an order has been entered
with regard to the custody of that minor, the juvenile court on its own motion, may
issue . . . an order determining the custody of, or visitation with, the child." (§ 362.4.)
6
" 'When the juvenile court terminates its jurisdiction over a dependent child,
section 362.4 authorizes it to make custody and visitation orders that will be transferred
to an existing family court file and remain in effect until modified or terminated by the
superior court.' " (In re Chantal S. (1996) 13 Cal.4th 196, 203.) "[I]n making exit orders,
the juvenile court must look at the best interests of the child." (In re John W. (1996) 41
Cal.App.4th 961, 973; see In re A.J. (2013) 214 Cal.App.4th 525, 536.) In determining
custody and visitation, "the court is not restrained by 'any preferences or presumptions.' "
(In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)
"We normally review the juvenile court's decision to terminate dependency
jurisdiction and to issue a custody (or 'exit') order pursuant to section 362.4 for abuse of
discretion [citation] 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, 299.) The
court's underlying factual findings are reviewed for substantial evidence. (In re A.J.,
supra, 214 Cal.App.4th at p. 535, fn. 7.) William does not dispute these well-settled
standards.
The record shows that William has a long criminal history, suffered from an
untreated drug problem, engaged in domestic violence against K.M. and Devan, and was
hostile and abusive toward Agency social workers and the court. William threatened to
"snatch" his children from K.M. or kill them all. He sent threatening and abusive text
messages to K.M. As a result of William's abuse, K.M. obtained a civil restraining order
prohibiting any contact with her and a criminal restraining order prohibiting any negative
7
contact with her and Devan. In this dependency case, William did not complete any
court-ordered services, was openly contemptuous of drug treatment and drug testing, and
was not committed to reunification with the minors.3 Given this history, the court was
well within its discretion to determine that visitation with William would not be in the
best interests of Alexandra or Sierra.
William points out that his visits with Sierra were loving and appropriate, and that
he wrote a respectful letter to the juvenile court at the conclusion of this case. These facts
alone, however, do not compel a finding that visitation in any form would be in the
minors' best interests in light of the other facts we have discussed. William himself
ended his telephonic visits with Sierra in a fit of frustration. Alexandra never wanted to
visit with William in the first place. (See In re Danielle W. (1989) 207 Cal.App.3d 1227,
1238-1239 [holding forced visitation may not be in the best interests of a minor].) The
juvenile court could reasonably find that the prospect of inconsistent visits and/or
inappropriate conduct by William—particularly in light of the facts outlined above—
would be worse for the children than no visits at all. Similarly, to the extent the visitation
order prohibits contact by letter, the court could reasonably find that such contact was not
in the minors' best interests based on William's history of threats and harassment by text
message, among other reasons.
William also claims that the court abused its discretion because its order denying
visitation effectively prevents William from seeking modification of the order in the
3 Although William was not named in the petitions, the evidence showed that the unsanitary condition of the family home existed prior to William's departure for Florida. 8
future. William argues that, with visitation, he would be informed of K.M.'s address for
service of process instituting family law proceedings; without visitation, he cannot
discover her address. William's argument is meritless. The court's order denying
visitation has no legal effect on William's ability to institute proceedings in family court
to modify the visitation order. William is not entitled to visitation simply to enable him
to discover K.M.'s address. William's inability to contact K.M. or discover her address is
a product of the restraining orders for which William, through his abusive conduct, is
responsible. While the court may not delegate the power to determine the right and
extent of William's visitation to nonjudicial officials or private parties (see In re T.H.
(2010) 190 Cal.App.4th 1119, 1123), the court did not make any such delegation here.
The court conclusively determined William's visitation in its orders: none.
DISPOSITION
The orders are affirmed.
AARON, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McDONALD, J.
9
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in denying visitation to the father upon terminating dependency jurisdiction, as the court reasonably determined that visitation would be detrimental to the children's best interests given the father's history of domestic violence, threats, and failure to participate in reunification services.
Issues
Did the juvenile court abuse its discretion under Welfare and Institutions Code section 362.4 by denying visitation to the father upon termination of dependency jurisdiction?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“I'll also find by clear and convincing evidence that it would be . . . detrimental for the children to visit with [William].”