California Court of Appeal Dec 14, 2015 No. D067868Unpublished
Filed 12/14/15 In re Austin L. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 AUSTIN L., a Person Coming Under D067868 the Juvenile Court Law.
SAN DIEGO COUNTY HEALTH AND (San Diego County HUMAN SERVICES AGENCY et al., Super. Ct. No. EJ3867)
Plaintiffs and Respondents,
v.
SCOTT L.,
Defendant and Appellant.
APPEAL from orders and a judgment of the Superior Court of San Diego County,
Gary M. Bubis, Judge. Affirmed.
Lelah S. Fisher, 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 San
Diego County Health and Human Services Agency.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Plaintiff
and Respondent Heather B.
In early January 2015, then-eight-year-old Austin L. was removed from his father
Scott L. (the father) and taken into protective custody after the father's girlfriend reported
the father had assaulted her. At the contested disposition hearing in this child
dependency case, the juvenile court awarded sole custody to Austin's mother, Heather B.
(the mother), in Las Vegas, Nevada, and terminated its jurisdiction.
On appeal, the father contends (1) the court committed reversible error in
awarding legal and physical custody of Austin to the mother, and (2) the court "erred in
terminating its jurisdiction over Austin in light of the risks to Austin evident in [his]
mother's home." We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Austin's mother met his father when she was 20 years old, and they began living
together shortly thereafter. According to the mother, when she met the father, he had
recently been released from jail after spending five years in custody for drunk driving and
crashing cars.
According to the father, he began drinking, using drugs, and engaging in criminal
activity as a young teenager after his mother died. The father told Rachel Swaykos─the
social worker assigned to Austin's San Diego dependency case at issue here─that he
stopped all substance abuse at the age of 15, but records revealed he had been arrested
and convicted of alcohol- and drug-related offenses as an adult.
2
The father has an extensive criminal history. The San Diego Health and Human
Services Agency (Agency) report on his criminal history indicated he was arrested and
charged 25 times between 1995 and 2015 in the states of Wisconsin, Pennsylvania,
Illinois, Utah, Arizona, Nevada, and California. He was listed as an armed and
dangerous "Wanted Person" who had failed to appear in court on larceny charges in
Illinois.
The mother also has a history of drug use and criminal activity. She began using
marijuana recreationally when she was a teenager. As a young adult, she began using
marijuana for pain management after she sustained a knee injury and four spinal
compression fractures in a horse accident during her last year of high school. Her
criminal history includes three prior arrests for domestic violence-related charges in May
and November 2000 and October 2009. She was also charged in October 2009 in Utah
with neglect of a child and contributing to the delinquency of a minor by permitting the
minor to consume alcohol, but those charges were dismissed without prejudice.
Following her most recent arrest in June 2011, the mother was convicted of disorderly
conduct and sentenced to probation, and charges for theft and assault were dismissed
without prejudice.
In 2006 the mother gave birth to Austin, who was her and the father's first child.
Shortly thereafter she became pregnant with their second child, a daughter. The father
was incarcerated when she was born. She has resided with the mother in Las Vegas,
Nevada for the past several years, and is not a subject of this appeal.
3
A. Austin's January 2015 Protective Custody
On January 2, 2015, when Austin was eight years old, the Agency received a
referral to check on Austin's welfare after his father had engaged in domestic violence
with his girlfriend, Heather W.,1 the previous night. The father and Heather had been
drinking alcohol and arguing during the night before their arguing culminated in a
physical altercation. The father was arrested for felony spousal abuse.
Austin told the investigating social worker that his father and Heather drank a lot
of alcohol. Austin said he had seen the father hit Heather and the violence made Austin
feel sad. Austin reported he did not want to be with his mother and preferred to be with
his paternal aunt.
Heather told the investigating social worker that she and the father had been
drinking on the night of the incident when he began calling her names and calling her
crazy. She went to bed to stop the arguing, but the father followed her, punched her
twice in the back of the head, and pulled the string of her hoodie so tight she could not
breathe. The social worker observed faint bruising on Heather's jaw line and neck.
Heather told her she was afraid to talk to the police, and she was afraid of the father.
Heather said she had already arranged for Austin's paternal aunt, who lived in Arizona, to
pick Austin up because she believed the father would never leave her alone if she had
Austin in her care.
1 Because Austin's mother's first name is also Heather and we refer to her as "the mother," we shall refer to the father's girlfriend as Heather. 4
On January 3, 2015, the mother was informed of the father's arrest and the plan for
Austin to be cared for by the paternal aunt. The mother would not allow Austin to be
released to the paternal aunt, and the police were unable to release Austin to the mother
because she lived out-of-state. Austin told the police he was afraid of the mother. San
Diego police officers transported Austin to Polinsky Children's Center (PCC) that same
day. The father denied the alcohol abuse and domestic violence allegations.
An Agency social worker interviewed the mother on January 5, 2015. She
reported the father had been keeping Austin away from her for the past year and a half.
She also reported she had some contact with Austin on the phone and on Facebook, but
the father would dictate what Austin could say to her. The mother reported she had been
living in Las Vegas with her fiancé, Larry R., for about two years. She and Larry had a
good relationship, but Austin barely knew Larry. The mother also reported she had a
stable home life and she wanted to care for Austin due to the father's history of violence
and drug abuse. She initially denied any drug history or current drug use of her own.
After she was asked to drug test, she admitted using marijuana for medicinal purposes,
though she did not have a medical marijuana card at the time.
Social worker Swaykos and another Agency social worker contacted the paternal
aunt in early January 2015. The aunt did not believe either parent should have custody of
Austin or his sister because of the father's "violent streak" and the mother's "issues" with
her boyfriend. The paternal aunt explained that she used to live with the mother and
Larry, and it was not a good "emotional environment" because Larry yelled, came in and
out of the home, and had a temper that led him to punch holes in the walls. She denied
5
that Larry had ever been physical with the mother, and she indicated she would like to
obtain guardianship of Austin due to the parents' behaviors. She hoped Austin would
return to the mother's care when it was a "better environment" for him because the
mother was a "good mother" when she was by herself. The paternal aunt denied knowing
about any drug use by the mother or Larry, and she reported she had not lived in the
home since Spring 2014.
On January 5, 2015, Austin had a supervised visit with his mother at PCC. The
Agency social worker reported Austin initially was "very guarded," but after the visit he
said he was happy to see his mother and visit with her at PCC. When asked where he
would like to go when he left PCC, Austin said he wanted to go with his father or, if that
were not possible, with his paternal aunt. He added he would rather go with his aunt.
Austin said he was not scared of his mother, and he was not worried about being with
her. However, he said he did not want to go with her.
B. Dependency Petition
The Agency thereafter filed a dependency petition on behalf of then-eight-year-old
Austin. The petition alleged that Austin was a child described by Welfare and
Institutions Code2 section 300, subdivision (b), because he had suffered or was at risk of
suffering serious physical harm or illness due to his parent's failure or inability to
adequately supervise or protect him. Specifically, the petition alleged Austin was
exposed to violent confrontations between the father and Heather, and the father had a
2 All further statutory references are to the Welfare and Institutions Code unless otherwise specified. 6
prior history of violence, substance abuse, and failure to reunify with his children during
the prior dependency case in Utah. The petition also alleged Austin was a child described
by section 300, subdivision (g), because he had been left without any provision for
support in that the mother returned him to the father's care, and the father was
incarcerated and unable to arrange appropriate and adequate care.
C. Detention Hearing
In its detention report, the Agency advised the court that its investigation into the
parents' history disclosed "investigations and cases for both parents in several states."
The mother had a history of physically abusing Austin in Illinois in 2008, leaving cuts,
bruises, and welts on him before he was two years old. Both Austin and his sister were
removed from the parents in Utah in 2009 following domestic violence, substance abuse,
and "inappropriate relationships with minors." The Utah court returned Austin and his
sister to the mother's care in September 2011 and ordered them to "work out custody and
visitation." Mother immediately gave Austin to father when he was released from a
correctional facility.
The Agency reported that on January 5, 2015, the mother requested custody of
Austin, but the Agency declined to recommend placement with her, and instead
recommended that all of her contact with Austin be supervised until she could show she
maintained a stable residence free of drug use and volatile altercations. The mother's
relationship with her boyfriend was potentially volatile, and she was using marijuana.
Austin told the social worker he did not want to live with the mother and preferred to be
placed with his paternal aunt.
7
At the detention hearing, the court found a prima facie showing had been
established that Austin was a person described in section 300, subdivisions (b) and (g).
The court ordered Austin detained at the PCC, in an approved foster care home, or an
adjunct. The court gave the Agency discretion to detain Austin in the home of an
approved relative or nonrelative extended family member (NREFM). The court ordered
supervised visitation for both parents.
D. Contested Jurisdiction and Disposition Proceedings and Austin's Placement With His Mother in Las Vegas
In late February 2015, the court held a contested jurisdiction and disposition
hearing. Only the father contested the Agency's recommendation that Austin be placed
with the mother.
The court received into evidence all of the Agency's reports to date along with
social worker Swaykos's curriculum vitae. Swaykos testified she had been a social
worker with the County of San Diego since 2008, she had received specific training in
assessing whether children are at risk in the custody of their parents, and she generally
conducted ongoing risk assessments on that issue after she was assigned to a particular
case. She was assigned to Austin's case shortly before the detention hearing. !4RT 4:25-
28)!
Swaykos also testified about the sources she consulted and the basis for her final
recommendation that Austin be placed with his mother and that the court terminate
jurisdiction. She acknowledged that the mother's history could indicate risk. However,
she stated that "when we're looking at current safety factors and we're looking at what
8
have we done, what is going on in the home at this minute, we don't have the evidence to
indicate that he would be harmed now if placed there right now."
On cross-examination by the father's counsel, Swaykos acknowledged she had not
yet received documentation requested from the mother's boyfriend's (Larry's) doctors.
She also acknowledged that Larry had not submitted to a drug test, and the mother had
not submitted to a drug test since she returned to Las Vegas.
Austin's counsel asked Swaykos whether she considered asking for an evaluation
under the Interstate Compact on the Placement of Children (ICPC) (discussed, post) so
that the case could stay open for services after Austin moved to Nevada. Swaykos
answered that she considered it, but she believed she would need to make a showing of
current detriment to justify that request. She concluded that the results of the
investigations she and the Las Vegas social workers conducted did not show a current
risk of detriment to Austin if he were placed in the mother's custody.
Upon questioning by the court, Swaykos testified that the mother was currently
using marijuana under a medical prescription. She added that she could not say the
mother should not be using marijuana unless there were indications that she was abusing
it. Swaykos agreed that, as a social worker, she often found that people who used
marijuana used other drugs as well, but there were no indications the mother was using
any other drugs. She testified that a parent's use of marijuana under a doctor's guidance
did not necessarily pose a risk to the child unless it impacted the parenting or otherwise
had an impact on the child.
9
On recross-examination by the father's counsel, Swaykos acknowledged that a
parent's use of marijuana after completion of a substance abuse treatment program was
considered a relapse.
With respect to Larry's methadone use, Swaykos testified that because she initially
was concerned he had been on methadone for 10 years, she pulled information on his
"calls for service"3 and his criminal history to determine whether there were indications
he was abusing as opposed to just using the drug. She testified she found none of the
usual indicators of drug abuse such as drug charges, violence charges, or police coming
out to the home, but she acknowledged Larry admitted to smoking marijuana without a
medical marijuana card.
Swaykos also testified that Austin never gave a specific reason why he initially did
not want to live with his mother. All of the adults involved in the case had a different
theory as to why Austin made those initial statements. Swaykos believed that Austin's
wishes had changed after he was given an opportunity to ease back into his relationship
with his mother when she came to San Diego. He had also been talking more to his sister
and he definitely wanted to be with her. Swaykos believed Austin's primary motivation
for wanting to move was to be with his sister.
Swaykos further testified she had spoken to the mother about her previous
decision to give Austin to his father after the Utah dependency case closed. Swaykos
stated the mother felt "like she got burned the last time," and she said she would not give
3 County Counsel asserts that "'calls for service' is a term commonly used by social workers to refer to a list of police contacts at a particular person's address." 10
Austin back again this time. The court then asked Swaykos her opinion as to whether she
thought the mother would give Austin back to the father if she were stressed out and
Austin was acting out. Swaykos initially responded that she did not know, but then
testified she "would not give [her] guarantee" that the mother would never return Austin
to the father. Swaykos acknowledged that Austin had some "behavior concerns" and he
had never met Larry, who appeared to have some anger issues as well as pain medication
dependency. She testified that Austin's behavioral concerns included being chauvinistic
and demanding, wetting himself, and sometimes throwing tantrums. Austin's behavioral
issues had decreased after he returned to PCC from the NREFM caregiver's home.
Swaykos acknowledged it was possible Austin might have some adjustment issues if he
were placed with the mother and Larry.
Swaykos testified there were several alternative dispositions available if Austin
were not placed with the mother. She was concerned, however, that the negative
behaviors Austin displayed in the NREFM's home might resurface in an unfamiliar foster
home, which could result in his eventual placement in a group home.
On recross-examination by the father's counsel, Swaykos testified she would ask
the court to keep the case open for monitoring if the mother lived in San Diego.
However, she indicated she was satisfied the Las Vegas social worker had adequately
investigated the most recent referral for the mother's home. She also indicated she could
not recommend keeping a case open without the means for continued supervision.
Swaykos further testified that an ICPC was necessary in order to obtain that supervision
11
from another state. She could not go to Las Vegas to see Austin because she was not
permitted to practice social work in another state.
In his case-in-chief, the father testified on his own behalf. The court received into
evidence an eight-page packet of visitation narratives from PCC. The father testified he
did not agree with the recommendation that Austin be placed with the mother because he
knew from "personal history" it would be a "horrible place" for Austin to go "especially
where Austin is at right now mentally." The father testified he was always the one to
handle situations with the children in a healthy, positive way and that he had "done it
from day one." He testified the mother was always in conflict with Austin, and that was
one of the reasons she wanted to split the children up. The father did not believe the
mother would take care of the children and stated there was "a big worry" with the drug
use. He was concerned about Larry.
The father also testified the mother had allowed him some contact over the
telephone with the daughter, but the mother would dictate to her what she should say
during the conversations. The mother had blocked him on Facebook and made excuses
not to talk to him when he tried to contact her or find her location. He testified he was
worried the same things would happen with his contact with Austin if he were placed
with the mother.
On cross-examination, the father testified he had not attempted to obtain a custody
order allowing him visitation with the daughter, but her planned to do so. He started the
process in 2012, but he was not able to obtain a custody or a visitation order because of
12
"circumstances that happened" such as his inability to stabilize his life within a certain
amount of time.
Regarding the allegations in Austin's petition, the father denied he was ever
physically violent with Heather or any other woman. He also denied having any prior
convictions for domestic violence. He added there was only one domestic violence case
against him involving the mother and the children when they lived in Utah. He
acknowledged he had a drinking problem and stated the last time he drank alcohol was
the night of the incident with Heather. During closing arguments, the Agency's trial
counsel asked the court to make a true finding on the petition and to continue the
disposition portion of the hearing so that Austin could go on a short trial visit with the
mother. Austin's counsel joined in the Agency's request.
During closing arguments, the father's counsel asked for dismissal of the petition.
Alternatively, he requested several different dispositional orders that did not include
placement with the mother. With respect to the continuance request for a trial visit with
the mother, the father's counsel argued the concerns about the mother were "not going to
change a month from now." The father asked for joint legal custody in the event the
court declined his requests.
The court made a true jurisdictional finding on the petition under section 300,
subdivision (b) by clear and convincing evidence. The court found the father was not a
credible witness, stating he was "not telling the truth." Regarding disposition, the court
found that exceptional circumstances existed to continue the dispositional proceedings
beyond the usual 60-day time period under section 352. The court noted that Swaykos
13
was an excellent social worker, and the court trusted her assessment abilities. However,
the court also found from his questioning of her that Swaykos was "a little bit
concerned."
The court acknowledged the many positive elements of the potential placement
with the mother, but pointed out the mother had a very long drug history and an unstable
lifestyle. The court's concerns about drug abuse in the home were not alleviated by the
mother's possession of a medical marijuana card. The court was also concerned about the
family's tendency to move when they got into trouble. The court was also concerned
about Larry's circumstances and about adding an eight-year-old child to the household
dynamic.
The court then indicated it would allow Austin to visit his mother in Las Vegas
because of "the positives of this case." The court stated that "one real strong argument
for the Agency's recommendations" was that Austin's sister was living in the mother's
home without any apparent issues. The court added, "Again, it's the history that concerns
me. Is it a ticking time bomb?"
The court ordered weekly random drug testing for the mother and authorized
Austin to travel to Las Vegas and back to San Diego, accompanied by a social worker.
For the continued contested disposition hearing, the juvenile court requested more
information on drug test results for the mother.
1. Continued contested disposition hearing
The Agency submitted an addendum report prepared by social worker Swaykos
for the March 27, 2015 contested disposition hearing with additional updates and
14
information. Swaykos spoke with Larry about his child welfare agency involvement with
his daughter, and Larry reported his daughter was in the care of the court because she was
a runaway and did not want to live with him. He was reluctant to share any additional
information over the phone with somebody he did not know. After Swaykos spoke with
the current social worker assigned to Larry's daughter's case, and after she reviewed the
records, she had no additional concerns and she determined Larry's version of events was
accurate.
Swaykos also reported that she received Larry's medical records from the doctor's
office where he was being seen for pain management. The records indicated he had been
prescribed methadone since September 2013 for lower back pain as well as another
medication for anxiety and depression. Larry became anxious and depressed when his
teenage daughter ran away and did not want to live with him. The records also showed
Larry was not "doctor hopping." He had previously tried another prescription medication
for the pain, but he could not afford it due to lack of insurance. Swaykos also reported
that Larry was drug tested and his results were positive for methadone and THC.
The Agency set up drug testing for the mother in Nevada. The mother agreed to
pay for the test out-of-pocket until the Agency could reimburse her. On March 20, 2015,
the mother tested positive for THC.
The Agency reported that as of March 23, 2015, the father had only participated in
three domestic violence classes. According to the group session facilitator, the father
believed he did not do anything and said, "'[T]his whole thing is a joke.'" The father had
15
only recently begun to participate in the sessions, and he was not yet successfully
enrolled in substance abuse treatment.
Swaykos reported that Austin had flown to the mother's home accompanied by a
social worker on March 1, 2015. On March 24, 2015, Austin was returned to PCC in San
Diego pending the outcome of the trial.
The mother reported that during Austin's visit things went well in school, at home,
and with Larry. When Austin demonstrated behavioral issues in school similar to his
behaviors at school in San Diego, the mother implemented incentives in the home
including no television or video games until his homework was complete.
Swaykos also reported that she spoke with Austin's new teacher. During Austin's
first three weeks in class, his behavior appeared to follow a pattern of two good days and
then two "not good" days. The teacher stated that Austin was struggling to catch up and
to control his behavior, but she thought he was "'an awesome kid.'" She implemented
incentives as discipline after she noticed that being stern with Austin escalated his
negative behaviors. Austin responded well to compliments and a behavior chart in the
classroom.
Austin's teacher also reported the mother asked her daily about Austin's behavior
and demonstrated a willingness to implement behavior management changes and
incentives at home. The teacher believed the mother was "'fully responsive'" to her
suggestions. She did not see any indications of abuse. Larry picked up Austin from
school on two occasions during the trial visit. He participated in the daily check-in with
Austin's teacher, and the teacher believed Larry was as invested and caring as the mother.
16
According to the teacher, Larry seemed "like a nice young man," and Austin had not said
anything about Larry to her.
On the flight back to California, Austin told the social worker his visit with his
mother was great. His favorite part was riding horses. When asked how things were at
his mother's house, Austin replied they were "good" and "fun." He enjoyed playing video
games with his mother and sister. Austin reported he and Larry spent time in the garage
watching television, and Larry took care of him at night while his mother was working.
According to Austin, Larry was "an okay guy." Austin also said he liked his new school
and his new teacher, he had made friends at school, and they played together and told
jokes.
When he was asked whether there was anything he did not like, Austin said no.
When asked whether he spoke with his father while he was on the visit, Austin replied he
did and it was "good." When asked how things went with his sister, Austin replied the
visit was "great" and he had a bunk bed in the same room with her.
Swaykos met with Austin at PCC. Austin confirmed he had a good, fun visit at his
mother's home, and he liked his new school and teacher. Everyone was nice to each
other, and there was no fighting or yelling during the visit. He reported that when he got
in trouble at the mother's home, the mother would take away video games or put him in
time out. Larry did not discipline him during the visit. When asked whether anyone
smoked in the home, Austin responded that the mother and Larry smoked outside. He
said he and his sister played inside while the mother and Larry smoked outside. Austin
reported that he did not see the mother or Larry acting differently after they smoked.
17
Austin did see the mother and Larry drinking alcohol, but told Swaykos they only drank
"one, not like two, three, four, five six, whole big ones like Dad." The mother and Larry
did not act differently or fight after they had a drink like at the father's home. Austin said
he felt safe in the mother's home, and he was not worried about anything there.
Swaykos asked Austin whether he wanted to live with his father, his mother, or in
a foster home at that time. Austin replied, "[T]hat's a hard choice." He told her he would
choose either the mother's home or a foster home. He would only choose a foster home if
they were "'really really rich'" with lots of money. If not, he wanted to live with the
mother. He also said he would not need a social worker to check on him and his sister to
keep him safe at his mother's home.
The Agency continued to recommend that Austin be placed with the mother and
that the court terminate jurisdiction. Although the mother's history presented "many risk
factors," her current circumstances indicated no safety concerns during the previous past
year. Austin stated that he had chosen to live with his mother, and the Agency concluded
that both the mother and Austin knew how to reach out for assistance if the mother were
to have trouble caring for Austin or if Austin was feeling unsafe.
The court admitted the Agency's March 27 addendum report into evidence along
with the evidence previously received at the contested hearing conducted on February 27,
2015.
Austin's counsel supported the Agency's recommendation that Austin be placed
with his mother in Las Vegas.
18
a. Court's findings and orders
At the conclusion of the contested hearing, the court ordered Austin removed from
the father's custody pursuant to section 361, subdivision (c)(1). The court found the
mother was a noncustodial parent requesting custody. Finding there was no clear and
convincing evidence that Austin would suffer detriment, the court ordered that he be
placed with the mother at her home in Las Vegas and granted her sole legal and physical
custody of Austin. Specifically, the court stated:
"The Court is going to place [Austin] with the mother with the following comments: This poor kid. . . . [¶] Neither parent has done any kind of a decent job with this child. And you wonder why he has behavioral issues? Geez. What a mystery there. [¶] But I don't have clear and convincing evidence of detriment. There is another child in that home who is doing okay. There [are] no referrals." (Italics added.)
Finding the history of the case was "disturbing," the court commented, "I wonder
how many more states Austin is going to wind up living in, as they run away from [Child
Protective Services]." The court then reiterated, "I don't have that clear and convincing
evidence." The court explained that, while there were "red flags in Las Vegas," Austin
had a successful visit and he was enrolled in school. The court noted that Austin was
seen by his teacher on a daily basis, and she seemed to be involved in and aware of the
issues. The court also noted that Austin and his sister were old enough to make a call if
there were any issues.
The court ordered supervised visits for the father at least four times per month in
the town where Austin was residing, as well as four phone calls per week at specified
times. The court also ordered the mother to keep the father apprised of her telephone
19
number and address and to notify him at least 30 days in advance of any move out-of-
state.
The court also terminated dependency jurisdiction over Austin. The father's
appeal followed.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE (ORDER AWARDING LEGAL AND PHYSICAL CUSTODY OF AUSTIN TO HIS MOTHER)
The father contends the court "committed reversible error when it placed Austin
with his mother in the face of clear evidence of detriment." In appealing the court's order
placing Austin with his mother at her home in Las Vegas and granting her sole legal and
physical custody, the father challenges the sufficiency of the evidence supporting the
court's finding under section 361.2, subdivision (a) that there was no clear and convincing
evidence such placement would be detrimental to Austin's safety, protection, or physical
or emotional well-being. He contends this case should be remanded to the court for new
findings under section 361.2 and selection of a different placement for Austin.4 The
father's contentions are unavailing because substantial evidence supports the court's order
and findings.
A. Applicable Legal Principles
The juvenile court is required to hear evidence on the issue of the proper
disposition for a child it finds to be a person described in section 300. (§ 358, subd. (a).)
4 The father suggests that Austin be placed with Austin's paternal aunt or maternal uncle in Texas.
20
The court has broad discretion to craft a dispositional order that is in the child's best
interest. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1179 (Nada R.).)
After the juvenile court removes a dependent child from the custodial parent, as
the court did here,5 it must determine whether there is a noncustodial parent who desires
custody of the child. (§ 361.2, subd. (a), hereafter section 361.2(a); In re Nickolas T.
(2013) 217 Cal.App.4th 1492, 1503 (Nickolas T.).) If the noncustodial parent requests
custody, the court must "place" the child with that parent unless it finds such "placement"
would be detrimental to the child's safety, protection, or physical or emotional well-
being. (§ 361.2(a); Nickolas T., at p. 1503.) "[T]he words 'place' and 'placement' in
section 361.2[(a)] connote a temporary arrangement that necessarily involves the ongoing
supervision of the juvenile court." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1131.)
"[T]he presumption for placement with a noncustodial parent at a disposition
hearing . . . furthers the legislative goals to maintain or place a child in the care of a
parent when safe for the child, strengthen the child's relationship with siblings and other
relatives, and avoid the child's placement in foster care." (Nickolas T., supra, 217
Cal.App.4th at pp. 1505-1506.)
"When making a custody determination in any dependency case, the court's focus
and primary consideration must always be the best interests of the child." (In re Nicholas
H. (2003) 112 Cal.App.4th 251, 268.) In assessing detriment, the court "may consider
5 The court determined by clear and convincing evidence pursuant to section 361, subdivision (c)(1), that removal of Austin from the father's custody was necessary for Austin's safety. The father does not challenge the court's order removing Austin from his custody. 21
any jurisdictional findings that may relate to the noncustodial parent under section 300, as
well as any other evidence showing there would be a protective risk to the child if placed
with that parent." (In re V.F. (2007) 157 Cal.App.4th 962, 970.) The court may also
examine the circumstances of the parent and child, including whether the parent is able to
provide a safe home for the child, the criminal and child welfare history of the parent,
whether the parent remedied conditions that previously placed a child at risk, whether the
parent stabilized his or her circumstances, and whether the parent maintained a parental
relationship with the child. (Nickolas T., supra, 217 Cal.App.4th at pp. 1505-1506.)
"[T]he fact a home is not ideal is not sufficient to establish detriment." (Nickolas
T., supra, 217 Cal.App.4th at p. 1505.)
A juvenile court's finding under section 361.2(a) that placement of a dependent
child with a noncustodial parent would be detrimental to the child must be supported by
clear and convincing evidence. (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426 (Luke
M.); In re Marquis D. (1995) 38 Cal.App.4th 1813, 1827.) "Clear and convincing
evidence requires a high probability, such that the evidence is so clear as to leave no
substantial doubt." (Luke M., at p. 1426.)
1. Standard of review
A fundamental rule of appellate review is that trial court rulings are presumed to
be correct. (In re Merrick V. (2004) 122 Cal.App.4th 235, 254, citing Winograd v.
American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.)
A juvenile court's findings under section 361.2(a) on the question of whether
placement of a dependent child with a noncustodial parent would be detrimental to the
22
child is reviewed on appeal under the substantial evidence test. (Luke M., supra, 107
Cal.App.4th at p. 1426.)
Under the substantial evidence test, we review the record in the light most
favorable to the findings of the court, drawing all inferences from the evidence that
supports the court's determination. (Nada R., supra, 89 Cal.4th at p. 1177.) "By this
process we endeavor to determine whether evidence of reasonable, credible and solid
value exists such that a reasonable trier of fact could find as the trial court did." (Ibid.)
The juvenile court's decision "will be upheld if it is supported by substantial evidence,
even though substantial evidence to the contrary also exists and the trial court might have
reached a different result had it believed other evidence." (In re Dakota H. (2005) 132
Cal.App.4th 212, 230.) "It is not our function . . . to reweigh the evidence or express our
independent judgment on the issues before the trial court." (In re Jasmon O. (1994) 8
Cal.4th 398, 423.)
B. Analysis
In support of his contention that the court committed reversible error in awarding
legal and physical custody of Austin to the mother, the father asserts there was clear and
convincing evidence that placing Austin with his mother in her home in Las Vegas would
be detrimental to Austin's well-being. Thus, he asserts, "[s]ubstantial evidence does not
support the [court's] finding that placement of Austin with [his] mother would not be
detrimental to [his] safety, protection, or physical and emotional well-being."
We reject the father's contention. As already discussed, a juvenile court's finding
under section 361.2(a) that placement of a dependent child with a noncustodial parent
23
would be detrimental to the child must be supported by clear and convincing evidence.
(Luke M., supra, 107 Cal.App.4th at p. 1426.)
Here, viewing the evidence in the light most favorable to the court's order and
findings, as we must (Nada R., supra, 89 Cal.4th at p. 1177), we conclude substantial
evidence─much of which the father disregards─supports the court's finding there was no
clear and convincing evidence that placing Austin with his mother in Las Vegas would be
detrimental to his safety, protection, or physical or emotional well-being. At the
contested jurisdiction and disposition hearing in February 2015, the Agency's social
worker, Swaykos, acknowledged the mother's history "could indicate risk." However,
Swaykos opined there was no evidence to indicate Austin would be harmed if he were
placed with his mother in Las Vegas. Swaykos testified the mother was currently using
marijuana under a medical prescription but a parent's use of marijuana under a doctor's
guidance did not necessarily pose a risk to the child unless it impacted the parenting or
otherwise had an impact on the child. Regarding the mother's fiancé's methadone use,
Swaykos testified she investigated his criminal history to determine whether there were
indications he was abusing, as opposed to just using, the drug. She found none of the
usual indicators of drug abuse, such as drug charges, violence charges, or police visits to
the home
Swaykos reported in an addendum report that a Nevada social worker had recently
visited the mother's home unannounced in January 2015 and found the home was clean,
organized, and in a nice neighborhood. The social worker reported she had no concerns
about Larry's medication use or any drug abuse. The daughter had not missed any days
24
of school and she was appropriately dressed and groomed. She had not witnessed any
domestic violence or physical aggression in the home. Swaykos opined that the mother
"appear[ed] to be able to keep a clean and physically safe home as well as meet [the
daughter's] needs for educational and daily physical care."
In her addendum report for the continued contested disposition hearing held on
March 27, 2015, Swaykos reported that during Austin's three-week trial visit with his
mother in Las Vegas earlier that month, "things [went] well in school, the home, and with
[Larry]." Swaykos also reported she spoke with Austin's new teacher in Las Vegas on
March 23. The teacher reported that although Austin was struggling to catch up and to
control his behavior, she thought he was "an awesome kid" who responded well to
compliments and a behavior chart in the classroom. The teacher also reported that the
mother asked her daily about Austin's behavior, demonstrated a willingness to implement
behavior management changes and incentives at home, and was fully responsive to her
suggestions. The teacher did not see any indications of abuse and reported that Larry had
picked up Austin from school on two occasions during the trial visit, he had participated
in the daily check-in with her, and she believed Larry was as invested and caring as the
mother. Swaykos also reported that on the flight back to California, Austin told the
social worker who accompanied him that he had a great visit with his mother, Larry was
an "okay guy" who had taken care of him at night when his mother was working, he liked
his new school and teacher, and he had made friends at school. Swaykos met with Austin
at PCC and confirmed he had a good, fun visit at his mother's home, he liked his new
school and teacher, there had been no fighting or yelling during the visit, and he felt safe
25
in his mother's home. Swaykos opined that although the mother's history presented
"many risk factors," her current circumstances indicated no safety concerns during the
previous past year.
We conclude the foregoing substantial evidence supports the court's order
awarding full custody of Austin to his mother.
II. ORDER TERMINATING THE COURT'S JURISDICTION
The father also claims the court "erred in terminating its jurisdiction over Austin in
light of the risks to Austin evident in [his] mother's [Las Vegas] home." He supports this
claim with a series of arguments. Asserting "the evidence show[ed] a need for continuing
supervision," the father maintains termination of the court's jurisdiction was not in
Austin's best interest. He asserts the court terminated jurisdiction based not on "Austin's
safety in [the] mother's home but on the Agency's unwillingness to accept liability for a
risky placement outside its jurisdiction" in Nevada absent compliance with the
requirements of the Interstate Compact on the Placement of Children (ICPC).6 Thus, he
asserts, "even if the juvenile court's placement decision under section 361.2[(a)] is
affirmed, its orders under section 361.2, subdivision (b), must be reversed and the case
remanded for consideration of new placement orders to include [under section 361.2,
subdivision (b)(3) (discussed, post),] continuing juvenile court jurisdiction and the
6 See Family Code section 7900 et seq. "The ICPC governs the interstate placement of children, and generally requires that no child may be sent to another state for placement 'in foster care or as a preliminary to a possible adoption' unless the sending agency has first complied with the law's requirements." (In re A.J. (2013) 214 Cal.App.4th 525, 541, quoting Fam. Code, § 7901, art. 3, subd. (a).) 26
provision of services to both parents." He further asserts that, "[a]t the very least, the
juvenile court should continue its jurisdiction long enough for a three-month home visit
to be conducted [under section 361.2, subdivision (b)(2),] so that it can determine
whether Austin is suffering detriment in his mother's custody and make appropriate
changes to its orders if he is."
We conclude the father forfeited his claim of error by failing to challenge below
the termination of dependency jurisdiction and by failing to request the relief he now
seeks under section 361.2, subdivision (b) (hereafter section 361.2(b)). Were it necessary
to reach the merits of his claim, we would conclude he has failed to meet his burden of
demonstrating the court abused its discretion in terminating jurisdiction because he has
failed to establish there was a need for ongoing supervision.
A. Applicable Legal Principles
1. Section 361.2(b)
"[I]f the juvenile court finds that placing a child in the physical custody of a
noncustodial parent would not be detrimental to the child within the meaning of section
361.2[(a)], it must place the child in the physical custody of the noncustodial parent." (In
re Abram L. (2013) 219 Cal.App.4th 452, 461.) If the child is placed with the
noncustodial parent, the juvenile court in the exercise of its discretion may choose one of
three options set forth in section 361.2(b). (See In re Abram L., at p. 461.)
27
First, under section 361.2(b)(1) the court may (as occurred here) grant legal and
physical custody to the previously noncustodial parent and terminate its own
jurisdiction.7
Second, under section 361.2(b)(2) the court may retain jurisdiction, order the
previously noncustodial parent to assume custody subject to court's jurisdiction, and
require that a home visit be conducted within three months.8
Third, under section 361.2(b)(3) the court may retain jurisdiction and order the
previously noncustodial parent to assume custody pending the provision of services to the
previous custodial parent, the new custodial parent, or both.9
2. Standard of review
"The court has broad discretion to determine what would best serve and protect the
child's interest and to fashion a dispositional order in accord with this discretion." (In re
7 Section 361.2(b)(1) provides in part that the juvenile court may "[o]rder that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child."
8 Section 361.2(b)(2) provides in part that the court may "[o]rder that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months."
9 Section 361.2(b)(3) provides in part that the court may "[o]rder that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child." 28
Christopher H. (1996) 50 Cal.App.4th 1001, 1006.) The court's decision to terminate or
continue jurisdiction upon placement with a noncustodial parent is reviewed for abuse of
discretion. (In re Austin P. (2004) 118 Cal.App.4th 1124, 1128, 1135.) "'The appropriate
test for abuse of discretion is whether the trial court exceeded the bounds of reason.
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. (1994) 7 Cal.4th 295, 318-319.) A reviewing court will not disturb the
juvenile trial court's exercise of discretion unless the trial court's decision was arbitrary,
capricious, or patently absurd. (Id. at p. 318.)
The juvenile court does not abuse its discretion by continuing jurisdiction under
section 361.2 when substantial evidence shows a need for continuing supervision. (In re
Austin P., supra, 118 Cal.App.4th at p. 1135.) The court also does not abuse its
discretion by terminating jurisdiction under section 361.2 when substantial evidence
shows no need for continuing supervision. (In re Sarah M. (1991) 233 Cal.App.3d 1486,
1498, disapproved on other grounds by In re Chantal S. (1996) 13 Cal.4th 196, 203-204.)
B. Analysis
1. Forfeiture
County Counsel argues the father forfeited his claim of error. We agree.
As a general rule, a parent's failure to object or raise certain issues in the juvenile
court prevents the parent from claiming error on appeal. (In re S.B. (2004) 32 Cal.4th
1287, 1293; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338 (Lorenzo C.).)
Application of the forfeiture rule, although not automatic, is designed to keep litigants
29
from acquiescing and later seeking relief for error that could have been prevented or
cured. (In re S.B., supra, at p. 1293; In re Riva M. (1991) 235 Cal.App.3d 403, 412.)
Appellate courts have applied the forfeiture doctrine to cases where a party failed
to ask the juvenile court to exercise its discretion. (Lorenzo C., supra, 54 Cal.App.4th at
p. 1339, citing (among other cases) In re Anthony P. (1995) 39 Cal.App.4th 635, 640-642
[failure to request sibling visitation as part of a permanent plan]; In re Daniel D. (1994)
24 Cal.App.4th 1823, 1830-1831 [failure to request alternative placement].) "These
courts have taken the position that if the law does not require the juvenile court to act in a
certain way, the parent bears the responsibility to care for his or her own interests by
asking the court to exercise its discretion in a manner favorable to the parent. In such
circumstances, the courts have not permitted the silent parent to argue that the juvenile
court erred in not being psychic." (Lorenzo, at p. 1339.)
Here, the father did not ask the court to order an evaluation of the mother's home
under the ICPC or take any other action to effectuate continued supervision of Austin in
her home, nor did he object to termination of the court's jurisdiction after the court
granted the mother sole custody of Austin. By his silence and acquiescence, he has
forfeited his right to claim error on appeal. (Lorenzo C., supra, 54 Cal.App.4th at p.
1339.)
2. Merits
Were it necessary to reach the merits of the father's claim, we would conclude he
has failed to meet his burden of demonstrating the court abused its discretion in
terminating its jurisdiction. As noted, the juvenile court does not abuse its discretion by
30
terminating jurisdiction under section 361.2 when substantial evidence shows no need for
continuing supervision. (In re Sarah M., supra, 233 Cal.App.3d at p. 1498.)
Here, substantial evidence supports a finding there was no need for continuing
supervision. Before it decided to issue custody orders and terminate jurisdiction, the
court continued the disposition hearing in order to obtain additional relevant information
and it carefully considered all of the evidence. As pertinent here, the Agency
recommended termination of the court's jurisdiction. The Agency's social worker,
Swaykos, testified there was no evidence to indicate Austin would be harmed if he were
placed with his mother in Las Vegas. Swaykos also testified the social worker in Las
Vegas told her she had no concerns about the mother's or Larry's parenting of Austin's
sister. Austin's counsel testified that he agreed with the Agency's recommendations, and
that Austin wanted to live with his mother and sister. For all of the foregoing reasons, we
affirm the court's order terminating its jurisdiction.
DISPOSITION
The orders and judgment are affirmed.
NARES, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
31
AI Brief
AI-generated · verify before citing
Holding. The juvenile court did not abuse its discretion in awarding sole custody of the child to the mother and terminating dependency jurisdiction, as the evidence supported the conclusion that the child was safe in the mother's care.
Issues
Did the juvenile court err in awarding legal and physical custody of the child to the mother?
Did the juvenile court err in terminating its jurisdiction over the child?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The juvenile court awarded sole custody to Austin's mother, Heather B. (the mother), in Las Vegas, Nevada, and terminated its jurisdiction.”
“The court found that exceptional circumstances existed to continue the dispositional proceedings beyond the usual 60-day time period under section 352.”
“The court's concerns about drug abuse in the home were not alleviated by the mother's possession of a medical marijuana card.”