California Court of Appeal Feb 24, 2021 No. E075423Unpublished
Filed 2/24/21 In re A.A. CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 A.A., a Person Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E075423
Plaintiff and Respondent, (Super.Ct.No. J284914)
v. OPINION
H.A.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed.
Christopher R. Booth, under appointment by the Court of Appeal, for Defendant
and Appellant.
Michelle D. Blakemore, County Counsel, and David Guardado, Deputy County
Counsel, for Plaintiff and Respondent.
1
I
INTRODUCTION
Defendant and appellant H.A. (Mother) appeals from the juvenile court’s
dispositional orders under Welfare and Institutions Code1 section 361.2 placing her three-
year-old son (Ad.A.) with his father Ab.A. (Father), terminating its jurisdiction, and
granting Father sole legal and physical custody of the child. Mother contends the
juvenile court abused its discretion in granting Father sole legal and physical custody of
the child, denying her reunification services, and terminating its jurisdiction. Mother
argues the juvenile court should have instead continued its jurisdiction and provided
Mother with reunification services. We find no abuse of discretion and affirm the
juvenile court’s dispositional orders.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of the San Bernardino County Children and
Family Services (CFS) on April 21, 2020, after a referral was received alleging that
Mother had been placed on an involuntary mental hold pursuant to section 5150
following an altercation between herself, her father, and her brother. Mother reported
that she was having a panic attack, which was something not allowed in her culture, and
her father responded by punching her in the head and choking her. She also stated that
her parents locked her in a secured room with security cameras and that she was not
1 All future statutory references are to the Welfare and Institutions Code.
2
allowed to leave the home. Mother further reported that she had a total of 10
hospitalizations for suicidal ideations and that her parents disciplined her then two-year-
old son by hitting him.
The maternal grandfather reported that he had received a call from the maternal
grandmother informing him that Mother had attempted to grab a knife on April 21, 2020.
Mother was able to be restrained until the maternal grandfather arrived home and took
her upstairs away from the family and law enforcement was called. The maternal
grandfather also stated that Mother began residing in the home on January 5, 2020, after
Father asked if the maternal grandparents would take Mother and the child into their
home as their relationship was not going well. Approximately two weeks after she
moved in, Mother called the maternal grandfather and stated that she was going to
commit suicide. Mother was hospitalized following this incident. The maternal
grandfather also reported that Mother had choked the child previously, so he had
removed the child from her supervision. Mother began taking medication and her
behavior stabilized until the April 21, 2020 incident when she began crying after talking
about Father. The maternal grandfather suspected that Mother had not taken her
medication that week and noted the secured room was for safety reasons.
The maternal grandmother reported that Mother was depressed about Father
leaving her and suspected that Mother had not been taking her medication. She had
observed Mother to have scratches on her arms and she attempted to talk to Mother
regarding the injuries, but Mother instead became upset and went to her bedroom.
3
Mother then returned and attempted to hit the maternal grandmother and the maternal
uncle. The maternal grandfather moved Mother upstairs and kept her there until law
enforcement arrived. The maternal grandmother denied that the maternal grandfather had
punched or assaulted Mother.
The maternal uncle reported that Mother had attempted to get a knife and
threatened to kill him. He also stated that after Mother had choked the maternal
grandmother, he grabbed Mother and held her down until the maternal grandfather
arrived home. When the maternal grandfather came home, Mother began attacking the
maternal grandfather. The maternal uncle further reported that Mother had attempted to
commit suicide previously by jumping in front of moving vehicles, and that she had
stated that when she does succeed, she would “take [the child] out of this world” and
began choking the child. The maternal uncle did not feel safe when Mother was around.
Mother was interviewed and accused her family of hitting the child. She
explained that on April 21, 2020, the family was not allowing the child to play with his
toys and the maternal grandmother hit him. Mother reported a prior diagnosis for
depression and suicidal ideations following the birth of her child and admitted cutting her
wrists to “take [] out the pain.” She began taking medication for her mental health issues
in 2017 and wanted to receive therapy but her family would not allow her to. Mother
stated that Father had left her and the child at the maternal grandparents’ home and that
they were still married. She expressed no concerns regarding Father’s ability to care for
the child and noted that she did not mind the child being placed with Father.
4
The social worker spoke with Father on April 21, 2020. Father reported that he
was able to care for the child emotionally and financially and to meet the child’s needs.
He also expressed protective capacity to care for the child, such as not allowing Mother
unsupervised contact, and disclosed the child was not safe under Mother’s supervision
due to her mental health. Father had no mental health issues, history of substance abuse,
or criminal history. He noted that he had recently relocated from North Carolina to
Tracy, California, and provided the social worker with his address. Father resided with
his paternal uncle and aunt. Father explained that after he left Mother and the child with
the maternal grandparents, he went back to North Carolina because his employment was
there. He stated that he had attempted to maintain contact with the child but Mother
would not allow him to do so. Father also reported that Mother had longstanding mental
health issues predating his relationship with her and that Mother had cut her wrists and
attacked him. Background checks on Father and the family with which he resided
showed no concerns, and the child was placed in his care.
On April 24, 2020, a petition was filed pursuant to section 300, subdivisions (a)
(serious physical harm), (b) (failure to protect), and (g) (no provision for support) based
on Mother’s aggressive conduct towards the child and her family, Mother’s untreated
mental health issues, Mother’s inability to care for the child, and Father’s knowledge of
Mother’s untreated mental health issues.
The detention hearing was held on April 27, 2020. Both Mother and Father were
present and submitted on the issue of the child remaining in Father’s care. The juvenile
5
court formally detained the child from Mother’s care and ordered him to be placed in
Father’s care. Father was ordered to keep CFS advised of the child’s whereabouts and
not to change his residence without prior notice to the social worker. Mother was
provided with supervised visits once a week for two hours.
CFS recommended that the child be removed from Mother’s care, the allegation
against Father be dismissed, the child placed with Father, and the dependency matter
dismissed. Father explained that although he knew Mother had mental health issues, he
did not foresee that she would be a danger to the child and believed him to be safe while
residing with the maternal grandparents. Father had explored options for maintaining
custody of the child when he and Mother separated, but believed he could not do so as the
law was that a child “‘goes to the mother.’” Father stated that he wanted full custody of
his child and did not want Mother to have custody of their son.
The maternal grandfather was interviewed again and reiterated his prior
statements. He explained that Mother had made accusations against him and the maternal
grandmother that they abused both her and the child and that law enforcement told him it
was best for the maternal grandparents to not get involved due to Mother’s serious
allegations against them. In spite of Mother’s allegations, the maternal grandfather was
not charged as Mother herself was found to be the aggressor. It was reported that Mother
had choked the child and had attempted to stab him with a knife.
Mother was contacted at her mental health facility and again accused the maternal
grandparents of using physical discipline against the child. She also accused the maternal
6
grandfather of grabbing her and choking her. Mother stated that the maternal grandfather
had attempted to kill her and the maternal uncle had attempted to stab her with a knife.
She asserted that she was diagnosed with depression, anxiety, and panic attacks and that
she had attempted suicide on multiple occasions. Mother indicated she felt the child was
safe with Father, and she believed it to be in the child’s best interest to remain with
Father. She had no worries with Father raising the child, noting Father wanted the child.
She also pointed out that when they were together, Father “‘woke up in the middle of the
night to help with [the child].’”
The social worker had observed the child in Father’s care and found that he was
well taken care of with no concerns regarding Father’s parenting ability. The social
worker noted that the child appeared to be happy, healthy, and bonded to Father, and did
not have any visible, suspicious marks or bruises. Based on her observations as well as
information obtained in the investigation, the social worker believed there would be no
detriment to placing the child with Father and having the court dismiss the petition with
family law court orders. Due to Father’s residence in Northern California, the ongoing
COVID-19 pandemic, and Mother being admitted into a mental health hospital, in-person
visitation between Mother and the child had not occurred.
On June 1, 2020, the juvenile court held a combined jurisdictional/dispositional
hearing. Mother was present and Father had been excused. Mother requested mediation
to address jurisdictional issues as well as visitation orders. Mediation was thus set.
7
Mediation was held on June 23, 2020. At that time, the parties agreed to amend
the allegations in the section 300 petition. Mother objected to dismissal of the case with
the child in the care and custody of Father and requested that she receive family
reunification services. The child’s counsel had been unable to visit the child in Father’s
home in Northern California and therefore objected to dismissal of the case.
On June 29, 2020, the juvenile court held a further contested jurisdictional/
dispositional hearing. Mother waived her rights and the court proceeded on jurisdiction
based upon the mediated agreement. The court found true the section 300,
subdivision (a) allegation as amended regarding Mother’s risk of physical abuse to the
child as well as one section 300, subdivision (b) allegation as amended concerning
Mother’s mental health issues. All of the remaining allegations in the petition were
dismissed. The court thereafter continued the contested dispositional hearing at minor’s
counsel’s request to allow counsel the opportunity to see the child in Father’s home.
The contested dispositional hearing was held on July 16, 2020. Mother was
present and Father was excused from being present. For the hearing, CFS had filed two
additional reports explaining further investigation in the case. It was reported that Father
and the child had left the United States for Palestine on July 10, 2020, to attend to his
mother. Father explained that “his mother [was] very sick, so he and [the child] left
suddenly to see his mother in Palestine” and that “‘[i]t was an emergency situation.’”
Father stated that he did not know that he needed court approval to travel with the child
and that he intended to return to California but could not provide a set date as to when
8
that would occur. Despite Father leaving the country without permission, CFS opined it
was still in the child’s best interest to have the dependency case dismissed with family
law court orders, giving full custody to Father.
CFS also informed the court that Mother had informed the social worker that she
had attempted to contact Father several times concerning visitation with the child. Father
acknowledged that Mother had not yet had in-person contact with the child since his
removal from Mother’s care due to the pandemic and conflicting schedules. Father
indicated that he was willing to allow the child to have contact with Mother and believed
Mother may have been calling him while he was working and his phone was on airplane
mode. Father agreed to contact Mother at times when he was available to facilitate
visitation.
At the contested dispositional hearing, Mother’s counsel expressed concern
regarding Father’s travel to Palestine and requested that the court continue the matter and
order that Father be present in court. Minor’s counsel also requested a continuance as,
although counsel had seen the child in Father’s home, counsel desired to see how he was
doing given the travel out of the country. Prior to knowledge of the travel, minor’s
counsel acknowledged that he agreed with the recommendation to dismiss the
dependency case.
CFS’s counsel opposed the continuance, arguing there was no reason to continue
the matter. CFS’s counsel noted that the child had been placed with Father since the
beginning of the case, Mother had specifically stated the child was safe in Father’s care,
9
and Father was specifically excused as a witness. CFS’s counsel also asserted that the
“only thing that has changed” was Father leaving the country for an emergency, “but
there [was] no evidence of any change posing a risk to this child.” CFS’s counsel
explained, “Father and Mother came here from Palestine. They were married in Palestine
in 2019, so this is not a new situation for the mother. She came here from Palestine in
2019. I don’t believe there is a safety risk in keeping this case open. We would like to
dismiss with a custody order.”
The juvenile court agreed with CFS’s counsel, noting “[n]obody’s happy that he
just went . . . to Palestine, but all of the factors have to be considered. The child is not at
risk. Everything from the reports indicates that Father is a very capable, fit parent, and
the child is safe.” The court viewed Father leaving the country as a family emergency
and proceeded with the matter.
Thereafter, the juvenile court heard testimony from Mother and the social worker.
Mother testified that she had informed the social worker she had no concerns regarding
the child in Father’s care and that the child was safe in his care. However, Mother no
longer felt it appropriate, claiming she had previously lied about the child in Father’s care
because she felt threatened by him and believed Father would attempt to keep the child
from her. She noted that Father had not provided her with supervised visitation,
explaining she had tried to call the child every day on the phone.
Mother acknowledged that she had spent two months in a mental health facility,
that she had a history of severe mental health issues, and that she had attempted suicide
10
every year since 2018. Nonetheless, she believed her mental health issues could be
resolved in a matter of weeks, noting she had voluntarily engaged in psychological,
psychiatric, and individual therapy. Mother intended to remain compliant with treatment
and expected to overcome her mental health issues.
The social worker testified that, to her knowledge, Mother had engaged in therapy
once a week and had seen her psychiatrist, but Mother had not signed consent requests so
the social worker could speak to her therapists. The social worker noted that she had
discovered Father went to Palestine the day prior to the dispositional hearing and that
prior to Father leaving the country, Father had cooperated with CFS. The social worker
acknowledged that Father had not provided any proof of an emergency for leaving to
Palestine. In response to the court’s query of whether there was any prohibition about
Father traveling with the child, the social worker stated, “I believe it’s in the minute
order, but I personally did not tell him.”
After the juvenile court heard oral argument from the parties on the dispositional
issues, the court found Father’s trip to Palestine was not specifically prohibited, and that
even if there were orders regarding a need to keep the social worker advised of the child’s
location, Father was a lay party and may not have realized that such a trip might appear
suspicious. The court also determined that given her mental health issues, Mother was
not suitable for joint legal custody at that time and did not find Mother’s testimony
believable. Specifically, the court explained, “and even though [Mother] is under penalty
of perjury today, she is making statements today that are more convenient to her position.
11
Whereas earlier on in the case, she was, in my mind, making more honest statements. I
don’t see any circumstances indicating undue pressure from Dad or threats or force that
she is claiming now. I think this argument she is making today is one of convenience to
her position that is different. [¶] And then, I’ve been looking carefully at the previous
Court orders and minute orders. I don’t see anything about not leaving the state or
country.”
When the juvenile court inquired of the parties whether there was a specific order
preventing Father from traveling, CFS’s counsel responded that he did not recall the court
making such an order. No other party responded or pointed to any orders Father may
have violated, such as the orders made at the detention hearing.2 The court thereafter
continued to explain its finding, stating, “when I’m assessing danger to the child, one of
the factors⸺it’s like, did this guy disobey an order of the Court or some condition that
CFS put on him? That could be a factor. I don’t see that was ever given, so I’m trying to
put my reasoning in what he is thinking, and he is thinking, I have custody of the child.
There’s no order prohibiting me. [¶] Common sense would be like, yeah, you shouldn’t
go, but [Father] is not a lawyer. So there is no specific prohibition. If there were a
specific prohibition, I would be more concerned about the danger aspect, but because
there is no specific prohibition, I’m less concerned about the danger aspect because that
2 Specifically, at the detention hearing, the juvenile court ordered Father to (1) “keep the county agency advised of [the child’s] whereabouts and cooperate with the social worker”; (2) “not change the location of the [child] without prior notice to the social worker”; and (3) allow the child’s “attorney and/or [his] social worker access into the family home and access to” the child.
12
means he wasn’t trying to do anything sinister. At least by that aspect, so that’s why I’m
making a big deal of looking back at the prior minute orders, if CFS had said, ‘Don’t
leave the state or the country.’ [¶] . . . Normally, we say, if you change your address or
move, let us know. That is more generic. Maybe in the future we should just have a
generic order so there is no misunderstandings. Easily this could be easily
misunderstood. You know, our intent versus what it says.”
The court concluded Mother was not in a position to have joint legal custody at
that time, but explained that Mother was “free to go to the family law court as her
situation changes, and she can ask the family law court to revisit the joint-legal-custody
issue as she is able to show the Court she is more capable of making those decisions” and
encouraged Mother to keep working on her mental health issues. The court provided
Mother with visitation once a week on Saturday or Sunday for a 30-minute video
conference and ordered Father to comply with the visitation order. The court then found
Father to be the nonoffending, noncustodial parent and terminated its jurisdiction with
family law orders providing sole legal and physical custody of the child to Father. This
appeal followed.
III
DISCUSSION
Mother contends the juvenile court abused its discretion when it granted Father
sole legal and physical custody of the child and by denying her reunification services and
terminating jurisdiction over the case. She believes that the court, at a minimum, should
13
have granted a continuance of the contested dispositional hearing, requested both by
Mother and the child’s counsel, to clarify the situation with Father present. Mother thus
argues the court’s dispositional orders should be reversed. We disagree.
“‘A parent’s right to care, custody and management of a child is a fundamental
liberty interest protected by the federal Constitution that will not be disturbed except in
extreme cases where a parent acts in a manner incompatible with parenthood.’” (In re
Abram L. (2013) 219 Cal.App.4th 452, 461 (Abram).) A nonoffending parent has a
constitutionally protected interest in assuming physical custody of his or her dependent
child which may not be disturbed “‘in the absence of clear and convincing evidence that
the parent’s choices will be “detrimental to the safety, protection, or physical or
emotional well-being of the child.”’” (Ibid.)
Section 361.2, subdivision (a), governs the rights of a noncustodial parent to
custody of a dependent child. (In re C.M. (2014) 232 Cal.App.4th 1394, 1401 (C.M.).)
When “a court orders removal of a child pursuant to Section 361, the court shall first
determine whether there is a parent of the child, with whom the child was not residing at
the time that the events or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child. If that parent requests custody,
the court shall place the child with the parent unless it finds that placement with that
parent would be detrimental to the safety, protection, or physical or emotional well-being
of the child.” (§ 361.2, subd. (a), italics added.) Section 361.2, subdivision (a), “evinces
14
the legislative preference for placement with the noncustodial parent when safe for the
child.” (In re Patrick S. (2013) 218 Cal.App.4th 1254, 1262 (Patrick S.).)
“Under the plain terms of the statute, if 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, subdivision (a), it must place the child in the
physical custody of the noncustodial parent.” (Abram L., supra, 219 Cal.App.4th at
p. 461.) The noncustodial parent does not have to prove lack of detriment under
section 361.2, subdivision (a). (C.M., supra, 232 Cal.App.4th at p. 1402.) Rather, “[i]t is
the burden of the party or parties opposed to such placement to prove detriment by ‘clear
and convincing evidence.’” (In re K.B. (2015) 239 Cal.App.4th 972, 979 (K.B.); accord,
C.M., at p. 1402.) “Clear and convincing evidence requires a high probability, such that
the evidence is so clear as to leave no substantial doubt.” (Patrick S., supra, 218
Cal.App.4th at p. 1262.)
A court has three options when placing a child with the noncustodial parent under
section 361.2, which we summarize: the court may (1) grant legal and physical custody
to the noncustodial parent and terminate jurisdiction; (2) grant custody to the
noncustodial parent subject to a home visit by a social worker; or (3) grant custody to the
noncustodial parent subject to the supervision of the juvenile court, in which case the
court may provide services to one or both parents, either to allow possible reunification
with the parent from whom the child is being removed, or to allow the parent taking
custody to later assume custody without court supervision. (§ 361.2, subd. (b)(1)-(3).)
15
In this case, the juvenile court selected the first option, granting Father full
custody and terminating jurisdiction without ordering reunification services for Mother.
We review this decision for abuse of discretion. (K.B., supra, 239 Cal.App.4th at p. 981.)
We find no abuse of discretion here. The court selected one of the three allowable
statutory options. There was no indication in the record that the child was not safe in
Father’s care, that Father posed a risk of detriment to the child, or that it would be
detrimental to allow the child to reside in Father’s care. During the social worker’s
various interviews with her, Mother expressed no concerns regarding Father’s ability to
care for the child or that the child was not safe in Father’s home. Rather, she repeatedly
stated that she had no worries with Father raising the child, that she did not mind the
child being placed with Father, and that she believed it to be in the child’s best interest to
remain with Father. Mother also described how Father had taken good care of the child
when they resided together. The social worker had observed the child in Father’s care
and found that he was well taken care of with no concerns regarding Father’s parenting
ability. The social worker noted that the child appeared to be happy, healthy, and bonded
to Father and believed there was no detriment to placing the child with Father. Having
placed the child with Father, the court was not obliged to provide reunification services to
Mother.
As noted by the juvenile court, it was not until it was the most convenient and
beneficial to Mother did she elect to raise concerns of Father threatening her safety. The
court found Mother’s statement concerning Father’s purported threats less honest and
16
noted no circumstances indicating undue pressure, threats, or force by Father. If Mother
in fact had felt threatened by Father, it would not have made sense for her to keep that
information from the social worker considering that she was willing to provide negative
information about the maternal grandparents and her other relatives.
Mother primarily points to Father’s trip to Palestine as evidence of detriment and
the juvenile court’s prior generic orders at the time of the detention hearing. As
previously noted, those generic orders required (1) Father to keep CFS advised of the
child’s whereabouts and to cooperate with the social worker; (2) Father to not change the
child’s location without CFS approval; and (3) Father allowing the child’s “attorney
and/or [his] social worker access into the family home and access to” the child.
While the juvenile court may consider Father leaving the country without
permission, as it did in this case, and the generic orders made at the detention hearing,
neither factor showed by clear and convincing evidence that the child will be harmed if
Father is given custody of the child. The juvenile court here found that Father was not
specifically informed to not leave the state or the country and that there was no specific
order prohibiting Father from leaving the country. The court also determined that the
generic orders were insufficient to show Father violated any court order because those
orders “could be easily misunderstood.” There was no reason for the court not to believe
the information that Father was required to leave California to address a family
emergency and that Father likely did not understand the appearance of such a trip. The
factors as noted by Mother are simply insufficient to deny Father his constitutionally
17
protected right to custody in a dependency proceeding where he was found to be the
nonoffending, noncustodial parent who desired custody of his child. Mother, as the party
opposing placement with a noncustodial parent, did not meet her burden to show by clear
and convincing evidence that the child would be harmed if placed in Father’s custody.
(C.M., supra, 232 Cal.App.4th at p. 1402; K.B., supra, 239 Cal.App.4th at p. 979.)
We note that the juvenile court’s decision in no way forecloses Mother from
seeking custody of the child at a later time. Section 361.2, subdivision (b)(1), states that
“[t]he custody order shall continue unless modified by a subsequent order of the superior
court.” Mother’s commendable efforts in participating in mental health services and
individual therapy would presumably be factors considered by a court if Mother requests
the custody order be modified.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J. We concur:
MILLER Acting P. J.
FIELDS J.
18
AI Brief
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Holding. The juvenile court did not abuse its discretion in granting the nonoffending father sole legal and physical custody of the child and terminating dependency jurisdiction without providing reunification services to the mother.
Issues
Did the juvenile court abuse its discretion by granting the nonoffending father sole legal and physical custody and terminating jurisdiction?
Did the juvenile court err by denying the mother reunification services?
Was there clear and convincing evidence of detriment to the child to justify denying placement with the noncustodial father?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The juvenile court selected the first option, granting Father full custody and terminating jurisdiction without ordering reunification services for Mother. We review this decision for abuse of discretion.”
“There was no indication in the record that the child was not safe in Father’s care, that Father posed a risk of detriment to the child, or that it would be detrimental to allow the child to reside in Father’s care.”
“Having placed the child with Father, the court was not obliged to provide reunification services to Mother.”