In re N.C. CA2/5 ( 2020 )

Filed 12/30/20 In re N.C. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re N.C., a Person Coming B304657
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
19CCJP02749C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
F.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Philip L. Soto, Judge. Affirmed.
Patricia G. Bell, under appointment by the Court of Appeal,
for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, David Michael Miller, Deputy County
Counsel, for Plaintiff and Respondent.
____________________________________
I. INTRODUCTION
After terminating jurisdiction over her three children, the
juvenile court entered an exit custody order granting F.C.
(mother) joint legal and physical custody of her youngest child,
N.C., but placing the child in the residence of J.H. (father) and
limiting mother’s visitation rights to unmonitored overnight
visits every other weekend. On appeal, mother contends the
court abused its discretion by limiting her visitation rights
without first considering the best interests of N.C. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Appeal
In March 2019, N.C.’s family came to the attention of the
Department of Children and Family Services (the Department)
based on a report of a domestic violence incident between mother
and Z.J., the father of one of her sons. During the incident, Z.J.
confronted mother in an aggressive manner as she was dropping
her son off for a visit. Mother exited her car with a knife, leaving
N.C. inside, and as Z.J. approached her in a threatening manner,
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stabbed him in the wrist. (In re J.M. et al. (June 2, 2020,
B298684) [nonpub. opn.].)
On May 1, 2019, the Department filed a Welfare and
Institutions Code section 3001 petition, alleging as to N.C.2 that
mother’s most recent incident of domestic violence with Z.J., as
well as her past violent and verbal altercations with him, placed
N.C. and her two older siblings at risk of harm.
At the jurisdiction/disposition hearing, the juvenile court
sustained the petition and declared mother’s children dependents
of the court. After N.C.’s counsel advised the court that pursuant
to a family court order,3 father had physical custody of N.C., the
court ordered that N.C. be placed with father and that mother be
granted “‘whatever visits the family law court has given her with
regards to [N.C.].’” Mother timely appealed from the jurisdiction
and disposition orders. (In re J.M. et al., supra, B298684.)
On June 2, 2020, we issued the opinion in mother’s first
appeal which affirmed the juvenile court’s jurisdictional order, as
to N.C. only, and dismissed as moot the appeal from the other
jurisdictional orders and all of the dispositional orders. (In re
J.M. et al., supra, B298684.)
1 All further statutory references are to the Welfare and
Institutions Code.
2 The petition also included allegations as to mother’s two
older children.
3 On May 17, 2019, the court in an ongoing family law
proceeding between mother and father issued a custody order
granting father sole legal and physical custody of N.C. The court
granted mother unmonitored visitation with N.C. every other
weekend.
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B. Hearing on Section 388 Motion and Termination of
Jurisdiction Under Section 364
1. Section 388 Motion
On November 20, 2019, while her prior appeal was
pending, mother filed a request to change court order pursuant to
section 388. According to mother, following the juvenile court’s
dispositional order placing N.C. with father, his wife alleged
domestic abuse against him and filed for a restraining order.
Moreover, father and N.C. were staying with a friend because
they had been “kicked out of the house,” and father’s wife had
instituted divorce proceedings against him. Mother maintained
that she would provide a more stable living environment for N.C.
“during this transition” and that, if N.C. were placed with her,
the child could bond with her two older siblings. Accordingly,
mother requested the juvenile court to order that N.C. be placed
in her home. The court set the motion for hearing on December
12, 2019, the same day as the scheduled section 364 judicial
review hearing.
2. Status Review Report
On November 26, 2019, the Department filed a status
review report, stating that since the last report, N.C. had resided
primarily with father. Father was in the process of moving and
was currently living with a friend whose house the social worker
had reviewed and found appropriate. Father had been “very
cooperative” with the Department and, in particular, with
scheduling monthly social worker visits with N.C. He was also
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“very patient and loving” with N.C. during the social worker’s
visits.
N.C. appeared well-bonded to both mother and father, was
doing well in preschool, and remained healthy “with no major
health or safety concerns observed or reported.”
During the reporting period, the Department had received
two referrals involving father. In May 2019, the Department
received an allegation of “general neglect” of N.C. But after
investigation, the Department closed the matter as unfounded.
In June 2019, the Department received another report from a
caller alleging that when mother picked up N.C. for a weekend
visit, she noticed a bruise on the child’s ear. The Department
also closed that matter as unfounded.
3. Last Minute Information
On December 12, 2019, the Department filed a last minute
information reporting that the petition for a restraining order
against father filed by his wife had been denied. According to
father, he and N.C. would be moving back into the family home
the following weekend.
4. Section 388 Report
On January 9, 2020, the Department filed a section 388
report, in which it provided further information about the two
referrals alleging abuse and neglect of N.C. involving father in
May and June 2019. The Department explained that after an
investigation, both referrals were deemed unfounded. The
Department also gave further information about the petition for a
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protective order filed against father by his wife. According to the
wife, father pushed and shoved her injuring her hand.
Subsequent to that incident, father allegedly threatened to hit his
wife; and he also threatened to take his own life and N.C.’s. In
addition, father had allegedly punched holes in the wall,
threatened to destroy the wife’s property, and called her a
“‘whore’” in front of N.C. The wife asked the court to remove
father from her home before he killed her.
Although father’s wife had requested and obtained a
temporary restraining order against him, a permanent
restraining order was subsequently denied. Father and his wife
both denied that there was domestic violence in their relationship
and blamed mother for any marital issues they were
experiencing.
A social worker reported that the parents spoke over one
another and had to be reminded to keep the conversation about
the child. Mother stated that “‘[t]here’s always drama involved
when he brings his wife [to exchanges].’” Father reported that
whenever he and mother exchanged custody of N.C. at the police
station, there was conflict between the two. The police had to tell
mother to stop making negative comments about father’s wife
during the exchanges. On one occasion, father was late to the
police station and mother left, which required the police to escort
father to mother’s home to retrieve N.C. Father’s wife stated
that she tried to help with exchanges, but that mother did not
want N.C. to be around the wife and therefore had made false
allegations against the wife and had sought a restraining order
against her.
The director of N.C.’s preschool reported that N.C. was
“‘doing great’” in school and that she “‘lights up when she sees
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her father . . . .’” The Department also advised that N.C. was
“happy, well cared[-]for and bonded to both [of her] parents.”
5. Last Minute Information
On January 10, 2020, the Department advised the juvenile
court that, in its view, it would not be in the best interest of N.C.
“to have a joint custody order due to [her] parent[s’] inability to
communicate and/or agree upon any decision.” The Department
recommended against any change to the current custody order
and that “the parents address all changes to their custody order
with the [f]amily [l]aw [c]ourt . . . .”
6. Hearing and Order
At the January 13, 2020, joint hearing on the section 388
motion and the section 364 review, the juvenile court marked and
received the parties’ documentary exhibits4 and heard their
arguments. The court then ordered the following: “We will grant
the request for [a home-of-parents] order for mother and [father]
under the following conditions: Primary residence remains with
father. Mother is to continue to have unmonitored, overnight
visits every other weekend. Exchanges are to be done at a local
police or sheriff’s station in the lobby. Only the parents are
ordered to attend exchanges. There’s to be no derogatory or
4 Mother’s exhibit B was a Los Angeles Police Department
investigative report which indicated that on December 4, 2019,
mother advised the police that two days earlier father had posted
a nude photo of mother without her permission on a phone app
that they used to communicate.
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demeaning remarks made toward one another by the parents
directly or indirectly to the child nor in any communications
between the parents including any photographs which may be of
embarrassment to either parent . . . . [¶] . . . [¶] We will close
[N.C.’s] case finding there’s no further need for judicial oversight
or intervention. . . . Jurisdiction is terminated . . . .” The court
then asked that mother’s counsel prepare “that family law order
up.”
The custody order subsequently prepared by counsel
specified that the parents would have joint legal and physical
custody, but that N.C.’s primary residence would be with father.
The order granted mother visitation every other weekend. The
juvenile court filed the order on January 17, 2020. Mother filed a
timely notice of appeal from the custody order.
III. DISCUSSION
A. Legal Principles and Standard of Review
“‘When a juvenile court terminates its jurisdiction over a
dependent child, it is empowered to make “exit orders” regarding
custody and visitation. [Citations.] Such orders become part of
any family court proceeding concerning the same child and will
remain in effect until they are terminated or modified by the
family court. [Citation.]’ [Citation.]” (In re A.C. (2011) 197
Cal. App. 4th 796, 799.) In issuing an exit order under section
362.4, the juvenile court’s goal in assigning custody is to serve
“the best interests of the child.” (In re Jennifer R. (1993) 14
Cal. App. 4th 704, 712; In re Nicholas H. (2003) 112 Cal. App. 4th
251, 268 [“When making a custody determination in any
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dependency case, the court’s focus and primary consideration
must always be the best interests of the child”].)
“We normally review the juvenile court’s decision . . . to
issue a custody (or ‘exit’) order pursuant to section 362.4 for
abuse of discretion . . . .” (Bridget A. v. Superior Court (2007) 148
Cal. App. 4th 285, 300.) ““‘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.)
B. Custody Order
Mother contends that the juvenile court abused its
discretion when it issued the exit custody order that limited her
visitation rights with N.C. According to mother, because the
court’s order granting her joint physical custody of N.C. implicitly
found that a shared custody arrangement was in the best interest
of the child, there was no rational basis upon which the court
could have nevertheless limited mother’s visitation with N.C. We
disagree.
Here, the evidence showed that N.C. was thriving in the
current custody arrangement and that mother and father
continued to engage in conflict during exchanges, including
conflict that required police intervention. On this record, the
juvenile court could have reasonably concluded that maintaining
the status quo on mother’s visitation rights, avoiding further
opportunities for conflict between the parents during exchanges,
and stability in N.C.’s residence was in N.C.’s best interest. The
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court’s order also explicitly contemplated further proceedings in
the ongoing family law matter between father and mother in
which the family court could modify the custody order. When
viewed in that context, the juvenile court’s order was not
arbitrary or capricious, and, contrary to mother’s assertion, it
reflected a reasoned consideration of N.C.’s best interests under
the current circumstances. Thus, the visitation limitation,
pending further consideration by the family law court, was not an
abuse of discretion.
IV. DISPOSITION
The exit custody order as to N.C. is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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