L. A. Cnty. Dep't of Children & Family Servs. v. C.E. (In re C.M.)

• Decision Date: 31 July 2019
• Docket Number: B291817
• Citation: 250 Cal.Rptr.3d 390,38 Cal.App.5th 101
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE C.M., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. C.E., Defendant and Appellant.

38 Cal.App.5th 101

250 Cal.Rptr.3d 390

IN RE C.M., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,

v.C.E., Defendant and Appellant.

B291817

Court of Appeal, Second District, Division 5, California.

Filed July 31, 2019

Certified for Partial Publication.^*

Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.

MOOR, J.

C.E. (father) appeals an order providing that he and B.D. (mother) share joint legal custody of their son, C.M., issued as part of an order terminating dependency jurisdiction under Welfare and Institutions Code section 362.4.¹ Father contends it was error to order joint legal custody in light of Family Code section 3044 and sustained petition allegations that mother engaged in acts of domestic violence against her male companion in the presence of her children. Alternatively, father contends the joint legal custody order was an abuse of discretion. The Los Angeles County Department of Children and Family Services (Department) contends the joint legal custody order was a valid exercise of the court's discretion. We conclude Family Code section 3044, and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under section 300 et seq. We also find the juvenile court's decision to award joint legal custody was not an abuse of discretion, and so we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has two children, half-siblings C.M. (born June 2012) and N.M. (born August 2014).² Mother had previously participated in voluntary family maintenance in 2016, after N.M.'s father, M.M., was arrested for domestic violence.

The current case started in May 2017, when the Department filed a dependency petition alleging that both minor children were dependents described by section 300. The factual allegations—which were identical for separate counts under section 300, subdivisions (a) and (b)—stated that mother and M.M. had a history of engaging in domestic violence in the children's presence, mother was arrested for domestic violence and child endangerment, and the violent conduct between mother and M.M. placed the children at risk of suffering serious physical harm. The court ordered the children detained and placed with maternal grandmother, with separate monitored visits for the parents.

In a July 2017 jurisdiction and disposition report, the Department stated mother refused to be interviewed for the report without her attorney. Mother had started services in June 2017. Reviewing the history of his relationship with mother and C.M., father told a social worker he had an "on and off" relationship with mother that he ended after she started hitting herself and threatening to call the police during an argument. According to father, mother told him he was the father when she was pregnant with C.M., but after C.M. was born, she asked father to stay away because M.M. had a problem with father, and C.M. believed M.M. was his father. When M.M. was not around, she would allow father to see C.M. Father regretted not seeking custody of C.M. sooner, and he felt sorry for M.M. because mother was also interfering in M.M.'s relationship with N.M. Father was glad the Department was involved so he could now see C.M. Father was concerned about mother telling C.M. he is not C.M.'s father. He did not want to take M.M. from C.M. or confuse C.M., so father would tell C.M. he has two dads.

By August 2017, mother was enrolled and participating in services, and father had completed an online parenting course. The Department liberalized father's visits to unmonitored. The Department raised concerns that mother continued to reside on the same property as maternal grandmother; mother was seeing C.M. every day, and she and maternal grandmother would discuss case issues with him, saying that he would be able to live with mother again soon. Maternal grandmother accused father of hitting C.M., but when the social worker interviewed C.M., he denied being hit by father, and said he enjoyed visits with father and would like visits to be longer.

In September 2017, mother completed a parenting program. However, maternal grandmother continued to accuse father and his fiancée of mistreating C.M., and the Department remained concerned that mother and maternal grandmother were coaching C.M. When asked about visits with father, C.M. advised the social worker that mother had told him that M.M. is his father, and that father is just his mother's friend. Father contacted the social worker after maternal grandmother was uncooperative about visitation exchanges.

On September 29, 2017, the court released C.M. to father's custody under the Department's supervision. Maternal grandmother was given monitored visits, and mother's visits—which could no longer be monitored by maternal grandmother—were to take place at the Department's offices.

In November 2017, mother accused father of abusing C.M., posting on social media a photo of C.M. with a bruise on his right cheek. According to the social worker, the bruise occurred when C.M. fell on some rocks on Halloween. On November 9, 2017, the first day of the contested adjudication hearing, the court ordered that "no parties, including family members, are to speak negatively about anything to [C.M.]" or to discuss or post case-related matters on social media.

On December 26, 2017, the second day of the adjudication hearing, father told the Department he was not comfortable with the case being closed, because mother would not follow any of the rules if the Department was no longer involved. Father had scheduled an intake session for C.M. to start individual counseling, and he noted that C.M. was more aggressive and bratty after visits with mother. Mother wanted unsupervised visits with the children, and described father's fiancée as overly permissive with C.M. Mother provided the Department with character letters from a pastor, a friend, and a cousin, describing her as family-oriented, nurturing, and loving. She also provided the boys' Sunday school attendance records from July 2016 through October 2017.

After reviewing the testimony and evidence, the court sustained the petition allegations and ordered mother to participate in a 52-week domestic violence batterer's program, anger management, parenting program, mental health counseling, psychiatric and psychological assessments (psychological evaluations under Evid. Code, § 730 ), and individual counseling to address case issues and co-parenting.

In early 2018, mother filed a section 388 petition seeking to have C.M. returned to her custody. The Department filed a response, acknowledging mother's participation in anger management classes and individual counseling. The domestic violence program mother completed was only a 10-week domestic violence awareness course, not a 52-week domestic violence batterer's course as ordered by the court. The Department had not yet received mother's psychological evaluation report. According to the Department's report, Mother stated she was bonded to the children and that, before detention, C.M. had no contact with father. Mother expressed concern about stability and consistency, noting she took the children to church weekly. The Department expressed concern about whether mother was able to take responsibility for her actions, noting she had not acknowledged fault for the detention of her children, and was quick to blame others. Mother was unable to tell the social worker what she had learned or what had changed since the children were detained. Mother also discussed case issues with C.M. during visits, telling him he would be living with mother and would not see father, reportedly causing C.M. to feel sad and scared. Based on the lack of evidence that mother had resolved the issues leading to the dependency case, along with her failure to complete a 52-week domestic violence batterer's program and her pending psychological evaluation, the Department recommended that the court deny mother's section 388 petition.

On May 30, 2018, the Department provided the court with mother's psychological evaluation, but expressed concern that the parties who were interviewed for the evaluation were not sufficiently trained to opine on mother's mental health. The evaluation itself is not part of the record on appeal. According to the Department, the psychological evaluation recommended mother continue with monitored visitation and continue in counseling, with visits increasing gradually if mother was making good progress. The court denied mother's section 388 petition after a hearing.

Before the six-month status review hearing, the Department reported father had three conjoint counseling sessions with C.M. At a child and family team meeting in March 2018, father said he mostly worried about co-parenting with mother, because she is very controlling and not likely to follow court orders. These tendencies were evidenced by her efforts to talk to the children about their fathers during visits despite being reminded not to do so. Mother would badger C.M. with questions and not stop even after C.M. would make it known he was uncomfortable or tired of answering questions. C.M. told the social worker on multiple occasions that he just wants all this to be over with and for everyone to get along. He loves both mother and father, and doesn't want to "pick" his favorite family.

During mother's monitored visits, she was observed to be attentive to her children, playing with them at all times. She would bring many toys and a variety of foods. During visits, mother would occasionally discuss case issues, but would stop when reminded by the monitor. Mother stated she believes she is an "amazing...