Orange Cnty. Soc. Servs. Agency v. A.S. (In re H.M.)
| Docket Number | G061679 |
| Decision Date | 20 July 2023 |
| Parties | In re H.M., a Person Coming Under the Juvenile Court Law. v. A.S., Defendant and Appellant. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No 17DP0280, Douglas Hatchimonji, Judge. Affirmed.
Lelah S. Fisher, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su Deputy County Counsel, for Plaintiff and Respondent.
Elizabeth C. Alexander for Respondent
A.M Leslie A. Barry for the Minor.
H.M., who was born in April 2006, was taken into protective custody over six years ago, in March 2017, after he tested positive for benzodiazepine. The source of the benzodiazepine has never been determined, but that issue long ago ceased to be the concern of the dependency proceedings. Ever since custody of H.M. was vested with his father, A.M. (Father), at the dispositional hearing in 2017, the primary concerns of the dependency case have become H.M.'s increasing alienation from H.M.'s mother, A.S. (Mother), and Father's role in causing that alienation.
In fact, while in Father's custody, H.M. has become so completely alienated from Mother that he refuses to visit her, claims he wants never to see her again, and considers her "dead" to him. During the course of this long and difficult dependency case, the juvenile court has issued countless orders and the Orange County Social Services Agency (SSA) has undertaken monumental efforts to repair the relationship between H.M. and Mother. All failed, in no small part due to Father's obstructionist actions. Although Father bears some responsibility for H.M.'s alienation from Mother, H.M. is closely bonded to him. H.M. wants desperately for the dependency case to end and to continue living in Nevada with Father, Father's wife (Stepmother), and his siblings. H.M. is physically safe and healthy in Father's custody and is receiving appropriate care for his cystic fibrosis. The seemingly endless dependency case was causing H.M. to suffer emotionally, and, after five years of dependency jurisdiction, H.M.'s relationship with Mother had grown worse, not better. SSA said there were no other services it could offer and recommended ending the dependency case. Minor's counsel agreed.
Those were the facts before the juvenile court in August 2022 when, after a lengthy evidentiary hearing, the court ruled on Mother's two petitions under Welfare and Institutions Code section 388[1] to remove H.M. from Father's custody and decided, in connection with a review hearing under section 364, whether to terminate dependency court jurisdiction. The court, in a forceful, candid, and judicious statement of decision, denied Mother's petitions to remove H.M. from Father's custody and terminated dependency court jurisdiction. The court issued exit orders granting Father sole legal custody and Mother and Father joint physical custody of H.M. The juvenile court did not order visitation with Mother but granted H.M. the discretion to decide whether to visit her. Mother appealed.
We affirm the order denying removal of H.M. and terminating dependency court jurisdiction. The juvenile court acknowledged that the dependency system's family reunification goals had not been met, court orders designed to repair H.M.'s relationship with Mother had failed, Father had taken actions to "frustrate, manipulate, delay and defeat" those orders, and Father bore "a measure of responsibility" for H.M.'s alienation from Mother. Yet the court also recognized, correctly so, that the focus of the dependency system was the best interests of H.M., not on punishing Father, and concluded H.M.'s best interests would be served by denying Mother's petitions for removal and terminating dependency court jurisdiction. In reaching that conclusion, the court found the detriment H.M. likely would suffer if removed from Father's custody was "substantial, longstanding and likely irreparable" and outweighed the detriment H.M. would suffer from his continued alienation from Mother. The record supports the juvenile court's findings.
The juvenile court also concluded that conditions no longer existed that would justify dependency court jurisdiction, court supervision was no longer necessary, and the dependency case not only had failed to improve H.M.'s relations with Mother but was causing him emotional harm. Substantial evidence supports those conclusions as well as the court's decision not to order visitation. Forcing H.M. to visit Mother would be detrimental to him, and the record establishes almost conclusively that H.M., who is now 17 years old, would not visit Mother even if visitation was ordered.
The juvenile court's orders are not easy to accept in light of Father's behavior and role in alienating H.M. from Mother: As the juvenile court remarked, "it is certainly galling to close the case and give Father the 'win.'" The court's orders must be heartbreaking for Mother, who faces the prospect of never seeing H.M. again. But the juvenile court had to make difficult choices from among the available options, none of which was entirely satisfactory, much less ideal. The juvenile court correctly exercised its discretion in choosing among the options it had by making H.M.'s best interests the primary consideration and resisting the temptation to punish Father or to keep the case open to "bludgeon compliance with orders."
In a related appeal, and incorporated herein, Case No. G061361 (In re H.M. IV), Mother is appealing from an order declaring a mistrial on her two petitions to remove H.M. from Father's custody, her motion for a contempt citation against Father, and her motion for a contempt citation against SSA.
Mother and Father's marital dissolution and these dependency proceedings have been the source of four nonpublished opinions: In re Marriage of A.M.S. and A.C.M., Jr. (May 20, 2016, G051533); In re H.M. (May 18, 2018, G055484) (H.M. I); In re H.M. (July 16, 2018, G055754) (H.M. II); and In re H.M. (Aug. 2, 2019, G057128) (H.M. III). Here, as in H.M. IV, we take judicial notice of the opinions listed above. (Evid. Code, §§ 452, subd. (d); 459, subds. (a), (b) &(c).) On our own motion and for good cause, we have ordered the record on appeal for the instant matter incorporate by reference the records on appeal in H.M. I, H.M. II, Case No. G058566, and H.M. IV (which in turn incorporated by reference the records on appeal in H.M. III and Case No. G058378).
The facts and procedural history to March 2022 are recounted in our opinion in H.M. IV and in our prior opinions in In re Marriage of A.M.S. and A.C.M., H.M. I, H.M. II., and H.M. III. As we have done in our opinion in H.M. IV, we refer to Mother's two section 388 petitions to remove H.M. from Father's custody together as Mother's section 388 removal petitions, Father's section 388 petition requesting termination of dependency proceedings that was filed in March 2022 as Father's section 388 petition to terminate dependency jurisdiction, Father section 388 petition requesting that he be allowed to move to Nevada with H.M. as Father's move-away petition, Mother's second amended motion for a citation for contempt against Father as Mother's second amended contempt motion, Mother's motion for a citation for contempt against the director of SSA and social worker Ovieda as Mother's motion for contempt against SSA.
This section presents the facts from March through June 2022, when the retrial commenced. The facts are taken from SSA Addendum Report No. 26 dated April 27, 2022 (AR No. 26) and Addendum Report No. 27 (AR No. 27) dated June 9, 2022. We relate the contents of AR No. 26 and AR No. 27 by topic.[2]
SSA recommended that dependency proceedings be terminated with exit orders. Father had become more forthcoming about H.M.'s care and had provided information from which SSA assessed H.M.'s health, well-being, and safety. There appeared to be no risk of danger to H.M. while in Father's care: Father was keeping H.M. physically safe and healthy, provided for H.M.'s basic needs, and was making sure H.M. attended all of his medical and dental appointments, "[b]y all traditional accounts (i.e. medical, mental health, etc.), it appears [H.M.] is thriving in [Father's] care."
H.M. appeared to be in good health. In March 2022, Father's counsel provided SSA with records and pulmonary function reports for H.M. for visits in August and December 2021 and March 2022, dental progress notes for a visit in October 2021, and a letter from H.M.'s pediatrician from January 2022 stating that H.M. could not travel due to anxiety for being exposed to COVID-19 and having cystic fibrosis, and he was medically fragile. H.M. was seen every three months by his cystic fibrosis team in Nevada. A Public Health Nurse (PHN) reported that H.M.'s pulmonary functions appeared to be above normal and was not concerned about H.M.'s medical reports.
Father reported that he took H.M. to his scheduled medical visits every three months as well as his dental visits. In June 2022, Father reported that H.M.'s medical condition was "'better than ever.'" Father refused to sign releases for SSA to speak with H.M.'s medical providers to verify information and instead referred SSA to the information he had provided through his attorney.
In June 2022, H.M. reported that Father and Stepmother made sure he kept up with his doctor and specialist...
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