Filed 9/30/20 In re Isabella H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Isabella H., a Person Coming
Under the Juvenile Court Law.
D077340
SAN DIEGO COUNTY HEALTH
AND HUMAN SERVICES
AGENCY, (Super. Ct. No. J519883)
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Rohanee Zapanta, Judge. Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for
Defendant and Appellant.
Thomas E. Montgomery, County Counsel, Caitlin E. Rae, Chief Deputy
County Counsel, and Jesica N. Fellman, Deputy County Counsel, for Plaintiff
and Respondent.
M.C. (Mother) appeals a juvenile court’s custody and visitation order
under Welfare and Institutions Code1 section 362.4. The order granted sole
legal custody of Mother’s two-year-old daughter, Isabella H., to the child’s
father, Michael H. (Father). Mother argues that this “exit” order was not in
Isabella’s best interests and constituted an abuse of the court’s discretion.
We conclude the court did not abuse its discretion and accordingly, affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Prior to the instant case, in October 2013, one of Mother’s children
(Annette) tragically died. A clothes-filled dresser with a television on top
tipped over and crushed the little girl while Mother was in another room.
Law enforcement deemed the death an accident.
In late September 2017, Mother gave birth to Isabella. Father was
present at the birth and acknowledged paternity. Mother and Father were
not married or in a committed relationship. Not long after the baby’s birth,
the parents had several violent fights stemming from the fact that Father
had another girlfriend. Father maintained relationships with both women,
each one knew about the other, and Mother was very unhappy about the
situation.2
In September 2018, 11-month-old Isabella was living in a mobile home
with Mother, Father, and the paternal grandparents. One night, Father was
out with his girlfriend, the paternal grandparents were in Mexico, and
Mother was responsible for watching Isabella. Unknown to Mother, at about
1 Further unspecified statutory references are to the Welfare and
Institutions Code.
2 According to Father, he cheated on his girlfriend with Mother, thus
conceiving Isabella. Father subsequently tried to maintain a relationship
with Mother for the baby’s sake.
2
10:00 p.m., the baby managed to crawl out of the home onto the porch, down
a set of stairs, and reach the entrance of the mobile home park. There, a
resident “slammed on [his or her vehicle’s] brakes” to avoid contact, observed
a baby in the road, and contacted law enforcement. Mother had no idea
anything was amiss until an officer arrived at the home with Isabella. When
questioned, Mother said she thought a relative in the house was watching the
baby despite that she had not asked anyone for help.
The San Diego Health and Human Services Agency (Agency) began
investigating the case, initially seeking the parents’ voluntary compliance.
However, Mother and Father tended to minimize the September incident.
Several relatives thought Mother was depressed, or, still traumatized by her
prior daughter’s death. Mother presented with a flat, disengaged demeanor
when conversing with social workers.
The Agency also learned that the parents’ relationship was unhealthy,
and they had a history of physical altercations. Father did not wish to be in a
relationship with Mother anymore, but he also did not want her to be alone.
She was at the time six months pregnant with another of Father’s children
and had a six-year-old son (Carlos) by a different man. Mother agreed with
the Agency to move out of the family home but then failed to do so, and
Father declined to go to family court for custody orders. The Agency believed
that Isabella needed to be removed from Mother for the child’s protection.
In October 2018, the Agency filed a petition on Isabella’s behalf based
on a substantial risk of serious physical harm due to Mother’s inadequate
supervision (§ 300, subd. (b).) The juvenile court detained the child with
Father and ordered separate, supervised visits for Mother. She was ordered
“not to spend the night or reside in the same home as the child” and “not to
visit at the [family] home.”
3
Following the detention hearing, an incident occurred where Mother
found out that Father’s girlfriend was visiting, Mother “showed up” at the
home unannounced, and she refused to leave until paternal grandmother
threatened to call the police. Mother left, and law enforcement advised
paternal grandmother that she should obtain a restraining order. Mother
intensely disliked and distrusted Father’s girlfriend.
In December 2018, the juvenile court made a true finding on the
petition and assumed dependency jurisdiction. The court ordered Isabella’s
placement with Father, family maintenance services for him, and
reunification services for Mother, including supervised visits. Both parents
were directed to comply with their case plans.
Over the next six months, the parents made a little progress on their
case plans. Isabella was doing well in Father’s care. When he was working,
the paternal grandmother provided care. Mother was working and having
positive supervised visits with Isabella but had barely begun individual
therapy sessions.
Toward the end of the reporting period, another incident occurred at
the home during which Mother broke a window and Father called police.
That day, she had called him several times, but he was asleep and did not see
the missed calls. Mother then “showed up” at the home and knocked on the
door, wanting to take Isabella. Father walked away without saying a word,
Mother tried to get his attention through a bedroom window, and she broke
the window glass. The broken glass scared Isabella. Outside the house,
Father tried to explain to Mother that he had already made plans with the
child. The parents argued, and Mother refused to leave until Father called
the police.
4
At the June 2019 review hearing, the court continued its dependency
jurisdiction and Isabella’s placement with Father. It set three and six month
review hearings.
During the next three months, Father tried to comply with his case
plan, but had trouble juggling program attendance and his work schedule.
Father was able to remedy social workers’ concerns about Isabella’s unkempt
appearance and the home’s clutter. Mother maintained positive supervised
visits with Isabella but struggled to consistently attend therapy sessions. At
the September interim review hearing, the court again continued its
jurisdiction and confirmed existing orders.
By the end of 2019, the Agency recommended the court’s terminating
jurisdiction and granting full legal and physical custody of Isabella to Father.
He had completed his parenting classes and attended several CoDA3
meetings. Father still had to follow through with taking Isabella to all her
health-related appointments as well as enroll her in Head Start, but in the
Agency’s assessment, the child was no longer at risk of serious physical harm
due to inadequate supervision. Isabella had been kept safe, and well
monitored, by Father. For her part, Mother was making progress on her
services and on the verge of gaining unsupervised visits with Isabella; the
Agency merely wanted Mother to demonstrate consistent participation in
individual therapy over time. Mother was helping to take Isabella to her
appointments, accompanied by a supervising family member.
At the contested family maintenance review hearing in February 2020,
the Agency continued to recommend termination of jurisdiction and granting
sole legal and physical custody of Isabella to Father, while noting its support
3 CoDA, or Co-Dependents Anonymous, is a support group that assists
participants in developing healthy relationships.
5
of unsupervised visits for Mother. Isabella’s counsel (minor’s counsel) wished
to keep the case open, expressed concern over the parents’ incomplete
participation in services, and opposed unsupervised visitation. Mother’s
counsel requested that Mother receive joint legal custody of Isabella, so
Mother could participate in decisions over the child’s schooling and medical
appointments.4
Based on the evidence and counsel’s arguments, the juvenile court
terminated its jurisdiction for reasons stated on the record, granted sole legal
and physical custody of Isabella to Father, authorized unsupervised visits for
Mother, and directed the custody/visitation order be forwarded to family
court. The court discussed, “[a]s it relates to legal custody, I think that
[Father] has had custody of Isabella and that his ability to keep custody of
her and maintain her health and well-being without any actual risk
presenting itself throughout the course of this case is a testament . . . that he
would be able to provide a healthy and safe environment as the sole legal
custodian . . . .” The court remarked that if Mother successfully progressed
through unsupervised visits, then she “can go ahead and ask for or seek a
different type of custodial status at some future date and time.”
Mother’s appeal followed.
DISCUSSION
Mother argues that the juvenile court’s exit order granting sole legal
custody of Isabella to Father was not in the child’s best interests, and
4 Mother’s counsel also argued that Mother was caring for Isabella while
Father was at work, but we have not located any support in the record for
this claim. To the contrary, the Agency’s addendum report filed February 11,
2020, states that Father “reported that his mother cares for his daughter
while he is at work.” (Italics added.) It appears that paternal grandmother
cared for Isabella when Father was working, which is consistent with the
case history and the court’s order for Mother to have supervised visits only.
6
therefore an abuse of the court’s discretion. The Agency responds that the
order was well within the court’s broad discretion considering all the
circumstances, and, Mother has the option of petitioning a family court for
joint legal custody in the future. We conclude the court acted within its
discretion.
Guiding Principles
When the juvenile court terminates dependency jurisdiction, it may
issue a custody and visitation order. (§ 362.4.) Under section 362.4, the court
has broad discretion to fashion custody and visitation orders, considering the
totality of the child’s circumstances and the best interests of the child. (In re
Chantal S. (1996) 13 Cal.4th 196, 206; In re John W. (1996) 41 Cal.App.4th
961, 973; see In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess).)
A juvenile court custody and visitation order, commonly referred to as an
“exit order,” is enforceable in family court. (In re John W., supra, at p. 970;
In re Chantal S., supra, at p. 213.)
When making a custody determination, the juvenile court’s focus and
primary consideration is the best interests of the child. (In re Nicholas H.
(2003) 112 Cal.App.4th 251, 268 (Nicholas H.).) The juvenile court is not
bound by any family court preferences or presumptions, e.g., a presumption
of parental fitness. (Ibid., citing In re Chantal S., supra, 13 Cal.4th at
p. 206.) “[A] finding that neither parent poses any danger to the child does
not mean that both are equally entitled to half custody, since joint physical
custody may not be in the child’s best interests for a variety of reasons.
[Citation.] By the same token, a finding that the parent from whom custody
was removed no longer poses a risk of detriment or that the parent whose
custody has been subject to supervision no longer requires supervision is
7
relevant to, but not necessarily determinative of, the best interests of the
child.” (Nicholas H., supra, at p. 268.)
After the juvenile court has made an initial custody and visitation
order, the noncustodial parent may seek to alter the order for legal and
physical custody on a showing that there has been a substantial change of
circumstances and that modification is essential to the child’s welfare.
(Burgess, supra, 13 Cal.4th at p. 37; F.T. v. L.J. (2011) 194 Cal.App.4th 1, 14-
15.) The changed circumstances rule provides that once the court has
determined a particular custodial arrangement is in the best interests of the
child, the court should preserve the established mode of custody unless some
significant change in circumstances indicates that a different arrangement
would be in the child’s best interests. The rule promotes “the dual goals of
judicial economy and protecting stable custody arrangements.” (Burchard v.
Garay (1986) 42 Cal.3d 531, 535.)
“The standard of appellate review of custody and visitation orders is
the deferential abuse of discretion test. [Citation.] The precise measure is
whether the trial court could have reasonably concluded that the order in
question advanced the ‘best interest’ of the child. We are required to uphold
the ruling if it is correct on any basis, regardless of whether such basis was
actually invoked.” (Burgess, supra, 13 Cal.4th at p. 32; In re Maya L. (2014)
232 Cal.App.4th 81, 102 [“We review a juvenile court’s custody orders for
abuse of discretion”].)
Analysis
Mother has not established an abuse of discretion by the juvenile court.
One of the primary reasons the court felt comfortable terminating its
jurisdiction was that Father had kept Isabella safe for well over a year and
the court decided that, under his sole care and custody, dangers arising from
8
inadequate supervision were unlikely to recur. The initial protective issue
was Mother’s inadequate supervision, yet by the time of the last hearing, she
had not begun unsupervised visits with Isabella. Particularly concerning to
the Agency was that a previous child of Mother’s had died under her watch.
The court could reasonably vest sole legal and physical custody in Father to
minimize the risk of serious physical harm to Isabella.5 (See In re Jennifer
R. (1993) 14 Cal.App.4th 704, 713 [vesting sole legal and physical custody in
father alleviated protective issues and was in child’s best interests].)
In addition, joint legal custody6 of the child would require a cooperative
relationship between the parents, but on multiple occasions, Mother
exhibited poor judgment and/or difficulty co-parenting with Father. There
was an incident involving his girlfriend where Mother showed up uninvited
at the house and declared her preference for Isabella to be in foster care
rather than with Father. In another incident, Mother tried to take Isabella
for a visit against Father’s wishes and became destructive in the process.
Mother was not always able to put Isabella’s interests above her own. Under
the circumstances, the juvenile court could reasonably conclude that Mother
was not ready to share legal custody.
Mother argues she should have been granted joint legal custody
because it would allow her to arrange for Isabella’s health and educational
5 Sole legal custody means that “one parent shall have the right and the
responsibility to make the decisions relating to the health, education, and
welfare of a child.” (Fam. Code, § 3006.) Sole physical custody means that “a
child shall reside with and be under the supervision of one parent, subject to
the power of the court to order visitation.” (Fam. Code, § 3007.)
6 Joint legal custody means that “both parents shall share the right and
the responsibility to make the decisions relating to the health, education, and
welfare of a child.” (Fam. Code, § 3003.)
9
needs where Father was struggling to follow through.7 We are convinced the
juvenile court considered Mother’s point of view and believed, on balance,
that it was in Isabella’s best interest for Father to have sole decision making
authority. Two-year-old Isabella was generally healthy and not yet of school
age. Even if he had delayed, Father eventually set Isabella’s dental
appointment, for example, and arranged for Mother and the maternal aunt to
take Isabella to the appointment.
Mother further argues she made substantial progress in overcoming
the protective issues. The juvenile court apparently considered and agreed
that Mother had made progress, thus authorizing her to begin unsupervised
visits. Nevertheless, based on the totality of circumstances at the time of
hearing, the court could reasonably determine that granting sole legal
custody of Isabella to Father was in the child’s best interests. “Should
circumstances change in the future [Mother] is free to seek joint legal custody
in the family law court.” (In re Jennifer R., supra, 14 Cal.App.4th at p. 714.)
7 Mother also argues she was Isabella’s “de facto primary caretaker.”
Although Mother’s counsel made this argument at trial, we find no record
support for the proposition that Mother was Isabella’s primary caretaker
during the pendency of the case. See footnote 4, supra.
10
DISPOSITION
The juvenile court’s custody and visitation order is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
O’ROURKE, J.
11