Filed 2/17/21 In re N.J. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re N.J. et al., Persons Coming B305116
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos.
AND FAMILY SERVICES, 19CCJP06645A
19CCJP06645B
Plaintiff and Respondent, 19CCJP06645C)
v.
J.M. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of Los Angeles
County, Stephen C. Marpet, Judge Pro Tempore. Affirmed in
part, reversed and remanded in part.
Lelah S. Fisher, under appointment by the Court of Appeal,
for Defendant and Appellant J.M.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant D.Z.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and Melania Vartanian, Deputy County
Counsel, for Plaintiff and Respondent.
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J.M. (mother) appeals from the order of the juvenile court
terminating its jurisdiction over her son N.J. after placing the
child with his father, T.J., under Welfare and Institutions Code1
section 361.2, subdivision (b)(1). We reject most of mother’s
contentions but agree that the court erred in failing to establish
the rate and length of her visits with N.J. in the exit order.
In a separate appeal, D.Z. (father) challenges the order
taking jurisdiction over his and mother’s son and daughter based
on father’s substance abuse. (§ 300, subd. (b)(1).) We decline to
address the contention as father has not challenged the other
basis for jurisdiction namely, the parents’ domestic violence.
Accordingly, we reverse the exit order and remand it with
directions to the juvenile court to specify the frequency and
duration of mother’s visits with N.J. In all other respects, the
orders are affirmed.
1All further statutory references are to the Welfare and
Institutions Code.
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BACKGROUND
I. The events leading to the dependencies
A. The domestic violence incidents
At issue in this appeal are mother and father’s son (age 3)
and daughter (age 2), and N.J. (age 6), who is mother’s son with
T.J. As a nonoffending parent, T.J. is not a party to this appeal.
In late August 2019, mother and father argued about
whether mother was cheating on father. In front of the children,
father threw a bucket of water at mother and punched her in the
face. Mother called law enforcement who arrested father for
spousal assault.
Ten days later in early September 2019, law enforcement
arrested father a second time and notified DCFS.
Mother had also made two calls to 911 in January 2018
because of father’s violence.
DCFS filed a petition under section 300, subdivisions (a)
and (b) naming mother and father.
B. Mother
Mother refused an emergency protective order after the
first incident and indicated she would obtain a restraining order
later in the week, but never did. Mother initially indicated that
she would go to a shelter. She then decided to move in with
maternal grandmother. Instead, mother returned home where
the second violent incident occurred. She claimed she was never
looking for a shelter; she was looking for housing assistance from
DCFS because she and father needed a larger house. After the
second violent incident, mother acknowledged she needed a
protective order. However, she never followed up in court and
then left the children alone with father, once while she studied
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for a test, and again the day before he was arrested, to take the
test.
C. Father
DCFS found father’s interviews to be “extremely difficult”
because his responses were “hard to process and comprehend.”
He jumped from topic to topic, and changed his answers multiple
times. The social worker had difficulty following father, whose
thoughts were scattered and who at times was seen “zoning out
and not focusing on the interview.” To produce a timeline of
events, the social worker had to piece father’s statements
together.
In his interview for the detention report, father denied past
or current mental health problems or that he was ever prescribed
psychotropic medication. Later he acknowledged having been
diagnosed with depression in childhood. Father denied substance
abuse. Then, he said he occasionally smoked marijuana with his
cousins, but did not keep drugs in the house or smoke when the
children were present. DCFS found no evidence of drug
paraphernalia in father’s house. Father agreed to an on-demand
test, but warned that the result would be positive for marijuana
as he had smoked three weeks earlier. The result of his test,
taken 19 days after his second arrest, was positive.
Father was convicted in 2012 of driving under the influence
of alcohol (DUI). He denied having been arrested for DUI. DCFS
explained that father had “[a]rrests and/or convictions from 2010-
2019 use/under influence controlled substance, DUI alcohol drugs
(multiple), drive while license suspended/etc. (multiple).” After
this interview, father did not respond to numerous attempts by
DCFS to interview him again.
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D. T.J.
Mother told the social worker that she and T.J. have a
custody order allowing T.J. to visit N.J., but that he had not seen
the child in four years. Mother claimed she did not know where
to find T.J.
Shortly after mother’s detention interview, T.J. called
DCFS to say that mother contacted him crying that DCFS was
taking her children away and that she needed to sign her rights
to N.J. over to T.J. immediately. T.J. was shocked to learn that
mother claimed she did not know where he was. He denied
mother’s description of his contact with the child. N.J. stayed
with paternal grandmother every other weekend where T.J.
visited him. Mother had represented to T.J. and paternal
grandmother that the custody order banned T.J. from visiting
N.J. However, T.J. recently discovered that the custody order
awarded him visits every other weekend and on Tuesday and
Thursday evenings.
T.J. wanted full custody of N.J. N.J. knows T.J., his baby
half-brother, and T.J.’s fiancée. T.J.’s fiancée also has three
daughters from a previous relationship. T.J. was employed full
time, and paternal grandmother was willing to assist with
childcare.
II. Detention
At the detention hearing in October 2019, the juvenile court
ordered N.J. detained from mother and released to presumed-
father T.J. The court detained son and daughter from their
parents and placed them under the supervision of DCFS. Mother
enrolled in services.
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The jurisdiction report related that a month after moving
in with T.J.’s family, kindergartener N.J. appeared to be bonded
with T.J., respectful, and polite. Although he had given only
terse responses to the social worker’s questions when he was in
mother’s custody, N.J. reported that he liked living with T.J. who
is “fun.” N.J. was also “very playful” with T.J.’s other children.
The child was doing well and reported liking his new school
where he was making friends and listening to his teacher. T.J.’s
house was clean, organized, and devoid of hazards.
In preparing the jurisdiction report, DCFS learned more
from mother about the domestic violence. Mother described
father as jealous and insecure. One incident started when father
questioned daughter’s paternity. Mother explained that father
had recently become aggressive with her because father is “like
that and that he often gets jealous for reasons that do not always
make sense.” Once, father accused her of cheating on him with
the driver of a passing car who had looked at mother. Mother
believed father had stopped using marijuana a year or two
earlier. But, a friend of hers who knew about drug use told
mother that father must be on drugs if he is “cool one minute and
the next he’s not.”
Visitation went well. T.J. and the maternal relatives began
to have good communication. By February 2020, mother was
participating in her case plan.
Father finally met with DCFS in late December 2019. He
stated he had not smoked marijuana in five weeks. Asked
whether he would submit to a drug test, father asked to speak to
his attorney because he wanted to use marijuana for his
problems. He first claimed to have a medical recommendation for
marijuana because of insomnia, migraines, and depression. He
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later reversed himself, and admitted he did not have a
recommendation as it had expired “a long time ago.” Also,
despite his initial statement that he had no mental health issues,
father admitted he was diagnosed with depression as a child and
was previously prescribed Zoloft. No longer using prescription
medication, father stated that he was using marijuana to treat
his depression. Father provided no proof of participation in any
services.
DCFS recommended that the juvenile court terminate the
case involving N.J. with exit orders granting T.J. sole physical
custody and joint legal custody with mother, who would have
monitored contact with the child. As for the other two children,
DCFS recommended reunification services for mother and father,
and that the court order both children to undergo mental health
assessments.
III. Jurisdiction/disposition
At the hearing in February 2020, the juvenile court
sustained the petition as amended, alleging that mother and
father have a history of engaging in violent altercations (§ 300,
subds. (a) & (b)(1)) and that in September 2019, father entered a
plea of nolo contendere to Penal Code section 243, subdivision
(e)(1).
Also, the juvenile court sustained the petition’s allegation
that father “has a history of substance abuse and is a current
abuser of marijuana, which renders [him] incapable of providing
regular care of the children. On 09/25/2019, . . . father had a
positive toxicology screen for marijuana. The children . . . are of
such a young age as to require constant care and supervision
and . . . father’s substance abuse interferes with providing
regular care and supervision of the children. The . . . father has a
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criminal history of a conviction of DUI Alcohol .08 Percent.” The
petition further alleged that mother knew of father’s substance
abuse and failed to protect the children and allowed father to
have unlimited access to the children. Father’s substance abuse
and failure to protect endangered the children’s physical health
and safety. (§ 300, subd. (b).)
The juvenile court ordered that N.J. be placed with T.J. and
“pursuant to 361.2, subsection (b), I’m terminating jurisdiction
with a family law order of joint legal, sole physical and primary
to father. [¶] Mother to have reasonable monitored visits by a
monitor approved of by father.” The court ordered mother to
undergo reunification services.
The juvenile court ordered son and daughter removed from
their parents’ custody and awarded the parents monitored
visitation. Among the reunification services, the court ordered
father to undergo a drug and alcohol program with weekly
random, on demand testing, and to enroll in a 12-step program.
Five days after the adjudication and disposition hearing,
the juvenile court received the custody order, which provided that
mother would have visitation until further order of the court.
With the exit order in hand, the juvenile court terminated its
jurisdiction over N.J. Mother and father each appealed.
DISCUSSION
I. Mother’s appeal
A. No error in terminating jurisdiction over N.J.
Mother contends that the juvenile court could not
immediately terminate jurisdiction over N.J. and instead should
have continued his case for at least three months. We disagree.
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Section 361.2, subdivision (a) governs the placement of a
child who is removed from the custody of one parent and placed
with the other previously noncustodial parent. In such a case the
juvenile court has three choices; it may terminate its jurisdiction
over the child (§ 361.2, subd. (b)(1)), maintain jurisdiction for
three months pending a home visit (§ 361.2, subd. (b)(2)), or
maintain jurisdiction with court supervision (§ 361.2,
subd. (b)(3)). We generally review the juvenile court’s order
terminating jurisdiction for abuse of discretion while reviewing
its factual findings for substantial evidence. (In re A.J. (2013)
214 Cal.App.4th 525, 535, fn. 7; In re Janee W. (2006) 140
Cal.App.4th 1444, 1452.)
When assessing whether continued juvenile court
supervision is necessary, courts focus on the dependent children
and determine whether in the custody of the nonoffending parent
they are still at risk of harm and remain in need of juvenile court
protection. For example, in In re Janee W., supra, 140
Cal.App.4th at page 1452, the appellate court affirmed the
termination of jurisdiction citing the agency’s reports that
unambiguously praised how well the children were doing, and
how safe, clean, and happy they were. The appellate court in In
re Sarah M. (1991) 233 Cal.App.3d 1486, 1499 to 1500, observed
that the child was no longer at risk at the final hearing and no
longer needed the court’s protection. (See In re A.J., supra, 214
Cal.App.4th at p. 535 [evidence supported termination order
because there was no “ ‘protective issue’ ”].)
The evidence here shows that continued juvenile court
jurisdiction was not necessary to protect N.J. He had been
residing with T.J. for four months by the time of the challenged
order. The child liked living with T.J., was playful with his half-
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siblings, and liked his new school and friends. The child
described a positive relationship with T.J.’s fiancée and was “very
bonded” to father. T.J.’s house was clean, adequate, and hazard
free, and T.J. had several family members to help him. Unlike In
re Austin P. (2004) 118 Cal.App.4th 1124, 1134, cited by mother,
where the agency was unable to ensure that the child was
adequately protected in the care of the previously noncustodial
parent, DCFS here expressed no concerns about N.J.’s safety in
T.J.’s care and repeatedly recommended that the court terminate
its jurisdiction over him.
Mother argues that the juvenile court should have chosen
the second option under section 361.2, subdivision (b), namely, to
keep the case open for three months and order a home visit before
deciding to terminate jurisdiction. She reasons that termination
of jurisdiction at the disposition hearing should not be the norm
(see In re Destiny D. (2017) 15 Cal.App.5th 197, 211); that conflict
between her and T.J. could affect N.J.’s emotional well-being,
especially if he became estranged from maternal family; and that
T.J. prevented her from visiting as frequently as he had agreed
to. Mother adds that her progress in services showed she could
soon be a viable option for custody of N.J.
Addressing these arguments seriatim, first, section 361.2,
subdivision (b)(1) gives the juvenile court authority to terminate
its jurisdiction at the time it places the child with the previously
noncustodial parent, irrespective of whether such action should
be the norm. And here, the court had a four-month record on
which to make its assessment about whether continued
supervision was necessary. Second, mother’s speculation about
the effect on N.J. of any conflict between mother and T.J. does
not undermine the record, which shows that court supervision is
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unnecessary to protect N.J. in T.J.’s care. Third, contrary to
mother’s assertion, DCFS reported that visits with N.J. were
going well and T.J. had agreed to overnight visits with the
maternal grandparents. As the evidence supports the order, we
conclude that the court did not abuse its discretion in
terminating its jurisdiction over N.J. If mother believes there is
a change in circumstances based on her progress in services, she
may seek modification or termination of the custody and
visitation order in the family court. (§ 362.4.)
Finally, mother argues that reversal is required because
the juvenile court failed to make findings on the record for its
decision to terminate dependency jurisdiction over N.J. in
violation of section 361.2, subdivision (c), which requires a
written or oral statement of the basis for the placement and
termination rulings.
Admittedly, the record is silent about the juvenile court’s
reasons for its decision to terminate jurisdiction over N.J.
However, regardless of whether we may infer the findings to
support such order (see In re J.S. (2011) 196 Cal.App.4th 1069,
1078 [doctrine implied findings has limited scope where § 361.2,
subd. (c) requires express finding]), we conclude that the court’s
failure to put the reasons on the record was harmless. “Before
any judgment can be reversed for ordinary error, it must appear
that the error complained of ‘has resulted in a miscarriage of
justice.’ (Cal. Const., art. VI, § 13.) Reversal is justified ‘only
when the court, “after an examination of the entire cause,
including the evidence,” is of the “opinion” that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’ ” (In re
Cristian I. (2014) 224 Cal.App.4th 1088, 1098–1099.)
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Here there is no reasonable probability that had the trial
court actually stated its reasons on the record, it would have
declined to terminate its jurisdiction over N.J. The evidence
mother cites to support retention of jurisdiction was that T.J. had
only sporadic contact with N.J. for most of the child’s life before
being placed in T.J.’s custody, and that T.J. smoked marijuana
weeks before N.J. came to live with him. But, apart from the fact
that according to T.J. the two had more contact than mother
knew about, the overwhelming evidence is that once in T.J’s care,
N.J. did not require continuing juvenile court supervision.
Without a doubt, the court’s failure to recite its reasons on the
record was harmless.
B. The visitation portion of the exit order is error
Mother contends that the juvenile court’s exit order
erroneously omitted to specify her visits’ minimum frequency and
duration, effectively giving father veto power over her visits.
The juvenile court has the power to decide whether any
visitation occurs, but its discretion in fashioning visitation as
part of its exit order is not unlimited. (In re S.H. (2003) 111
Cal.App.4th 310, 317.) The court may not delegate to nonjudicial
officials or private parties, or even to the parents, its power to
determine the right to and extent of visitation. (In re Armando L.
(2016) 1 Cal.App.5th 606, 616.) Although the court may delegate
responsibility for managing the details of visits, including their
time, place and manner (In re Moriah T. (1994) 23 Cal.App.4th
1367, 1374), it must specify their frequency and duration (In re
Grace C. (2010) 190 Cal.App.4th 1470, 1478).
Here, the exit order clearly awarded mother monitored
visitation and gave father the authority only to approve the
monitor. However, the exit order left blank the part designating
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the frequency and length of mother’s visits. The portion of the
order concerning the visits’ rate and duration is unlawful and
hence an abuse of discretion. (See Kim v. Euromotors West/The
Auto Gallery (2007) 149 Cal.App.4th 170, 176–177.) The exit
order must be remanded so that the juvenile court can exercise
its discretion and establish the frequency and length of mother’s
monitored visits. As this family’s circumstances may have
changed since the February 2020 disposition hearing, the court
should consider any relevant evidence proffered by the parties
concerning the terms of the visitation order. (See In re T.H.
(2010) 190 Cal.App.4th 1119, 1124.)
II. Father’s appeal
Father does not appeal from the juvenile court’s finding it
has jurisdiction over son and daughter based on the parents’
domestic violence. Father’s sole contention is that there is no
evidence that he is a substance abuser and no evidence that his
marijuana use presents any risk of harm to the children.
When a juvenile court sustains a petition on multiple
grounds, the appellate court can affirm the order taking
jurisdiction over the children “if any one of the statutory bases for
jurisdiction . . . enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need
not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.” (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.) Father nonetheless
urges us to exercise our discretion to reach the merits because the
challenged finding served as a basis for the dispositional order,
just as a different panel of this court held in In re Drake M.
(2012) 211 Cal.App.4th 754, 762 to 763. We decline to address
the issue.
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The juvenile “court is not limited to the content of the
sustained petition when it considers what dispositional orders
would be in the best interests of the children. [Citations.]
Instead, the court may consider the evidence as a whole.” (In re
D.M. (2015) 242 Cal.App.4th 634, 647 (dis. opn. of Chavez, J.).)
When “the court is aware of other deficiencies that impede the
parent’s ability to reunify with his child, the court may address
them in the reunification plan.” (In re Christopher H. (1996) 50
Cal.App.4th 1001, 1008.) The record establishes that father
admitted he was self-medicating with marijuana and even asked
to speak to his attorney so that he could continue using that
drug. Father tested positive for cannabinoids and declined to test
a second time. He had multiple arrests for driving under the
influence of drugs or alcohol. During his interviews with DCFS,
father appeared to be “zoning out and not focusing on the
interview.” Regardless of whether the evidence supported the
finding he was a substance abuser, on this record the court had
the authority to order father to undergo the drug-related services
that were fashioned for the benefit of both the children and father
(see In re D.M., at p. 647 (dis. opn. of Chavez, J.)), with the result
it is unlikely that were we to address father’s sole contention on
appeal, the disposition order would change.
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DISPOSITION
The portion of the exit order concerning visitation is
reversed, and the matter is remanded to the juvenile court with
directions to specify the frequency and duration of mother’s
visits. In all other respects, the orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J.
We concur:
LAVIN, Acting P. J.
EGERTON, J.
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