Filed 6/3/21 In re Y.J. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Y.J., a Person Coming Under B309311
the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 19CCJP02461A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
T.J.,
Defendant and Respondent,
v.
F.F.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County. Stephen C. Marpet, Judge. Affirmed.
Janelle B. Price for Defendant and Appellant.
Richard L. Knight for Defendant and Respondent.
No appearance for Plaintiff and Respondent.
_______________________
Mother F.F. appeals an order terminating jurisdiction over
her teenage daughter Y.J., who had an infant child of her own.
The juvenile court granted joint legal and physical custody of Y.J.
to mother and father T.J., with primary care to father. The court
ordered “visits as arranged between the parties,” believing that
as a teenage mother with significant responsibilities, Y.J. “should
be able to visit mother when the child thinks it’s appropriate to
have visits with her mother.” Mother challenges the visitation
portion of the order, arguing the court impermissibly delegated
authority to Y.J. and father to decide if visits with mother would
occur at all.
We reject mother’s characterization of the order. This is
not an improper-delegation case. The parents were granted joint
legal and physical custody, so mother had a statutory right to
“significant periods of physical custody” of Y.J., to be shared with
father “in such a way so as to assure a child of frequent and
continuing contact with both parents.” (Fam. Code, § 3004.)
For practical purposes, the portion of the court’s order granting
visitation “as arranged between the parties” merely restated
their joint custody rights. The court properly exercised its
discretion on this record to decline to order any more specific
structure for the parties’ joint custody arrangement because it
was not in Y.J.’s best interests. If the current arrangement
becomes unworkable or circumstances change, mother may seek
modification in superior court in the pending family law matter.
We affirm.
BACKGROUND
Mother has four children— three children with father
Steven C. (deceased), and Y.J. with father T.J. Only Y.J. is
subject to the current proceedings. After she was raped by her
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half-siblings’ father Steven C., 14-year-old Y.J. gave birth to a
son in July 2019.
The family has a long history of child welfare referrals
since Y.J. was born, several of which were substantiated. In the
current proceedings, the juvenile court sustained an allegation
mother failed to protect Y.J. from Steven C.’s sexual abuse, which
led to Y.J.’s pregnancy. (Welf. & Inst. Code, § 300, subd. (d).)1
For disposition, the juvenile court released Y.J. to her parents
with her residing with mother. The court also ordered family
maintenance services.
Custody and visitation issues arose throughout the court’s
period of supervision. Since Y.J. was residing with mother, the
complaints initially came from father. In August 2019, a section
347 petition was filed. The petition indicated all four children
were removed from mother’s home and detained by the juvenile
court due to the alleged unsanitary and hazardous condition of
the home, including an odor of marijuana. It also alleged father
had an unsecured firearm in his home. A subsequent section 387
dependency petition was filed seeking a more restrictive
placement because mother failed to comply with juvenile court
orders. Father also failed to comply with court-ordered
individual counseling.
The court held two hearings on these petitions, dismissing
them and releasing Y.J. home to her parents, with mother and
father to “work out an appropriate shared custody arrangement”
for her. At the first hearing, father complained about visitation
with Y.J. Y.J.’s counsel told the court the lack of visitation was
1 Unless otherwise noted, all further statutory references are
to the Welfare and Institutions Code.
3
Y.J.’s choice. In the order following this hearing, the court noted
Y.J. wished to stay with mother, and the court directed the Los
Angeles County Department of Children and Family Services
(DCFS) “to continue to encourage the child to visit her father as
much as possible. The court informs father to be patient
regarding the wishes of his daughter. The father can call his
daughter as much as possible and whenever the child desires to
visit her father this should occur.”
At the second hearing, father’s counsel requested “some
kind of contact between father and [Y.J.],” including overnights,
because he hadn’t seen her for months. DCFS noted Y.J. was a
14-year-old minor mother. She had been encouraged to visit
father, but didn’t want to sleep over or take the baby. DCFS did
not intend to force her to do so. The court told father, “Your
daughter has a child. She’s got school. She’s busy. She doesn’t
want to visit you. I can’t force her to visit with you.” Father
responded, “If I have 50/50 custody it doesn’t matter? I have
kids.” The court told him, “It matters but it doesn’t matter
because I have a 14-year-old child who makes her own choice.
Under the Family Code at age 14 a child can decide who she
wants to live with and who she wants to visit.” Father added,
“I[’m] still supposed to get my visits.” The court said, “[S]he has a
mind of her own and she’s 14 and she can make choices that she
doesn’t want to visit you. I can’t force her to visit. I have an
order. It’s in place but that’s as far as it goes.” The court and
parties noted Y.J. was not detained from the parents and custody
was “50/50.”
Issues with Y.J. and mother cropped up during the next
review period. At the time, Y.J. mostly did not want to visit
father, until she went to his house one afternoon after school
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without telling mother. Father told the social worker Y.J needed
a “break” from mother. DCFS reported Y.J. had “weekly
unmonitored visits with father. However, during this period,
mother and father continue to not . . . communicate with each
other and continuously ask the Department to intervene.”
At the six-month review hearing, mother requested a
written visitation schedule, and father was open to it. Y.J.’s
counsel opposed a set visitation schedule. Y.J. did not want one
because she was overwhelmed with court-ordered services,
school, and caring for her new baby. She felt comfortable
reaching out to father whenever she wanted to see him. Father
worried the “accusation of kidnapping” would continue from
mother without a schedule, and mother worried father would not
inform her when Y.J. was visiting him.
The court declined to set a visitation schedule: “I don’t
think a set schedule for a 14-year-old with her own child is
necessary. The parents need to use Talking Parents and when
the child wants to go see dad for a while she can, but I don’t want
to put her in the middle so that she’s forced to go when she has
all these things. She’s a mother.” In the order for the hearing,
the court wrote, “The mother and father to work out an
appropriate shared custody arrangement of the child with
primary custody with the mother. The parents to communicate
through ‘talking parents’ in regards to the custody arrangement
if they are unable to speak to each other. [¶] The court will not
require the child to follow a set visitation schedule but will give
the child the discretion to call her father whenever she wants to
see him. The court encourages the child to be respectful and
considerate in the shared custody arrangement.”
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During the next review period, Y.J. stayed with father and
did not return to mother. She was not ready to return to
mother’s home and did not want a set visitation schedule.
Mother and father were not willing to work out a schedule
between them. Y.J. “clearly stated that she wanted to remain
with father and she shouldn’t have to feel forced to return to
mother’s home at this time. [Y.J.] stated that she wants to be
able to choose freely and should decide for herself when she
returns to mother’s home.”
In a June 2020 status report, the social worker reported
Y.J. did joint visitation with mother and father and liked to stay
at each parent’s home for a few weeks at a time. But DCFS had
been unable to work out a workable visitation plan because
mother and father were unwilling to work together. They
expected the social worker to resolve conflicts every time Y.J.
chose to extend her stay at one house or the other. They wanted
the social worker to enforce visitation “as it meets mother, and
father’s needs but not that of the child.” The social worker
reported the “biggest concern” for the family was working out a
visitation schedule.
A court-appointed special advocate examined Y.J. and
reported Y.J. was “comfortable” living with father and staying
with mother occasionally. She wanted the dependency case
closed. The advocate felt it “important that [Y.J.] has the ability
to decide which of her parents she would like to live with, and
what her visitation schedule should be with the other parent.”
In a November 2020 status report, it was reported Y.J. had
lived with father since June 2020, and she visited mother when
she wanted to see her. The parents still could not agree on any
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visitation schedule. DCFS recommended closing the case and
granting shared legal and physical custody to the parents.
At a November 3, 2020 review hearing, the juvenile court
terminated jurisdiction. The primary issue was visitation. Y.J.’s
counsel argued Y.J. was doing well in father’s care and would like
to continue living with him. She wanted to visit mother, but did
not want a visitation schedule. Counsel argued she was a
teenage mother and wanted the flexibility to decide where to live.
DCFS recognized “ordinarily . . . it would be ridiculous for a
15-year-old to be running the show,” but the social worker had
spent countless hours trying to mediate the complaints from
mother about visitation. DCFS saw no risk at either home, so it
was recommending joint legal and joint physical custody. It did
not believe mediation would be helpful because the parties would
not follow any mediated agreement. DCFS believed there was
“nothing left to be done for this family. If there’s a further fight
to be had it’s in family law.”
Mother’s counsel requested Y.J. be placed in her primary
care because she believed there was an ongoing risk with father.
Father’s counsel submitted on the issue of joint physical
and legal custody, with primary care to father.
The court held: “The court’s going to find that this child is
home safe with the parents. I’m going to terminate jurisdiction
today with joint legal, joint physical, primary to father, and visits
as arranged between the parties. And that will be the order of
the court. [¶] The court is feeling based on the fact that this
minor is a minor mother that primary should be with father at
this time and should be able to visit mother when the child
thinks it’s appropriate to have visits with her mother. This is a
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situation where this is a minor mother and that’s why the court
is making this order.”
Mother’s counsel responded: “Your honor, that’s over
mother’s objection.”
The court issued a written custody judgment on November
6, 2020 that granted joint physical and legal custody to the
parents with “Visitation as agreed on by the parties.”
On the same date, the judgment was filed in superior court
in existing family law case number YF004252.2
DISCUSSION
Mother contends the juvenile court improperly delegated
its authority to Y.J. and father to determine whether Y.J. would
visit mother. When terminating dependency jurisdiction, the
juvenile court enjoys broad discretion to make custody and
visitation orders in the best interests of the child. (§ 362.4; In re
Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) We review
the decision for abuse of discretion, and we “may not disturb the
order unless the court ‘ “ ‘exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination [citations].’ ” ’ ” (Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 300.)3
2 We sua sponte take judicial notice of the docket in Los
Angeles Superior Court case no. YF004252. (Evid. Code, § 452,
subd. (c).)
3 Because we conclude mother has misinterpreted the effect
of the juvenile court’s custody and visitation order, we reject her
argument that this is a legal question of improper delegation that
we must review de novo.
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Forfeiture
After the juvenile court granted joint custody and ordered
“visits as arranged by the parties,” mother’s counsel informed the
court the order was “over mother’s objection.” DCFS argues this
was insufficient to preserve mother’s challenge to the visitation
order, so she forfeited the issue. We disagree.
It is settled that we “will not consider a challenge to a
ruling if an objection could have been but was not made in the
trial court,” including in dependency matters. (In re S.B. (2004)
32 Cal.4th 1287, 1293.) Nor will general objections preserve an
issue on appeal. (In re Daniel B. (2014) 231 Cal.App.4th 663,
672.)
Under the circumstances here, however, mother’s objection
preserved her challenge to the visitation order. The visitation
schedule was a prominent issue throughout the juvenile court’s
supervision of Y.J. It came up over and over, and the parents
could not agree on a schedule that worked with Y.J.’s parenting
and school obligations. Consistent with the position taken by
DCFS, Y.J.’s counsel, and the court-appointed special advocate,
the court repeatedly found Y.J. was best served without a
structured schedule. At the termination hearing, mother lodged
her objection immediately after the court once again explained
why it was ordering joint custody with visits when Y.J. felt it
appropriate. The court made very clear it believed Y.J.’s best
interests lay in not setting a fixed visitation schedule. Had
mother more specifically objected, the court would not have
changed its order, so any further elaboration on the objection
would have been futile. Mother has not forfeited the issue.
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Joint Custody and Visitation
Generally, “[a] visitation order may delegate to a third
party the responsibility for managing the details of visits,
including their time, place and manner. [Citation.] That said,
‘the ultimate supervision and control over this discretion must
remain with the court . . . .’ ” (In re T.H. (2010) 190 Cal.App.4th
1119, 1123.) To challenge the visitation order here, mother relies
on the many cases invalidating visitation orders that improperly
delegated the court’s authority to grant visitation to third parties,
such as a parent or the child. (See ibid. [“Several appellate
courts have overturned visitation orders that delegate discretion
to determine whether visitation will occur, as opposed to simply
the management of the details.”].)
None of the cases mother cites involved visitation for
parents awarded joint physical custody as part of a termination of
dependency jurisdiction, which we think is the key distinction
that validates the court’s order here. For example, in T.H., the
juvenile court terminated jurisdiction, granted joint legal custody
to the parents with physical custody to mother, and ordered
visitation “ ‘to be determined by the parents.’ ” (T.H., supra, 190
Cal.App.4th at p. 1122.) On the father’s appeal, the Court of
Appeal invalidated the visitation order because it permitted
mother—the custodial parent—to “conceivably agree to only one
visit a year or less without violating the letter of the court’s
order,” which “effectively delegates to mother the power to
determine whether visitation will occur at all.” (Id. at p. 1123.)
Given the mother and father did not get along and the mother did
not want the father to have any visitation, the juvenile court
“abused its discretion by framing its order in a way that gave
mother effective veto power over” the noncustodial father’s right
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to visitation. (Id. at pp. 1123–1124; see also In re Hunter S.
(2006) 142 Cal.App.4th 1497, 1504 [improper delegation of
noncustodial parent’s visitation to child following termination of
reunification services].)
In re S.H. (2003) 111 Cal.App.4th 310 (S.H.) invalidated a
similar visitation order as part of the mother’s reunification plan
after the juvenile court removed her children from her custody.
“Noting the children were fearful of their mother and the boys
had refused visits with her during their detention,” the juvenile
court ordered, “ ‘if the children refuse a visit, then they shall not
be forced to have a visit.’ ” (Id. at p. 316.) On the mother’s
appeal, the Court of Appeal focused specifically on visitation as a
critical component of a reunification plan for a noncustodial
parent: “Visitation is a necessary and integral component of any
reunification plan. [Citations.] ‘An obvious prerequisite to family
reunification is regular visits between the noncustodial parent or
parents and the dependent children “as frequent[ly] as possible,
consistent with the well-being of the minor.” ’ ” (Id. at p. 317, fns.
omitted.) While the children’s input is a factor to consider when
administering visitation, “the power to decide whether any
visitation occurs belongs to the court alone.” (Ibid.) Thus, the
child’s wishes may not “be the sole factor in determining whether
any visitation takes place, either as a formal matter or . . . by
effectively giving the children the power to veto all visits.” (Id. at
p. 319; see also In re Julie M. (1999) 69 Cal.App.4th 41, 49
[invalidating order made during reunification period requiring
consent of children for visits with noncustodial parent because it
undermined reunification efforts].)
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This is not a reunification case. Nor does it involve a
noncustodial parent. Dependency jurisdiction was terminated,
and mother and father were given joint legal and physical
custody. “Joint physical custody” is defined in the Family Code to
mean that “each of the parents shall have significant periods of
physical custody. Joint physical custody shall be shared by the
parents in such a way so as to assure a child of frequent and
continuing contact with both parents, subject to Sections 3011
and 3020.” (Fam. Code, § 3004; see Celia S. v. Hugo H. (2016)
3 Cal.App.5th 655, 663–664 [“ ‘Where children “shuttle[] back
and forth between two parents” [citation] so that they spend
nearly equal times with each parent, or where the parent with
whom the child does not reside sees the child four or five times a
week, this amounts to joint physical custody.’ ”].)
Although the juvenile court awarded “visits as arranged
between the parties,” we look to the legal effect of the court’s
order, not the label the court attached to it. (Celia S. v. Hugo H.,
supra, 3 Cal.App.5th at p. 664.) The court’s order on visitation
“as arranged between the parties” merely restated mother’s
rights as a joint custodial parent. The court made clear that it
was exercising its discretion not to force Y.J. into a set schedule,
given the demands on her as a teenage mother going to school
and navigating the contentious relationship between her parents.
We need not repeat our recitation of the record set forth above,
but the record supported that decision. The court’s refusal to
order fixed visitation beyond the grant of joint physical custody
fell within the bounds of its discretion to determine Y.J.’s best
interests were served by not setting a fixed visitation schedule.
12
In short, the juvenile court terminated jurisdiction because
Y.J. was no longer at risk from either parent. The court’s
concerns under the dependency law were at an end. The
judgment was filed in the pending family law case involving the
parents, as was statutorily required. (§ 362.4, subd. (b); In re
Chantal S. (1996) 13 Cal.4th 196, 203; In re John W. (1996) 41
Cal.App.4th 961, 976–977.) In light of the determination that
further visitation was not in Y.J.’s best interests, any further
disputes over the joint custody arrangement and visitation must
be addressed in the pending family law case. (See In re Chantal
S., supra, at p. 201 [“The family court is established to provide
parents a forum in which to resolve, inter alia, private issues
relating to the custody of and visitation with children. In that
setting, parents are presumed to be fit and capable of raising
their children.”]; In re John W., supra, at p. 975 [“The juvenile
courts must not become the battleground by which family law
war is waged by other means. It is common knowledge that the
resources of local government social service agencies are
stretched thin; in the juvenile dependency context those
resources are manifestly intended to be directed at neglected and
genuinely abused children.”].)4
4 The juvenile court’s custody order “shall not be modified in
a proceeding or action described in Section 3021 of the Family
Code unless the court finds that there has been a significant
change of circumstances since the juvenile court issued the order
and modification of the order is in the best interests of the child.”
(§ 302, subd. (d).) If circumstances change, mother is free to
make that showing in the family court. (In re Marriage of David
& Martha M. (2006) 140 Cal.App.4th 96, 101.)
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DISPOSITION
The order is affirmed.
BIGELOW, P. J.
We concur:
STRATTON, J.
WILEY, J.
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