In re Victor S. CA2/7

Filed 3/14/22 In re Victor S. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

In re VICTOR S., JR. et al., B313951
Persons Coming Under the
Juvenile Court Law. (Los Angeles County
Super. Ct.
No. 20CCJP02743A-D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

VICTOR S.,

Defendant and Appellant.

APPEAL from orders of the Los Angeles County Superior
Court, Nichelle L. Blackwell, Juvenile Court Referee. Affirmed.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
 The juvenile court issued custody and visitation orders at
termination of dependency proceedings awarding Victor S.’s
former wife, Leticia R., sole legal and physical custody of their
four children and restricting Victor to monitored visitation. On
appeal Victor contends his lack of participation in a drug
program with testing was an insufficient basis to modify a 2017
family law order providing for joint legal and physical custody.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petition
On December 18, 2020 the juvenile court sustained an
amended dependency petition pursuant to Welfare and
Institutions Code section 300, subdivision (b)(1),1 finding that
Victor had a limited ability to provide now-15-year-old
Victor S., Jr., who is autistic and has been diagnosed with
depression and anxiety, with ongoing care and supervision due to
the child’s mental and emotional problems and that Victor’s
limitations created a substantial risk of serious physical harm to
Victor, Jr. and to his three siblings, 14-year-old Daisy S., seven-
year-old Kristopher S. and five-year-old Frank S. (The findings
as to Daisy, Kristopher and Frank were made pursuant to
section 300, subdivision (j), as well as subdivision (b)(1).) The
court also sustained an allegation pursuant to section 300,
subdivision (c), as to Victor, Jr. that the parents’ ongoing conflict
and Victor’s emotional abuse of Victor, Jr. placed the child at
substantial risk of suffering serious emotional harm.
The court declared Victor, Jr., Daisy, Kristopher and Frank
dependent children of the court, removed them from Victor’s

1 Statutory references are to this code.

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custody and placed them with Leticia under the supervision of
the Los Angeles County Department of Children and Family
Services. The court ordered family maintenance services for
Leticia and enhancement services for Victor, including a full drug
and alcohol program with aftercare, random weekly drug or
alcohol testing, a 12-step program with a court card and sponsor,
parenting classes, individual counseling and mental health
counseling, with requirements to submit to a psychiatric
evaluation and take prescribed psychotropic medications. The
court restricted Victor to monitored visitation with his three sons
for nine hours per week and suspended his visitation with Daisy
until her therapist determined it was appropriate.
We affirmed the jurisdiction findings under section 300,
subdivisions (b)(1) and (j), on appeal. (In re Victor S., Jr. (Oct. 26,
2021, B310088) [nonpub. opn.].)2 As we explained, the record
before the juvenile court established that Victor, Jr. required
therapy for his depression; had a history of suicidal ideations;
had taken steps to act on those thoughts of suicide, including
grabbing a knife in one instance and, in another, stepping out of
a hotel room to peer over the balcony after he had declared his
desire to jump; and had been hospitalized for suicidal thoughts
less than a year before the December 2020 jurisdiction and
disposition hearing. In addition, his parents’ conflict had caused

2 Because we upheld the jurisdiction finding as to Victor, Jr.
under section 300, subdivision (b)(1), it was unnecessary to
address the additional finding under section 300, subdivision (c).
In addition, in light of the juvenile court’s order terminating its
jurisdiction and issuing the custody order while Victor’s appeal of
the jurisdiction findings and disposition order was pending, we
dismissed his challenge to the disposition order as moot.

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him to feel emotionally overwhelmed, and he admitted having
suicidal thoughts if he had a significant argument with his
father.
For his part, Victor had been diagnosed with anxiety and
depression, received mental health services requiring medication,
had a history of substance abuse and failed to submit to any of
multiple court-ordered random drug or alcohol testing. There
was ample other evidence in the record that Victor had an
impaired capacity to appropriately manage his emotions and
temper his behavior, which limited his ability to provide the
ongoing care and supervision required in light of Victor, Jr.’s
mental and emotional needs. The record also demonstrated that
Victor lacked insight regarding the effect on his children of his
ongoing rancorous verbal altercations with Leticia in the
children’s presence, even though such conflict emotionally
destabilized Victor, Jr.
As to Daisy, Kristopher and Frank, we held the record
supported the finding that Victor’s impaired capacity to moderate
his emotional responses and behavior rendered him unable to
adequately protect, and created a substantial risk of serious
physical harm to, not only Victor, Jr., but also his three younger
children. All four children had observed and been upset by the
parents’ repeated verbal arguments. Daisy was diagnosed with
depression and saw a therapist once a week. Although she never
witnessed her parents hit or push each other, she heard them
arguing, which she said was most of the time they talked to each
other. Daisy’s troubled relationship with Victor was due to a
history of concerning incidents that included an occasion when he
showed Daisy and the two younger boys a gun, stating his intent

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to kill the maternal family with it and saying Daisy had to choose
who to kill.
2. The Section 364 Review Hearing, Termination of
Jurisdiction and Entry of the Juvenile Court Custody
and Visitation Orders
In its status review report for the initial section 364 review
hearing, scheduled at disposition for June 17, 2021, the
Department summarized Leticia’s successful completion of court-
ordered programs and voluntary participation in additional
services and stated Victor, Jr. was thriving in her care. Victor,
Jr. had enrolled in wraparound services in December 2020, which
provided him with weekly individual therapy. Leticia
participated by attending weekly sessions and bi-weekly
meetings, while Victor only participated in two meetings. The
wraparound team also provided Leticia and Victor, Jr. with
conjoint sessions, which had been going well. The team agreed
with the Department’s recommendation that the children
continue residing with Leticia. In contrast, because of Victor’s
temperament, he had a fraught relationship with service
providers including Victor, Jr.’s wraparound team, whom Victor
admitted “going off” on.
Victor was not enrolled in a drug treatment program.
Throughout the reporting period Victor said he did not feel it was
necessary to enroll in a program because he was not using drugs
and had been sober for more than 20 years. In addition, Victor
did not show up for random drug/alcohol testing despite the
Department’s continuing efforts to encourage him to test.
Although the Department had referred Victor for weekly testing
since May 2020, he was a “no show” at least 32 times from
May 27, 2020 until the most recent drug/alcohol test date of
June 2, 2021.

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 As for the court’s order he attend a 12-step program with a
court card and sponsor, Victor told the Department, and his
sponsor confirmed, he had been attending Alcoholics
Anonymous/Narcotics Anonymous meetings two or three times a
week since October 2020 but had been unable to obtain a
stamped attendance card because the meetings took place
virtually. His sponsor, in declining to monitor Victor’s visits with
his children, stated, “If he did things right, I would not mind
helping him but he is not.” She explained Victor did not associate
with the right people and was not drug testing as he should, and
she was also afraid Victor “may want to seek payback” if
something went wrong during a visit that required her to report
it to the Department.
Victor enrolled in weekly individual counseling services.
His therapist provided a progress letter stating Victor met the
criteria for a mental health disorder as defined in the Diagnostic
and Statistical Manual, Fifth Edition (DSM-5) and, due to that
diagnosis, Victor’s psychological condition was “disabling insofar
as it significantly limits at least one activity of daily living.” She
could not disclose whether he was taking psychotropic
medication. Although it appeared Victor had made some
progress in individual counseling sessions and he had completed
his parenting program, the Department believed he could benefit
from ongoing individual counseling services in part to address his
anger management issues.
Daisy’s therapist met with Victor twice and described the
first session as intense. Victor had been “very intimidating” and
made the session very difficult. She was unsure whether Victor
was stable and did not believe he was ready for conjoint sessions.
The therapist was uncertain how many more sessions Victor

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would need before she would be comfortable providing joint
sessions with him.
Victor, who was unemployed, only visited his children once
a week for an average of four hours despite the court’s
authorization of nine-hour monitored weekly visits. A
Department social worker offered to monitor a visit for Victor,
but he declined, explaining he would arrange for a rideshare
driver to transport the children to the paternal grandmother, who
was unable to drive, and have her monitor the visit. The
Department later discovered Victor had not been using a
rideshare driver; rather, Victor’s friend Maria, whom the
Department had denied as a monitor due to various safety
concerns including her criminal history, had been transporting
the children. Victor admitted he had not been forthright about
using Maria to drive the children.
The Department concluded Victor had made insufficient
progress toward completion of his court-ordered case plan
services. It assessed the risk level of abuse and neglect if the
children were returned to Victor’s home as high. The
Department recommended that the court terminate its
jurisdiction, award sole legal and physical custody of the children
to Leticia and restrict Victor to monitored visitation.
The section 364 review hearing took place on June 17
and 28, 2021. Leticia and the children’s counsel agreed with the
Department’s recommendation that the court terminate its
jurisdiction and award Leticia sole legal and physical custody.
Victor’s counsel, asserting it did not appear there was evidence
Victor had a substance abuse problem, argued for termination of
jurisdiction with joint legal and physical custody.

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 The juvenile court terminated jurisdiction and found it was
in the children’s best interests for Leticia to have sole legal and
physical custody and Victor to have monitored visits. In its
June 28, 2021 custody and visitation orders prepared on Judicial
Council form JV-200 and related attachments, the court checked
the preprinted boxes that Victor was to have only supervised
visitation because he “has not completed” or “has not made
substantial progress” in “the following court-ordered programs”:
drug and alcohol abuse treatment programs with random testing;
individual counseling; conjoint counseling with Daisy when
deemed appropriate; drug and alcohol program with aftercare;
12-step program with a court card and sponsor; and mental
health counseling with a psychological evaluation and the taking
of all prescribed medication.
DISCUSSION
1. Governing Law and Standard of Review
When the juvenile court terminates dependency
jurisdiction, the court “may issue . . . an order determining the
custody of, or visitation with, the child.” (§ 362.4, subd. (a).)
Section 362.4 specifies that order “shall continue until modified
or terminated by a subsequent order of the superior court” and
directs the order be filed in a pending family law proceeding
(§ 362.4, subd. (b)) or, if there is none, as part of a new family
court file (§ 362.4, subd. (c)). (See In re R.F. (2021)
71 Cal.App.5th 459, 473 [“[s]ection 362.4 authorizes a juvenile
court to issue exit orders for visitation and custody when
terminating dependency jurisdiction, and those orders remain in
place even after jurisdiction is terminated”]; see also In re
Destiny D. (2017) 15 Cal.App.5th 197, 208 [referring to “the
court’s statutory discretion to impose necessary limitations on an

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offending parent’s contact with a dependent child before
terminating its jurisdiction”].)
When making a juvenile court custody order pursuant to
section 362.4, “it is the best interests of the child, in the context
of the peculiar facts of the case before the court, which are
paramount.” (In re John W. (1996) 41 Cal.App.4th 961, 965;
accord, In re T.S. (2020) 52 Cal.App.5th 503, 513; In re
Nicholas H. (2003) 112 Cal.App.4th 251, 268.) “Unlike in family
court, ‘“[t]he presumption of parental fitness that underlies
custody law in the family court . . . does not apply to dependency
cases” decided in the juvenile court. [Citation.]’ [Citation.]
When the juvenile court makes custody or visitation orders as it
terminates dependency jurisdiction, it does so as a court with ‘a
special responsibility to the child as parens patriate and [it] must
look to the totality of a child’s circumstances when making
decisions regarding the child.’” (In re J.T. (2014) 228 Cal.App.4th
953, 963.)
We review a juvenile court custody or visitation order for
abuse of discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863;
In re M.R. (2017) 7 Cal.App.5th 886, 902; see In re T.H. (2010)
190 Cal.App.4th 1119, 1124.) “When applying the deferential
abuse of discretion standard, ‘the trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are
reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.’” (In re C.B. (2010)
190 Cal.App.4th 102, 123; accord, Haraguchi v. Superior Court
(2008) 43 Cal.4th 706, 711-712; see Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 300-301 [in applying the law to the
facts, we reverse under the abuse of discretion standard only if

9
the trial court “‘“‘exceeded the limits of legal discretion by making
an arbitrary, capricious or patently absurd determination’”’”].)
2. The Juvenile Court Did Not Abuse Its Discretion in
Issuing Its Custody and Visitation Orders
Victor contends the juvenile court abused its discretion in
awarding Leticia sole legal and physical custody of the children,
with only monitored visits for Victor, arguing there was no link
between his alleged substance abuse (and, therefore, his failure
to participate in a drug program with testing) and his ability to
care for the children. Victor’s argument, however, ignores the
context of the court’s orders.
There was ample evidence before the court that Victor, due
to his impaired capacity to temper his emotional responses and
moderate his behavior, had a limited ability to properly care for
the children (particularly, Victor, Jr., who had his own special
needs) and that awarding joint custody would endanger their
physical and emotional well-being. That was the basis for the
jurisdiction findings—made only six months before the custody
and visitation orders—which we affirmed on appeal. The
evidence of Victor’s actions subsequent to the December 2020
jurisdiction and disposition hearing, far from establishing the
court’s custody and visitation orders were arbitrary or irrational,
was fully consistent with those earlier findings: Victor’s repeated
failures to participate in a drug program ordered by the court to
best protect the children’s interests demonstrate Victor’s
unwillingness to respond appropriately to the court’s concerns for
his children’s welfare and his ongoing impaired capacity to
moderate his behavior to properly care for the children.
In addition, contrary to Victor’s contention, there was
substantial evidence in the record that Victor had a long-standing

10
substance abuse problem that he refused to acknowledge and
failed to properly treat. As we pointed out in our prior opinion
upholding the juvenile court’s jurisdiction finding under
section 300, subdivisions (b)(1) and (j), Victor had a history of
substance abuse. Indeed, his own statements to the
Department’s social workers and investigators showed he had an
extensive history of substance abuse that began as a teenager
and continued into adulthood—a history of abusing not only
alcohol but also prescription medication, methamphetamine and
cocaine. After imbibing alcohol, he had more than once had
physical altercations with Leticia, on one occasion while she was
pregnant. Prior to the jurisdiction and disposition hearing the
juvenile court had ordered the Department to refer Victor for
random drug testing, but Victor had declined to participate with
explanations the juvenile court could reasonably find not
credible, including his series of excuses to one of the
Department’s social workers regarding purported transportation
problems culminating in his failing to call her despite her offer to
transport him on test dates herself. Even after the court ordered
Victor to submit to random drug testing at the December 2020
jurisdiction and disposition hearing, Victor, for the period
January 1, 2021 to June 2, 2021, continued to fail to do so and
was a “no show” at least 17 additional times. Not only may the
missed tests be reasonably construed as positive results (cf. In re
Noah G. (2016) 247 Cal.App.4th 1292, 1303-1304), but his
numerous and persistent failures to comply with the court-
ordered drug treatment requirement are indicative of substance
abuse (cf. In re Christopher R. (2014) 225 Cal.App.4th 1210, 1218
[“recurrent substance-related legal problems” as a manifestation
of substance abuse].)

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 To be sure, as reported in a last minute information for the
court filed June 29, 2021, Victor on June 21, 2021 claimed he had
been turned away from the drug treatment center for testing
because of his service dog. The treatment center, however,
advised the social worker the following day that it was legally
prohibited from refusing to assist a client because of a service or
support animal if the client provided proper documentation.
Advised by the social worker of the center’s response, Victor
responded, “[L]ike I said I’m not gonna go drug test for you for
nobody else[;] the judge already made up her mind to come after
me.” “[W]hy I’m gonna waste my time doing that if the judge
already has it against me.”
Throughout this period Victor repeatedly told the
Department he did not need to enroll in a drug treatment
program because he had been sober for 20 years, and he persisted
in his refusal to enroll. His failure to participate at all—let alone
participate regularly and make substantive progress—in a court-
ordered drug treatment program was properly considered by the
court as evidence that return of the children to his custody (or
unmonitored visitation) would be detrimental.
As discussed, beyond the issue of substance abuse, Victor
had not completed, or made insufficient progress in, other aspects
of his case plan, and he continued to have serious anger
management, emotional stability and mental health issues. He
failed to acknowledge his own responsibility for the children’s
removal from his custody, instead placing the blame on others.
(See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne
cannot correct a problem one fails to acknowledge”]; In re
Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 [“denial is a
factor often relevant to determining whether persons are likely to

12
modify their behavior in the future without court supervision”].)
He had exposed his children to unnecessary risk by having them
transported to visits by someone whom the Department, due to
safety concerns, had rejected as a monitor, and he had not been
forthright with the Department about having exposed his
children to that risk. In contrast, all of the children—including
Victor, Jr., who had not had any suicidal thoughts since being
removed from Victor’s custody—were happy, safe and doing well
in the care of their mother, who had fully complied with the
court’s case plan. Daisy was also glad she was “no longer in the
middle” of Victor and Leticia’s conflict.
Victor points to other evidence in the record to argue the
juvenile court’s custody and monitored visitation orders
constituted an abuse of discretion, including evidence he had
complied with certain aspects of his court-ordered case plan (such
as completion of a parenting program), had made progress during
his counseling sessions, had a close relationship with his children
and had acted appropriately during visits, as well as evidence,
including his own statements to the Department, supporting his
sobriety claim. This argument essentially invites us to reweigh
the evidence and credibility determinations made by the juvenile
court, tasks outside the province of a reviewing court. (See, e.g.,
In re I.J. (2013) 56 Cal.4th 766, 773 [“‘“issues of fact and
credibility are the province of the trial court”’”]; In re Eli B.
(2022) 73 Cal.App.5th 1061, 1072 [“In reviewing the juvenile
court’s ruling we cannot reweigh the evidence or evaluate witness
credibility”; “[w]e must uphold the juvenile court’s factual
determination as long as it is supported by substantial evidence
‘“even though substantial evidence to the contrary also exists and
the trial court might have reached a different result had it

13
believed other evidence”’”]; In re S.R. (2020) 48 Cal.App.5th 204,
219 [“‘[w]e do not reweigh the evidence’”].)
In sum, based on the totality of the circumstances, the
juvenile court acted well within its discretion in concluding its
custody and visitation orders were in the children’s best
interests.
DISPOSITION
The juvenile court’s June 28, 2021 orders are affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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