Opinion
F079310 F079623
03-10-2020
In re L.H. et al., Persons Coming Under the Juvenile Court Law. TULARE COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. LAURA H., Defendant and Appellant.
Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, and John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. JJV071811A, JJV071811B, JJV071811C)
OPINION
APPEAL from the orders of the Superior Court of Tulare County. Robin L. Wolfe, Judge. Suzanne M. Nicholson, under appointment by the Court of Appeal, for Defendant and Appellant. Deanne H. Peterson, County Counsel, and John A. Rozum and Carol E. Helding, Deputy County Counsel, for Plaintiff and Respondent.
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Laura H.'s (mother) three daughters—now nine-year-old L.H., and her four- and three-year-old half sisters, Li. M. and Le. M. (the younger girls)—were taken into protective custody after mother was arrested for child endangerment. Mother admitted the ensuing petition's allegations. Following a contested disposition hearing, the juvenile court: (1) removed the children from mother's physical custody; (2) gave sole physical custody of L.H. to her father, Lucas H.; (3) gave sole physical custody of the younger girls to their father, John M.; (4) conditioned modification of custody and visitation orders on mother's completion of a substance abuse treatment and 52-week child abuse intervention program; and (5) terminated its jurisdiction.
Mother appeals, contending the juvenile court: (1) erroneously applied Welfare and Institutions Code section 361.2 to John; (2) abused its discretion when it dismissed jurisdiction over L.H.; and (3) lacked jurisdiction to condition modification of its custody and visitation orders on her completion of programs. While we agree with mother's last contention and reverse the orders limiting modification of the custody and visitation orders, we conclude any error with respect to the application of section 361.2 to John harmless and there was no abuse of discretion in dismissing jurisdiction over L.H.
Undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On September 10, 2018, eight-year-old L.H. called the police and reported mother was drunk and asleep, and she could not wake her. When police arrived, they saw nearly three-year-old Li. M. running around naked; 20-month-old Le. M. was also in the home. None of the children were being supervised. The police woke mother, who was extremely intoxicated and disoriented. Police arrested mother for child endangerment, and released L.H. to her maternal grandmother, K.P. (MGM), and Li. M. and Le. M. to their father, John. The Tulare County Health and Human Services Agency (Agency) received a referral regarding the incident.
The Agency had received prior referrals regarding mother and the children. The most recent referrals were two received in April 2018 which alleged mother's use of alcohol until intoxication while caring for the children. The first referral was deemed inconclusive. The investigating social worker noted L.H. reported mother passed out while intoxicated two or three times, mother admitted to passing out once while another adult was present with the children, and mother refused to comply with "AOD services." The referral, which was deemed inconclusive, was closed as the children were not at risk. The other referral, in which L.H. reported mother had passed out from drinking while breastfeeding Le. M., police had been called to the home, and L.H. missed school frequently and complained of being hungry, was investigated and deemed unfounded.
A social worker interviewed L.H. about the incident. Mother picked her up from school that day around 2:30 p.m. When they got home, L.H. watched a movie and noticed mother was starting to fall asleep. She contacted MGM via FaceTime. After the FaceTime ended, mother yelled "weirdo" at L.H. and used the "f word" because she called MGM. L.H. knew mother was drinking because she could smell beer on her breath. Mother went back to sleep. L.H. attempted to call MGM again, but mother had changed the passcode on her cell phone and the battery was low. Unable to find a phone charger, L.H. pushed the emergency button and called 911. L.H. did not see mother drink and said mother would not drink in front of her because she knew she would tell MGM. L.H. did not want to go back with mother and did not feel safe with her. Since the April 2018 referrals, L.H. had seen mother pass out from drinking two other times.
A social worker met with John, who stated that since the April 2018 referrals, mother continued to drink and pass out. After the referrals were closed, he moved back to California from Arizona and came around his daughters more often to supervise them. He moved in with mother on July 4, 2018, but denied they were in a relationship. On the day of the incident, John left the home around noon to help his brother go to the "dump" and was gone for three hours. He denied seeing mother drink before he left.
A team decision meeting was held, which mother, John and maternal grandparents attended, along with social workers and service providers. The team discussed mother's substance abuse, her history of using opiates and heroin, and her past treatment programs. L.H.'s school principal noted that during the past school year, L.H. had displayed symptoms consistent with anxiety; she was constantly in the nurse's office complaining of stomach pain and headaches. The Agency decided to obtain a protective custody warrant to remove the children from mother's care and recommended the younger girls remain with John under family maintenance.
The Dependency Petition and Detention Hearing
The Agency filed a petition on September 25, 2018, alleging the children came within the provisions of section 300, subdivision (b)(1) (failure to protect), based on mother's failure or inability to adequately supervise them due to her substance abuse, and L.H. came within the provisions of section 300, subdivision (c) (serious emotional damage), based on her anxiety and depression as a result of mother's neglect of the children.
A social worker spoke with Lucas, who lived in Iowa. Lucas said he had a "great relationship" with L.H. and visited her three times that year, in April, June and July, for one week each time. He recommended L.H. be placed with maternal grandparents, as her "sanctuary and safe place" was at their home. While he wanted to fight for his daughter, he did not want to do anything irrational, as he had not been in her life as much as he would have liked. He was willing to take custody of her, however, "[i]f it comes down to [mother] not being sober again."
At the September 26, 2018 detention hearing, the juvenile court ordered the children detained from mother and granted her twice weekly supervised visitation, which the Agency had discretion to increase in length and frequency. The juvenile court ordered a substance abuse evaluation, and alcohol and drug testing for mother; parenting classes for mother and John; and counseling for L.H. The juvenile court reserved ordering a recommended mental health evaluation for mother after she declined it. A contested jurisdiction and disposition hearing was set for November 16, 2018.
The Jurisdiction/Disposition Report
In a report prepared for the jurisdiction and disposition hearing, the Agency recommended: (1) the children be declared dependents and removed from mother's custody; (2) John receive full physical custody of the younger girls and dependency dismissed; and (3) mother be granted reunification services as to L.H., as Lucas lived out of state and did not request custody of L.H. under section 361.2.
Mother's criminal history consisted primarily of drug and theft offenses dating back to 2012. John's criminal history, which also dated back to 2012, consisted of numerous convictions for driving with a suspended license (due to a prior DUI conviction); 2016 convictions for corporal injury of a spouse and sale of a controlled substance; and 2013 convictions for disturbing the peace and giving false information to a police officer. He was on three years' formal probation for the 2016 convictions. A request for Lucas's criminal history, a "DOJ CII," had been sent to the Department of Justice and the response was pending. Lucas did not have an arrest history in Tulare County, and a "DOJ CACI" response had been received which showed "no match."
The social worker had several conversations with John in October 2018, and met him and the younger girls at their home. While his romantic relationship with mother ended in October 2017, he moved into her home in July 2018 because he wanted to spend time with his children. He was disturbed by mother's behavior, as she would drink all day until she passed out. The home was kept in disarray and often there was no food. John would get food and cook it for the children, as mother was too intoxicated to take care of them. Mother and her sister smoked marijuana in the home. John remained in the home because he felt the children needed him.
John complained that MGM had been following him after visits and videotaping him. He was frustrated that mother and the maternal relatives were constantly trying to catch him doing something so the younger girls would be removed from him. To prevent the maternal relatives from interfering, it was decided to have John drop the children off at a different location in the building. Thereafter, John reported the maternal relatives continued to follow and videotape him. After one of mother's visits, maternal aunt followed him and the younger girls, while in another incident, MGM videotaped him in the Agency's parking lot. John was "fed up" with the constant harassment and believed the maternal relatives' actions were detrimental to the younger girls. The social worker observed the younger girls to be affectionate and comfortable with John. John said he may be released from probation early due to his compliance. He was participating in a parenting class for fathers at the Parenting Network and being supported by other single fathers.
The social worker spoke with mother. She was previously divorced from Lucas, but they remarried in June 2018. While Lucas lived in Iowa, he visited several times a year. Mother said she was a victim of domestic violence in her relationship with John. One day she finally had enough, so she called police and John was arrested. Their relationship ended in November 2017. Mother allowed John to move into her home in July 2018 because the younger girls missed him and she needed help moving. She claimed John became emotionally abusive toward her and did not help with the children's care. Early in their relationship, they used methamphetamine together, but she went to drug treatment after L.H.'s birth. She claimed she last used methamphetamine in September 2016. She did not think her drinking would become a problem even though she had been advised in her treatment program not to use any drugs or alcohol. She wanted an opportunity to reunify with her children. She was attending AA groups almost daily and this incident was a "huge wake-up call." Lucas did not want her to drink and she felt supported by him.
The social worker interviewed L.H. and maternal grandparents. L.H. enjoyed living with MGM, where she had spent most of her life and felt most comfortable, and was afraid to return to mother. She said John was "like my father, except he isn't my father," and he always was nice to her. She knew her sisters were being well cared for by him. Sometimes mother and John yelled at each other and said bad names, but she did not remember seeing any physical altercation. She had been to one counseling session and enjoyed it. She wanted to continue with counseling so she could talk to someone about her feelings.
MGM told the social worker she had taken L.H. for a mental health assessment, but she did not agree with the assessment and had scheduled an appointment with a private therapist for another assessment. MGM blamed L.H.'s anxiety on her school rather than her family situation, and did not believe she needed counseling. MGM said mother had learned her lesson and the children should be returned to her.
The social worker interviewed Lucas by telephone. He said he was employed in Iowa repairing power lines. He identified as an alcoholic and last drank on December 7, 2016. He had a good support system of friends and coworkers who were sober. He attended AA meetings sporadically when he needed support, although his work schedule kept him very busy. Lucas recognized he could ask for custody of L.H., but she was very bonded to maternal grandparents and he did not want her to have to leave California. He wanted L.H. to visit him in the summer of 2019, if she was emotionally ready. He felt it was in L.H.'s best interest to stay with her maternal grandparents. Lucas believed his remarriage to mother in June 2018 was a "complete mistake." He was seeking a divorce or annulment, as he felt mother lied to him and he was not aware mother allowed John to live in her home. Lucas knew mother was drinking too much when he visited her in April 2018, and he was concerned about the children.
Mother had complained to the social worker that John was driving without a license and the younger girls' car seats were not properly installed. After the Agency advised John to remedy the problem with the car seats, he did so and the Agency confirmed the car seats were installed correctly.
The social worker spoke with John again in November 2018. He had an appointment to take his driving test for his license, had moved into his own apartment and was utilizing services from the Agency, as well as the Parenting Network, to assist him in getting what he needed to care for the younger girls. He did not want to take the younger girls away from mother, but he wanted her to be clean and sober before she was permitted to have physical custody.
The social worker spoke with John's probation officer, who said he was "doing great" and was in full compliance with his probation terms. While John was driving on a suspended license, that was not a probation violation. The officer said John and mother had a very dysfunctional relationship, and the officer had personally witnessed multiple arguments. Two of father's cases with probation were set to "drop off" on January 19, 2019, and he was expected to complete his probation in May 2019. He had maintained a sober lifestyle and was law abiding. He had been random drug testing through probation and tested clean each time. He appeared to be working hard to provide a stable environment for his daughters.
Mother had enrolled in a one-year outpatient drug and alcohol treatment program. Mother's September 21, 2018 drug test was positive for cannabinoids, but she tested negative for all controlled substances on October 24, 2018. Mother had completed seven of 18 parenting classes. Mother remained opposed to individual mental health counseling, as she did not believe she needed it.
Jurisdiction Hearing
At the November 16, 2018 jurisdiction and disposition hearing, the Agency agreed to amend the first amended petition, for settlement purposes, by striking certain factual allegations under the section 300, subdivision (b)(1) count. Mother admitted the allegations as amended, which the juvenile court found true. The juvenile court granted mother's request to continue the disposition hearing, and set a contested hearing for January 30, 2019. The juvenile court was concerned about MGM's attitude toward L.H.'s counseling and MGM's other behaviors discussed in the report. The court ordered L.H. to remain in therapy with her current therapist and warned there would be "repercussions" if anyone interfered with her therapy.
The January 30 , 2019 Addendum Report and Hearing
In an addendum report for the disposition hearing, the Agency changed its recommendation regarding L.H.'s placement and now recommended she be placed in Lucas's sole physical custody, with he and mother sharing legal custody, and jurisdiction terminated. The social worker stated she had been in ongoing and frequent contact with Lucas throughout the case, and he had been very forthcoming regarding his issues with addiction and alcoholism, his previous criminal history, the length of his sobriety, and his current circumstances. Lucas told the social worker he had been clean and sober since December 2016, when he turned himself in to serve jail time for criminal offenses that were directly related to his alcohol addiction. After completing his sentence, he participated in 12-step AA/NA meetings, obtained a sponsor, accepted God into his life, and found employment and a suitable residence. He had a Class A driver's license, which required him to undergo random drug testing, and drug tested through his employer. Lucas asked for custody of L.H. and he was willing to assume full responsibility for her care. He would ensure she attended school, received counseling services, and was adequately cared for while he was working. Lucas said he filed for divorce from mother and recently became engaged to marry M.I., who had a three-year-old daughter.
An Iowa social worker performed a courtesy in-person contact at Lucas's home, which she found to be appropriate. She met Lucas's fiancée, and did not have issues or areas of concern. Lucas provided the Agency with the name and location of L.H.'s prospective school, and the location of a local agency that could provide L.H. with individual mental health counseling. Lucas was willing to provide financially for his daughter and to seek services that may help her make a smooth transition to living with him. The Agency received a response from Jasper County, Iowa concerning Lucas's criminal history there, which showed he had arrests in March 2016 for public intoxication, criminal mischief, and violation of a no contact order, and in December 2016 for public intoxication.
Mother continued to attend outpatient treatment, had obtained a sponsor, and was in full compliance with the program. According to mother's substance abuse counselor, William Curd, she was not yet fully resigned to maintaining complete sobriety for the remainder of her life and was very capable of "jumping through the hoops" of the program's requirements. All of her substance abuse tests had come back negative. She continued to attend parenting classes and all visits, which had gone well without any issues of significant concern.
Mother did not trust the social worker and accused her of making misleading statements in her reports. Mother was not interested in a referral to an Agency program that would allow her to meet a parent who had gone through the child welfare services process, and did not believe she needed mental health counseling because the juvenile court "threw out" that service. Mother believed her past counseling and completion of domestic violence classes following John's arrest were sufficient to address her trauma, and she had moved on from the abuse she endured from John and did not need to process or discuss it further. The only other program mother was willing to participate in was co-parenting services with John.
Mother felt it would be a "complete mistake" to place L.H. with Lucas, as L.H. would be devastated to move from Tulare County and placed in another state with her father, who had never been much of a parent to her. When asked if there was anything of significant concern about Lucas caring for L.H., mother stated he had been sober for only two years and she hoped the Agency investigated his circumstances. Mother, however, would not answer if she had any information that would indicate a detriment to L.H.'s well-being if she were placed with Lucas.
According to L.H.'s therapist, L.H. spoke favorably of her father and appeared to have a good relationship with him. L.H., however, told the social worker on January 8, 2019 that she did not want visits with her father because "[h]e is too busy for me." The social worker asked if something had changed, since she spoke very positively about her relationship with her father in the past. L.H. said he had never been very involved in her life, repeated that he was too busy for her, and said "I barely know him." L.H. initially said she did not want any contact with her father, but later said she was willing to talk to him on the phone. When asked if she wanted in-person contact with him if he came to Tulare County, she responded she would do so only if mother or MGM were present, and she would never want to travel to Iowa to visit him because he worked too much and she would end up in day care. L.H. said her relationship with mother had improved since mother stopped drinking, and she wanted to live with mother.
The social worker noted she had not seen a change in mother's demeanor or attitude since she was assigned to the case. Mother was extremely difficult to work with, and was guarded and distrusting of the Agency. Mother's family minimized her issues with addiction and repeatedly enabled her destructive behaviors.
The social worker believed there was no detriment to placing L.H. in Lucas's custody and dismissing dependency. The social worker opined that reunification services would benefit the family if mother were making a genuine effort to address the issues that led to the children's removal, but mother had repeatedly refused to do so. While mother planned to comply with any court-ordered services in order to reunify with her children, she still believed she could control her drinking, which meant she had not fully grasped the seriousness of her addiction and there was a significant probability she would place the children at risk of harm if they were returned to her. Lucas was fully employed, had an appropriate house, was providing medical insurance, had been sober since 2016, and was in a stable relationship with his fiancée. Lucas was able to describe and identify the areas in his life he changed in order to maintain his sobriety, was familiar with resources in his state, and was willing to ensure L.H.'s needs were met. While the social worker understood that placing L.H. with Lucas would be disruptive and scary for her, Lucas was prepared to ensure L.H. received mental health counseling. In reviewing the facts of the case, the social worker believed it was in L.H.'s best interest to place her in Lucas's custody and dismiss dependency.
As for John, he had obtained a valid California driver's license and continued to participate in services through Parenting Network. A Parenting Network counselor reported that he was impressed with how committed John was to his daughters. The counselor believed John had made the necessary changes in his life to ensure he would remain sober, and stated he was a role model to other fathers who were in similar circumstances.
The social worker noted John repeatedly demonstrated his dedication to his daughters, willingly complied with the social worker's recommendations, voluntarily enrolled in the Project Fatherhood program, and was caring for his daughters' needs. While father was not his daughters' primary caregiver before Agency involvement, he had demonstrated a willingness and ability to change in order to provide for them. John supported Lucas having custody of L.H., but hoped Lucas would ensure she had contact with her siblings on a weekly basis by telephone, FaceTime or Skype.
At the January 30, 2019 disposition hearing, the juvenile court ordered the Agency to provide mother with the social worker's notes and narratives used to prepare the reports, and continued the disposition hearing to February 1, 2019. Lucas and his fiancée were present at the hearing and the court ordered an extended visit with L.H. to begin that day. The parties informally met to exchange L.H., which the social worker informed the court went smoothly with no issues.
Mother's Recusal Motion
At the February 1, 2019 hearing, the juvenile court suspended proceedings for 30 days after mother filed a motion to recuse the judge based on purported violations of the Code of Judicial Ethics. The court treated the motion as one under Code of Civil Procedure section 170.1 and set a status review hearing for March 8, 2019. On February 27, 2019, after the judge filed a verified response to the motion, another judge assigned to determine the matter summarily denied mother's motion, finding her assertions lacked merit since there was no evidence of improper conduct and no support for mother's claim a reasonable person aware of the facts would doubt the judge's impartiality.
The March 8 , 2019 Addendum Report and Hearing
The Agency filed an addendum report for the March 8, 2019 hearing, in which it again changed its recommendation concerning L.H.'s disposition. The Agency now recommended mother and Lucas be granted reunification services, and the Agency given discretion to place L.H. with Lucas after an Interstate Compact on the Placement of Children (ICPC) could be completed.
The ICPC is a compact among California and other states to facilitate cooperation in the placement and monitoring of dependent children. (In re Suhey G. (2013) 221 Cal.App.4th 732, 742; In re John M. (2006) 141 Cal.App.4th 1564, 1573.)
The change in recommendation apparently occurred because of events that took place after the juvenile court suspended proceedings on February 1, 2019. The parties were aware the social worker assigned to the case was unavailable following the hearing due to a previously scheduled family obligation. After the hearing, an Agency supervisor and manager decided to keep L.H. with maternal grandparents rather than place her with a non-relative or with Lucas in Iowa, following interviews of Lucas, L.H. and maternal grandparents. Maternal grandparents had questioned why the Agency would place L.H. with Lucas when he had never been a custodial parent or actively involved in L.H.'s life. At first Lucas was polite and cooperative, but he became disrespectful and rude when Agency personnel asked him to view things from maternal grandparents' perspective. Lucas told the Agency manager he would rather his daughter be placed in a foster home than returned to maternal grandparents, as he believed they were manipulating her. Lucas said the social worker had promised him L.H. would be getting on a plane with him to Iowa. After the placement decision was made, Lucas and his fiancée returned to Iowa.
Thereafter, the social worker met with mother and maternal grandfather, G.P. (MGF). Both were opposed to L.H. being placed with Lucas. Mother believed it would have an extremely detrimental effect on L.H.'s emotional well-being, as Lucas had never been a custodial parent and she would have to leave mother, her half sisters, and her maternal relatives behind. Mother also was concerned about Lucas's sobriety, as she did not know whether Lucas was truthful when he said he had been sober since 2016. MGF did not like Lucas because he introduced mother to opiates, which led to her heroin addiction. Mother, however, did not blame Lucas for her addiction and took full responsibility for her actions. Mother apologized for not cooperating with the Agency for the majority of the case and wanted the court to know she would do whatever it took to reunify with the children. Mother had started individual counseling, which she believed would help her maintain her sobriety, and had completed phase one of the outpatient treatment program. She was working on phase two of the program, attending AA/NA meetings, and continued to test negative in random drug tests. She completed her parenting classes.
The social worker spoke with Lucas by telephone on February 22, 2019. Lucas said he was very upset and disappointed the Agency did not place L.H. with him after the February 1, 2019 hearing. Lucas felt the Agency staff he dealt with that day did not take into consideration mother's and maternal grandparents' manipulative behaviors and had made up their minds they would not allow L.H. to move to Iowa. When he called to speak with L.H., MGM gave him an excuse that she was doing homework and could not speak to him. Lucas remained hopeful the court would place L.H. in his custody.
The social worker spoke with John, who believed it was in L.H.'s best interest to be placed with Lucas. John met Lucas and his fiancée at the January 30, 2019 and February 1, 2019 court hearings, and they discussed how the children could maintain their relationship if L.H. moved to Iowa. Lucas agreed it was important to maintain the sibling relationship and would work with John to ensure the children could FaceTime each other on a weekly basis.
Another social worker spoke with L.H. When asked about the prospect of moving to Iowa with her father, L.H. responded that she preferred stay in Tulare County near her maternal family, but if she went to live with her father she wanted daily telephone contact with her family in California. The unsupervised visit with Lucas went well and she enjoyed their time together. L.H. wanted to visit her father during summer break. When asked if there was anything she wanted the court to know, she said she would like to be returned to mother's custody.
At the March 8, 2019 hearing, the juvenile court reinstated proceedings and set a contested disposition hearing for March 13, 2019.
Contested Disposition
The contested disposition hearing was held over seven days in March, April and May 2019. Lucas filed a trial brief, in which he argued he was entitled to custody of L.H. under section 361.2, as he was a nonoffending parent who requested custody and there was no evidence of detriment to her. Lucas explained that he and mother married in June 2009 and L.H. was born the following year. The family moved to Washington in January 2011, but mother and L.H. moved back to Visalia shortly thereafter. Lucas followed them in March 2011, however the marriage did not work out, and he and mother separated. Lucas moved east for work in the fall of 2011. Lucas had contact with L.H. by telephone and provided monetary support, but contact was difficult due to mother's drug use and having to negotiate contact through maternal grandparents. He remarried mother in June 2018, but the marriage was short-lived and divorce proceedings were underway. Lucas was concerned about maternal grandparents' " 'negative messaging' " as reflected in the Agency's reports, and he believed their denigration of him was detrimental to his relationship with L.H.
The Agency submitted on the reports and recommendations in the most recent addendum. Mother first put on evidence to show the children could be returned to her custody based on her progress in services. William Curd testified about mother's progress in the one-year outpatient program. Mother had been clean since she entered the program, completed all milestones and was in aftercare.
Mother's social worker, Amanda Silvas-Dix, testified that mother was attending counseling, was eager to attend co-parenting classes with John, had been drug testing, was participating in her 12-step program, and complied with her case plan. Mother's visits with the children were going very well. Before the Agency would place the children with mother, she needed to begin unsupervised visits and continue to demonstrate her desire to remain sober and take responsibility for her actions. Silvas-Dix was concerned about mother's relatively short period of sobriety and the fact she had twice completed services for her drug addiction.
Silvas-Dix testified John was living with mother and the children when the children were detained. John completed a drug and alcohol assessment, which showed he did not require treatment. Silvas-Dix was confident John did not have a drug or alcohol problem, and he did not pose a threat to the children because of drugs or alcohol. While John knew mother had a drinking problem when he was living with her, he did not take any action to remove the children from the house, although he tried to protect them. Prior to the Agency's involvement, there were two incidents of physical injuries to one of the children while in father's care, but Silvas-Dix believed they were accidental.
Silvas-Dix recommended that John be given custody of the younger girls and dependency dismissed because they were thriving in John's care, he was providing all their needs, and she did not see a reason to keep dependency open. John had made substantial progress. Although John had not been the younger girls' primary caretaker, once the Agency became involved he immediately provided all their care, utilized every service the Agency could recommend, and was able to obtain assistance he needed. The younger girls were very attached to him and she believed they were safe with him. She saw no reason to offer mother services regarding the younger girls, even though services were recommended as to L.H. Silvas-Dix was aware of multiple incidents of maternal grandparents and maternal aunt harassing John, which was harmful to the children. The harassment factored into her recommendation to dismiss dependency, as it was stressful for John and the way the maternal family members treated him was detrimental. Based on her experience working on the case, she thought the harassment would continue.
Silvas-Dix did not verify Lucas's statements regarding his addiction and alcoholism, or whether he completed a 12-step AA/NA program, and did not check with his sponsor. Although Lucas said he filed for divorce from mother, Silvas-Dix subsequently learned mother was the one who filed. Lucas told her that when he visited mother in April 2018, he knew mother was drinking too much, but to Silvas-Dix's knowledge, he did not do anything to address her alcoholism. Silvas-Dix agreed mother and MGM had been manipulating L.H., which was apparent from the change in L.H.'s responses regarding her relationship with Lucas.
Silvas-Dix had recommended L.H. be placed with Lucas and he was supposed to return to Iowa with her following the January 30, 2019 hearing. That did not happen due to the recusal motion. Following the February 1, 2019 hearing, Lucas went to the Agency to see if he was going to leave the state with L.H. and met with Silvas-Dix's supervisor and manager, who decided he would not take L.H. at that time. Silvas-Dix's supervisor called her during the meeting to ask her opinion on whether L.H. should (1) go with Lucas, (2) be returned to maternal grandparents, or (3) be placed in foster care with a non-relative. Silvas-Dix responded that she believed L.H. should be released to Lucas, but her superiors decided otherwise. Thereafter, a joint decision was made to change the Agency's recommendation concerning L.H.'s placement, as mother's demeanor with Silvas-Dix had improved "drastically," Silvas-Dix obtained letters regarding mother's progress in services, and mother had enrolled in counseling. Silvas-Dix's personal recommendation, however, had not changed.
Mother testified her history of substance abuse began in high school, when she started drinking alcohol and using marijuana. She met Lucas when she was 26 and he moved in with her; they married a year later. He introduced her to smoking OxyContin six months after they began living together and she became addicted. When she got pregnant with L.H., she started using methadone at her doctor's instruction so she would not lose the baby and resumed using oxycodone after her birth. When L.H. was three months old, mother went into inpatient rehabilitation. After completing treatment, she moved to Washington to be with Lucas and started using again. Three months later, she moved back to California with L.H., while Lucas stayed in Washington. A few months later, Lucas moved back to California and lived with mother and L.H. When L.H. was about eight months old, Lucas left and eventually ended up in Iowa. Mother filed for divorce from Lucas, which was final in 2013. The next time Lucas saw L.H. was in April 2018, when he came to California for a weekend. He visited again for a weekend in June 2018, which was when they remarried.
After Lucas left in 2011, mother and L.H. lived with maternal grandparents. At some point, they kicked her out because she was still using, and obtained guardianship over L.H. Mother started using heroin and went to jail for a year and a half as a result of her drug use. She never used oxycodone again and stopped using heroin in April 2014. After she got out of jail, she regained custody of L.H.
By November 2014, mother was using methamphetamine and met John when he was selling it to her. She quickly became pregnant with Li. M. She stopped using methamphetamine during the pregnancy, but resumed using it after her birth. Mother got off methamphetamine when her youngest daughter, Le. M., was born, and had been off it for two years. At the end of 2015, mother filed domestic violence charges against John and filed for custody of Li. M. John was convicted; he spent over a month in jail and completed domestic violence classes. After John got out of jail, she allowed him to move in with her, as she thought he had changed. Mother had a restraining order against John, which was terminated at her request in January 2016. At that time, she and John agreed to share joint legal and physical custody of Li. M., but if they were separated and John was not living in the home, he would have visitation from Sunday to Tuesday. Mother completed an outpatient rehabilitation program in 2016 to address her methamphetamine use. She and John separated at the end of 2017.
Toward the end of 2017, mother began using marijuana and drinking heavily. In July 2018, John moved in with her and the children because she needed help moving, and she had a drinking problem and was unable to maintain her life. She and John agreed he would move out when she "got things together." On July 18, 2018, a family court child custody and visitation order was filed which gave mother and John joint legal and physical custody over the younger girls, subject to a parenting plan that gave John care of them from Sunday to Tuesday, and mother care the remainder of the week.
John was living in the home on the day of the incident. That day, mother picked L.H. up at school, came home and started drinking. By 3:40 or 4:00 p.m., she realized she drank too much, so she called John, who was down the street at his brother's house, five times to get him to come home, but he only answered one of the calls. She tried to call MGM, but she was out of town. John had left her alone with the children twice before when she was drunk; both times, the police ended up at her house.
The therapist who provided mental health services to L.H. on an interim basis from December 2018 to March 2019 while the family obtained a therapist who accepted L.H.'s private health insurance diagnosed L.H. with adjustment disorder with anxiety. While she was willing to attend and participate in therapy, she remained guarded and anxious most of the time, and declined to discuss family issues and recent difficult experiences. The therapist believed the anticipated change in therapists may have influenced L.H.'s openness in therapy, but she would be able to make progress in resolving her anxiety given enough time to build trust and rapport with the next therapist.
During the course of the disposition hearing, the Agency filed addendum reports with updates concerning the case. On March 15, 2019, John told the social worker MGM continued to "harass" him when he dropped L.H. off for supervised visits with her half sisters. He said MGM violated visitation rules on numerous occasions by being near the back entrance of the facility. The visitation staff had addressed John's concerns, but issues continued to arise. Mother claimed MGM did not intend to violate the rules, and she was bringing food to L.H. because she was hungry and unable to eat before the visit. On April 3, 2019, mother emailed Silvas-Dix's supervisor complaining that Silvas-Dix was treating her unfairly and John was getting special treatment, and she wanted the supervisor's help in getting unsupervised visits with L.H. In response, county counsel wrote a letter to all parties stating the juvenile court only permitted mother to have supervised contact and did not give the Agency discretion to allow unsupervised visits.
On May 8, 2019, the social worker spoke with John and Lucas via a telephone conference. When the social worker asked Lucas why he had not been calling L.H. for his weekly telephone contact, Lucas responded he was afraid of MGF and MGM insisted on being present during all telephone contact. He said paternal grandmother recently called L.H. and MGM was "coaching" her on what to say during the entire call. Lucas believed L.H. was being intimidated and manipulated, and he did not want to put her through emotional distress by calling. He requested custody of L.H. and made arrangements with John that if L.H. was returned to him at the conclusion of the disposition hearing, she would stay with John until the end of the school year. The fathers communicated often and had plans to co-parent their daughters to maintain the sibling relationship.
The juvenile court admitted a May 2019 letter from Parenting Network regarding John's progress. John had self-referred to Project Fatherhood (a support group for men), a co-parenting program, and a parent education program. John had attended the support group weekly and was an active participant, and had graduated from both programs. John was attending a "home evidence based parenting curriculum" which teaches parenting techniques. According to the instructors, John had met all of his appointments and always was prepared.
The juvenile court allowed maternal grandparents to each make a statement to the court. In oral argument, mother's attorney argued Lucas should not be given custody of L.H. because of his past history of substance abuse and lack of relationship with her. She further argued the court did not have sufficient information about Lucas and if he were really interested in L.H., he would have tried to have more contact with her. As for John, mother's attorney contended he was a custodial parent, as he was living with the children when they were detained, and the court could not dismiss the case unless he was a noncustodial, nonoffending parent.
Lucas's attorney argued Lucas was entitled to custody of L.H. because L.H. had a relationship with him and there was no evidence of detriment. John's attorney argued the younger girls should be placed in John's custody and jurisdiction dismissed because John fell under the auspices of section 361.2. The children's attorney asserted the younger girls should remain with John and jurisdiction terminated, while L.H. should be sent to live with Lucas in Iowa, as the attorney did not believe it would be detrimental to her. The attorney, however, stated he would leave it up to the court to determine whether to terminate jurisdiction as to L.H. or set the matter for a review hearing.
County counsel argued section 361.2 applied to both John and Lucas. County counsel asked the juvenile court to place the younger girls with John, and determine whether to dismiss jurisdiction or retain jurisdiction to resolve any later custody issues. The Agency, however, stood by its recommendation to keep L.H. in Tulare County, at least temporarily, and grant mother services.
The Juvenile Court's Ruling
In its ruling, the juvenile court noted it was required to follow section 361.2. With respect to Lucas, the juvenile court stated it was clear he was a nonoffending parent and there was no detriment to placing L.H. with him. The juvenile court recognized it had three options: (1) dismiss jurisdiction; (2) retain jurisdiction and set a hearing in three months to review the case; or (3) retain jurisdiction and order reunification services. The court, however, stated it had "difficulty" because it was concerned about the parties' relationships. The court found it troubling that maternal grandparents had consistently violated court orders; it could not "turn a blind eye" to some of the information regarding maternal grandparents' behavior toward John, which the court believed also was happening to Lucas; and it must consider what would benefit the parties and L.H. The court believed maternal grandparents were trying to control the situation, which had a negative effect on the parties' relationship with the children. The court found there was a sibling bond, which the fathers were willing to foster.
The juvenile court stated it was vacillating between terminating jurisdiction or setting a three-month review hearing. The court believed that if jurisdiction were maintained, there would be continued attempts to try to change the court's orders. The court thought mother's circumstances were changing, but had not changed, as mother had not accepted responsibility for her actions and maternal grandparents had not acknowledged mother was to blame. The court then asked the attorneys for input regarding how to handle L.H.'s last two weeks of school should it place her with Lucas and terminate jurisdiction.
During the parties' discussion of the options, which included placing L.H. with John until the school year ended, mother's attorney asked the juvenile court not to terminate jurisdiction, but rather put the matter over for three months and let L.H. spend the summer with Lucas. The attorney argued this would ensure Lucas would allow contact with mother, because the fathers were angry, and not enough was known "about what's there," as normally there was an ICPC. The juvenile court interrupted and said it did not think the attorney heard that the court was vacillating between the two choices and had not made up its mind, but her argument was persuading the court "toward another side" that the attorney "may not be so happy with."
Lucas's attorney responded she was texting with Lucas and he said L.H. may as well finish the school year with maternal grandparents, as he did not want to change her routine. John's attorney added that John would not have any trouble getting L.H. to school or facilitating visits until school was out. The children's attorney believed L.H. should be with her half sisters, and added that he was now asking the court to terminate jurisdiction, as L.H. needed to start her new life.
The juvenile court decided, after hearing the arguments and weighing the information, that it would terminate jurisdiction, and have L.H. spend the last weeks of school with John and his children.
With respect to John, the juvenile court believed section 361.2 applied to him because he was a nonoffending parent and he was not in the home when the actions that led to the petition occurred. The court found there was no detriment to placing the younger girls with him, as he had been a wonderful father and done everything he possibly could to maintain a sibling relationship, as well as a relationship with maternal grandparents and mother despite the interference he received. Since the court found John to be a "fit and able parent," it decided to place the younger girls with him and terminate jurisdiction.
The juvenile court ordered the children placed with their respective fathers, with jurisdiction terminated pursuant to section 361.2, subdivision (b)(1), and awarded the fathers joint legal and sole physical custody of their children. The court set a detailed supervised visitation schedule for mother and maternal grandparents as to all children, and ordered that no party had discretion to lift the supervision requirement. Over mother's objection, the court ordered that before a court could consider modifying the custody or visitation orders, mother must complete a substance abuse program and 52-week child abuse program.
The juvenile court stayed termination of jurisdiction pending receipt of the custody orders. Formal custody orders and final judgments incorporating the juvenile court's rulings were filed on June 18, 2019.
Mother filed separate notices of appeal from the May 16, 2019 disposition orders and the June 18, 2019 custody orders, which we designated case Nos. F079310 and F079623, respectively. We subsequently granted mother's request to consolidate the appeal for purposes of briefing and decision, and designated the lead case as F079310.
DISCUSSION
I. Termination of Dependency Jurisdiction
After a juvenile court asserts dependency jurisdiction over a child under section 300, it then considers the child's disposition, including placement. (§ 358, subd. (a); Cal. Rules of Court, rules 5.684(f), 5.690.) When a juvenile court orders removal of a child pursuant to section 361, section 361.2 requires the court to "first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child." (§ 361.2, subd. (a); In re John M. (2013) 217 Cal.App.4th 410, 420, citing In re Marquis D. (1995) 38 Cal.App.4th 1813, 1829.) A parent with whom the child was not residing when dependency is initiated, whether or not due to a family law custody order, is presumptively entitled to custody because that parent has not been previously found to pose a risk of harm to the child. (In re A.A. (2012) 203 Cal.App.4th 597, 610.)
After placing a child with a parent with whom the child was not residing under section 361.2, the juvenile court has several choices. It may: (1) "grant custody to the previously noncustodial parent and terminate dependency jurisdiction"; (2) retain jurisdiction and "order that a home visit be conducted within three months of the minor's new placement and that the results of that visit be provided to the court before it takes further action with respect to the custody of the minor"; or (3) "order that the previously noncustodial parent 'assume custody' of the minor subject to the supervision of the juvenile court," and order services be provided to one or both parents, with the court later determining which parent, if any, will have custody of the child. (In re Jaden E. (2014) 229 Cal.App.4th 1277, 1281-1282 (Jaden E.); § 361.2, subd. (b).)
In choosing among these options, the juvenile court has " ' "broad discretion to determine what would best serve and protect the child's interest ...." ' " (In re A.J. (2013) 214 Cal.App.4th 525, 536.) The juvenile court may not terminate jurisdiction "until it analyzes whether ongoing supervision of the child is necessary." (In re Austin P. (2004) 118 Cal.App.4th 1124, 1129.) We review the juvenile court's decision for abuse of discretion, reversing only if it " ' "has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination ...." ' " (Jaden E., supra, 229 Cal.App.4th at p. 1288; see In re Austin P., supra, at p. 1135.) " ' "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." ' " (Jaden E., supra, at p. 1288.)
Here, the juvenile court removed the children from mother, determined that under section 361.2 there was no detriment to placing the children with their respective fathers, and terminated dependency jurisdiction. Mother contends the juvenile court erred when it applied section 361.2 to John and abused its discretion in terminating jurisdiction as to L.H. We discuss mother's contentions in turn.
A. The Application of Section 361.2 to John
Mother contends the juvenile court erroneously applied section 361.2 to John because the undisputed evidence showed he was not a noncustodial parent when the children were detained, as he was living with mother and the children. The Agency responds that section 361.2 applied to John, since he was living with them on a temporary basis and had not been there a considerable length of time. The Agency further argues that even if the juvenile court erred in applying section 361.2, the error was harmless, as the juvenile court had the discretion to place the younger girls with John and terminate jurisdiction even if John was a custodial parent.
We need not decide whether the juvenile court erred in relying on section 361.2 because any error was harmless. As the Agency points out, the juvenile court has discretion to allow a child to remain with a custodial parent and terminate dependency jurisdiction if it finds "services and continued court supervision are no longer necessary to protect the child." (In re Destiny D. (2017) 15 Cal.App.5th 197, 211.) This is true even though it has already found jurisdiction and "the parent with whom the child remains has been found to be an offending parent." (Id. at p. 211; see also id. at p. 209 [while a failure-to-protect jurisdictional finding as to a parent is a relevant consideration when deciding whether to terminate jurisdiction, it does not categorically disqualify the parent from custody or limit the court's ability to issue orders necessary to further the child's best interest].) The juvenile court has "statutory discretion to impose necessary limitations on an offending parent's contact with a dependent child before terminating its jurisdiction. [Citation.] If no substantial risk of harm exists once those restrictions are in place, and ongoing supervision is unnecessary, termination of jurisdiction is appropriate." (Id. at p. 208.) The court's decision is to be guided by the relevant facts. (Id. at p. 211.)
Here, the juvenile court found there was no detriment to placing the younger girls with John and terminated jurisdiction as it "[did] not believe that there is or will be any issues." In so finding, the court in essence determined that services and ongoing supervision were not necessary to protect the younger girls. The evidence supports this conclusion, as John had demonstrated nothing but complete dedication to the girls for the eight months since their removal from mother. He voluntarily participated in services and support groups, he was providing for their needs and they were thriving in his care. John's Parenting Network counselor was impressed with his commitment to his daughters and believed he had made the necessary changes to ensure he would remain sober. John had become a role model to other fathers facing similar circumstances. Commendably, he had shown both a willingness and ability to change in order to provide for his daughters, who were very attached to him. There was simply no evidence John was incapable of meeting their needs absent court services or supervision.
Mother contends the juvenile court may have fashioned a different disposition order had it exercised its discretion under the proper legal framework. She argues that viewing John as a custodial parent, the court may have given more weight to, or consideration of, the following: (1) the Agency could have alleged in the petition that John failed to protect the children when he left them with mother despite knowing she had a drinking problem and refused to come home when mother called him for help on the day of the incident; and (2) John had a history of substance abuse and had only recently become the children's primary caregiver. Based on this evidence, and given her bond with the children and progress in her case plan, mother asserts the juvenile court may have elected to maintain jurisdiction, continue services for John and mother, and set a six-month review hearing. Mother urges us not to speculate as to how the juvenile court would have viewed the case had it determined John was a custodial parent.
There is nothing in the record, however, to suggest the juvenile court would have reached a different decision had it found John to be a custodial parent. Regardless of whether John was or was not a custodial parent, the issue in determining whether to terminate jurisdiction remained the same—was continued court supervision and services required to protect the younger girls. In terminating jurisdiction, the juvenile court necessarily found neither was required. Instead, it found John to be a "wonderful father" who had done everything possible to care for his daughters and maintain their relationships with L.H., mother and maternal grandparents. As we have explained, the finding that John did not require continued court supervision and services was supported by the evidence. In this situation, any error in applying section 361.2 to John was necessarily harmless.
B. Termination of Jurisdiction as to L.H.
Mother contends the juvenile court abused its discretion when it terminated jurisdiction as to L.H. She argues the juvenile court should have maintained jurisdiction given: (1) Lucas's history of substance abuse; (2) his lack of contact with L.H. for most of her life; (3) the absence of evidence concerning his current circumstances and sobriety; and (4) the juvenile court's recognition of L.H.'s counseling needs. She further argues the Agency should have done more to investigate Lucas's circumstances, such as his sobriety, substance abuse treatment, and criminal history, and verified that counseling services were available for L.H. in Iowa. She asserts the juvenile court based its decision primarily on concerns about interference from maternal grandparents rather than L.H.'s best interests, and by terminating jurisdiction, it left no mechanism to assess whether L.H. adjusted well to her new placement or obtained therapy.
We do not find any abuse of discretion. In terminating jurisdiction, the juvenile court implicitly found Lucas capable of meeting L.H.'s needs without assistance from the Agency or the court's continued jurisdiction. This finding is supported by the evidence. Lucas had housing and a job with health benefits. A social worker visited Lucas and his fiancée at their home and determined there were no issues or concerns. Silvas-Dix had ongoing contact with Lucas throughout the case and did not doubt his ability to care for and protect L.H. From the outset of the case, Lucas demonstrated his concern about L.H.'s emotional well-being, as shown by his initial reluctance to assert his custody rights due to her bond with maternal grandparents, his willingness to allow her to remain with them until the end of the school year, and his desire to seek services to ensure she made a smooth transition to living with him. Lucas had located a school for L.H. and a local agency that could provide her with mental health counseling. Although Lucas apparently had only recently reestablished contact with L.H. during his several visits in 2018, according to L.H.'s therapist, L.H. spoke favorably of him and appeared to have a good relationship with him. L.H. had an extended visit with Lucas at the end of January and no problems were reported.
Mother is essentially arguing the Agency's investigation into Lucas was inadequate and more information was required before the juvenile court could terminate jurisdiction. Mother, however, has not cited any law that requires the Agency to conduct a more thorough investigation than the one it conducted. When placement is with a parent, "the appropriate investigation is a basic one, less rigorous than the investigation necessary for placement with a more distant relative such as a cousin." (In re John M., supra, 141 Cal.App.4th at p. 1573.) Here, the Agency did investigate Lucas and produced evidence to support the juvenile court's finding that Lucas did not require continued supervision or services. Although the juvenile court expressed its concern that the maternal relatives would try to interfere with Lucas's relationship with L.H. should it retain jurisdiction, the record otherwise supports the order terminating jurisdiction. Since the evidence established there was no need for continued court supervision or services, the juvenile court did not abuse its discretion by terminating jurisdiction.
As mother points out, the decision to terminate jurisdiction ran counter to the Agency's recommendation for continued reunification services and an ICPC report. In California, however, compliance with the ICPC is not required for placement with an out-of-state parent. (In re A.J., supra, 214 Cal.App.4th 525, 541; In re John M., supra, 141 Cal.App.4th 1564, 1575; see Cal. Rules of Court, rule 5.616(g) ["When a child will be placed with his or her parent in another state, compliance with the requirements of the ICPC is not required. However, the court has discretion to take the steps it deems necessary to ensure the child's safety and well-being in that placement."].) One step a court may take in lieu of an ICPC is to direct the child welfare agency to request an independent, non-ICPC home study or courtesy check, which the Agency in fact obtained in this case. (Cal. Rules of Court, rule 5.616(g)(1).)
II. Conditions for Modifying the Custody and Visitation Orders
A juvenile court "may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the child." (§ 362, subd. (a).) In fashioning custody and visitation orders, the juvenile court's "focus and primary consideration must always be the best interests of the child." (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) The " 'juvenile court has broad discretion to determine what would best serve and protect the child's interest and to fashion ... order[s] in accordance with this discretion.' " (In re Corrine W. (2009) 45 Cal.4th 522, 532.) The court's exit order "remain[s] in effect after [dependency] jurisdiction is terminated" and may thereafter be modified by the family court if (1) "there has been a significant change of circumstances," and (2) "modification ... is in the best interests of the child." (§§ 302, subd. (d), 362.4, subd. (b); Heidi S. v. David H. (2016) 1 Cal.App.5th 1150, 1163; see also In re Marriage of Carney (1979) 24 Cal.3d 725, 730-731 [noting general rule for modification of custody orders issued by family courts].)
Although a juvenile court enjoys broad discretion in fashioning an exit order regarding custody and visitation (e.g., In re M.R. (2017) 7 Cal.App.5th 886, 902), that discretion has limits. An exit order cannot restrict the family court's power to modify the exit order's custody or visitation provisions should the prerequisites for such a modification exist (that is, should the modification be in the best interests of the child based on changed circumstances). (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1455-1457.) Thus, an exit order is invalid if it restricts a family court's power to modify visitation unless and until a parent completes certain programs and obtains counseling. (In re Cole Y., at pp. 1451, 1456-1457.)
In this case, the juvenile court's exit orders as to L.H. provide: "No modification of these court orders until Mother completes a Substance Abuse Program and 52-week Child Abuse Intervention Program." Similarly, the exit orders as to the younger girls provide: "Mother's visitation shall not be modified until she completes a drug and alcohol treatment program and a 52-week child abuse intervention program." Mother argues these portions of the exit orders are invalid because they impermissibly restrict the family court's power to modify custody and visitation. The Agency essentially concedes the error. We agree the juvenile court acted beyond its authority when it conditioned the family court's modification of the exit orders upon completion of these programs. Accordingly, we reverse the June 18, 2019 custody orders to the extent they conditioned modification of the custody and visitation orders on mother's completion of a substance abuse program and 52-week child abuse intervention program.
DISPOSITION
The juvenile court's orders that mother's visitation and custody cannot be modified until she completes a substance abuse program and 52-week child abuse intervention program are reversed. In all other respects, the juvenile court's orders are affirmed.
/s/_________
LEVY, Acting P.J. WE CONCUR: /s/_________
POOCHIGIAN, J. /s/_________
MEEHAN, J.