In re C.G.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICTJul 11, 2018
H044812 (Cal. Ct. App. Jul. 11, 2018)

H044812

07-11-2018

In re C.G., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. M.G., Defendant and Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. JD019845)

The mother of C.G. challenges the juvenile court's final judgment ordering full physical and legal custody of C.G. to the presumed father and terminating dependency jurisdiction. Finding no abuse of discretion, we will affirm.

I. JUVENILE COURT PROCEEDINGS

A dependency action was initiated in 2009 after mother was arrested for being under the influence of PCP and endangering her then one-year-old child, C.G. The child was released to his maternal grandparents, and mother's efforts at reunification failed. The dependency was terminated after two years, with the maternal grandparents accepting legal guardianship over C.G.

Mother petitioned the juvenile court to have C.G. returned to her custody in December 2016. Mother's elderly parents filed a petition to be relieved as C.G.'s guardians, supporting mother's request. C.G. had been living with mother during the week since the beginning of that school year. The guardians believed mother was sober, responsible, and capable of parenting, and they felt mother was in a better position to care for C.G. given their advanced ages. The social worker supported C.G.'s return to mother's care with family maintenance services. But C.G.'s attorney, concerned with mother's use of prescription drugs and alcohol, did not fully support mother taking custody. At a January 2017 hearing, she asked for a mediation to be set several weeks in the future in order to monitor the transition.

Shortly after the January hearing, a mandated reporter contacted respondent with concerns that mother was caring for C.G. while she was intoxicated. On January 22, mother had attended a family birthday celebration at a restaurant and from there went bowling with C.G. and a family friend (a man later declared by the court to be C.G.'s presumed father). According to the report, mother drank excessively, was verbally and physically abusive to the presumed father, and verbally abusive to C.G. The incident prompted the guardians to withdraw support for mother's transition, and C.G. returned to their full-time care.

Mother's pending custody request prompted two men to petition the court for presumed father status—the family friend who had provided for C.G. and his mother since C.G.'s birth and considered C.G. his son, and mother's husband recently released from prison. After a contested hearing, the juvenile court denied husband's petition and granted the family friend's petition. This court affirmed the judgment declaring C.G.'s presumed father. (In re C.G. (H044588, Jan. 19, 2018), review den. Apr. 11, 2018.)

The social worker filed an addendum opposing mother's custody request following the presumed father ruling, recommending instead that the guardianship be set aside, C.G. be placed with the presumed father, mother be allowed visitation, and the case be dismissed. The guardians withdrew their earlier petition and filed a new petition, in which they asked that the guardianship be terminated and C.G. be placed in the custody of the presumed father. Respondent filed a petition seeking the same disposition. A hearing was held in June 2017, at which time the court received testimony from several witnesses including C.G., the social worker, mother, the presumed father, and the guardians.

Mother testified that she was a recovering drug addict; she had abused methamphetamine and PCP, but had not consumed those substances since late 2014. Mother had been convicted twice of obtaining a controlled substance by fraud—in July 2014 and January 2015. After serving four months in custody, in 2015 she transitioned to an apartment and was able to maintain full-time employment and test negative for illegal drugs. Mother used several prescription drugs under the care of a doctor: Concerta for ADHD, Ambien for sleeping, Alprazolam for anxiety, and Diazepan and Soma for back pain. She also had a prescription for hydrocodone, but had taken disability leave to "get off of it." After five back surgeries, she explained, her tolerance level was high. She denied abusing prescription medication, as well as any wrongdoing related to her 2015 conviction, stating "I'm going to appeal that."

The presumed father and C.G.'s grandmother testified that mother had several mixed drinks at the restaurant on January 22. Mother testified that she gave the one drink that she ordered to another member of the group after taking only a few sips to help with back pain. She testified that she had taken Soma for back pain that day, a medication that can make her appear drunk. Mother denied regularly consuming alcohol, even though her brother had reported that she drank frequently at his home (sometimes passing out on the couch), and the presumed father had witnessed her drinking alcohol when he went out to dinner with her and C.G.

The social worker testified that she had been assigned the case in early January 2017, and her initial recommendation to return C.G. to mother with family maintenance services was based on mother's steady employment and involvement in C.G.'s education, and the guardians' support for mother's request. The social worker's initial recommendation was made under the misimpression that mother had recently tested positive for methamphetamine. She had believed that family maintenance services would support mother's sobriety efforts and provide therapy to address past trauma which affected her parenting abilities. But the social worker's position changed over the next three months after hearing from family members that mother was abusing drugs and alcohol, and after the court declared a presumed father for C.G. Mother's drug testing had become sporadic (she missed a test in April after attending a baby shower where she appeared to be under the influence) and she had not followed up with the social worker's therapy referrals. Ultimately, the social worker was concerned with mother's vacillating mental health and the impact of mother's prescription drug use on her ability to parent C.G.

The social worker supported mother sharing custody with the presumed father when "it's appropriate and safe." In the meantime, she recommended supervised visitation because mother did not like the presumed father, and C.G. needed to be protected from disparaging remarks mother would make if visits were unsupervised. Mother was angered by the court's presumed father finding. She had told the social worker that she would exclude the presumed father from C.G.'s life if awarded custody, and she had repeatedly posted on the internet that the court was placing her child with a child molester, despite the assessment of two social workers and C.G.'s therapist that her accusations were unfounded.

The court granted the petitions filed by respondent and the guardians, terminating the guardianship and granting full legal and physical custody to the presumed father. Mother was found not credible. In denying her petition, the court noted mother's mental health, her drinking, and her "medication cocktail." It found that the presumed father was trustworthy and not a risk, and that C.G.'s best interests were served by having the presumed father in his life. The court set a comprehensive visitation schedule, which included provisions for holidays and vacations. It dismissed the dependency despite mother's request for family maintenance services for the placement parent and reunification services for her. The final judgment, entered on July 6, 2017, directed that custody modification requests be brought in the Family Court.

II. DISCUSSION

A. LEGAL BACKGROUND

When dependency jurisdiction is terminated after a legal guardianship is granted as a permanent plan under Welfare and Institutions Code section 366.26, the juvenile court maintains jurisdiction over the child as a ward of the guardianship, and presides over proceedings to terminate the guardianship. (§ 366.3, subds. (a), (b)(2); statutory references are to the Welfare and Institutions Code.)

A parent has the right to petition the juvenile court under section 388 to modify any of its orders based on changed circumstances or new evidence, including an order placing a child in a legal guardianship under section 366.26. (In re Priscilla D. (2015) 234 Cal.App.4th 1207, 1216.) The petitioning parent has the burden to show by a preponderance of the evidence that changed circumstances make a change in the child's placement in the child's best interest. (Id. at pp. 1216-1217.)

When a termination petition initiated by the state or a guardian is granted, the juvenile court may order the county social services agency to develop a new permanent plan. (§ 366.3, subd. (b); In re Priscilla D., supra, 234 Cal.App.4th at pp. 1217-1218.) Parents may participate in the new permanency planning hearing, and may be considered as custodians, "but the child shall not be returned to the parent or parents unless they prove, by a preponderance of the evidence, that reunification is the best alternative for the child." (§ 366.3, subd. (c).) The court may order reunification services to the parent or parents if services are in the best interests of the child. (Ibid.)

The decision to terminate a guardianship under section 388 rests in the juvenile court's sound discretion. (In re Priscilla D., supra, 234 Cal.App.4th at p. 1218.) The juvenile court's custody determination is reviewed for an abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) We will not disturb the decision " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations]." ' " (Ibid.) " ' "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." ' " (Id. at p. 319.)

Although not directly applicable here, section 361.2 addresses the placement with a noncustodial parent of a dependent child initially ordered removed from the custodial parent's home. The child may be placed with the noncustodial parent unless the placement would be detrimental to the child. (§ 361.2, subd. (a).) If such placement is made, the court may (1) designate that parent as the legal and physical custodian of the child, provide the noncustodial parent reasonable visitation, and terminate jurisdiction over the child; or (2) order the new custodial parent to assume custody over the child subject to the juvenile court's jurisdiction, with or without a future home visit and with or without family maintenance services for one or both parents. (§ 361.2, subd. (b)(1)-(3).)

B. ANALYSIS

1. Continuing Dependency Jurisdiction to Assess the Presumed Father

Mother argues that the juvenile court abused its discretion by terminating dependency jurisdiction after placing C.G. with the presumed father. In her view, continued supervision of C.G. was necessary because there were "serious concerns raised about the risks [the presumed father] imposed as a long term exclusive caretaker for [C.G.] that were not properly investigated by the Department or considered by the court," and the court did not have the information necessary to render its custody decision without a proper investigation.

Mother complains that the social worker did not verify the presumed father's employment, confirm his sobriety, interview his father, visit his home in San Francisco, or ask him to attend parenting classes. But no one, including mother, disputed the presumed father's longstanding sobriety or employment as an electrician. The social worker knew the presumed father shared a home with his father in San Francisco, but she was not assessing the older father. Rather, she was assessing C.G.'s declared father who had already moved into the legal guardians' home in San Jose, and intended to move to a home with C.G. close to the grandparents if granted custody.

Mother argues the social worker did not adequately investigate her concerns that the presumed father's relationship with C.G. was inappropriate. Those concerns were addressed in the social worker's reports and explored during the trial. Soon after mother filed her custody petition in December 2016, a concerned person reported to the Department that C.G. said his grandmother allows the presumed father to sleep in the same bed with C.G., and that the grandmother later explained to mother that the presumed father stays in C.G's room until C.G. falls asleep, but does not sleep in C.G.'s room. The reporter related that C.G. did not display any sexualized behavior or language, and C.G. disclosed no sexual abuse when interviewed by an emergency response social worker; the Department concluded that the allegation was unfounded.

C.G. was also assessed by his therapist for sexual abuse in response to mother's concern. He made no disclosures, and the therapist saw no evidence of sexual abuse. The therapist related to the social worker that C.G. was "touchy-feely," and she (the therapist) "wondered if he had learned that" from the presumed father. But the therapist did not testify, and there was no indication from the social worker's notes that the therapist considered C.G.'s mannerisms to be unhealthy or inappropriate. The social worker also had met with C.G. several times and did not believe that he had been or was currently being abused by the presumed father.

Mother sent the social worker pictures C.G. had drawn in school, documented by the social worker in an April 2017 addendum report. Mother believed the drawings were sexually suggestive. But they did not alarm the social worker, nor was there any evidence that the school or C.G.'s present or past therapists were concerned about the drawings. Mother's remaining concern was that C.G. had viewed pornography in 2016 while in the presumed father's care in San Francisco. The presumed father testified that a neighbor's child, who was close in age to C.G., had shown C.G. the adult materials. When the presumed father learned that had happened, he contacted the child's parents, and he installed parental controls on the electronic devices used by C.G.

Mother testified extensively at the hearing in April and at the custody trial in June, and at no point did she express a concern that the presumed father's relationship with C.G. was inappropriate. In April she described the presumed father's relationship with C.G. as that of an uncle or older brother (not a father). And the only concern she expressed at the custody trial with the prospect of C.G. living with the presumed father was that the presumed father could be inattentive and may not adequately supervise C.G.

The guardians, the department, and C.G. supported the presumed father having full custody of C.G. The presumed father had a longstanding parental relationship with C.G., and he felt comfortable raising C.G. on his own, with an extended support system that included his parents, and C.G.'s adult sister and maternal grandparents. Aside from mother's unfounded accusations (that even she did not bring to the court's attention at that time), there was no evidence suggesting that C.G. would be at risk without continued dependency court oversight. (In re William T. (1985) 172 Cal.App.3d 790, 798 [a dependency action is grounded in the child's need for protection].) The evidence supports a finding that continued jurisdiction was not necessary to protect C.G. The juvenile court did not abuse its discretion by terminating dependency jurisdiction.

2. Continuing Dependency Jurisdiction to Provide Reunification Services to Mother

Mother argues that the juvenile court abused its discretion terminating dependency jurisdiction without providing her reunification services, particularly given the significant progress toward full-time parenting she felt she had made in the months before trial. Mother points to having C.G. in her care for several months, being engaged in C.G.'s schooling and therapy, and C.G.'s desire to live with her. But after reunification services are terminated, which occurred here in 2011, the focus in a dependency action is to provide the child with a safe, permanent home. (Tracy J. v. Superior Court (2012) 202 Cal.App.4th 1415, 1423.) Providing renewed reunification services to mother, who had an established presence in C.G.'s life as a noncustodial parent, was not in C.G.'s best interests given the presumed father's willingness and present ability to offer C.G. a permanent home. Nor does the record support mother's position that C.G. would be safe in her custody.

The decision to terminate jurisdiction on this record was not arbitrary, capricious, or patently absurd. If circumstances change, the Family Court is available to consider any request by mother to modify the juvenile court's custody orders.

III. DISPOSITION

The final judgment entered on July 6, 2017 is affirmed.

/s/_________

Grover, J.

WE CONCUR:

/s/_________
Greenwood, P. J. /s/_________
Bamattre-Manoukian, J.