Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 76434
Lambden, J.
J.L. (mother) and K.Y. (father), the parents of E.Y., became involved in a custody dispute after ending their marriage. Mother had physical custody of E.Y. After mother and the maternal grandmother made numerous referrals to the San Mateo County Human Services Agency (agency) that father and his family were physically and emotionally abusing E.Y. during his overnight visits with them, agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (b), alleging that father and his family were abusing E.Y. When the investigations did not provide support for the allegations but mother continued to claim E.Y. was being abused, agency filed a second amended petition, replacing subdivision (b) with subdivision (c). The allegation under subdivision (c) was that mother’s conduct was causing E.Y. severe emotional injury. The juvenile court held a combined jurisdiction and disposition hearing; it found jurisdiction and placed E.Y. with his father. Mother appealed and we affirmed the judgment in our nonpublished opinion, In re Eric Y. (Apr. 16, 2008, A118628).
J.L. was formerly K.W.
All further unspecified code sections refer to the Welfare and Institutions Code.
Subsequently, the juvenile court terminated dependency and issued exit orders awarding joint legal custody to both mother and father and sole physical custody to father. Mother appeals and contends that the lower court abused its discretion in denying her request for joint physical custody of E.Y. We conclude that the lower court did not abuse its discretion and affirm the judgment.
BACKGROUND
Mother and father married in May 2000; E.Y. was born in January 2002. The parents separated in February 2004, and mother was given sole physical custody over E.Y. Father cared for E.Y. on the weekends, which included overnights. Divorce proceedings were initiated in Alameda County in 2004.
The background facts prior to and including the combined jurisdiction and disposition order are taken from our prior nonpublished opinion (In re Eric Y., supra, A118628).
Allegations that E.Y. Was Abused While Visiting Father
On February 12 and 17, 2004, two separate referrals were made by the maternal grandmother to Child Protective Services (CPS), alleging that father was physically and emotionally abusive toward E.Y. Mother also reported that father had been physically and emotionally abusive toward E.Y. and her during her marriage with father in 2002. The social worker found no evidence to support the allegation that father physically abused E.Y. Since father never responded to the social worker’s request to discuss the allegation, the emotional abuse allegation was closed as inconclusive.
Alicia Howard, Ph.D., Alameda County family court counselor, held three child custody mediations between mother and father. In her report prepared June 24, 2004, after the first mediation, Howard stated that she interviewed mother and father separately. She noted that mother had custody of E.Y. and father was having supervised visits. The supervised visit reports indicated that these visits were positive and E.Y. did not appear to be afraid of his father. Howard noted that both parents wanted custody of E.Y., but only father was willing to work with mother. Father denied all of the abuse allegations. During Howard’s interviews with father, he never displayed anger and did not criticize mother. Howard recommended ending supervised visitation and developing a new parenting plan.
Another referral was made to agency on August 18, 2004. After E.Y. returned from a visit with father, mother reported that she noticed a bruise on E.Y.’s head. Mother took E.Y. to a doctor who observed a bruise about the size of a dime to E.Y.’s forehead.
On October 12, 2004, another referral was made to agency alleging that father was physically abusive toward E.Y. Mother took E.Y. to a doctor for a three-inch bruise on his right forearm, and the doctor noticed more marks on his elbow and wrist. Mother told the social worker that E.Y. told her that his paternal aunt hit him with a toy gun while he was visiting father’s home. Father denied the allegation and reported that they were having a contested custody proceeding at family court.
Howard prepared a confidential mediation report following her second mediation session on November 16, 2004. Since the time of the parents’ first referral to Howard in March 2004, mother had alleged that father engaged in domestic violence, that one of father’s brothers had committed a sexual assault, and that E.Y.’s paternal grandmother had engaged in emotional abuse. Additionally, she had made three separate allegations of emotional and physical child abuse against father, one allegation of child abuse against E.Y.’s paternal grandmother, and another allegation of child physical abuse against father’s sister. With the exception of the allegation of physical child abuse against the paternal grandmother, each of the remaining allegations of child abuse were investigated and closed by CPS. With regard to the referral on October 12, 2004, mother had alleged that, on October 10, E.Y. had received a bruise while at his father’s home; mother phoned the police. It was verified that E.Y. did sustain an observable injury, but E.Y.’s own statement indicated that he did not receive the injury from his father. Howard noted, however, that it was indisputable that E.Y. suffered the injury while in father’s care. Father agreed to monitor E.Y. more closely in the future. Howard stated that she was “concerned about the constant flow of abuse allegations” from mother.
Additional referrals were made to agency on December 2, 2004, and March 18, 2005. Allegations that father and father’s family members emotionally abused and touched E.Y.’s penis were investigated and closed as unfounded.
Howard completed another confidential mediation report on September 27, 2006. She concluded that the custody matter could not be mediated. She recommended a private child custody evaluation.
Another referral was made to agency on April 28, 2006. Mother told the social worker that, after E.Y. returned from his last visit with his father, he was scared to go to the bathroom, but needed to use it frequently. She said that E.Y. told her that his grandmother grabbed his private parts inappropriately. Mother took E.Y. to the doctor, but the doctor found no evidence of any problem.
On July 6, 2006, a referral was made to agency alleging that father threatened to tape E.Y.’s mouth, tie his hands behind his back, and tie his whole body if he were to tell anyone about the abuse at his father’s home during weekend visits. A little more than one month later, on August 18, another referral was made to agency alleging that father was physically and emotionally abusive toward E.Y. Additional referrals were made to agency on October 4, 2006, and on January 5, 19, 22, and 25, 2007. Mother and the maternal grandmother reported that E.Y. was still being physically, sexually, and emotionally abused by father and his family members during his visits.
Agency’s social worker with the aid of a Burmese translator interviewed E.Y. on various occasions. E.Y. reported that his paternal grandmother squished his penis and that his uncle hit him. E.Y. did not have any visible marks or bruises. He stated that he suffered other physical abuse and that he had been tied up. E.Y. saw therapist Amanda Robertson weekly from November 2006 through February 2007.
The Filing of the Section 300 Petition and E.Y.’s Detention
On February 1, 2007, agency filed a petition pursuant to section 300, subdivision (b) on behalf of E.Y. The petition alleged E.Y. had been physically, emotionally, and sexually abused while in his father’s care. The abuse included being tied up, locked in a garage, being hit with a spoon, and having his penis squeezed.
Agency filed its initial report on February 2, 2007, which stated that there had been 16 referrals to it regarding E.Y.’s visits with his father during the past three years. The report indicated that many of the allegations had been investigated and mother was told that the evidence was not strong enough for agency to stop visits between father and E.Y. The social worker believed more referrals would be made to agency if no action were taken and the allegations were escalating. The report stated “[t]here have been at least two CALICO [Child Abuse Listening Interview Coordination] Center interviews, there has been numerous medical exams by the child’s pediatrician, law enforcement investigations, and full skeletal survey. All of which have determined that the child was perfectly healthy and that the allegations were either deemed unfounded or there was no evidence to support the allegations.”
Agency’s social worker concluded: “It is the undersigned’s belief that the child would be subjected to much more stressful interviews by social workers and law enforcement officers and there would be more medical examinations performed on the child until there is evidence to support the allegations that have been made as the mother will not be satisfied until [agency] recommends that the child have no future contact with the father. Therefore, the undersigned believes that the matter would only get worse if the court is not involved.”
On February 8, 2007, the juvenile court detained E.Y. from father and ordered that he remain in mother’s care. The court ordered that father have supervised visits with E.Y. The court ordered mother and E.Y. to participate in a mental health evaluation. Both parents were ordered not to distribute copies of the initial hearing report to any other parties and not to discuss the case with E.Y. At a later hearing, the court ordered father to have a mental health evaluation and to participate in family therapy with E.Y.
Mental Health Evaluations
In March 2007, Dr. Amy T. Watt completed a mental health evaluation of father. Father admitted slapping his wife, but insisted that he had never been violent toward E.Y. or mother. His personality assessment indicated the presence of depression, coping deficits, and interpersonal issues. He had a high level of denial of issues and had a tendency to blame his wife and her family for the conflict. Because of his denial and “hands-off-approach to family issues,” Watt opined that “[h]is ability to provide adequate parenting to his son who is deeply affected by the divorce and family conflict is doubtful at this time.”
The divorce proceedings between mother and father were finalized on April 12, 2007.
Leslie S. Packer, Ph.D., evaluated E.Y. on April 26 and May 3, 2007. In her report dated May 10, 2007, Packer wrote that “[E.Y.] presented as a child who had been coached and instructed to convey specific information.” Packer stated that, while in the playroom and at the beginning of the evaluation, E.Y. blurted out the following to her: “ ‘My daddy and my uncle tied me up, and they put me in the garage. Three times. And my uncle pulled my nose. And he knocked my head two times. He tied me up and left me in the room.... I said help. Nobody helped me.... And my grandma squeezed my penis a lot of times.... I was watching T.V. and my grandma squeezed my penis. I said I don’t like it and I punched her and hit her hand, and I run, and tell my dad.’ ” When told to draw a picture, [E.Y.] asked, “ ‘Is it time for me to draw my uncle tying me up?’ ” He proceeded to draw pictures of himself being tied up in the garage.
Packer observed that E.Y.’s interactions with both father and mother “were equally warm, enthusiastic, and loving.” She noted, “Aside from his rote recitation of incidents of abuse, E.Y. appears to be a normally developing boy, with high cognitive potential.” She stated that E.Y. did not have symptoms of Post Traumatic Stress Disorder. She recommended that E.Y. live with his father for a six-week period and have weekly supervised visits with mother.
On the same date that Packer prepared her report, May 10, Watt completed a report setting forth her mental health evaluation of mother. Mother described to Watt the verbal abuse she suffered from E.Y.’s paternal grandmother and the physical and verbal abuse she suffered from father during her marriage. She stated that she felt terrified about the safety of her son when he visited his father. Watt observed, “What seems to be the case for [mother] is the presence of tension, anxiety, helplessness, and substantial distress. [Mother] is in need of ongoing psychological intervention to help her address her emotional issues, to build effective coping strategies, and to reduce distress....”
Watt stated the following regarding mother’s anger toward father and his family and its effect on E.Y.: “Having harbored much resentment and anger toward her ex-husband and his family for her perceived mistreatment, [mother] naturally has little faith trusting her son to the care of her ex-husband. The fact that [mother’s] son is presenting with behavior and emotional difficulties in school and at home is also a cause for concern. Whether or not abuse took place in the father’s home, the continual saga of abuse allegations and belligerence between [mother] and her ex-husband have likely caused a great amount of distress and unrest for the young child. Given [mother’s] high level of distress as well as her preoccupation of the idea that his father and his father’s relatives are harming her son, her ability to provide adequate care for her son is doubtful.”
Watt stated that it was clear that mother cared for her son and wanted to protect him, but her current distress was likely to “interfere with her ability to provide adequate support to her son. Since [E.Y.] has already presented with behavior difficulties, her ability to provide the much-needed emotional support for her son is doubtful at this time. [Mother] is in need of psychological intervention to help her handle her emotions and to develop coping skills before she can provide adequate support and care for her son. [¶]... Her ability to provide adequate emotional support to her son and to attend to his needs is likely to improve as she receives ongoing help to deal with her emotional issues.”
The Second Amended Petition
On May 22, 2007, the court proceeded with the jurisdiction hearing on an amended section 300, subdivision (b) petition that had been filed on May 15, 2007. Agency moved to amend the petition to strike the subdivision (b) allegation and replace it with a subdivision (c) allegation, which stated that mother was exposing E.Y. to suffering serious emotional damage. At the hearing, agency recommended that E.Y. be removed from mother and placed with father. The court placed E.Y. in father’s home pending the next court hearing, and ordered agency to make unannounced visits to father’s home. The court ordered family supervised visits between mother and E.Y.
On May 24, 2007, agency filed its second amended petition alleging that E.Y. was a child coming within section 300, subdivision (c). Specifically, the allegation was as follows: “Since approximately 2004, the parents have been engaged in a contentious custody fight, and the mother believes that the father is harming the child, and constantly questions the child regarding abuse, instills and encourages anxiety in the child, coaches and prompts the child to make allegations of physical and sexual abuse, and attempts to restrict the father’s access to the child; this behavior has resulted in approximately twenty Children’s Protective Services referrals, mostly alleging physical and/or sexual abuse of the child by the father as well as by members of the paternal family, and none of these referrals have been medically confirmed for physical or sexual abuse; and these allegations have caused the child to undergo multiple interviews and medical examinations, and resulted in anxiety, withdrawal, and aggression in the child evidenced both at school, during visitation exchanges, and without juvenile court intervention, this cycle would continue.”
Combined Jurisdiction and Disposition Hearing
The court held the jurisdiction and disposition hearing over the course of several days. Robertson, who had provided weekly therapy from November 2006 through February 2007 for E.Y., testified. She disclosed that, after about eight weeks of therapy, E.Y. reported to her that his father had tied him up and put him in the garage. He told her that he had been hit on the head. She observed that he seemed anxious while relaying this information and said that he was scared to go to his father’s house. She found E.Y. credible and, as mandated, reported the alleged abuse to CPS. About two weeks later, E.Y. again told Robertson that he had been tied up at his father’s house. She again reported the alleged abuse to CPS.
Packer testified as a child psychologist expert. She stated that, within minutes of the start of her first session with E.Y., he blurted out in “a very mechanical way” a “litany” of abuse allegations. She stated that “[E.Y.’s] presentation ha[d] the hallmarks of a child who has been coached.” She did not believe that he had been directly coached by his mother, but she opined that mother projected onto E.Y. her belief that he was unsafe with his father. Ordinarily victims, according to Packer, need to have the statements regarding abuse pried out of them.
Packer elaborated on the effect of all the questioning of E.Y. on him: “[Mother] has questioned him repeatedly. And he’s been interviewed repeatedly by social workers in response to CPS suspected child abuse reports. And when he has come home from his unsupervised weekend visits with his father, she has questioned him and come to the conclusion that these things happen. And it’s been so reinforced in E.Y.’s mind by repeated questioning and intrusive types of parental interviewing that he, I think, doesn’t know what has happened.”
When asked about E.Y.’s development, Packer responded that “in many ways he’s a normally developing bright little boy.” However, she expressed concern about his emotional state as a result of being told that his father is a bad person. She stated that the videotape shows that E.Y. is relaxed and playful when with his father and his cousins, “[b]ut he feels mom tells me all these bad things and to repeat them. So I think it is very hard on a child’s mental and emotional development to be placed in this position of splitting the world into good mommy and bad daddy. And it’s very unhealthy.”
Packer also expressed concern that E.Y. had increased fear, which often caused him to cling to his mother. He told Packer that he had scary dreams about a shooting, and a terrorist killing him. She stated that E.Y. needed to have a calm home life and “not to be torn and questioned about bad things.” She therefore recommended that father have custody over E.Y.
Packer also reported on her session with E.Y. after he had started living with his father. When alone with E.Y., Packer asked him whether the things that he had said about his father tying him up in the prior sessions were true. E.Y. responded that they were not true, but his mother told him that he had to say those things. Packer believed that E.Y. was thriving at his father’s house. If mother continued to believe that father was abusing E.Y., Packer opined that the risk to E.Y. was the following: “Well, the most extreme risk would be if he returns to mother’s care and she continues to believe and coach and influence his mind so that he continues to believe as he did at least say these things [sic] the most extreme risk that he could develop a mental illness where a psychotic parent or a parent with a delusion influences the child to the extent the child has delusions and does not have a healthy mental life.”
Watt testified regarding her mental health evaluation of mother. When asked about the statement in her report that mother may not currently have the ability to provide emotional support for her son, Watt responded: “This is based on both my observation of [mother] during the testing session as well as the test data. And during the testing session, [mother] was okay at first and then when the topic of discussion turned to her marriage and her in-laws, then she became increasingly more distraught and overwhelmed. And her—actually her distress continued... throughout the testing session.” Mother, according to Watt, continued to have a difficult time focusing and concentrating. Watt concluded that mother was “going through a lot of her own emotional and personal issues” and therefore it could “be hard for her to focus all of her attention in taking care of her child at this time.” Watt reported that “the continual saga of abuse allegations and belligerence between [mother] and her ex-husband have likely caused a great amount of distress and unrest for the young child.”
Social worker Nell Levy also testified. When asked the basis for her belief that father’s home was a better place for E.Y. than his mother’s home, Levy responded: “I think I would be drawing on a number of things.... And I look at what this kid has been through over and over again. And then I look at three referrals coming in during the time that we’re doing the investigation and what the child was put through just during that time... and photographs of lots of private parts of his body in order to sustain or not sustain the allegation that the mother was making. These were pretty intrusive. This is not good for a little boy....” She also observed that when E.Y. was living with his mother and he came for the custody exchange, E.Y. would “be a wreck. He would be, you know, crying. He didn’t want to get out of the car clinging to his mom....” Once E.Y. was with his father, he was fine.
Levy also reported that E.Y.’s behavior at pre-school had changed since being placed with his father. She stated that E.Y. used to cling to his mother and cry when being left at school, but that behavior had stopped since his father was taking him to school. She noted that E.Y. was displaying aggressive behavior at school since being placed with father, but she reported that Packer attributed this behavior to an adjustment to the change of placement. Moreover, he displayed aggressive behavior at school when living with mother.
Court’s Ruling and Appeal
The juvenile court sustained the second amended petition and found that E.Y. was a child within the court’s jurisdiction under section 300, subdivision (c). The court ruled that E.Y. was to be placed in father’s home, and mother and the maternal relatives were to have visitation. Mother appealed, and we affirmed the judgment in In re Eric Y., supra, A118628.
Interim Hearing on October 2, 2007
Social worker Eve Bazo was assigned to this case in July 2007, and she filed an interim review report on September 27, 2007. She observed that E.Y. “clearly enjoys spending time with both his parents. Further, the undersigned observes that [E.Y.] has no fear, but joy upon being picked up by his father at the end of visits with his mother. There have been no statements made by [E.Y.] to the undersigned or to Children and Family Services staff since the undersigned has had this case with regard to being abused by his father or by his paternal family. [E.Y.] arrives to visits with his mother dressed appropriately, on time, and happy. At the end of each visit [E.Y.] has with his mother, [E.Y.] appears glad to go home with his father....”
Bazo stated that she met with mother on September 13, 2007. Mother stated that she was working fulltime, was in agreement with the case plan, and was willing to follow the items as stated in the plan. Mother reported that she was in the process of being evaluated for psychotropic medication by Henry Lee, M.D. She also indicated that she was eager to begin parenting classes and wanted assistance in locating a therapist.
Bazo observed that mother continued “to have difficulty discussing the paternal family and custody issues regarding [E.Y.] without becoming tearful.” Bazo opined: “It continues to be likely that [mother’s] emotional issues and concerns that [E.Y.] will be harmed could continue to impinge on [E.Y.’s] ability to have a healthy relationship with his father. It is clear that [mother] could benefit from some time spent in treatment in individual therapy prior to any consideration of [E.Y.’s] return to her care.... It is important to note that [mother] has not questioned [E.Y.] about having been abused by his father or the paternal family since the undersigned has had this case. It is also important to note that [E.Y.] appears to be quite fine and content in the care of his father and the paternal family.”
On September 19, 2007, Bazo met with father and E.Y. in the home. She observed E.Y. to be comfortable in the home; he welcomed her with “a big smile and appeared quite content.” She also saw him approach other family members in the home “with ease, comfort, and without hesitation.” She stated that he appeared “very playful with his father; climbing, running, and engaging with his father with no hesitation or fear.” Bazo confirmed that father had enrolled in a parent education class. She stated that father was in compliance with the court’s orders and the case plan. Father indicated that he believed it was important for E.Y. to maintain contact with mother and supported E.Y.’s visiting mother.
At the interim hearing on October 2, 2007, the court continued all prior orders and ordered an English speaking therapist for E.Y. and a Burmese speaking therapist for mother.
Six-Month Status Review Hearing
Bazo filed her six-month status review report on December 20, 2007. She observed that E.Y. appeared “to be happy, adjusted to his home, and developing appropriately according to age.” She stated that father was “gainfully employed” and provided for E.Y.’s “every financial and emotional need.” Mother also was gainfully employed and appeared to be “a concerned parent” and “caring” of E.Y.
The report indicated that father drove E.Y. weekly to visit mother. Bazo stated that father was “very committed” to E.Y.’s “need to have regular, ongoing contact with his mother” and supported E.Y.’s visits with her. Agency staff observed that mother was pleasant with E.Y. during these visits and engaged with him appropriately. The instructor for mother’s parenting class submitted a statement praising mother for her interest and efforts to improve her parenting skills and her willingness and commitment to reunify with E.Y. The instructor deemed her as “an exemplary student.”
Additionally, Dr. Lee submitted a letter dated September 25, 2007, assessing mother. He found that she was suffering from “Adjustment Disorder, with Mixed Anxiety and Depressed Mood.” He found that she did not have any psychotic symptoms and he did not believe that she needed any psychiatric medication treatment. He recommended her for psychotherapy treatment.
Bazo concluded that it would “be a detriment to return” E.Y. to mother’s care at this time due to the short amount of time mother had spent in individual therapy. Additionally, it would result in disrupting E.Y.’s schooling. Bazo commented that it would be in E.Y.’s “best interest that visitation between he and his mother continue to be supervised until the mother can demonstrate that she can control her need to question [E.Y.] about possible abuse.”
Bazo filed an addendum report on March 10, 2008. The report stated that scheduling problems had prevented mother from meeting with the therapist and a new therapist was being sought. Bazo opined that it appeared to her that mother continued “to struggle emotionally with the past and the events that have happened in the course of this case.” She further stated that mother “appears to continue to struggle with her own needs to parent and gain custody of [E.Y.] rather than consider what may be in [E.Y.’s] best interest.” The report mentioned that E.Y.’s therapist declared that E.Y. had accomplished all treatment goals and described the relationship between father and E.Y. as appearing to be “healthy, spontaneous and caring[.]”
At the hearing on March 14, 2008, the court ruled that the parents were not to proceed in family court until the juvenile matter was resolved and mother was not to take E.Y. to a doctor “unless under emergency situations.” The court authorized unsupervised visits between mother and E.Y. once mother’s therapist agreed. The visitation exchange was to remain at social services.
Twelve-Month Status Review Hearing
Bazo filed on August 7, 2008, a report for the 12-month status review hearing. The report indicated that E.Y. appeared “to be happy, well adjusted in [father’s] home, and developing appropriately according to age.” Both parents, according to the report, continued to be employed and appeared to be pleasant. Additionally, the report stated that E.Y. seemed “to have a healthy attachment to both his parents and transitions easily between the two of them when visiting his mother.”
The report pointed out that mother was attending individual therapy with therapist Sara Kader and Kader indicated that mother was an engaged participant in treatment. The report further noted that mother had complied with the court’s orders and most of the case plan; mother also had maintained good communication with Bazo. Father, too, had complied with the court’s orders and “all aspects of the case plan.” He also had maintained good communication with Bazo.
Bazo reported that E.Y. began having unsupervised visits with mother on July 19, 2008. The exchange occurred at the police department and both parents reported that the visits were going well. E.Y. asserted that he enjoyed spending time with his mother and father stated that E.Y. was content when returning home from these visits.
Bazo commented that mother wanted E.Y. returned to her care and that mother did not believe that she needed any further services. Father, according to Bazo, also wanted E.Y. to stay with him; father stated that he was pleased E.Y. was “well, happy, and healthy.” Father also indicated that he did not believe that he needed any further services.
Bazo cautioned that, although mother had achieved most of the goals on the case plan and completed the services asked of her, there was nothing indicating that she had “internalized that things could be different and that she and the father... could co-parent together and have some degree of amicable communication as co-parents at this time.”
Bazo recommended that father “be given the opportunity to care” for E.Y. until a formal visitation plan could be developed jointly. She recommended the termination of reunification services for mother while she continued her course of treatment in therapy. She requested that father be given custody of E.Y. Bazo recommended that E.Y. continue as a dependent child of the court.
At the hearing on August 19, 2008, counsel for mother requested that mother share both physical and legal custody and requested a contested hearing if the court disagreed. Bazo opposed this suggestion and changed her recommendation from discontinuing services to mother to continuing them. The court continued the matter, but granted agency the discretion to authorize unsupervised and overnight visits between E.Y. and mother.
On October 16, 2008, Bazo filed an addendum report for the 12-month status review hearing. Bazo consulted with Kader, mother’s therapist. Kader confirmed that mother had complied with her treatment and that mother could have overnight visits with E.Y. Mother initially had a problem with transportation, but this problem was eventually solved and overnight visits began. Father confirmed that the overnight visits went well and that E.Y. appeared to enjoy his time with mother.
Although agency had some concerns, it changed its recommendation to offer more reunification services to mother. Agency’s goal was for E.Y. to return to mother’s home by February 19, 2009.
At the hearing on October 20, 2008, the court approved agency’s case plan, ordered mother’s restraining order against father to be modified to allow communication between the parents, and ordered the parents to mediate any issues between them.
Eighteen-Month Review Hearing
Bazo filed a report on February 6, 2009, for the 18-month review hearing. She indicated that E.Y. continued to live with his father and remained happy and well adjusted. He appeared to have a healthy attachment to both mother and father and to transition easily between the two of them when visiting his mother. Both parents remained employed. E.Y. continued to have unsupervised visits with mother. The visits, according to the report, had gone well and father had been “very supportive” of E.Y.’s relationship with mother.
The report stated that there would no longer be a continuing risk to E.Y. if dependency were terminated as the issues that brought E.Y. to the attention of agency and court appeared to have been resolved. Agency recommended that the parents have joint legal custody of E.Y. and that father have sole physical custody of E.Y. Bazo stated that E.Y.’s primary residence had been with his father and E.Y. had developed bonds and attachments to both his school and peers at the school. When asked about remaining at his current school, E.Y. at first seemed uncertain, but then told Bazo that he liked his school and going to school with his friends.
Attached to the report was a mediation agreement regarding visitation that the parents reached on December 30, 2008. It noted that both parents wanted custody. It stated that the parent not granted custody would have visitation with E.Y. on alternate weekends from Friday evening through Sunday evening. It also expressed that both mother and father understood that the restraining order would be modified to allowed peaceful contact for educational and medical issues regarding E.Y.
Also attached to the report was an addendum completed by Kader, mother’s therapist. She stated that she met with mother and E.Y. for four sessions and mother was caring. Their interactions were positive and mother engaged E.Y. in developmentally appropriate activities.
Mother contested agency’s recommendation that father be granted sole physical custody of E.Y., and the court held a hearing on February 19, 2009. Bazo testified that her recommendation that father have physical custody and mother have overnight visits followed the mediation agreement between mother and father. She stated that she did not believe it would be in E.Y.’s best interests to live primarily with his mother and visit his father on alternate weekends because that would require him to change his school. She also testified that she believed living with mother would impact E.Y.’s emotional stability. Bazo stated that father encouraged E.Y. to have a positive relationship with his mother. She pointed out that when E.Y. was first removed from mother’s home, E.Y. had trouble making eye contact, had an “incredibly difficult time transitioning during visitation exchanges, [and] had trouble engaging with other adults.” Since he had been residing with his father, Bazo had seen none of these behavior problems.
Counsel for E.Y. argued that the living situation and the schooling for E.Y. should not be changed. Counsel noted that the allegations of abuse or neglect were sustained only as to mother in this case. In the past, the parents could not handle joint custody and counsel for E.Y. did not believe that this was a case for joint physical custody.
At the end of the hearing, the court modified the restraining order to reflect the mediation agreement. The court stated that, given the background of the case, it believed that joint physical custody was unworkable. It therefore granted sole physical custody to father and awarded joint legal custody to both parents. The court terminated dependency.
Mother filed a timely notice of appeal.
DISCUSSION
The juvenile court in its exit order granted sole physical custody to father. Mother’s sole contention is that the lower court should have granted her request that both parents have joint physical custody of E.Y. For the reasons discussed below, we affirm the lower court’s ruling.
Custody and visitation orders issued in connection with the termination of dependency jurisdiction are commonly referred to as “exit orders.” (In re John W. (1996) 41 Cal.App.4th 961, 970.)
We review a dependency court’s custody decision for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) “[W]hen a court has made a custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].” ’ [Citations.]... ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. 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.” ’ [Citations.]” (Id. at pp. 318-319.)
Exit orders are governed by section 362.4. When the dependency court terminates its jurisdiction over a child, it may make custody and visitation orders, which shall be filed in any action involving custody of the child that is pending. If none is pending, the orders may be used as the basis for opening a family law file. The orders shall continue until modified or terminated by a subsequent order of the superior court. (§ 362.4.) The authority to make custody orders when jurisdiction is terminated includes the power to order that one parent have sole legal and physical custody of the child based on the child’s best interests. (See In re John W., supra, 41 Cal.App.4th at pp. 971-972.) “When making a custody determination in any dependency case, the 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.)
Section 362.4 reads in relevant part: “When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor’s attainment of the age of 18 years, and proceedings for dissolution of marriage... of the minor’s parents... are pending in the superior court... the juvenile court on its own motion, may issue... an order determining the custody of, or visitation with, the child. [¶] Any order issued pursuant to this section shall continue until modified or terminated by a subsequent order of the superior court.”
“[B]oth parents are [not] equally entitled to half custody” in dependency exit orders. (In re John W., supra, 41 Cal.App.4th at p. 974.) When the juvenile court hears a dependency case under section 300, it is handling children who have been abused, abandoned, or neglected and so it stands as parens patriae, having a special responsibility to those children and considers the totality of a child’s circumstances when making decisions regarding the children. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) “ ‘[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.]” (Ibid.) The Family Code’s “presumption that joint custody is in the best interest of the minor is inconsistent with the purposes of the juvenile court.” (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712, fn. omitted.)
In the present case, the juvenile court did not abuse its discretion in finding that it was in E.Y.’s best interests to grant father sole physical custody of E.Y. Counsel for E.Y. argued that the living situation and the schooling for E.Y. should not be changed and that father should have sole physical custody. Counsel noted that the allegations of abuse or neglect had been sustained only as to mother in this case. In the past, the parents could not handle joint custody and counsel for E.Y. did not believe that this was a case for joint physical custody.
Similarly, Bazo testified that E.Y.’s primary residence had been with his father and that he had developed a bond and attachment to his school and to his peers at the school. She stated that she did not believe it would be in E.Y.’s best interests to live primarily with his mother and visit his father on alternate weekends because that would cause him to change his school. She also remarked that she believed his living with mother would impact his emotional stability.
The evidence presented to the juvenile court established that E.Y. was thriving while living with his father. Bazo testified that E.Y. was happy and well adjusted. She noted that he appeared to have a healthy attachment to both mother and father and to transition easily between the two of them when visiting his mother. She reported that father had been “very supportive” of E.Y.’s relationship with mother.
As counsel for E.Y. emphasized, the history of this case established that joint physical custody would not work. Indeed, mother had a restraining order against father, and it therefore would be difficult, if not impossible, for them to share custody. Moreover, the record established that E.Y. had suffered serious emotional injury when living with mother. As a result of mother’s accusations that father and his family were abusing E.Y., there were 16 investigations. None of these investigations resulted in any substantiation of any abuse. These investigations, however, sometimes lead to a physical examination of E.Y. and then to a disruption of his visits with father and his family.
In addition to making numerous accusations against father and his family, mother had displayed serious emotional distress. Dr. Watt completed a mental health exam of mother in May 2007, and concluded that mother was “going through a lot of her own emotional and personal issues” and therefore it could “be hard for her to focus all of her attention on taking care of her child at this time.” Further, in her report she noted that mother’s emotional problems were probably part of the reason E.Y. was having emotional difficulties in school and at home.
During the period when E.Y. was residing with mother, social worker Levy observed that E.Y. was a “wreck” when he arrived for the custody exchanges between mother and father. He was crying and clinging to his mother. Packer evaluated E.Y. in April and May 2007, and she, too, expressed concern that E.Y. had increased fear, which often caused him to cling to his mother. E.Y. told Packer that he had scary dreams about a shooting, and a terrorist killing him. Packer diagnosed E.Y. as suffering with an adjustment disorder with symptoms of anxiety. She concluded that this disorder and anxiety were “in reaction to [a] high conflict divorce and exposure to repeated questioning in [regard to] alleged abuse.” Packer opined that the effect on E.Y. from his mother’s repeated and intrusive questioning of him about his visits with his father caused him not to know what really had happened. She also expressed concern about the effect on E.Y. emotionally as a result of being told that his father is a bad person. She observed: “So I think it is very hard on a child’s mental and emotional development to be placed in this position of splitting the world into good mommy and bad daddy. And it’s very unhealthy.” Packer believed that, if mother continued to believe that father was abusing E.Y., the risk to E.Y. was “that he could develop a mental illness where a psychotic parent or a parent with a delusion influences the child to the extent the child has delusions and does not have a healthy mental life.”
Since E.Y. had been placed with father, he was developing normally and not exhibiting emotional problems. Bazo emphasized that when E.Y. was first removed from mother’s home, E.Y. had trouble making eye contact, had “incredibly difficult time transitioning during visitation exchanges, [and] had trouble engaging with other adults.” Since he had been residing with his father, Bazo had seen none of these behavior problems.
Mother argues that joint physical custody does not need to mean equal time with E.Y. and she cites Niko v. Foreman (2006) 144 Cal.App.4th 344. In Niko, the court addressed the issue of which standard the trial court must use to rule on a move-away request when the parents have joint physical and legal custody of the child. The majority concluded that the changed circumstance rule does not apply to a joint custody move-away situation because “modification of the coparenting arrangements is not a change of custody requiring change of circumstances.” (Id. at p. 363.) The Niko court held that the trial court “must review de novo the best interest of the child” and may “fashion a new time-share arrangement for the parents.” (Id. at p. 364.) Mother argues that, similarly here, the court could have fashioned a joint physical custody arrangement where father would have primary physical custody and mother could have more frequent contact with child, especially during summer vacation.
The present case, unlike the one in Niko v. Foreman, is not a case concerned with requests to change a parenting or visitation schedule in a joint custody arrangement. Rather, this is a dependency case. As already stressed, “both parents are [not] equally entitled to half custody” in dependency exit orders. (In re John W., supra, 41 Cal.App.4th at p. 974.) “ ‘[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.]” (In re Chantal S., supra, 13 Cal.4th at p. 201.) Instead, the juvenile court focuses on what is in the best interests of the minor.
Mother maintains that the evidence showed that she had complied with her case plan and that she was a dedicated, loving mother. She also points out that Bazo testified that it would be better for E.Y. if he spent more time with mother.
We agree that the record shows that mother is a loving parent and has a good relationship with E.Y. Indeed, the mediation agreement between the parents acknowledges that both parents care for E.Y. and that he should have a relationship with both parents. The question is what custody arrangement is in E.Y.’s best interests. Here, the record overwhelmingly supports the lower court’s ruling that it is in E.Y.’s best interests for his father to have sole physical custody. The evidence established that, since E.Y. had been in his father’s home, he had overcome his emotional problems, had developed good relationships with both his parents, and was attached to his school and friends at his school. Given the parents’ acrimonious history and mother’s earlier role in disrupting E.Y.’s relationship with his father, the juvenile court did not abuse its discretion in concluding that the parents could not share physical custody and that it was in E.Y.’s best interests for father to have sole physical custody of E.Y. Accordingly, we affirm the judgment.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.