Filed 10/ 4/21 In re T.M. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.11 15.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re T.M. et al., Person s Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,

v.
N.M., Defendant and Appellant. G060012 (Super. Ct. Nos. 17DP1325, 17DP1325A, 17DP1326, 17DP1326A, 17DP1327, 17DP1327 A , 17DP1328, 17DP1328A, 17DP1329 and 17DP1329 A )

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Caryl Lee, Judge. Affirmed.

Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.2 Leon J. Page, County Counsel, and Karen L. Christensen, Deputy County Counsel, for Plaintiff and Respondent.
* * * This dependency case , involving five siblings then aged 12, 11, 8, 6 and 3 , was initiated by the Orange County Social Services Agency (SSA) in December 2017 , after the child r en ’ s mother (Mother) left the m unattended overnight

. Custody was initially returned to M other, but additional issue s surfaced involving her mental health
and substance abuse . The children ’ s father (Father) , who wa s in custody when they were detained and had not visited them for two years, was later denied visitation . The c hildren were placed in foster care and both parents were offered reunification services.

After F ather experienced success with his reunificatio n efforts , the children

were placed in his custody for a 60

- day period near the end of the 18

- month reunification period. Ultimately, the dependency case was terminated with exit order s granting full legal and phy si cal custody of the children to F ather and granting monitored visitation three times per month to M other. She appeals, arguing the trial court abused its discretion by reducing the frequency of her monitored visitation from once per week to three times per month, wit hout apparent reason, and by declining to grant her shared legal custody.
We find no abuse of discretion and affirm the exit order s

. A continuing
feature of th e reunification period in this case has been M other ’ s hostility to the idea of
F ather having c ustody of the children. She repeatedly reported him to SSA for alleged
misconduct , and she re gular ly disparaged him to the children, who made clear they
disliked hearing it. E vidence of this ongoing conduct was sufficient to support the trial

court ’ s imp lied finding that M other would not be able to reasonably share parenting authority with F ather.3 T here is no requirement that the juvenile court accept SSA ’ s recommendation regarding visitation, or that it maintain the same frequency of visits that
exist ed in the period prior to termination. In this case, the once

- a

- week visitation schedule claimed by M other began only a month before the termination hearing, and
M other missed the first two sessions

. Based on that evidence , t he court could infer th at scheduling visitation once per week was not in the best interests of the children.

FACTS On December 5, 2017, the Orange County Social Services Agency (SSA) filed a petition alleging general neglect and failure to protect and supervise the children. The petition alleged that on the night of December 3, and into the morning of
December 4, M other left the children unsupervised in a motel room. The petition also alleged that M other has a history of mental health issues, and of domestic violence issues with multiple partners, including F ather.

The petition alleged jurisdiction is appropriate on the basis that the
children ’ s maternal half

- siblings were the subject of a prior dependency petition in which the court sustained allegations that M other engaged in physical abuse of one of the
half

- siblings , and she had a criminal conviction in 2002 for willful cruelty to a child. The petition further allege d F ather has a history of mental health issues, which may interfere with his ability to safely parent his children, as well as a criminal history including convictions or arrests for making criminal threats and stalking. The petition also allege d F ather was involved in a serious motorcycle accident approximately
15 years earlier, which may have resulted in a traumatic brain injury. The petition further allege d F ather wa s the subject of four separate restraining orders, including one that
benefits M other, iss ued in March 2016 by the court presiding over the couple ’ s marital
dissolution.4 Finally, the petition allege d that in March 2016, M other was awarded sole legal and physical custody of the children in the marital dissolution action, while F ather
was allow ed only professionally supervised visitation ; F ather had not visited the children since that time and the three older children reported they d id not currently want visitation
with Fa ther.
In connection with the initial detention hearing, SSA reported M ot her stated she and the children had recently been homeless, and she acknowledged leaving
the children alone in a m otel room overnight for up to seven hours. SSA ’ s report also
summarized the content of 26 prior referrals for abuse or neglect involving the family commencing in November 2005.

F ather was incarcerated at the time the children were taken into protective custody; he was interviewed in jail on December 5 , 2017

. He indicated his incarceration stemmed from a charge that he had made a terrorist th reat against Laura ’ s House, a
domestic violence shelter. He said he was a businessman and record producer with a

“ vocational history of underwriting loans as a mortgage specialist. ”

At the detention hearing on December 6, 2017, the court ordered the
children detained from both M other and F ather. Mother was given supervised visitation.
SSA ’s January report noted that after four days in custody following her arrest for leaving
the chi ldren alone overnight, M other ’ s visitation was going well. M other had obtained safe housing, appeared to demonstrate insight into the reasons the children were detained, and enrolled in services. On January 11, 201 8 , the children were released to M other ’ s custody.
F ather was released from jail after plead ing guilty to making criminal threats, stalking , and making telephone calls with intent to annoy. The children reported they had not seen F ather in two years . The three oldest children responded they were not interested in visiting with him. In June 201 8 , SSA reported that F ather had complained
to them about the dependency proceeding and made disparaging remarks about M other

.5

The court ordered a psychiatric evaluation of F ather and subsequently entered an order denying him visitation. We affirmed that order on appeal. ( In re T.M. ( Feb. 15, 2019,
G0 56588) [nonpub. opn.].)

In July 2018, SSA filed a petition to remove the children from M other ’ s custody because she had been placed on an involuntary psychiatric hold. M other claim ed
without evidence the children had been poisoned. M other acknowledged to a psychiatrist that she was using cocaine in addition to her attention deficit hyperactivity disorder ( ADHD ) medication.

I n August 2018, the court ordered the children detained from M other ; she was allowed supervised visitation at a minimum of six hours per week. The visitation went well initially, but toward the end of the first month, the children reported that
M other was bringing up memories that made them feel uncomfortable and upset.

The court ordered psychiatric evaluations for both parents. M other ’ s first
evaluation concluded she had thinking problems , odd beliefs , and likely delusions. Her second evaluation diagnosed her with a psychotic disorder, possible amphetamine abuse , and paranoid personality traits.

In May 2019, two of the children reported that M other had brought food to visitation in a container decora ted with blood on the outside. T he oldest child also reported Mother gave him a birthday card with hearts drawn in blood, and cupcakes with pentagram s on them. M other denied using blood to decorate the food box or card , but the
court ordered M other not t o provide any food , and not to bring any letters, cards or books
to visitation. Additionally, M other ’ s visitation was reduced to o ne hour per month , plus three phone calls per week.

In May 2019, M other was arrested for trespassing ; in June 2019, she was arrested and later released after she went to the oldest child ’ s school to ask for his records and spilled coffee on the clerk ’ s computer. M other reported she had completed a parenting course ; SSA was unable to confirm that claim. More over, M other was6

terminated from therapy after she missed three sessions. The therapist stated to the social
worker that she was “ scared of ” M other. Additionally, M other failed to enroll in substance abuse treatment , or participat e in drug testing betwe e n February and June 2019.

By July 2019, the children were regularly visiting with F ather and reported they were enjoying the visits and wanted to live with F ather. M other ’ s visits were increased to twice per month in July 2019 , and , although she missed a co uple of visits and was in jail for a week on the trespass charge, the visits and phone calls were otherwise rep orted to be appropriate

. T he oldest child , however, refused to participate in
visitation with M other.

In September 20 19, SSA reported that visitation continued to be appropriate . The report stated M other was drug

- testing , but she had not enrolled in a
substance abuse class or attended any Narcotics Anonymous meetings. At the review hearing on September 19, 2019, the co urt authorized SSA to increase M other ’ s visitation , and allowed M other to discontinue her Na r cotics Anonymous meetings if she continued
to test clean.
At the 18

- month review hearing in January 2020, SSA recommended the
court order a 60

- day trial home visit with F ather. Although all of the children except the eldest said they enjoyed visits with M other, none of them wanted to live with her. The
three elde st children stated they did not feel safe with M other.

SSA reported that Mo ther ’ s visitation schedule had been “ the first, 2nd and 4th Friday of the month, ” and that she had been generally appropriate. The two older sons had participated in visits with M other only three or four times during the reporting period, with the elder stating he d id not have any desire to visit with her.

SSA reported Mo ther had stopped drug testing and had not yet enrolled in a substance abuse program. SSA also reported M other had again been arrested in December 2019, on charges of causing fire to property i n violation of Penal Code7

section 452, subdivision (d) , and procuring a false or forged instrument for filing or recording with the state in violation of Penal Code section 115, subdivision (a). As a result, s he was again incarcerated.

The 18

- month hearing was continued to March 2020, and the court ordered
M other ’ s visitation reduced to once every two week s while she remained in custody

.

M other was released from custody near the end of February 2020 ; before being released, she had a visit wit h the children during which she yelled at them and made derogatory remarks about F ather. Following that visit, the eldest son and daughter reported they did not want to visit with her.

In connection with the continue d hearing in March 2020, SSA reported the
children ’ s visit s with F ather w ere going well and recommend ed the children remain in his custody , that supervision be continued , and the case be scheduled for a six

- month review

. SSA reported all the children stated they did not want to be alone with M other due to her saying inappropriate things about F ather. SSA recommended termination of reunification
services for M other.

M other ’ s first in

- person visit with the children afte r her incarceration was
in March 2020. During the visit , Mother checked the youngest son ’s back , stated that she

saw bruises, and insinuated he was being abused by F ather. The children informed her
that the ch ild had “ put handcuffs on the dog and the dog dragged him

. ” M other ’ s concern was investigated as a possible child abuse incident which was determined to be
unfounded. The day after the visit, M other contacted the police to report that the eldest child had been choked by his paternal step

- grandfathe r in 2017 . The office asked her why she was reporting the incident two years later ; she re s ponded she was “ just getting to
it. ” When asked, the child denied the incident ever occurred.

According to SSA, between Febr u ary and the reporting date of May 5, 2020, M other contacted the Child Abuse Registry six times . One incident was
determined to be “U nfounded , ” and the others were characterized as “ I nformation O nly. ”8 About a week later, the second oldest child contacted the social worker to report her c oncern that M other was trying to get the youngest child “ taken away from
them. ” She explained that during the most recent visit, the youngest child had told
M other that his back hurt and he was taking medication for it, but M other would “ stop[] at nothing to try to say [he] is being abused. ” The child contacted the social worker again the next day to report that M other had made an unmonitored phone call to her from a private number. M other made various disturbing allegations, about both the child and
F ath er, and the child reported that the phone call “ freaked her out and scared her. ”

B oth of the older c hildren reported that M other was also attempting to contact them through social media. The second oldest child shared a message M other
had sent her via Tik

- Tok, in which M other acknowledged she was aware she was prohibited from contacting them, assured the child she would be coming to get them

soon, and characteri z ed the social workers as “ full of shit ” and corrupt []

. ” 1

The children reported they are tired of M other asking them questions about
F ather and disparaging him. Because of that, t hey sometimes do not like to speak with her during visits

. In May 2020, the court ordered M other to have no contact with the
children outside of the court

- ordered visitation.

The 18

- month review hearing was continued multiple times ; the hearing took place in June 2020

. At the hearing, t he court ordered termination of reunification
services for M oth e r and ruled that return of the children to F ather would not create a substantial risk of detriment to their safety, protection or physical or emotional
well

- being , and that the children ’ s plac ement in foster care wa s no longer necessary.

1 When questioned regarding whether she had tried to contact her children on social media, M other testified the social worker ’ s report was a lie. Specifically, she claimed “ I believe my child r en are being forced to lie and I believe the social worker is lying. ”9 The court ordered that M other ’ s visitation would continue , explicitly incorporating the visitation plan in SSA ’ s March 5, 2020 report , which provide d for
monitored visitation three times per month , while allowing SSA to liberal ize visits as to frequency, duration , and need for monitor ing. T he court also stated the children ha d the ability to terminate visi ts if they fel t M other wa s not communicating appropriately. 2 The

court then set a six

- month review hearing in December 2020.

M other filed an appeal from the order terminating her reunification services, but the appeal was later dismissed.

In connection with the scheduled December 2020 hearing, SSA filed an addendum report stating it continued to rec ommend the dependency case be terminated with the children remaining in F ather ’ s custody, and that monitored visitation continue
for M other. SSA otherwise reported the children were overdue for annual check

- ups, but
F ather explained he was unable to schedule t wo of the boys for checkups due to the insurer claiming it had not yet been a year since their last checkups. F ather stated he would be able to schedule the appointments after December 11, 202 0

.

The six

- month review hearing was continued to M arch 2021. In the final addendum report prepared in connection with th at hearing , SSA continued to recommend
th at dependency proceedings be terminated and that the court should make exit orders.
SSA reported all the children remained healthy and were doi ng well in F ather ’ s home.
SSA noted the girls had dental examinations in January 2021 , and the boys ha d physical examinations in February 2021. F ather reported he was in the process of scheduling dental examinations for the boys and physical examinations for the girls.

SSA also reported M other continued to visit the children via the videoconferencing app, and in

- person visits had been approved st arting February 1.

2 T he court expresse d its desire that visitation is “ all about [Mother] and the children and doesn ’ t involve [Father] at all because that ’ s the point of the visitation. ”10

However, M other did not show up for the scheduled visit on February 1 , leaving the children waiting at the visitation site. Following her no

- show, M other was asked to
contact the social worker the morning of the next scheduled visit to confirm whether she
would attend . She complied, informing the social worker she would not attend the
visitation on February 8. The following week was a holiday , and the visitation site was
closed ; M other was able to visit the children via the videoconferencing app. The following week, M other had an in

- person visit with four of the children, but th e visit ended early because the children were hungry.

SSA also disclosed that multiple reports of possi ble neglect by F ather were made by an unidentified party or parties. T he first report was that the oldest child, then age 15, had been hit by a car while skateboarding with friends. The child had scrapes and bruises, and according to the reporting party, had passed out as a consequence of the
accident . The child reportedly told F ather about the incident , but F ather did not take him for medical care or file a police report. W hen the child himself was asked about the incident by SSA, he stated the car was not going very fast, that the only injuries he
suffered were some minor scrapes on his arm, that he had walked away from the accident and continued skateboarding, and that F ather had offered to take him to the hospital , but
he had refused. SSA concluded the allegation of neglect was unfounded.

Another incident , characteri z ed as an “ Information Only Report, ” involved a younger son who was observed to have a bald spot on his head “ the size of a golf ball. ” It was suspected that he had been pulling at his hair because a hair gel he was using made
the hair “ hard. ” The child was also observed with a razor in his hand , saying he wanted to shave off his hair. When SSA followed up on the report, Fa ther essentiall y confirmed the child had been pulling at his hair after his hair gel dried ; Father said the child did not have access to a razor, although his older siblings did. F ather stated he had discussed with the older children the need to keep razors away from th e younger children.11 M other testified at the hearing. She stated she disagreed with SSA ’ s recommendation because of “ concern s with the safety and welfare of the children since the children were placed in [ F ather ’ s] physical care. ” Most significant, in he r opinion,
was the fact that the oldest child had been hit by a car, passed out, and received no
medical care. She was also concerned about the incident in which the youngest son had a

“ bald spot on the side of [his] head about the [size of a] golf ball

. . . . ” When asked whether there was any reason SSA needed to remain involved in the case, Mother responded, “[ F ather ] has been diagnosed with bipolar type II, along with severe narcissistic personality disorder, [and] remains unmedi c ated

. ”

M other als o described her last visit with four of the children a week earlier, in which they danced, talked about school and drew pictures. She stated that she believed
her visitation schedule was “ every Monday from the last message I received from the
social worke r. ” Mother claimed her visitation with the children was “ very good [and]
very needed. ” She acknowledged she had not participated in any drug treatment or individual counseling since June 2020 , claiming she had “ almost completed ” drug

trea t ment and that s he would like to have more counseling provided by SSA if that were possible. Following the close of evidence , M other ’ s counsel argued that due to the recent incidents involving the oldest son ’ s skateboarding accident and the youngest son ’ s bald spot, the dependency case should not be terminated with an order of custody to
F ather. In the alternative, counsel argued that if the dependency were terminated, the exit
order s should give the parents joint legal cu stody because “ there is no reaso n in this case why . . . the mother should not have joint legal custody. ”

On rebuttal, SSA ’ s counsel reiterated that, as explained in its final report, it had investigated both of the recent incidents highlighted by M other, and it was satisfied
with F at her ’ s handling of both incidents.12 The court ’ s ruling was to adopt SSA ’ s recommendation and terminate the dependency. The court gave both legal and physical custody of the children to F ather ; M other w as given supervised visitation for one hour three times per month, until further
order of the court.

DISCUSSION

“ When a juvenile court terminates its jurisdiction over a dependent child, it is empowered to make ‘ exit orders ’ regarding custody and visitation. [Citations.] Such
orders become part of any family court proceeding concerning the same child and will remain in effect until they are terminated or modified by the family court

. ” ( In re T. H

. (201 0 ) 190 Cal.App.4th 1119, 1122

- 1123 ( T. H

. ) ; §§ 364, subd. (c), 362.4 .)
In fashioning the e xit orders , 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,) T he “‘ 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.)

In deference to the juvenile court ’ s broad discretion, w e will reverse its exit
order only “‘“ if we find that under all the evidence, viewed most favorably in support of
the trial court ’ s action, no judge could reasonably have made the order that he did. ”’” ( In re Robert L . (1993) 21 Cal.App.4th 1057, 1067.)

In this case, M other contends the juvenile court abused its broad discretion in two ways. Her first contention is that the court erred by not giving her shared legal custody of the children. We disagree. While it is true that shared legal custody of children is preferred in situations where it appears the parents will be able to cooperate in making decisions about the children, a court is well within its discretion to order sole legal custody to one parent in cases where one or both parents demonstrate hostility
toward the other.13 This is such a case. The evidence demonstrates that M other is openly
hostile toward F ather and has made repeated attempts to undermine him with both the
children and with SSA. She testified at the 18

- month hearing that if the children were returned to her custody, she would not want F ather to have any visitation at all. M other has consistently refused to credit the idea that the children want to live with F ather and has made clear at every turn that s he does not wish to “ share ” custody with him

.

Indeed, M other has repeatedly accused F ather of abus ing an d neglecting the
children , and she continues to insinuate he has done so in her opening brief on appeal

. Despite the fact the record demonstrates SSA investigated the recent inci dents she relies
upon as a basis for claiming F ath er is not taking reasonable care of the children, and that
SSA explain ed why it found those reports to be unfounded, M other fails to acknowled g e th ose events in her brief. That tactic undermines M other ’ s contention. We find no error in the juvenile court ’ s order awarding sole legal custody to F ather.

M other ’ s second complaint is that the juvenile court ’ s exit order s specified
that she should have visitation only three times per month, rather than the once

- a

- week
schedule she testified was disclosed t o her by the social worker just before the termination hearing. In h er view , the court erred by decreasing her visitation without any explanation. Again, we find no error. As M other concedes, the most recent court order was for visitation three times per month , although the court did allow SSA to liberalize
the visitation schedule in its discretion. And while it appears SSA did attempt to facilitate visitation on a once

- a

- week schedule in the month before the termination hearing, M other missed the first two visits without apparent explanation. Thus, the juvenile court could have reasonably concluded that visitation ever y week was more than
M other could handle.14 More to the point, however, because the visitation schedule the court incorporated into its exit order s was the same schedule it had in place before that time , there is no basis for M other ’ s com plaint that visitation had been inexplicably restricted in
the exit order s

. It was not. The only thing that changed was the opportunity for SSA to
liberalize the schedule. S ince SSA was no longer to be involved in the case, and thus could no longer exer cise that option , there was no basis to continue it

.

Ultimately, w ith the termination of the dependency case, and th us th e cessation of SSA ’ s involvement, the only party remain i ng who might agree to a
liberalization of M other ’ s visitation schedule is F a ther. However, as explained in T. H

. , the juvenile court errs when it gives one parent the discretion to determine the other parent ’ s visitation rights in an exit order

. “ T he power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties ” and that “ rule of nondelegation applies to exit orders issued when dependency jurisdiction is terminated. ” ( T. H ., supra , 190 Cal.App.4th at p. 1123.) Consequently, in T. H

. , the appellate court
reversed an exit order that effectively gave the mother a veto power over the father ’ s visitation schedule

. We cannot conclude the court in this case erred by declining to do
what wa s found to be error in T. H

. Based on the foregoing, we find no error in the juvenile court ’ s exit orders.15 DISPOSITION
The contested orders are affirmed.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.