Wednesday, November 15, 2017
C.A. Rejects Argument That 9-Year-Old Can Protect Himself
Sees No Merit in Contention by Mother Who Lost Custody That Her Visits Should Not Have to Be Supervised Because Son Can Phone for Help if Her Violence-Prone Boyfriend Presented Threat
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a commissioner’s order that a mother who was stripped of the custody of her 9-year-old son be allowed monitored visits only, in light of the drug use and violence of her boyfriend, rejecting the mother’s contention that the bench officer abused her discretion because her son is old enough to be able to protect himself.
In an unpublished opinion, filed late Monday, Div. Eight affirmed an order by Los Angeles Superior Court Commissioner Karin Borzakian. Justice Laurence D. Rubin authored the opinion.
The mother, Vanessa D., was frequently slapped around by the boyfriend, Jose F., in front of the 9-year-old boy, M.R., and his brothers, N.N., 13, and S.N., 12. Jose F. used methamphetamine daily.
Only M.R. was the subject of the appeal.
Goes Into Rage
In June 2016, while “in a rage,” Jose F. destroyed property in the mother’s home. She obtained a restraining order and vowed to the Department of Children and Family Services (“DCFS”) that the man would not be permitted back on her premises.
But he was.
On one occasion, in October 10, 2016, Jose F. shouted at S.N., hurling a bottle at him; Vanessa D. attempted to intercede; the boyfriend charged at her; S.N. protected his mother by stabbing the assailant. Four days later, Vanessa D. picked Jose F. up from the hospital and brought him to her home.
The DCFS filed a petition alleging that Vanessa D.’s three sons were at risk of harm; in November 2016, the boys were placed with relatives; in March 2017, the department’s petition alleging neglect was sustained and the father was awarded sole legal and physical custody, with the mother having supervised visitation.
Argument Found Meritless
Rubin saw no merit in the contention by Vanessa D.’s appointed appellate counsel, Megan Turkat Schirn, that Borzakian went too far in ordering supervised visits by M.R. because he was able to avoid harm at the hands of Jose F. given that he had a cell phone and could call for help.
The jurist wrote:
“It would have been unreasonable for the court to rely on M.R. to protect himself in lieu of taking precautions to prevent him from being placed in a dangerous situation. Mother had been attending monitored visits with M.R. for only one month when the court fashioned its exit order. The evidence suggested that mother had for years allowed M.R. to be exposed to domestic violence in the home and to Jose’s abuse of drugs and alcohol. It was reasonable for the court to order that mother’s visits remain monitored to protect M.R. from being subjected to those dangers again.”
Counsel Proposes Alternative
Schirn also argued that Borzakian could simply have ordered that the mother see to it there were no contacts between M.R. and Jose F.
“Our view of the record does not support mother’s assertion that unmonitored visits would have been appropriate. Rather it shows that mother could not be relied on to protect M.R. from Jose, and a simple stay-away admonition by the court would likely have been futile.”
County’s Erroneous Representation
Deputy County Counsel Jessica S. Mitchell argued for the DCFS. Rubin recited:
“The Department’s initial position on appeal is that mother has forfeited her claim that the trial court erred in requiring monitored visits. Not so. Although the Department quotes extensively from the disposition hearing, it inexplicably omits the passage in which mother brings her disagreement with monitored visitation to the trial court….”
He quoted Vanessa D.’s trial counsel as telling Borzakian that the mother “would at least ask for joint legal [custody] with the father as well as unmonitored visits.”
The case is In re M.R., B282055.
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