In re Luke C. CA2/8

Filed 2/14/14 In re Luke C. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re LUKE C., a Person Coming Under the
Juvenile Court Law. B248828

LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN AND Super. Ct. No. CK81043)
FAMILY SERVICES,

Plaintiff and Respondent,

v.

MICHAEL C.,

Defendant and Appellant,

LUKE C.,

Objector and Appellant.

APPEAL from orders of the Los Angeles County Superior Court.
Debra Losnick, Commissioner. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal, for Appellant
Luke C.
Valerie N. Lankford, under appointment by the Court of Appeal, for Appellant
Michael C.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
William D. Thetford, Deputy County Counsel, for Respondent.
 The dependency court entered orders terminating its jurisdiction over a minor
child, with a family law order granting his mother sole legal and physical custody, and
granting his father monitored visits in a therapeutic setting. Father and minor filed
appeals. We affirm the dependency court’s orders.
FACTS
Yolanda C. (mother) and Michael C. (father) married in 2006 and separated in
2009. Mother and father are the parents of two children: Joseph C. (born in 2002) and
Luke C. (born in 2008). Only Luke is involved in the present appeal. In 2010, mother
filed a petition for dissolution of marriage and for child custody and child support orders.
At about the same time, mother obtained a domestic violence prevention restraining order
against father; the order granted father supervised visitation rights with the children.
The dependency proceedings which gave rise to the present appeal commenced shortly
after the divorce and child custody case began in the family law court. At that time,
Joseph and Luke lived with mother.
In April 2010, the Los Angeles County Department of Children and Family
Services (DCFS) received information that generated a “five-day referral” by the case
social worker (CSW).1 During ensuing interviews, Mother reported a history of domestic
violence by father throughout the parents’ relationship; father denied mother’s claim of
domestic violence and reported that mother was the violent one. In May 2010, DCFS
held separate team decision meetings with mother and father. As a result of the meetings,
DCFS took the children into protective custody on grounds of general neglect and child
endangerment due to domestic violence. On May 18, 2010, DCFS filed a juvenile
dependency petition on the children’s behalf.

1
As we understand DCFS’s procedures, a referral to the agency may generate an
expedited response by a CSW (within two hours) or an immediate response by a CSW
(before the end of a work shift) or a “five-day referral,” meaning an in-person response
must be made by the CSW within five days.

2
 In October 2010, the juvenile dependency court sustained two counts pursuant to
Welfare & Institutions Code section 300, subdivision (b) [failure to protect],2 as follows:
“b-1: . . . [M]other . . . and father . . . have a six year history of domestic
violence and engaging in physical altercations in the presence of the
children, including but not limited to the parents hitting and pushing each
other. Such domestic violence by the parents endangers the children’s
health and safety, creates a detrimental home environment and places the
children at risk.

“b-3: On prior occasions . . . father . . . engaged in inappropriate behavior in
that he mooned Joseph. Such inappropriate behavior by the father places
the child and the child’s sibling Luke, at risk of harm.”

The court declared Joseph and Luke to be dependents of the court and ordered
them to be suitably placed. The court ordered DCFS to provide family reunification
services. There are no issues concerning jurisdiction in the current appeal. In February
2011, the court ordered the children to be returned to mother’s custody and liberalized
father’s visits to unmonitored weekend overnight visits.
In March 2011, DCFS filed a non-detention report in support of a petition for sub-
sequent relief (see § 342) after Joseph’s therapist told the CSW of an incident described
by Joseph in which father had become unreasonably angry for no apparent reason during
an overnight visit. DCFS’s section 342 petition alleged the incident involving Joseph and
father as the basis for further relief, and requested new orders for monitored visits for
father as to both children. In April 2011, the juvenile court dismissed the section 342
petition and ordered father and Joseph to engage in conjoint counseling and that, after
four conjoint sessions, weekend overnight visits would resume. The court continued the
order for overnight weekend visits for Luke.

2
All further section references are to the Welfare and Institutions Code unless
otherwise noted.

3
 In a status review report filed in April 2011, the CSW reported that mother and
father were complying with their case plans, and that mother appropriately supervised
and cared for the children with assistance from the maternal grandmother. Joseph and
Luke were benefiting from family therapy. Father was requesting more extensive visits.
In a supplemental report filed in May 2011, the CSW reported that she had observed
weekend visits, and that Luke and father were comfortable together. Father stated that
the visits with Luke were perfect. Mother stated that when Luke came home from
weekend visits he would be angry, but would immediately give mother hugs and kisses
and that relaxed him. In late May 2011, the juvenile court issued a “home of parents”
order as to Luke; the court continued its “home of mother” order for Joseph.
In July 2011, DCFS filed an ex parte application for an order pursuant to section
385 after an immediate response referral was generated as to father. DCFS requested the
juvenile court to vacate its then-existing order for ummonitored visits, and to issue an
order for monitored day visits In an accompanying report, DCFS reported the CSW had
gone to father’s home to interview Joseph who was there with Luke for their regular
visitation. Out of father’s presence, Joseph said he wanted to go to mother’s home
because he did not feel safe at father’s home. He said father called him names and hit
him with fists in the stomach and arms. Joseph said that other children who had visited
the home hit him too, and father would not make them stop. He said father also hit Luke
in the stomach, and Luke would cry. According to Joseph father also put hot sauce in
their mouths and made them hold it for five minutes. Father would call Joseph a “cry
baby” and a “sissy,” and father and the paternal grandparents would say bad things about
mother. Father denied hitting the children or calling them names. As the CSW was
about to leave, Joseph and Luke were crying and saying they wanted to go to mother’s
home. When the social worker told Joseph to call his mother if father hit them or called
them names, Joseph responded that father would not let them use the phone to call
mother. The CSW talked to the previous CSW who reported that father had physically
attacked and threatened her. After the events at father’s home, DCFS scheduled a team

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decision meeting, but father did not attend. In late July 2011, the juvenile court set the
issue for hearing, and ordered monitored visits for father in the interim.
In August 2011, DCFS filed an interim report stating that Joseph told the CSW
that he did not want to go to conjoint counseling with father because he was afraid of
father, and father kept calling him a liar. Joseph, then nine years old, said he wanted his
visits with father “to be monitored” because he did not feel safe with father alone.
Mother said she wanted the children to continue visits with father, but she believed father
was “dangerous and unstable” and needed to “get help and learn[] how to be a good
parent.” Father did not provide any information; he failed to return the CSW’s phone
calls. In late August 2011, the juvenile court ordered monitored visits for Joseph and
father in a therapeutic setting, and a two-week visit for father and Luke followed by visits
on alternating weeks.
In mid-September 2011, DCFS filed an application for court authorization for
removal of Luke from father before the up-coming week-long visit that was scheduled for
later that month; the application was based upon mother’s claim of sexual abuse of Luke
by father. In an accompanying declaration, the CSW reported the following facts from
mother: When Luke returned to mother’s home after the two-week visit with father,
Luke complained that his “bottom” hurt. When mother asked why he was having pain,
Luke answered: “Daddy put his ‘peepee’ in my butt.” Mother took Luke to the hospital
where he was examined for possible sexual abuse. The CSW reviewed the medical
reports. The reports indicated there was “some redness” around Luke’s anus, and
reddened peri-anal tissues. The “findings and interpretation” were an “abnormal genital
exam” with a limited or insufficient history to make definitive findings, and that further
“consultation /investigation” was needed. Luke’s condition “may [have been] caused by
sexual abuse or other mechanisms.” On September 16, 2011, the juvenile court issued a
removal order.
On September 21, 2011, DCFS filed a section 342 subsequent petition based on
allegations of sexual abuse pursuant to sections 300, subdivisions (d) [sexual abuse of
child] and (j) [sexual abuse endangering sibling]. On the same day, the juvenile court

5
removed Luke from father’s custody, ordered monitored visits for both children in a
neutral setting, and set the section 342 petition for a contested hearing.
In January and February 2012, DCFS submitted reports concerning its attempts
facilitate conjoint counseling for father and Luke. In late February 2012, the juvenile
court ordered DCFS to find a new therapist to provide conjoint counseling for father and
Luke.
On March 27, 2012, following an extensive discussion with the lawyers for all
parties, the juvenile court ordered that Joseph would be dismissed from the sectio n 342
petition, and ordered DCFS’s section 342 petition to be amended to allege a single count
under section 300, subdivision (c) [child suffering serious emotional damage] as follows:
“Minor, Luke [C.] suffers from significant, emotional problems and
his father has a limited ability to deal with said problems. In particular,
minor Luke has been diagnosed with post traumatic stress disorder and
exhibits fear, and untoward aggressive behavior around his father and
refuses to visit his father. Additionally, Luke has alleged that is father and
other minor children have sexually abused him. Luke’s emotional
problems and father’s limited ability to deal with said problems place Luke
at risk of suffering severe anxiety, aggression, withdrawal and aggressive
behavior toward himself and others.”

The court sustained the section 342 petition’s amended allegation under section
300, subdivision (c), concerning Luke’s emotional problems, and then dismissed all of
the allegations under section 300, subdivisions (d) and (j), concerning sexual abuse of
Luke by father. The court ordered father’s visits with Luke to be monitored, and for
Luke and father to participate in conjoint counseling. In addition, the court appointed
expert Michael Ward, Ph.D., pursuant to Evidence Code section 730 to examine father
and Luke, and ordered that the psychological evaluations were to include input from
Susan Wilson, Ph.D., and Carol Chambers, Ph.D., who already had involvement in the
dependency proceedings.
On June 14, 2012, DCFS filed a section 388 petition to terminate contact between
father and Luke until visits were deemed appropriate by Luke’s therapist. The supporting
information to the petition stated that, since May 8, 2012, DCFS had attempted five

6
monitored visits between father and Luke. Luke missed the first visit because he was
sick; father failed to attend the next visit. The other three visits did not go well because
Luke would say he was scared when he saw father, and then resisted any contact. Luke’s
therapist had recommended that he be “allowed to process his trauma in therapy” before
having visits with father. Later in June, the juvenile court set the section 388 petition for
hearing.
In July 2012, DCFS filed an interim review report in which it advised the court
that the CSW had attempted to arrange conjoint counseling with more than half a dozen
therapists without success, and that the CSW was continuing to search for a therapist who
would provide conjoint counseling. Further, the report included facts showing
difficulties in getting Luke to see father willingly during an arranged visit at a sheriff’s
facility in October 2011. The report also included information that the CSW had spoken
with Luke’s therapist, Dr. Wilson, in November 2011, who had questioned why DCFS
would be recommending liberalized visits with father. Dr. Wilson told the CSW that she
(the doctor) did not agree that visits with father were a good idea at that time . For his
part, Father had told the CSW that since DCFS initiated therapy, it had to pay for it. The
social worker accessed $720 of STOP funds for eight session of conjoint therapy. Father
continued to blame DCFS for failing to set up visits, and would “not acknowledge” that
visits had to be in a therapeutic setting. The CSW described a series of efforts to arrange
visits that were mostly thwarted by father’s failure to return phone calls or to agree to
meet a designated times and places. Father failed to appear for one visit; Luke was sick
on another occasion. Luke continued to resist seeing father.
On July 18, 2012, Dr. Ward, the court appointed expert (Evid. Code, § 730), filed
his initial report. Luke stated that he did not want to see father anymore because father
made him stand in the corner and he put his “pee pee” in the child’s buttocks. It
happened twice and it hurt. Joseph said father was mean and father did not care about
them. Joseph gave an example of his getting hurt during a camping trip and of being
attacked by a bully and father not caring. Joseph said father and mother used to get into
fights and father would try to hit mother. Joseph told Dr. Ward about incidents when he

7
was on top of father and father made a “humping motion,” and when father showed his
buttocks. Joseph wanted to stop having contact with father, to not have to go to court
anymore, to live with mother, and to have a happy life.
Dr. Ward interviewed the children’s therapist (Dr. Wilson) and concluded that she
was approaching therapy with Luke from the point of view that the alleged sexual abuse
in fact happened, which was contrary to what the court found. Dr. Wilson stated that she
had diagnosed Luke with Post Traumatic Stress Disorder, and Joseph with Anxiety
Disorder. She did not believe Luke was ready to begin conjoint counseling with father,
but agreed she could continue to treat Luke if the juvenile court ordered conjoint therapy.
Dr. Wilson said Joseph was very afraid of father. She said Luke also reported and
demonstrated behavior consistent with being afraid of father and not consistent with
being coached. She believed Luke had been traumatized.
Dr. Ward did not interview mother; she provided a narrative of what had happened
from her perspective. Father explained that Terry, Joseph, and Kevin were children of a
couple from his church and that these boys sometimes would spend the night at his house.
Father denied having any kind of homosexual interest or relationship with the boys or
that there had been any form of sexual behavior between him and the boys or the boys
and Luke. Father also denied the boys had ever been physically or verbally abusive to
Luke. Father said mother had “coached” Joseph to turn against him and she had begun to
“coach” Luke to turn against him as well. Father also provided a narrative of his
perspective of what was going on in the family.
It was Dr. Ward’s opinion that the alleged sexual abuse of Luke did not take place,
that mother was the primary and fundamental problem in the case, that the juvenile court
needed to retain jurisdiction until father had fairly frequent, extended, and unrestricted
contact with the children, and then it needed to be transferred to the family law court.
On July 18, 2012, the juvenile court ordered DCFS to find a new therapist for
Luke and to submit a report for the next hearing that addressed a visitation schedule for
father and Luke. The court also ordered another report from Dr. Ward that provided
more specific recommendations.

8
 In September 2012, DCFS reported that Luke’s new therapist would be Brad
Wood, M.S.W., and an initial appointment with Luke was scheduled for early October
2012. Further, DCFS informed the juvenile court that financial assistance in the amount
of $720 had been appropriated for conjoint counseling between Luke and father, but three
different scheduled sessions had failed to take place. When father was informed that the
financial assistance for the conjoint counseling was depleted, father said he was unable to
pay for additional sessions and wanted DCFS to pay. When the CSW asked father if he
would like to arrange visits with Luke at a park, father stated he did not foresee any visits
taking place as long as Luke continued to reside with mother. Father preferred to wait to
see what the court did. Mother was continuing to meet the needs of the children by
providing food, shelter, clothing, and medical care. The children had no behavioral
problems.
In a supplemental report, also filed in September 2012, Dr. (Michael) Ward stated
that there had been virtually no contact between father and Luke for about a year because
of Luke’s demonstrated fear of father and the fact placing the child with father or starting
extended visits were out of the question. Dr. Ward recommended an aggressive
reintroduction of contact between the two supervised by a time-limited case therapist.
Dr. Ward provided specific guidelines for recommended unmonitored visits, and for the
therapist’s participation. Dr. Ward added that in the event the professionals currently
involved with Luke were unable or unwilling to go along with such a plan, they should be
replaced by the court.
On October 11, 2012, the juvenile court terminated its jurisdiction over Joseph
with a family law order granting mother sole legal and physical custody. Further, the
court granted father monitored visits with the consent of Joseph and Joseph’s therapist.
These orders are not involved in the present appeal.
In late October 2012, DCFS reported that mother and father were in compliance
with the case plan. Father’s last visit with Luke was in June 2012. Since then, Luke had
refused to have visits with father. DCFS recommended that Luke remain in mother’s

9
custody, and that juvenile court jurisdiction over Luke be terminated with a family law
order for monitored visits in a therapeutic setting for father and Luke.
On November 5, 2012, the juvenile court began a contested hearing regarding the
disposition of DCFS’s section 342 petition filed on September 21, 2012 [Luke suffers
from emotional problems], DCFS’s section 388 petition filed on June 14, 2012 [there
should be no contact between Luke and father until approved by Luke’s therapist], and
whether jurisdiction over Luke should be terminated under section 364. On the first day
of the hearing, mother’s attorney called CSW Michelle Monette to testify. Monette had
been assigned to monitor the visits between father and Luke; monitored four visits from
May through June 2012. Father did not show for the third visit and did not cancel.
The visits that father attended lasted about 15 minutes. During the visits, Luke was
resistant to have contact with father, and father was unhappy because Luke did not want
to visit. Luke would “always [cower] down on top of the play equipment in basically a
fetal position.” Periodically, Luke told Monette that he was afraid and wanted to go
home. Monette tried to get Luke to interact with father, but Luke refused every attempt.
Father made no effort to engage Luke during the attempted visits. Attempts to visit were
stopped because father said he did not want anymore visits until after the next court date.
Monette testified that she had no reason to believe mother had coached Luke to say he
did not want to visit father.
On November 6, 2012, father’s attorney called CSW Maria Gonzalez to testify.
Gonzalez was the children’s social worker on the case since mid July 2012. She arranged
the conjoint visits that were to take place on August 21 and 28, and September 4, 2012.
Gonzalez explained that the first visit did not take place because mother had changed
cellular telephones without advising DCFS, and did not get the several messages that
Gonzalez left her about the visit. Ultimately, Gonzalez went to mother’s home and left a
note on her door. The second visit did not go well because Luke would not stop crying
and saying “no.” He was very upset and his body was shaking. Gonzalez and the
conjoint therapist tried to talk to and comfort him but every time mother would attempt to
leave, he would start crying. The third visit did not take place because Luke ran and hid

10
when Gonzalez arrived at mother’s home to transport him for the visit. He became very
upset and kept saying he was not going. Again, Gonzalez tried to redirect Luke’s
attention and comfort him, to no avail.
During these failed attempts to facilitate visits, Gonzalez did not observe mother
exerting any influence over Luke to get him to refuse to go to the visits. Later, when
Gonzalez telephoned father and asked if he wanted to set up another visit, Father’s
response was, “What’s the point?” Father was very upset that visits were not taking place
and that they could not get Luke into their car. Gonzalez followed up with a letter to
father letting him know that if he contacted the office they would arrange another visit.
She also sent father a list of conjoint counseling referrals and asked him to choose one,
but he never did. Gonzalez testified that mother chose not to take Luke to the new
therapist. Gonzalez provided mother with referrals for still another new therapist, but the
children were no longer on Medi-Cal, and DCFS could not refer them to a therapist
without payment arrangements. Mother told Gonzalez that she was looking for one that
would take her new insurance. More recently, mother told Gonzalez that the children
were again on Medi-Cal; DCFS was planning to assist in finding a new therapist. At no
time did Gonzalez have any concerns or reason to believe that mother was coaching Luke
to refuse contact with father.
Father testified on November 7, 2012. Father believed mother coached Luke not
to want to see father, and that Luke was fearful of father due to being coached. Father
never witnessed any coaching by mother, but once heard her tell Luke that father was bad
and saw her make inappropriate gestures and faces at father. Luke told father that mother
told Luke to say father was mean. Father also accused maternal relatives and social
workers Lucy Aguilar, Michelle Monette, and Tracey Sanchez of coaching Luke to be
afraid of father. Father wanted Luke removed from mother’s custody and placed in foster
care so that the child could be de-programmed of all the coaching by mother and the
maternal relatives. Father did not believe it was in Luke’s best interest at that time to be
placed with him, but hoped that after a period of time away from mother’s influence, he
could be.

11
 After father’s testimony, the juvenile court continued the trial to January 3, 2013,
and ordered DCFS to file a report addressing visitation and Luke’s new therapist.
In early January 2013, the CSW reported that she had been unable to contact
father by phone to set up a visit and, therefore, sent him a certified letter informing him
of a visit scheduled for December 11, 2012. On December 7, 2012, father advised the
social worker that he had not received the certified letter and he would not be available
for a visit on December 11, 2012, and he preferred that visits not take place at the DCFS
office. The social worker suggested a park or a McDonald’s restaurant, but father said
those locations were “tainted.” The social worker scheduled a visit to take place on
December 18, 2012, at 5:00 p.m. at Grace Resource Family Visitation Center; father then
asked that the visit take place at a McDonald’s restaurant. The social worker arranged a
visit for a McDonald’s restaurant located on West Avenue L in Lancaster, and left father
two voicemail messages advising him of the address. The social worker arrived for the
visit at approximately 4:50 p.m. and waited about 30 minutes. At that time, Luke said he
wanted to go home, so they left. Two days later, the social worker received a message
from father stating he had waited at a different McDonald’s restaurant. On a different
topic, the CSW advised the juvenile court that she had provided referrals for a new
therapist and that Luke was in the process of choosing one. DCFS again recommended
that the court terminate jurisdiction over Luke with a family law order granting mother
sole physical and legal custody and granting father monitored visitation in a therapeutic
setting.
On January 3, 2013, the juvenile court resumed father’s testimony. Father
testified that during the two-week visit from August 27 to September 10, 2011,
everything went well and there was no indication that Luke did not enjoy the visit.
During the first two days of the visit, Luke said there were demons outside and exhibited
aggressive behavior as if he was afraid and pretending to fight them. Father tried to
reassure Luke by telling him there were no demons outside and he was safe in the house.
As the visit progressed, Luke became calm, and became more affectionate and by the end
of the visit the aggressive behavior subsided completely. That was the last time father

12
had an extended visit with Luke. After the visit, mother raised the sexual abuse claims.
In a final summary, Father testified that he believed he had learned to be a better parent
from the Parents Beyond Conflict program, and parenting classes, and individual
counseling.
On January 7, 2013, the juvenile court ordered monitored visits between father
with Luke once a week at Change of Faces, and for DCFS to investigate funding for a
professional monitor. The court continued the trial to February 19, 2013.
In mid February 2013, DCFS reported that CSW Zina Hamilton telephoned father
on January 11, 2013, and left two messages asking him to return the call to make
arrangements for visits to take place at a McDonald’s restaurant. On January 15, 2013,
father made three telephone calls to Ms. Hamilton to inform her the court ordered the
visits to take place at Change of Faces. CSW Gonzalez telephoned father and advised
him that he would not be financially responsible for the monitor because Ms. Hamilton
was a DCFS employee. Ms. Gonzalez telephoned father again on January 23 and
February 5 and left messages regarding the monitored visits. Father did not return the
calls. DCFS again recommended termination of reunification services and jurisdiction
with a family law order granting mother sole legal and physical custody and father
granted monitored visits in a therapeutic setting.
Mother testified on February 19, 2013. Mother said she had not coached Luke in
any way to make negative statements about father, she never discussed any upcoming
visit with him, and she never told Luke that a visit was scheduled. Mother also never
observed the maternal great grandmother or Joseph talk to Luke about any of the visits
with father. She recalled Joseph saying in Luke’s presence that he did not like father.
However, she had not heard Joseph tell Luke he should not visit father, that father was a
loser, that father was not a good person, or that Luke should have nothing to do with
father. Mother believed Luke’s contact with father should be supervised. However, she
believed the decision as to whether Luke had visits with father should be made by Luke.
Although mother was aware the juvenile court did not sustain the allegation, still she
believed Luke had been sodomized by father. She was not sure she wanted the

13
dependency case closed because she liked having the social worker monitoring what was
happening.
CSW Laua Seeman testified she monitored a visit between father and Luke on
September 22, 2010. After the visit had ended, she was told by two employees that father
was waiting for her at her car in the parking lot. This frightened Seeman and she felt like
father was stalking her. She was also frightened of father because he had always been
very aggressive with her. CSW Maria Gonzalez testified that her recommendation was
for monitored visits between father and Luke, and termination of jurisdiction with Luke
remaining placed with mother.
On March 13, 2013, the juvenile court dismissed DCFS’s section 388 petition
(filed June 14, 2012) concerning visits between father and Luke as moot. The court then
heard argument with respect to disposition on the section 342 petition (filed September
21, 2011 and amended and sustained March 27, 2012) concerning Luke’s emotional
problems, and the section 364 issues. DCFS argued there was no evidence of any risk to
Luke in mother’s custody, argued there was no longer any need or purpose for continued
juvenile court jurisdiction, and asked the court to terminate dependency jurisdiction with
a family law order giving mother full legal and physical custody and granting father
monitored visits in a therapeutic setting. Mother’s attorney joined with DCFS. Luke’s
attorney and father's attorney asked the court remove Luke from mother’s custody.
After stating its view that “conditions continue to exist [for jurisdiction], perhaps,”
the court found it would not be in Luke’s best interest to be removed from mother’s
custody, the parents had complied with the case plan, there were no other orders the court
could make, and there would be no benefit to Luke to continue supervision. The court
awarded mother sole legal and physical custody and father prescribed visits.
DISCUSSION
Father’s Appeal
I. Dispositional Orders
Father contends the juvenile court’s dispositional orders removing Luke from the
custody of father and “maintaining” Luke in mother’s home must be reversed because the

14
orders are not supported by substantial evidence. According to father, the record contains
“overwhelming evidence” showing that mother caused the alienation between Luke and
father, as well as the past and ongoing emotional distress suffered by Luke. Father does
not dispute that the evidence shows Luke suffers from significant emotional problems,
including fear and aggressive behavior toward father, and a refusal to have contact with
father. Nor does father dispute that the evidence shows he has limited ability to deal with
Luke’s problems. The prime contention by father on appeal is that the evidence does not
support the remedy that the juvenile court utilized to address Luke’s problems, namely,
leaving him in the circumstances that are causing those problems. We disagree.
An examination of father’s arguments on appeal must take into consideration the
framework for the juvenile court’s orders of March 13, 2013 from which both father and
Luke have appealed, as well as the standard of review on appeal. The protracted court
proceedings that culminated in the lower court’s orders in March 2013 arose from
(1) DCFS’s section 388 petition filed in June 2012 seeking to terminate contact between
father and Luke until visits were deemed appropriate by Luke’s therapist; and (2) DCFS’s
section 342 petition filed in September 2011/March 2012 that alleged Luke suffered
emotional problems, to wit, a fear of father. Mother was a so-called “non-offending
parent”3 vis-à-vis both of the petitions. In other words, neither petition put mother, or
DCFS, on notice that Luke might be subject to removal from her custody. Furthermore,
neither father nor Luke filed a section 388 petition or any other application or request that
placed mother on notice that the issue of removing Luke from her custody would be
litigated. While it is true that the issue of removing Luke from mother’s home was
addressed during testimony and argument at trial, and while it is true that the juvenile
court made a finding that removal would not be in the best interests of Luke, the issue of
removing Luke from mother’s custody was not truly an issue for the juvenile court at the
time it rendered its March 2013 orders.

3
The term “non-offending parent” is not generally used in the dependency statutes.
It is used more as a shorthand description of a parent who is not alleged to be responsible
for any wrongdoing directed toward a child.

15
 Father’s arguments on appeal do not persuade us that the procedural due process
requirement of filing an appropriate petition, thereby providing proper notice to mother,
and to DCFS, may be avoided in the current proceedings. Father’s argument on appeal
that due process notice concerns were satisfied because “everyone knew” the issue of
removing Luke from mother was being tried is not persuasive. First, this is not a wholly
accurate portrayal of the trial proceedings in late 2012 into early 2012, particularly in
light of petitions at issue. The issue of removal was raised by father as a component of
his response to the petitions which sought relief as to him. We agree with DCFS’s
position on appeal that if the juvenile court had removed Luke from mother, then she, as
well as DCFS, would have had a strong argument for a due process structural error in the
proceedings.
Father relies on In re Christopher C. (2010) 182 Cal.App.4th 73 (Christopher C.)
for the proposition that the juvenile court may remove a child from a parent where the
ongoing conflict between the parents is so severe it is causing the child to suffer serious
emotional distress. (Id. at pp. 81-82.) Christopher C., however is not instructive on the
due process issue. In Christopher C., the issue of removal from the father was raised by a
section 300 petition alleging physical abuse by the mother and sexual abuse by the father.
(Id. at p. 78.) Without objection by any party, the juvenile court amended the petition at
the adjudication hearing by adding the following allegation pursuant to section 300,
subdivisions (b) and (c). “ ‘There exists a severe dysfunction within this family resulting
in an ongoing & severe family law conflict, resulting in cross allegations of sexual abus e,
physical abuse, [and] “coaching” and there also exists evidence of the failure of the
mother and father to properly supervise the children, all of which places the children at
risk of serious physical and emotional harm.’ ” (Id. at p. 81.) Thus, in Christopher C. a
petition was at issue, albeit of short notice (without objection), concerning removal of the
child from both parents, not merely the one parent initially put on notice by the original
form of the petition.

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 Here, the section 342 petition was amended, with father’s approval, to allege Luke
suffered emotional problems, but there was never any pleading, by amendment or other-
wise, to put the issue of removal from mother at issue. Christopher C. is unhelpful here
because the juvenile court was never presented with a petition alleging dysfunction or
other ongoing and severe family conflict justifying removal from mother. Neither DCFS,
nor father, nor Luke ever filed a section 388 petition alleging grounds for removal from
mother. Perhaps more importantly, no such allegations were ever found true by the
juvenile court. There simply was no foundational, procedural basis upon which an order
for Luke’s removal from mother could be based, any order removing Luke from mother
would have suffered from a fatal jurisdictional defect. (See In re B. G. (1974) 11 Cal.3d
679, 688 [because parental interest in a child is a compelling one, a parent must be given
notice and an opportunity to be heard].) Raising the issue by way of father’s testimony
and argument from counsel at the time of hearing does not satisfy due process
requirements. The juvenile court had no authority to remove Luke from mother’s
custody on March 13,2013. Accordingly, its decision not to do so, regardless of its stated
reasons, cannot be considered error.
In summary, while we agree with father that the juvenile court must make orders
regarding where a child will live when it addresses dispositional issues on a supplemental
section 342 petition (see generally, In re N.M. (2011) 197 Cal.App.4th 159, 160; In re
Joel T. (1999) 70 Cal.App.4th 263, 267-268), including orders as to whether to remove a
child from parental custody (In re Joel T., supra, at pp. 267-268), this does not further
mean that a child may be removed from a parent, here, mother, when no existing
allegations are at issue concerning removal of the child from the parent.
Finally, apart from the due process barriers to reversal on appeal, we will not
reverse the dependency court’s dispositional “placement” orders in any event because the
orders are supported by substantial evidence. In examining a record on appeal, we do not
search the record for evidence which would support a different result than that reached by
a lower court, but rather, we look for evidence which supports the result actually reached
by the lower court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Daniel C.H.

17
(1990) 220 Cal.App.3d 814, 839.) While father is correct that there is some evidence in
the record, in the form of the expert therapists appointed by the lower court, to support an
order removing Luke from mother, that showing will not support reversal because it is
the juvenile court that ruled against father and there is evidence supporting the juvenile
court’s decision to maintain Luke in mother’s custody. The evidence that supports the
juvenile court’s orders includes the following. DCFS’s regularly reported that mother
properly provided care for the children. Mother denied coaching the children to be
fearful of father, and, by our count, at least three social worker reported (and at least two
testified) that they had never observed mother coach Luke, and that they had no reason to
believe coaching was occurring. As for father’s claims of coaching, his testimony
showed he had no more than a belief that mother was engaging in such activity. Father
conceded he could not provide proper care for Luke. Because there is evidence in
support of the juvenile court’s decision to place Luke with mother, we will not reverse.
II. Termination of Jurisdiction
Father contends the order terminating the juvenile court’s jurisdiction over Luke
must be reversed because it is not supported by substantial evidence. More specifically,
father contends the evidence “unequivocally established” there is a need for continuing
supervision of the family by the juvenile court. We not persuaded by father’s arguments
that reversal is required.
In addressing DCFS’s motion to terminate jurisdiction pursuant to section 364, the
juvenile court made the following comments:
“Conditions continue to exist, perhaps? I can’t fix this. I can’t keep this child
before the court. I can’t keep doing this to the child to have petition after petition filed.
It is not in the child’s best interests.”4

4
At earlier hearing dates on the petitions, the court stated that it was “extremely
frustrated” that every order it had made for visitation had been thwarted in some fashion
and it did not have a “magic wand to waive over this case.”

18
 Seeing no benefit to continuing the case, the court terminated its jurisdiction over
Luke, awarded mother full legal and physical custody of Luke, and ordered father to have
monitored, therapeutic visits. Father argues the juvenile court essentially decided to
throw up its hands in defeat, and that such an abdication cannot be reconciled with the
purpose of dependency law, which is to protect the best interests of dependent children.
We disagree. Although the record shows frustration by the juvenile court, we find the
record supports the court’s conclusion that its continued jurisdiction was not in Luke’s
best interests.
The juvenile court must review the status of a dependent child every six months
(§§ 364, 366.21, 366.22; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303-
304 (Bridget A.).) When, as here, a child is in the custody of a parent, the court must
determine at each six month interval whether the dependency court’s jurisdiction should
be terminated or whether further supervision is necessary. (§ 364; In re N. S. (2002) 97
Cal.App.4th 167, 171-172; In re Joel T., supra, 70 Cal.App.4th at pp. 267-268.) Further
supervision is deemed necessary if conditions still exist that would justify the court
taking jurisdiction of the child or such conditions would exist if jurisdiction were
terminated. (§ 364, subd. (c); and see also In re N. S., supra, 97 Cal.App.4th at p. 173.)
In reviewing a decision to terminate dependency jurisdiction, a reviewing court applies
an abuse of discretion and substantial evidence standard. (Bridget A., supra, 148
Cal.App.4th at pp. 300-301, citing In re Stephanie M., supra, 7 Cal.4th at p. 318; and see
also In re N. S., supra, 97 Cal.App.4th at p. 172.)
Father recognizes that there are multiple cases which support the proposition that
custody battles generally should be addressed in family law courts, not in our dependency
courts. As the Court of Appeal observed in In re John W. (1996) 41 Cal.App.4th 961
(John W.): “When molestation allegations are made in a divorce context, social service
agencies obviously find themselves in a bind. Obviously one of the core functions of the
juvenile dependency statutes is to protect child from molestation. Social services
agencies do not have the option of ignoring such cases, even when they arise out
of . . . the suspicious circumstances of a divorce. . . . But the very gravity of the

19
allegations underscores the necessity of obtaining findings on the molestation allegations
as expeditiously as possible, rather than leaving the matter unresolved. And if it turns out
that the allegations are unsubstantiated and appear to be the product of an attempt by one
parent to get the upper hand in a custody fight, county counsel should not hesitate to seek
dismissal of the [dependency] case. They have more than enough real cases to keep them
busy.” (Id. at p. 976, fn. 22.)
Despite these well-established judicial acknowledgments, father argues that the
dependency proceedings concerning Luke involve more than merely unfounded and
unsubstantiated allegations by mother that father had sexually abused Luke. Father
argues that the problem is this case is that mother has continued a campaign against
father despite the juvenile court’s dismissal of all of the sexual abuse allegations in the
proceedings, and, in so doing, has inflicted serious emotional abuse on Luke. Father
argues that the circumstances bring the present juvenile court proceedings concerning
Luke into the realm of Christopher C., supra, 182 Cal.App.4th 73, and justify continued
juvenile court jurisdiction.
We understand but reject father’s argument. The issue is largely a matter of the
degree of the juvenile court’s discretion when it decides whether to continue or terminate
its jurisdiction over a dependent child. We agree with father that Christopher C. supports
the proposition that the dependency court may properly exercise jurisdiction over a child
when a divorce and custody battle between parents evolves to the point where acts by one
or both parents are causing a child to suffer serious emotional harm. (See Christopher C.,
supra, 182 Cal.App.4th at pp. 73, 84-85.) In short, “when, . . . children are at substantial
risk of emotional harm as a result of being utilized as weapons in an ongoing familial
fight, the dependency court properly exercises jurisdiction and declares them dependent
children.” (Id. at p. 86.) We reject father’s argument here because we are not convinced
that the record in the current case discloses evidence which shows, as a matter of law, an
environment rising to the level of a Christopher C. situation, mandating continued
juvenile court jurisdiction.

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 Undoubtedly, Luke suffers from emotional problems. There is evidence showing
mother might be causing such damage; there is evidence against such causation. Had the
lower court retained jurisdiction, would an abuse of discretion be established? Likely
not. But the obverse is not necessarily true either. We find it was not an abuse of
discretion to terminate jurisdiction. The court acknowledged that the conditions
justifying jurisdiction “perhaps” still existed, but concluded that further supervision of the
family by DCFS and the court would not be in Luke’s best interests. We cannot say that
the court’s conclusion was not supported by evidence or an abuse of discretion because it
was unreasonable. “ ‘[E]valuating the factual basis for an exercise of discretion is similar
to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be
shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] 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.’ . . .” ’ [Citations.]” (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) In our view, a reasonable judge could
have, and did, decide that termination was in Luke’s best interests.
Minor’s Appeal
I. “Placement” with Mother
Luke contends the dispositional order “placing [him] with mother”5 must be
reversed because “substantial evidence supported [his] removal from mother’s custody.”
His contention implicitly rests on the foundation that the juvenile court’s orders o f March
13, 2013 included a dispositional order “placing” him with mother. In a related vein, he
argues that clear and convincing evidence demonstrated parental inability of mother to
provide proper care within the meaning of section 361. Overall, he claims that mother’s
actions “sabotaged” his relationship with father, that he has suffered severe emotional
harm in mother’s custody, and that there is a risk of future harm if he remains with her.
For the reasons stated above in addressing father’s appeal, Luke’s argument does not
persuade us to find error in the juvenile court’s orders of March 13, 2013.

5
Luke’s appeal is slightly different from father in that the latter spoke in terms of
order “maintaining” Luke in mother’s custody and home.

21
 First there was no dispositional order in March 2013 “placing” Luke with mother;
the court long before placed Luke with mother, long before the petitions which were at
issue were even filed. Although it is true that a court must make jurisdictional and
dispositional orders when a supplemental section 342 petition is filed, those orders must
be framed by the matters which are placed at issue by the petition. Placing Luke with
mother was not an issue here. In March 2013, the court declined to remove Luke from
mother’s custody.
To the extent Luke implicitly contends that a decline-to-remove order may be
viewed as the functional equivalent as a first-instance placement order, we find the
court’s order here is not subject to reversal for the reasons stated above in addressing
father’s appeal. First, not placing, or removing, Luke from mother was not an issue for
the juvenile court –– under the petitions being addressed –– at the time of the court’s
March 2013 orders. In other words, whether this case were an original section 300
context or a section 3423 context, the juvenile court could not have not placed, that is,
removed, Luke from mother without a foundation in some petition showing ground for
not placing or removing him from mother’s home. Second, we find the order “placing”
Luke in mother’s home is supported by substantial evidence. The issue is not whether
evidence would support a different result, but whether the evidence supports the orders
made. It does.
II. Termination of Juvenile Court Jurisdiction
Luke contends the juvenile court’s order terminating its jurisdiction over Luke
must be reversed because it is not supported by substantial evidence. We disagree.
Termination of juvenile court jurisdiction over a dependent child is governed by
section 364. Subdivision (c) of section 364 provides: “After hearing any evidence
presented by the social worker, the parent, . . . or the child, the court shall determine
whether continued supervision is necessary. The court shall terminate its jurisdiction
unless the social worker establishes by a preponderance of the evidence that the
conditions still exist which would justify initial assumption of jurisdiction under Section
300, or those conditions are likely to exist if supervision is withdrawn. . . .”

22
 Luke argues the evidence showed that the conditions which caused the juvenile
court to take jurisdiction still existed or would exist if its jurisdiction were terminated.
Luke’s argument looks at the evidence from the wrong perspective. The issue on appeal
is not whether the evidence would support a different juvenile court decision on the issue
of whether “continued jurisdiction is necessary,” but whether there is substantial evidence
in the record supporting the decision actually made by the juvenile court. (See In re
N. S., supra, 97 Cal.App.4th at p. 172; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
Here, the danger that required juvenile court jurisdiction was domestic violence
between the parents and father’s inappropriate practice of exposing his buttocks to the
children. These were the jurisdictional findings under the original section 300 petition.
Under the supplemental section 342 petition, the court rejected the allegation that Luke
was not at risk of being sexually abused by father; the danger that required jurisdiction
under the section 342 petition was Luke’s serious emotional problems, including fear of
father.
The evidence –– as it concerns the issue of termination of dependency jurisdiction,
and as reviewed under the appropriate standard of appellate review –– showed that Luke
suffered emotional distress and exhibited fear when father was present, but he otherwise
appears to be a well-adjusted child with no serious behavioral problems. Basically all of
the social workers saw no basis for concerns as to mother. Mother denied coaching Luke
to fear father. There is no dispute that mother provides appropriate care – shelter, food,
clothing, schooling and medical needs. As Division One of our court noted in In re A.G.
(2013) 220 Cal.App.4th 675, dependency jurisdiction is not preferred where one of two
parents is able to properly care for the children. (Id. at pp. 683-686.) And as noted in
John W., the juvenile court must look to the best interest of the child in making exit
orders. (John W., supra, 41 Cal.App.4th at pp. 973-974.) In so doing, the court may
terminate its supervision of a dependent child and limit one parent’s visitations rights to
minimize or eliminate the danger to which visits might subject the minor. (In re Chantal
S. (1996 13 Cal.4th 196, 204.) Father acknowledges that Luke should not be placed with
father at this time. Plainly, mother and father cannot co-parent. Because Luke was

23
frightened of father and refused to visit, a reasonable viable option was to place Luke
with mother and grant monitored visits to father in a therapeutic setting and terminate the
dependency court’s jurisdiction.
III. Joinder
Pursuant to California Rules of Court, rule 8.200(a)(5), Luke and father have
joined each other’s arguments on appeal. As we have rejected their placement and
jurisdiction issues, we find no ground for reversal as to those claims joined by Luke and
father, and vice versa.
DISPOSITION
The dependency court’s orders are affirmed.

BIGELOW, P. J.
We concur:

FLIER, J.

GRIMES, J.

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