In re J.E. CA2/1

Filed 8/26/16 In re J.E. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re J.E., a Person Coming Under the B267367
Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK95545)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

F.E.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Frank J.
Menetrez, Judge. Affirmed with directions.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, and Peter Ferrera, Principal Deputy County Counsel, for Plaintiff and
Respondent.
——————————
 On appeal, F.E. (Mother) advances three arguments: First, she contends that the
juvenile dependency court (dependency court) erred in sustaining a petition made
pursuant to Welfare and Institutions Code section 3421 concerning her eldest child, J.E.
(Child). Specifically, Mother contends that the action by the dependency court was void
because at the time the Child was under the dual jurisdiction of the dependency court and
the juvenile delinquency court (delinquency court). Second, Mother argues that the
dependency court erred when it terminated jurisdiction over the Child because conditions
that initially warranted jurisdiction still existed. Third, Mother claims that even if
termination was proper, the dependency court’s termination order failed to specify the
frequency and duration of her monitored visits. Although the Los Angeles Department of
Children and Family Services (DCFS) contests Mother’s other arguments, it concedes
that the failure to provide greater specificity with regard to visitation was improper and
urges reversal so that the dependency court may make more specific provisions for
Mother’s supervised visits. While we hold that Mother’s first two arguments lack merit,
we agree with Mother and DCFS that the visitation order lacked the necessary specificity.
Accordingly, we affirm but direct the dependency court to provide the missing specificity
in the termination order.
BACKGROUND
I. The dependency court acquires jurisdiction over the Child
The Child, his mother and his younger siblings (Sister and Brother) came to
DCFS’s attention in September 2012 due to reports that Mother had physically abused
the Child (at the time, age 10) by hitting him with her hands and a belt.2 In an interview

1 Allfurther statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2 InDecember 2011, DCFS received a law enforcement referral regarding
allegations against the Child’s father (Father) for domestic abuse in the home and
physical abuse of the Child. No charges were brought against Father and the family
agreed to a Voluntary Family Maintenance (VFM) case. In September 2012, Mother had
“fully complied” with the recommended VFM case plan and programs. In September
2012, Father lived in Florida and had been doing so since February 2012.

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with a DCFS social worker, Mother admitted to hitting the Child but explained that she
did so because she suspected the Child of sexually abusing his Brother (at the time, age
5)—Mother had discovered the Child touching his erect penis to Brother’s buttocks while
in the shower. Before this shower incident, Brother had been complaining for several
months that his buttocks were hurting and Mother had assumed during that time that
Brother’s discomfort was due to a hygiene issue.
DCFS filed an initial petition on September 18, 2012, and an amended petition on
October 24, 2012, alleging that the Child, Sister and Brother were at risk of physical
harm due to prior incidents of domestic abuse, Mother’s physical abuse of the Child, and
Father’s physical abuse of the Child and his siblings (the section 300 petition). On
November 5, 2012, the dependency court sustained the section 300 petition as amended
and declared the Child and his siblings dependent children; the court removed the
children from their parents’ custody, and ordered family reunification services and
supervised visitation.
In May 2013, the dependency court ordered Sister and Brother returned to
Mother’s custody, but under supervision of DCFS. Although the court noted Mother’s
progress toward reunification and affirmed that the “goal for the children is to terminate
jurisdiction,” the court found that continued jurisdiction over all of the children was
“necessary because conditions exist which justify jurisdiction” under sections 300 and
364, subdivision (c).
In August 2013, the dependency court ordered the Child returned to Mother’s
custody. However, the dependency court did not terminate jurisdiction over the Child.
Instead, it ordered that the Child remain “a dependent child of the court” and that his
return to Mother’s custody was under the “supervision of DCFS.” Again, the court stated
that continued jurisdiction was “necessary because conditions exist which justify
jurisdiction” under sections 300 and 364, subdivision (c).
II. The delinquency court acquires concurrent jurisdiction over the Child
On Monday, December 16, 2013, Mother called DCFS, stating that on Saturday,
December 14, Sister (at the time, age 8) had told her that the Child had rubbed his penis

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on Sister’s vagina while Mother was in the restroom and a second time when the family
was at the playground. The police subsequently arrested the Child (at the time, age 12)
and housed him at juvenile hall, while Sister and Brother remained in Mother’s custody.
On December 18, 2013, the People filed in delinquency court a section 602
petition (the 602 petition) against the Child, alleging two felony counts of lewd acts
against a child, one count for his acts against Sister and one count for his acts against
Brother. On February 27, 2014, the Child admitted the allegations of the 602 petition.
On March 4, 2014, the delinquency court declared the Child a delinquent child
under section 602 and released him to the custody of both DCFS and the probation
department. DCFS ultimately reported that the Child was “under dual supervision with
[DCFS] as primary and Juvenile Probation as secondary . . . .” 3
III. The delinquency court terminates jurisdiction over the Child
On July 21, 2015, more than a year and a half after acquiring jurisdiction over the
Child, the delinquency court, having found that the Child successfully completed
probation, terminated its jurisdiction, releasing the Child to his “Parents.”
IV. The dependency court terminates jurisdiction over the Child
At the time when the delinquency court exercised jurisdiction over the Child, the
dependency court already had jurisdiction over the Child pursuant to the section 300
petition. Moreover, the dependency court, pursuant to the section 300 petition and to a
second and subsequent petition, continued to exercise jurisdiction over the Child after the
delinquency court relinquished its jurisdiction.
On January 17, 2014, as a result of the sexual abuse allegations against the Child,
DCFS filed a second petition regarding the family pursuant to section 342 (the 342

3 Initially,
on January 8, 2014, the probation department’s multidisplinary team
recommended that DCFS should be the lead agency under section 241.1. However,
shortly before the Child admitted to the section 602 petition, the multidisciplinary team
changed its lead agency recommendation to the probation department. At some point in
the spring of 2014, the lead agency role was passed back to DCFS and that is where it
remained.

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petition), alleging Mother failed to adequately supervise the children resulting in the
Child’s sexual abuse of Sister.4
On July 11, 2014, following a contested hearing, the dependency court sustained
the 342 petition, finding by clear and convincing evidence that substantial danger existed
to the physical health of the minors. The dependency court ordered the Child removed
from Mother’s custody, while ordering that Sister and Brother remain in her custody.
The July 11 order, as with prior minute orders issued after the filing of the 342 petition,
indicated that the hearing was held pursuant to both the section 300 petition and the
section 342 petition. There is no indication in the record before us that Mother ever
objected to or sought reconsideration of the July 11 order or filed a notice of appeal
regarding that order.
On January 9, 2015, the dependency court, consistent with the recommendations
of DCFS and the terms of the Child’s probation, ordered (a) that jurisdiction be
terminated with respect to Sister and Brother and (b) that jurisdiction be retained over the
Child and that the Child be placed in Father’s custody.5
In July 2015, DCFS reported that the Child had a positive relationship with Father
and a healthy relationship with his peers and friends, and while the Child’s grades were
poor he was to receive tutoring once the new school year began. DCFS also reported that
Father was participating in domestic violence counseling and individual counseling, and
had completed parenting classes. Accordingly, DCFS recommended that the parents

4 Section 342 is a mechanism for supplementing an original section 300 petition;
in pertinent part, it provides as follows: “In any case in which a minor has been found to
be a person described by Section 300 and the petitioner alleges new facts or
circumstances, other than those under which the original petition was sustained, sufficient
to state that the minor is a person described in Section 300, the petitioner shall file a
subsequent petition. This section does not apply if the jurisdiction of the juvenile court
has been terminated prior to the new allegations.”
5 In March 2014, Father returned to California from Florida in order to safeguard
his children and reunify with the Child. In advance of the January 8, 2015 hearing,
DCFS reported that the Child wished to be placed in Father’s custody and that he would
rather be placed in foster care or returned to juvenile hall than live with Mother.

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share legal custody of the Child, Father be granted primary physical custody of the Child
with Mother having monitored visits, and that the dependency court terminate jurisdiction
over the Child and the family. DCFS did not make any recommendations as to the
frequency or type of monitored visits Mother was to have with the Child. In response to
the DCFS’s recommendations, Mother requested and the dependency court granted a
contested section 364 review hearing so that she could advocate for joint physical
custody of the Child.
The dependency court conducted the contested section 364 review hearing on
August 21, 2015. After hearing argument from counsel for Mother, Father, the Child,
and DCFS, the dependency court stated it was going to adopt DCFS’s recommendations
and that the conditions that justified its initial assumption of jurisdiction no longer
existed. The court stayed its order terminating jurisdiction until it received a family law
order granting father sole physical custody of the child, the parents’ joint legal custody,
and monitored visitation for mother. On August 26, 2015, the dependency court received
the family law order and terminated jurisdiction. However, the court’s custody order
indicates only that mother’s visits with the Child are to be supervised; the order, in other
words, does not provide any direction with regard to the frequency and duration of her
monitored visits.
On August 21, 2015, Mother filed a notice of appeal indicating that the appeal was
limited to “all findings and orders made on [August 21, 2015].”
DISCUSSION
I. The dependency court properly sustained the section 342 petition
Mother contends that the decision by the dependency court on July 11, 2014 to
sustain the section 342 petition was void, because “the delinquency court had taken
jurisdiction over [the Child] in March 2014”; as a result, the dependency court’s action,
according to Mother, “was in violation of the Legislature’s prohibition against taking
dual jurisdiction over a minor under sections 300 and 602.” Mother further argues that
because the dependency court’s July 11, 2014 order was void, it does not matter that she
did not (a) object to the order at the time it issued, (b) file a notice of appeal within 60

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days of the order’s issuance, or (c) make any reference to that order in the notice of
appeal she filed more than a year later. Mother contends that she was prejudiced by the
dependency court’s allegedly improper action, because without its findings under section
342, the dependency court would not have had the jurisdiction to issue the custody order
granting sole physical custody of the Child to Father. Mother’s arguments are without
merit for several reasons.
First, Mother’s core contention rests on a faulty premise: she assumes that when
the delinquency court made the Child a ward of the state in winter 2014, the dependency
court somehow lacked jurisdiction over the Child. The record flatly contradicts Mother’s
assumption. The dependency court acquired jurisdiction over the Child in the fall of
2012—more than a year before the delinquency court—and it did not relinquish that
jurisdiction until summer 2015. When the dependency court sustained the 342 petition—
which by definition requires the existence of an operative section 300 petition—the
dependency court did not take jurisdiction anew, but merely expanded the scope of its
already existing jurisdiction.
Second, while “‘[d]ual jurisdiction is generally forbidden’” (In re W.B. (2012) 55
Cal.4th 30, 46), there is a legislatively-mandated exception. As our Supreme Court
explained, “In 2004, the Legislature created a small exception to the ban on dual
jurisdiction. Section 241.1, subdivision (e) allows a minor to be designated a ‘dual status
child’ and treated simultaneously under the court’s dependency and delinquency
jurisdiction, but only in accordance with a precise written protocol. The statute requires
that the protocol be developed jointly by the county’s probation department and child
welfare agency and signed by the heads of these entities as well as the presiding judge of
the juvenile court. (§ 241.1, subd. (e).) To avoid duplication of services, county
protocols must adopt either an ‘on-hold’ system, in which dependency jurisdiction is
suspended while the child is a ward of the delinquency court, or a ‘lead court/lead
agency’ system, in which the probation department and social services department decide
which agency will take the lead in all case-management and court-related matters.
(§ 241.1, subd. (e)(5).)” (In re W.B., at pp. 46–47.) Here, as the record makes clear,

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dependency jurisdiction was not “suspended” or otherwise put “on hold” in the winter
2014. Rather, the jurisdiction of the dependency court continued unabated into summer
2015.
Third, Mother did not suffer any prejudice when the court sustained the section
342 petition. The dependency court’s findings under section 300 predated the
delinquency court’s findings under section 602 by more than a year. Moreover, there is
nothing in the record to suggest that had the dependency court not sustained the section
342 petition it would have terminated its jurisdiction before the delinquency court
terminated its jurisdiction. From a public policy perspective, it would make little sense
for a dependency court to terminate its jurisdiction over a “dual status” minor (a minor
victimized by parental abuse or neglect) before the delinquency court terminated its
jurisdiction—such action by a dependency court would be tantamount to abandoning a
dependent child before determining that it was safe for him or her to return home after his
or her tenure as a ward ended. Indeed, section 241.1 anticipates continued dependency
court supervision after a child’s delinquency case closes. Section 241.1,
subdivision (e)(2) requires “joint recommendations” from “the probation department and
[DCFS]” in order to “ensure a seamless transition from wardship to dependency
jurisdiction, as appropriate, so that services to the child are not disrupted upon
termination of the wardship.” (§ 241.1, subd. (e)(2).)
Finally, Mother sat on her rights with regard to her arguments about the section
342 petition. “Challenges to void orders, as distinguished from voidable orders, can be
made at any time. A judgment or order is void when there is an absence of fundamental
jurisdiction. However, an act in excess of jurisdiction simply renders an order of
judgment voidable. ‘Lack of jurisdiction in its most fundamental or strict sense means an
entire absence of . . . authority over the subject matter or the parties. [Citation.]’
[Citation.] In contrast, a court acts in excess of jurisdiction in the broader sense ‘where,
though the court has jurisdiction over the subject matter and the parties in the
fundamental sense, it has no “jurisdiction” (or power) to act except in a particular
manner, or to give certain kinds of relief, or to act without the occurrence of certain

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procedural prerequisites.’ [Citation.] ‘Action “in excess of jurisdiction” by a court that
has jurisdiction in the “fundamental sense” . . . is not void, but only voidable.’ [Citation.]
A claim that does not concern the trial court’s fundamental subject matter jurisdiction is
waived if not timely asserted.” (In re Adoption of Myah M. (2011) 201 Cal.App.4th
1518, 1531.)
As noted above, the section 342 petition was, by its very nature, a supplement to
the preexisting section 300 petition—in other words, any challenge to the order
sustaining the section 342 petition could not have been a challenge to the dependency
court’s fundamental jurisdiction; a challenge limited to just the section 342 order could
only be a challenge to a voidable order. As a result, any appellate challenge to the order
sustaining the section 342 petition would need to be made within 60 days of the minute
order (Cal. Rules of Court, rule 8.104(a)(1)), not more than 365 days later, as occurred
here.
“[T]he general rule in juvenile dependency cases is that all orders (except for an
order setting a section 366.26 hearing), starting chronologically with the dispositional
order, are appealable without limitation.” (In re Gabriel G. (2005) 134 Cal.App.4th
1428, 1435, first italics added; see In re T.W. (2011) 197 Cal.App.4th 723, 729 [“[t]he
first appealable order in a dependency case is the dispositional order”].) However, “‘an
unappealed disposition or postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.’” (In re T.G. (2015) 242
Cal.App.4th 976, 984.) This is so because permitting a parent “to raise issues which go
to the validity of a final earlier appealable order would directly undermine [the] dominant
concerns of finality and reasonable expedition” underlying all juvenile dependency
proceedings. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1152.) In other words, an
appeal from the most recent order entered in a dependency matter may not challenge
prior orders, for which the statutory time for filing an appeal has passed. (In re
Elizabeth G. (1988) 205 Cal.App.3d 1327, 1331.) While this forfeiture rule is not
absolute, its application is inappropriate only when an error has so “fundamentally
undermined the statutory scheme” that the parent is prevented from availing himself or

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herself of its protections. (In re Janee J. (1999) 74 Cal.App.4th 198, 208.) Moreover,
“defects must go beyond mere errors that might have been held reversible had they been
properly and timely reviewed.” (Id. at p. 209.)
Here, without ever mentioning the July 11, 2014 order in her notice of appeal,
Mother attempts to challenge that order even though the order she expressly appealed
was the order most recently entered in the case and it was entered more than year after
the July 11, 2014 order. In short, Mother’s attempt to shoehorn a challenge to the
arguably voidable July 11, 2014 order into her appeal of the August 21, 2015 termination
order was improper, and patently so.
So, for all of the foregoing reasons, we reject Mother’s arguments regarding the
section 342 petition.
II. The dependency court properly terminated jurisdiction
Mother contends that the dependency court erred when, following the contested
section 364 review hearing, it terminated jurisdiction over the Child; this decision was in
error, argues Mother, because conditions that initially warranted jurisdiction (domestic
abuse between the parents, Mother’s physical abuse of the Child, and Father’s physical
abuse of the Child and his siblings) “still existed.” Mother’s argument is without merit.
A. Section 364 and the standard of review
The dependency court’s August 21, 2015 decision to terminate jurisdiction over
the Child and award physical custody of the Child to Father was made pursuant to section
364. Section 364, subdivision (c) currently provides: “After hearing any evidence
presented by the social worker, the parent, the guardian, or the child, the court shall
determine whether continued supervision is necessary. The court shall terminate its
jurisdiction unless the social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which would justify initial
assumption of jurisdiction under Section 300, or that those conditions are likely to exist if
supervision is withdrawn. Failure of the parent or guardian to participate regularly in any
court ordered treatment program shall constitute prima facie evidence that the conditions
which justified initial assumption of jurisdiction still exist and that continued supervision

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is necessary.” (Italics added.) Section 364, subdivision (c), in other words, establishes a
“statutory presumption in favor of terminating jurisdiction and returning the children to
the parents’ care without court supervision.” (In re Shannon M. (2013) 221 Cal.App.4th
282, 290.)
“At the section 364 review hearing, ‘the court is not concerned with reunification,
but in determining “whether the dependency should be terminated or whether further
supervision is necessary.” [Citations.]’ [Citations.] The juvenile court makes this
determination ‘based on the totality of the evidence before it.’ [Citation.] Part of the
evidence the juvenile court must consider is the supplemental report of the social worker
[citation], who must ‘make a recommendation regarding the necessity of continued
supervision.’” (In re Aurora P. (2015) 241 Cal.App.4th 1142, 1155.)
Where, as here, the social services agency recommends termination of jurisdiction,
termination will be the “‘default result’” unless either the parent, the guardian, or the
child objects and establishes by a preponderance of the evidence that conditions
justifying retention of jurisdiction exist or are likely to exist if supervision is withdrawn.
(In re Aurora P., supra, 241 Cal.App.4th at pp. 1155–1156.)
We review findings under section 364 for substantial evidence. (In re N.S. (2002)
97 Cal.App.4th 167, 172; In re D.B. (2015) 239 Cal.App.4th 1073, 1086.) Under the
substantial evidence standard, our review “begins and ends with the determination as to
whether, on the entire record, there is substantial evidence, contradicted or
uncontradicted, which will support” the judge or jury’s factual determinations. (Bowers
v. Bernards (1984) 150 Cal.App.3d 870, 873–874; Piedra v. Dugan (2004) 123
Cal.App.4th 1483, 1489.) “‘Even in cases where the evidence is undisputed or
uncontradicted, if two or more different inferences can reasonably be drawn from the
evidence this court is without power to substitute its own inferences or deductions for
those of the trier of fact . . . .’” (Jonkey v. Carignan Construction Co. (2006) 139
Cal.App.4th 20, 24, italics added.) “The term ‘substantial evidence’ means such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion; it is

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evidence which is reasonable in nature, credible, and of solid value.” (In re J.K. (2009)
174 Cal.App.4th 1426, 1433.)
B. Substantial evidence supports termination of jurisdiction
Mother’s argument suffers from a number of evidentiary problems. First, at the
contested hearing, Mother did not introduce any evidence that there was continuing
domestic abuse between herself and Father; indeed, the risk of such abuse arising was
greatly reduced from when DCFS filed the section 300 petition, because Mother and
Father were living separately at the time of the contested hearing. Nor did Mother
introduce any evidence that there was a risk of Father physically abusing the Child. In
fact, DCFS in its written report recommended termination of jurisdiction, inter alia,
because the Child had a “positive relationship” with Father, who was employed on a full-
time basis with a subsidiary of Verizon and whose home was in “good condition.”
Moreover, Father, after returning to California, was participating in domestic violence
counseling, individual counseling, and parenting classes.
Second, at the hearing, the Child’s attorney stated that the Child “does really well
with his father,” that the two of them “have bonded,” and that the Child “wants to
remain” with Father. The Child’s attorney further stated that the Child did not “wish to
live with his mother,” that he did not want to have anything except monitored visits with
Mother.
Third, amplifying DCFS’s written report recommending termination and sole
physical custody with Father, counsel for DCFS stated at the hearing that “entering any
orders other than joint legal, sole physical to the father, and monitored visits for the
mother would have a negative impact on [the Child’s] well-being.”
In short, substantial evidence supported the court’s decision to order joint legal
custody, sole physical custody to Father, and monitored visitation with Mother, and to
terminate jurisdiction.

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III. The dependency court failed to provide specifics with regard to visitation
Mother’s final claim is that the dependency court’s visitation order was improper
because the court failed to specify the frequency and minimum duration of mother’s
supervised visits. DCFS, quite correctly, concedes that this argument has merit.
A visitation order “must give some indication of how often visitation should
occur.” (In re E.T. (2013) 217 Cal.App.4th 426, 439.) Moreover, while a court “may
delegate responsibility for managing details [of visits,] such as the time, place, and
manner,” it “may not abdicate its discretion to determine whether visitation will occur to
a third party.” (Ibid.; In re T.H. (2010) 190 Cal.App.4th 1119, 1122–1123.)
By not providing any specifics, the dependency court effectively delegated to
Father the power to determine whether visitation will occur. Accordingly, we remand the
matter with directions “to specify the frequency and duration” of Mother’s visits. (In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314–1315.)
DISPOSITION
The dependency court is directed to specify the frequency and duration of
Mother’s visits. In all other respects, the August 21, 2015 order terminating jurisdiction
is affirmed.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

LUI, J.

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