Filed 11/19/21 In re Ryan M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re RYAN M. et al., Persons
Coming Under the Juvenile
Court Law. B311047
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos.
AND FAMILY SERVICES, 19CCJP07918A–B
Plaintiff and Respondent,
v.
LARRY M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Debra R. Archuleta, Judge. Reversed and remanded with
directions.
Katie Curtis, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Sally Son, Deputy County Counsel, for
Plaintiff and Respondent.
INTRODUCTION
Larry M. (father) appeals from orders entered after the
dependency court terminated jurisdiction over his children. The
exit orders awarded D.K. (mother) sole physical custody and
allowed father only monitored visitation.1 Father contends these
orders violated his right to due process of law because they were
entered by a judge who had not previously presided over the case
and had failed to review the case file. We conclude the court
abused its discretion and reverse.2
PROCEDURAL BACKGROUND3
Father and mother are the parents of Aaron M. (born 2014)
and Ryan M. (born 2012). Father and mother are not in a
relationship, but before the dependency proceedings in this case,
they shared legal and physical custody of the children.
1. Initiation of Dependency Proceedings
On October 1, 2019, the Los Angeles Department of
Children and Family Services (Department) received a report
that six-year-old Ryan had been physically abused by his father’s
1Father does not challenge the termination of dependency jurisdiction
or the court’s order granting him joint legal custody. Mother is not a
party to this appeal.
2 Accordingly, we do not reach the constitutional issue.
3Because the facts of this case are not relevant to the issue on appeal,
we do not address them.
2
live-in girlfriend, D.T. During its investigation, the Department
learned that D.T. had also hit Ryan’s brother, Aaron.
On December 11, 2019, the Department filed a dependency
petition on behalf of Ryan and Aaron alleging failure to protect by
father and abuse of a sibling. (Welf. & Inst. Code,4 § 300, subds.
(b)(1), (j).) At the initial detention hearing on December 12, 2019,
the court detained both children from father and released them to
mother.
At the combined jurisdiction and disposition hearing on
February 18, 2020, the court sustained the allegations in the
section 300 petition and found D.T.’s physical abuse of Aaron and
Ryan and father’s minimization of the abuse and failure to
protect them warranted dependency jurisdiction. The court
declared the children dependents of the court, removed them
from father, and placed them with mother. The court ordered
father to attend parenting classes and individual counseling. It
ordered mother to receive parenting classes and family
preservation services.
2. Termination of Jurisdiction
The first section 364 review hearing was held on
February 10, 2021.5 The Department had filed an interim report
in which it recommended the court terminate dependency
jurisdiction, award mother joint legal custody and sole physical
4 Allundesignated statutory references are to the Welfare and
Institutions Code.
5 The section 364 review hearing that had previously been scheduled
for August 18, 2020, was continued due to court closures stemming
from the Covid-19 emergency.
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custody, and award father joint legal custody and monitored
visitation.
At the hearing, a new bench officer presided over the case.
Although the court noted that it had not reviewed the case file, it
nevertheless terminated jurisdiction and stayed termination
pending receipt of the custody exit order, to be prepared by
mother’s attorney.6 The court awarded father and mother joint
legal custody. Over father’s objection, the court awarded mother
sole physical custody and awarded father monitored visitation.
On February 17, 2021, the court signed the custody order
and lifted the stay. Father filed a timely notice of appeal.
DISCUSSION
Father contends the trial court erred by entering custodial
and visitation exit orders without reviewing the case file or
possessing any knowledge of the case. We agree.
1. Legal Principles and Standard of Review
“When a child is adjudged a dependent of the juvenile
court, any issues regarding custodial rights between his or her
parents shall be determined solely by the juvenile court … so long
as the child remains a dependent of the juvenile court.” (§ 302,
subd. (c).) When the court terminates its jurisdiction, it may
enter exit orders “determining the custody of, or visitation with,
the child.” (§ 362.4, subd. (a); In re Roger S. (1992) 4 Cal.App.4th
25, 30.)
Unlike family law judges, dependency judges crafting exit
orders focus on the child’s best interests, unconstrained by “ ‘any
6 We discuss the termination hearing in further detail below.
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preferences or presumptions’ ” about parental custody. (In re
John W. (1996) 41 Cal.App.4th 961, 972, italics omitted.) “In
juvenile dependency proceedings the child is involved in the court
proceedings because he or she has been abused or neglected. …
The presumption of parental fitness that underlies custody law in
the family court just does not apply to dependency cases. Rather
the juvenile court, which has been intimately involved in the
protection of the child, is best situated to make custody
determinations based on the best interests of the child without
any preferences or presumptions.” (In re Jennifer R. (1993) 14
Cal.App.4th 704, 712.)
Because juvenile courts are presumed to have been
intimately involved with the family during the dependency
proceedings, they are vested with broad discretion, when
fashioning exit orders, to decide what would best serve and
protect the child’s interests—and we will not disturb an exit
order unless the court abuses that discretion. (In re I.G. (2004)
226 Cal.App.4th 380, 386–387; In re Roger S., supra,
4 Cal.App.4th at p. 31 [“By empowering the juvenile court to
issue custody and restraining orders, the Legislature has
expressed its belief that ‘the juvenile court is the appropriate
place for these matters to be determined and that the juvenile
court’s orders must be honored in later superior court
proceedings.’ [Citation.]”].)
“ ‘ “[A] ruling otherwise within the trial court’s power will
nonetheless be set aside where it appears from the record that in
issuing the ruling the court failed to exercise the discretion in it
vested by law. [Citations.]” [Citation.] “Failure to exercise a
discretion conferred and compelled by law constitutes a denial of
a fair hearing and a deprivation of fundamental procedural
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rights, and thus requires reversal. [Citations.]” [Citation.]’
[Citation.] ‘The fundamental liberty interest of natural parents in
the care, custody, and management of their child[ren] does not
evaporate simply because they have not been model parents or
have lost temporary custody of their child[ren] to the State.’
[Citation.]” (In re L.A. (2009) 180 Cal.App.4th 413, 428; see In re
T.C. (2009) 173 Cal.App.4th 837, 843 [an error of law or refusal to
exercise discretion conferred by law may constitute abuse of
discretion].)
2. The court abused its discretion.
The hearing at which jurisdiction was terminated in this
case was not conducted by the bench officer who had previously
presided over the dependency proceedings. Nevertheless, the new
bench officer began the hearing by admitting: “Due to technical
difficulties, I have not been able to review the case file or the
status review report that was prepared for today’s date.”
Notwithstanding its lack of knowledge, the court did not attempt
to learn about the parents or their history by, for example,
continuing the hearing or receiving evidence from the parties.
Instead, the court continued: “However, I believe it has
been agreed upon by and between the parties that this matter is
going to settle as follows: Jurisdiction of this court will be
terminated upon receipt of the juvenile custody order. Mother
will receive sole physical custody of the minors. Joint legal
custody to both mother and father. Father to have monitored
visits with a mutually-agreed-upon monitor or a paid professional
monitor where he bears the expense. Is that the agreement of the
parties?”
It seems the parties did not agree, because at that point,
father objected to the physical custody and visitation orders.
6
Rather than pausing to educate herself about the matter before
her, however, the court instead replied, “your objection is noted
for the record,” then ordered jurisdiction to be terminated upon
receipt of a juvenile custody order, which mother’s attorney was
to prepare.7 A week later, the court entered exit orders on the
stated terms. There is no evidence in the record before us that the
court reviewed the case file between the hearing and the entry of
the exit orders.
“ ‘ “While it is entirely proper for the court to accept
stipulations of counsel that appear to have been made advisedly,
and after due consideration of the facts, the court cannot
surrender its duty to see that the judgment to be entered is a just
one, nor is the court to act as a mere puppet in the matter.”
[Citation.]’ [Citation.]” (In re Elizabeth M. (2008) 158 Cal.App.4th
1551, 1559.) Here, to the extent the court was correct that a
stipulation existed,8 because father explicitly objected to the
proposed custodial and visitation orders, and the court had no
knowledge of the facts of the case before it, “we must conclude the
court either did not base its ruling on the stipulation, or did so
improperly.” (Ibid.)
Furthermore, even if there were a valid stipulation, the
court was still required to independently determine the best
interests of the children under the totality of the circumstances.
(In re Roger S., supra, 4 Cal.App.4th at pp. 30–31.) “The power to
7Based on father’s objection to the physical custody and visitation
orders, we reject the Department’s forfeiture argument. In any event,
as father notes, application of the forfeiture rule is not automatic in
dependency cases. (See, e.g., In re T.G. (2013) 215 Cal.App.4th 1, 14.)
8The record contains no evidence of a stipulation besides the court’s
remarks quoted above.
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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. [Citation.]
This rule of nondelegation applies to exit orders issued when
dependency jurisdiction is terminated. [Citations.]” (In re T.H.
(2010) 190 Cal.App.4th 1119, 1123.) The court here, by failing to
review the case file or otherwise learn about the matter over
which it was presiding for the first time, issued uninformed
orders that could fail to serve the best interests of the children.
(See Roger S., at p. 31.)
Regardless of what a properly-informed court might have
done, the court in this case, by failing to exercise informed
discretion, abused its discretion.
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DISPOSITION
The exit orders and order terminating dependency
jurisdiction are reversed and the matter is remanded with
directions to hold a new section 364 hearing in accordance with
the views expressed in this opinion.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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