Filed 8/12/22 In re M.M. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re M.M., a Person Coming B311998
Under the Juvenile Court
(Los Angeles County
Law.
Super. Ct. Nos.
19CCJP04822,
19CCJP04822A )
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JOSEPH M.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen C. Marpet, Judge Pro Tempore.
Affirmed.
Richard L. Knight, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Avedis Koutoujian, Deputy County
Counsel, for Plaintiff and Respondent.
In October 2019, the juvenile court sustained a dependency
petition regarding two-year-old M., finding jurisdiction pursuant
to Welfare and Institutions Code section 300 1 based on
allegations of repeated instances of domestic violence between
father J.M. and mother L.L. The court terminated jurisdiction at
a status review hearing in March 2021, with an exit order
granting sole physical custody of M. to mother. Father appeals
from that exit order, arguing that the court abused its discretion
in denying his request for joint physical custody of M., instead
ordering continued unmonitored visitation. We find no error and
therefore affirm.
BACKGROUND
Prior Incidents
Mother and father have one child together, M., born in
2017. Mother has two older children, K.C. and M.C., from a prior
relationship with their father, H.C.2 According to mother, she
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 M. is the only child subject to this appeal. Mother is not a
party to this appeal. We therefore include only limited details
related to mother and the other children.
2
and father lived together with M., K.C., and M.C. from October
2017 to October 2018. Subsequently, mother lived with the
children and father visited M. often.
The family had several incidents investigated by the Los
Angeles County Department of Children and Family Services
(DCFS) prior to the events giving rise to the instant case. In
April 2014, DCFS filed a dependency petition on behalf of K.C.
and M.C., alleging a history of domestic violence between mother
and H.C. The juvenile court terminated jurisdiction in April 2015
and awarded physical custody of K.C. and M.C. to mother.
In July 2017, DCFS received a referral stating that mother
(then pregnant with M.), father, K.C., and M.C. were in the car
together when mother and father got into an argument. Father
began driving erratically, reaching speeds up to 90 miles per
hour, swerving, and driving on the shoulder. When they arrived
at father’s home, he choked mother for several seconds. He also
broke mother’s car window, headlights, and taillights. Mother
reported that this was the fifth time father had acted this way,
and that there had been prior domestic violence incidents. DCFS
closed the referral as inconclusive.
In May 2018, police officers responded to a call from
mother’s residence regarding domestic violence and found father
outside in the front yard. Mother told the officers that she had
been inside with M. when father began banging on the front door,
shouting profanities, and demanding mother give him M. When
mother refused, father stated he was going to break the windows
in mother’s car, then threatened to shoot mother. Father also
stated that if mother called police, he could bail out of jail, come
back, and kill mother. Mother told police that in previous
encounters, father had been armed with a gun. Police arrested
3
father for criminal threats and obtained an emergency protective
order for mother and M. The district attorney ultimately
declined to prosecute.
In July 2018, DCFS received a referral that mother and
father had argued over custody issues in front of the children,
and father slapped mother across the face. Mother declined both
medical assistance and an emergency protective order. The
referral was closed as unfounded. In November 2018, mother
called the police stating that father became angry at her, slashed
her tires, then fled.
Current Petition and Detention Report
In March 2019, mother called the police stating that she
and father began to argue while exchanging custody of M.
During the argument, father slashed mother’s tires and broke the
windows of her car. Mother again called police on May 12, 2019,
after she and father got into a verbal argument at mother’s
residence, and father slashed her tires. Father told mother he
would continue to do so every time she repaired them. The police
report noted that there were “numerous prior reports between
the two parties” but that mother had not assisted police in their
investigations.
A police officer investigating the March and May 2019
incidents contacted DCFS on May 22, 2019, reporting that there
was ongoing domestic violence and vandalism by father occurring
in M.’s presence, particularly during custody exchanges. The
referral to DCFS also stated that on April 23, 2019, father took
M. after he smashed mother’s car window and slashed her tires.
A DCFS children’s social worker (CSW) met with mother on
June 3, 2019. She denied any domestic violence with father. She
stated that on April 23, 2019, she called police after father
4
slashed her tires, but denied that they had an altercation, that he
hit her, broke her car windows, or left with M.
The CSW spoke with father on June 26, 2019. He did not
recall an altercation with mother in May and declined to answer
other questions on the phone, but agreed to meet in person. After
several unsuccessful efforts to follow up with father, the CSW
spoke with him on the phone on July 24, 2019. Father refused to
give the CSW his address and stated that he would come to the
DCFS office.
In a meeting on July 23, 2019, mother told DCFS that she
and father were no longer together. They did not have a formal
custody agreement or visitation plan in place for M. Mother
stated that she was fearful of father because he was controlling
and slapped and punched her in the past. Mother agreed to get a
restraining order.
In the detention report, DCFS noted that father had a
criminal history from 2006 to 2018, including robbery, battery on
a school employee, assault with a firearm, infliction of corporal
injury on a spouse or cohabitant, manufacture or possession of a
dangerous weapon, and threatening a crime with intent to
terrorize. DCFS opined that removing M. from father was
necessary due to the multiple documented incidents of domestic
violence between father and mother, all of which involved father
as the aggressor and some of which occurred in M.’s presence,
mother’s statements that she was fearful of father, and the
continuing relationship between mother and father. M. was
detained from father and released to mother. When the CSW
called father to inform him of the removal order and detention
hearing, father denied domestic violence with mother and told
the CSW to “go find someone else’s family to mess up.”
5
DCFS filed a dependency petition on July 30, 2019 on
behalf of M., then 21 months old, under section 300, subdivisions
(a), (b)(1), and (j).3 The petition alleged that mother and father
had a history of engaging in violent physical and verbal
altercations in M.’s presence. The petition specifically alleged
that father had slapped mother and struck her with his fists,
slashed mother’s car tires on three occasions, and also threatened
to break her car windows. In addition, the petition alleged that
on May 15, 2019, father threatened to kill mother, resulting in
his arrest for criminal threats.4 DCFS also alleged that father
had a criminal history of convictions for assault with a deadly
weapon and vandalism. Further, the petition alleged that
3 Section 300 states, in relevant part, “A child who comes
within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a
dependent child of the court: [¶](a) The child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm inflicted nonaccidentally upon the child by the
child’s parent or guardian. . . . [¶] (b)(1) The child has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of the failure or inability of
his or her parent ... to adequately supervise or protect the child. .
. . [¶] (j) The child’s sibling has been abused or neglected, as
defined in subdivision (a), (b), . . . and there is a substantial risk
that the child will be abused or neglected, as defined in those
subdivisions.”
4 We note that according to the police report in the record,
the incident during which father slashed mother’s tires and
threatened to kill her, resulting in his arrest, occurred in May
2018, not 2019 as alleged by DCFS. However, police responded to
another tire-slashing incident by father in May 2019, which
precipitated the instant proceeding.
6
mother knew of father’s violent conduct but failed to protect M.
by allowing father unlimited access to the child.
At the detention hearing on July 31, 2019, the court found
a prima facie case for jurisdiction over M. pursuant to section
300, and no reasonable means available to protect M. without
removing her from father. The court ordered M. to remain placed
with mother, with twice weekly monitored visitation for father.
The court granted mother’s request for a restraining order
through October 2, 2019.
Jurisdiction and Disposition
In its jurisdiction/disposition report filed September 13,
2019, DCFS reported that it interviewed mother again on
September 10, 2019. Mother stated that father had gotten mad
over some small thing in May 2019 and had flattened her car
tires, and that it was the third such incident. She denied that
father ever hit her or threatened to kill her. She told the CSW
that she had realized their relationship was “unhealthy,” and
father “needs help before we can be in any relationship,” but that
he was a “good father” to M.
DCFS also reported that it had made multiple unsuccessful
attempts to contact father in August and September 2019.
In September 2019, the court continued the adjudication
hearing and ordered DCFS to file a supplemental report
including an interview with father. M. remained released to
mother. In an October 1, 2019 last minute information, DCFS
detailed an interview with father on September 30. Father
stated that the allegations of the petition were “all lies and not
true.” He told the CSW that he had provided for and cared for M.
throughout her entire life. Father told DCFS that he was the
“better parent because I have my own home and [M.] has a
7
sibling [father’s child from a prior relationship] that she can play
with.” He did not want to be in a relationship with mother, but
wanted to “be a good parent” to M. Father stated he did not
understand “why all of this is happening,” that the issues were
between mother and father, and that he should be able to have
unmonitored visits with M.
Mother reported that on September 7, 2019, she received a
call from father from an unknown number, asking where she
was. She did not tell him, but father appeared at the restaurant
where she was ordering food and asked her why she was “acting
like this.” Father also opened the back door of mother’s car, gave
M. a kiss, and asked mother “why are you doing this no one is
trying to do nothing to you?” The next day, mother was getting
out of her car at church when father pulled up. He stated he just
wanted to see M. and again gave the child a kiss in the back seat
of the car. Mother told DCFS that father repeatedly called her
from unknown numbers and she told father to stop calling her
because she did not want to lose M. On September 9, 2019,
father called mother, threatened her, and accused her of seeing
someone else. Mother told father to contact DCFS if he wanted to
see M. Father responded that he was going to report mother to
DCFS for violating the restraining order by seeing father. On
September 13, 2019, mother met with several individuals from
DCFS for an emergency meeting. She stated that father had
been stalking her and threatening to tell DCFS that she had
violated her restraining order. The team gave mother a safety
plan, including changing her phone number.
The court held the continued adjudication and disposition
hearing on October 2, 2019. The court sustained the petition,
finding jurisdiction over M. by a preponderance of the evidence
8
under section 300, subdivisions (a), (b), and (j). Additionally, the
court found by clear and convincing evidence that removal of M.
from father was necessary and that DCFS had made reasonable
efforts to prevent removal. The court ordered M.’s continued
release to the home of mother.
The court issued a three-year restraining order on October
2, 2019, protecting mother and M. from contact from father other
than approved visitation. The court informed father that it could
modify the restraining order based on his compliance and
progress in his programs. The court ordered father to have
continuing monitored visitation with M. twice per week, with
discretion to DCFS to liberalize. The court also ordered father to
complete individual counseling and domestic violence and
parenting programs.
Status Review Hearings
DCFS filed a last minute information in January 2020,
reporting that a CSW attempted to contact father on November
25, 2019 to set up monitored visits with M.; when father did not
answer his phone, the CSW left a voicemail. Father never
returned the call. On January 21, 2020, a CSW called father to
ask about his progress with the court-ordered programs. Father
stated he would need to find that information as he did not have
it “in front of him.” He was unable to provide further information
regarding days and times of his programs. Father told the CSW
that “this whole thing became twisted and you all lied to me,” and
then stated he was suspicious of the CSW’s identity. DCFS also
attached certificates of completion for several of mother’s
programs.
In a March 20, 2020 status review report, DCFS reported
that mother was engaged in the proceedings and demonstrated
9
commitment to M., who appeared comfortable in her care. Father
spoke with a CSW on January 28, 2020 and reported that he had
enrolled in counseling approximately two weeks ago. The CSW
confirmed on March 10, 2020 that father had enrolled in domestic
violence and parenting classes. Father agreed to a meeting at the
DCFS offices on March 10, 2020, but then notified DCFS that he
could not attend. Father agreed to speak by telephone, and
stated that DCFS had not helped him with his case, failing to
reach out for several months. Father stated he did not agree
with his lack of visits with M., and that he wanted to see her
every day. Father requested having visits in his home and stated
that paternal aunt would agree to be approved as a monitor.
Father told the CSW that he was a good father, he “did not do
anything,” he had never been arrested, and he did not
understand why he was involved in a DCFS case.
DCFS reported that it had spoken with paternal aunt on
February 21, 2020 regarding serving as father’s visitation
monitor. DCFS informed her that she could come to the DCFS
office to live-scan; as of mid-March, paternal aunt had not done
so. DCFS also reported that mother was in full compliance with
her case plan and consistently met M.’s needs. DCFS
recommended terminating dependency jurisdiction with a family
law order granting mother sole physical custody, with continued
monitored visitation for father.
The court continued the section 364 review hearing 5 several
times due to the COVID-19 pandemic, from May to September,
then to December 2020. In August 2020, DCFS reported that
5 Section 364 governs status review hearings for dependent
juveniles who remain in the physical custody of a parent or
guardian.
10
father had been terminated from his individual counseling
program after missing multiple sessions. However, he had
almost completed his parenting classes and was making progress
with his domestic violence classes online. DCFS also reported
that as of August 14, paternal aunt had not completed her live-
scan, and father had “held no telephonic, in-person, or written
communication” with M.
On November 23, 2020, father told a CSW that he did not
believe DCFS had helped him toward closing his case. He had
not re-enrolled in individual counseling, but had completed 40 of
52 sessions of his domestic violence program and all of his
parenting program except for one final assignment. The CSW
reported that father had not provided any information for anyone
who could monitor his visits and had not had any visits with M.
since the case was opened. DCFS again recommended
terminating the case with custody to mother and monitored
visitation for father.
At a hearing on December 17, 2020, father’s counsel
requested liberalization of his visits and argued that he was in
substantial compliance with his case plan. He stated that father
had “tried” to visit M. but “has had a difficult time
communicating with the social worker.” The court set a contested
review hearing regarding whether father’s visits should be
liberalized. The court noted that father seemed to be doing well
in his programs and ordered DCFS to look into liberalizing his
contact.
DCFS filed a last minute information on January 29, 2021,
reporting that father had completed two sessions of individual
counseling. Father also had completed his domestic violence and
parenting programs. Paternal aunt began monitoring visits for
11
father on December 31, 2020. She told DCFS on January 28,
2021 that father had completed three-hour visits once per week
at a local mall for the past month and that father was attentive,
thoughtful, and loving with M. She opined that the visits would
be more productive in a home-based setting.
DCFS inspected father’s home on January 26, 2021 as part
of its consideration of liberalizing father’s visitation. Father’s
home was appropriate and one bedroom was furnished with a
bunk bed, which father indicated was the room of his nine-year-
old daughter (M.’s half-sister) that M. would share during
overnight visits. Father told the CSW that he was angry, as he
had “done everything” and believed DCFS and the court had
treated him unfairly. The CSW again spoke with father the next
day; the CSW reported that father shared what he had learned
from his programs, despite his continued anger over his belief
that he had been unfairly treated.
DCFS granted father liberalized visitation on January 28,
2021. The schedule allowed father unmonitored visitation for
four hours on Saturdays at his home beginning January 30, 2021,
increased to eight hours on February 6, 2021, and liberalized to
overnight visits the following week. Paternal aunt would
continue to transport M. between father and mother in
compliance with the restraining order. DCFS continued to
recommend that the court terminate dependency jurisdiction,
with sole physical custody to mother, but updated its
recommendation to unmonitored visitation for father.
In a March 2021 last minute information, DCFS reported
that mother had no concerns with the visits between M. and
father. On February 24, 2021, father told DCFS that the visits
12
were going well and that he wanted to be a part of M.’s life.
Father continued to complete his counseling sessions.
The court held the continued review hearing on March 24
and 25, 2021. M.’s counsel stated that she did not object to
DCFS’s recommendation regarding physical custody to mother
and unmonitored visitation to father, noting that M. “seems to be
doing okay after the visits.” Father’s counsel asked the court to
consider granting physical custody to both parents, arguing that
father had completed his case plan and the overnight visits were
going well. He stated that father had “done everything that the
court has asked.” Counsel for DCFS disagreed, stating that
father “finally signed up for individual counseling in January,”
and had completed only two sessions. She urged the court to
adopt DCFS’s recommendations. The court indicated it would
order unmonitored and overnight visits, to be scheduled by
agreement between mother and father or through mediation.
The court found that the conditions justifying initial
assumption of jurisdiction no longer existed and were not likely
to exist if supervision was withdrawn. The court therefore
terminated jurisdiction, awarding joint legal custody to mother
and father and sole physical custody to mother. At father’s
request, the court also vacated the restraining order. On March
30, the court issued a juvenile custody order, including
unmonitored visitation for father.
Father timely appealed from the March 2021 orders.6
6 Father’s counsel initially filed a brief pursuant to In re
Phoenix H. (2009) 47 Cal.4th 835, 845, asserting that he found no
colorable issues to raise on appeal. He subsequently filed a
motion to strike that brief and replace it with a new opening
13
DISCUSSION
Father argues on appeal that the juvenile court abused its
discretion in denying his request for joint physical custody at the
time it terminated jurisdiction, instead granting him continued
unmonitored visitation with M. We find no abuse of discretion.
I. Legal Principles
Section 362.4 governs the termination of juvenile court
jurisdiction and related orders. The statute authorizes a juvenile
court to make custody and visitation orders upon terminating
dependency jurisdiction over a child. (§ 362.4, subd. (a).) These
exit orders remain in effect until modified or terminated by a
subsequent order of the superior court. (§ 362.4, subd. (b); see
also Cal. Rules of Court, rule 5.700.)
“When making a custody determination under section
362.4, ‘the court’s focus and primary consideration must always
be the best interests of the child.’” (In re T.S. (2020) 52
Cal.App.5th 503, 513, quoting In re Nicholas H. (2003) 112
Cal.App.4th 251, 268 (Nicholas H.).) “The juvenile court has a
special responsibility to the child as parens patriae and must look
to the totality of a child’s circumstances when making decisions
regarding the child.” (In re Chantal S. (1996) 13 Cal.4th 196, 201
(Chantal S.).) Because juvenile dependency proceedings arise
when children are subject to or at risk of abuse or neglect, “[t]he
presumption of parental fitness that underlies custody law in the
family court just does not apply. . . . Rather the juvenile court,
brief, contending that upon further review of the record, he
wished to raise the instant argument regarding error by the
juvenile court. We granted that motion and proceed to consider
the arguments raised in father’s opening brief. Father did not
file a reply brief.
14
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 (Jennifer R.);
accord Chantal S., supra, 13 Cal.4th at p. 206.)
“[T]he juvenile court has broad discretion to make custody
[and visitation] orders when it terminates jurisdiction in a
dependency case (§ 362.4).” (Nicholas H., supra, 112 Cal.App.4th
at p. 265, fn. 4.) We review the juvenile court’s exit orders for an
abuse of that discretion. (See, e.g., In re Maya L. (2014) 232
Cal.App.4th 81, 102; Jennifer R., supra, 14 Cal.App.4th at p. 711;
see also In re Stephanie M. (1994) 7 Cal.4th 295, 318 [“[W]hen a
court has made a custody determination in a dependency
proceeding, ‘“a reviewing court will not disturb that decision
unless the trial court has exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination.”’”].)
II. The Juvenile Court Did Not Abuse Its Discretion
Father contends that the juvenile court erred in denying
him joint physical custody of M. because there was no evidence of
a risk of harm to the child. He reasons that when the court
agreed to allow him unsupervised visitation, it necessarily found
that there was “no jeopardy to the child’s safety” in his care, and
thus lacked a basis to deny him physical custody. He cites no
authority for the proposition that DCFS’s decision to liberalize
visitation from monitored to unmonitored requires a finding by
the court that he was also entitled to joint physical custody of M.
He cites section 362.1, subd. (a)(1)(B), which simply authorizes
the imposition of supervised visitation where unsupervised
visitation would jeopardize the child’s safety. By father’s logic,
15
any time the juvenile court found it was sufficiently safe to allow
unmonitored visitation, the court would also be required to order
physical custody for that parent.
We also reject father’s argument that the juvenile court’s
decision to terminate jurisdiction over M. compelled a finding
that it was in M.’s best interest to grant joint physical custody.
Section 364, subdivision (c) provides that the juvenile court “shall
terminate its jurisdiction unless the social worker . . . 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.” Father has not challenged the court’s
termination of jurisdiction based on its findings that the
condition giving rise to the assumption of jurisdiction—namely,
the domestic violence arising out of mother and father’s
relationship—no longer existed and was unlikely to reoccur if the
court terminated jurisdiction.
On the other hand, the court’s determination of appropriate
custodial orders required an analysis of M.’s best interest. The
juvenile court here found that it would be in M.’s best interest to
continue father’s unmonitored visitation, rather than granting
joint custody to father and mother. We find no abuse of
discretion in this conclusion. M. had lived with mother her entire
life. Father did not visit M. at all for over a year, from July 2019
to December 2020, other than a few instances in September 2019
when he attempted to do so in violation of the restraining order.
Although father’s recent visits were going well, he had only been
consistently visiting M. for three months at the time jurisdiction
was terminated, with only two months of unmonitored visits.
Further, father had not fully completed his case plan, as he had
16
only recently re-enrolled in individual counseling and completed
just two sessions. DCFS also noted that despite completing
several programs, father continued to deny all wrongdoing and
blame DCFS and the court for the dependency proceedings. Both
DCFS and M.’s counsel requested visitation, rather than custody,
for father. On this record, the court did not abuse its discretion
in finding that it would be in M.’s best interest to award sole
physical custody to mother.
Father’s contention that the court failed to consider the
totality of the circumstances and failed to consider M.’s best
interests is unsupported by the record. “The Welfare and
Institutions Code does not require a specific statement of reasons
be given when making a custody order. Nor did [father] request
such a statement. The court’s order was sufficient to generally
show the basis for its ruling.” (Jennifer R., supra, 14 Cal.App.4th
at pp. 713-714.) Moreover, father cannot show any prejudice, as
“the record is clear as to the circumstances leading to the denial
of joint [physical] custody. Should circumstances change in the
future[, father] is free to seek joint [physical] custody in the
family law court.” (Ibid.)
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J. CURREY, J.
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