In re J.M. ( 2023 )

Filed 3/2/23 Certified for Publication 3/10/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re J.M. et al., Persons B313754
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. Nos.
19CCJP08077,
19CCJP08077B
19CCJP08077C
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
M.M.,
Defendant and
Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Donna Balderston Kaiser, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel, for Plaintiff and Respondent.
In February 2020, father M.M. and mother J.M. pled no
contest to a dependency petition regarding their minor children,
J. and M. (along with their now-adult sibling Mi.), based on the
parents engaging in repeated conflicts in the children’s presence.
The juvenile court found jurisdiction over the children pursuant
to Welfare and Institutions Code section 3001 and removed them
from both parents’ custody, finding that the ongoing conflict
caused a substantial risk of harm to the children, including
serious mental health issues for J. The court returned the
children to mother and father in October 2020 but maintained
jurisdiction.
In May 2021, the court terminated jurisdiction at a section
364 status review hearing, with an exit order granting shared
legal custody of J. and M. to mother and father, but sole physical
custody to mother. Father appeals from that exit order, arguing
that the court erred in terminating jurisdiction and applied the
wrong standard to remove the children from his custody. We find
no error and therefore affirm.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
BACKGROUND
I. Prior Referrals
Prior to the events giving rise to this case, mother and
father were married and living together with their three children:
Mi. (born 2003), J. (born 2005), and M. (born 2011).2 The family
came to the attention of the Los Angeles County Department of
Children and Family Services (DCFS) in August 2018, after
receiving a referral alleging that mother and father argued
frequently in the presence of the children. One of the children
reported hearing mother say to father behind a closed door, “You
promised not to point that gun in my face again.” The caller also
reported incidents of father hitting the children.
A DCFS children’s social worker (CSW) interviewed J. and
Mi. at school in August 2018. J. said that she heard her parents
yelling at each other “often,” including father calling mother a
“bitch.” She became tearful while discussing her parents’
fighting and said that father had a temper and often drank
alcohol at night. Mi. told the CSW that father “gets a little crazy
and he screams at everyone, throwing stuff around.” He stated
that he was scared father “would do something to my mom. I
hear them in the middle of the night screaming.” Mi. became
emotional and expressed concern that father would find out what
Mi. had reported to the CSW. He also said that father had hit
him and pushed him to the ground. Mi. stated he previously
witnessed father push mother into a door and then scream at the
2 Mother and Mi. are not parties to this appeal. Mi. was
initially included in the dependency petition, but the juvenile
court dismissed him when he turned 18 in 2021 and he was not
subject to the orders from which father appeals. We include facts
regarding mother and Mi. only as relevant to this appeal.
3
children to go to their rooms. More recently, he said that he
would hear “banging, sometimes my mom screaming ‘my hair.’ I
hear her scream in pain.” Mi. told the CSW that father was very
controlling, had a “big temper,” and bragged about having a gun
in the home.
At a follow up meeting with the CSW in March 2019, Mi.
stated that the situation had improved, but that mother and
father still argued all the time, often keeping him up at night.
He also stated that father was very aggressive, directed mostly at
mother, and father was also very controlling of mother and the
children. J. similarly reported that mother and father continued
to argue; she became emotional and refused to speak further with
the CSW. Mother and father refused to make themselves
available for an interview with DCFS and refused to allow the
CSW to access the home. DCFS ultimately closed the referral as
inconclusive.
II. Referral and Petition
On September 15, 2019, DCFS received the instant referral
after police were called to the family home in response to a report
of domestic violence. Police found mother outside in her car,
agitated. Mother told the police that she had “ongoing verbal
disputes” with father for the past two years but denied any
physical confrontations. That day, mother arrived home and
tried to enter the bedroom of daughters J. and M. but found that
father was inside the room and pushing against the door to
prevent mother from entering. Mother told police that father was
4
under the influence of alcohol, and he had subsequently taken
the three children and left.3
A CSW attempted to speak with the children at school on
September 27, 2019, but all three refused. A CSW met with the
family in their home on October 11, 2019. The CSW interviewed
the family together after mother and father stated they would not
let the CSW speak with the children alone. The parents also told
the CSW not to ask the children about the incident, stating that
the children were asleep at the time. All three children said that
mother and father verbally argued but denied witnessing any
physical altercations.
Mother and father also refused to be interviewed
separately. Father denied the allegations, stating that he and
mother verbally argued like any married couple. He stated that
many of the calls to DCFS and law enforcement were initiated by
mother and maternal grandmother and that the latest incident
was a misunderstanding. He denied holding the bedroom door
closed and denied being under the influence of alcohol during the
incident. He refused to answer questions regarding prior
referrals, including his possession of a gun. Mother told the CSW
that the incident was a misunderstanding. She denied any
domestic violence and denied that father had locked himself in
their daughters’ bedroom. She also denied stating that father
3 Mother filed a request for a domestic violence restraining
order (DVRO) against father protecting herself and the children
in September 2019. The family court discharged mother’s
request in December 2019 after neither party appeared for a
hearing. Mother later filed a new request for a DVRO against
father, which the family court granted on January 6, 2020.
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was under the influence of alcohol and refused to discuss prior
referrals.
DCFS received another referral on December 10, 2019,
reporting that mother brought J. to the emergency room because
the child was not engaging with anyone, not attending school, not
eating, and locking herself in her room. J. stated that mother
and father were fighting every day and the dynamics in the home
were causing her a lot of stress. According to the referral, when
father arrived at the hospital, he asked to speak to J. alone and J.
looked extremely tense. Father spoke with J. privately for a long
time; afterward, J. appeared guarded and did not want to disclose
further information. The hospital assessed J., determined she
did not meet the criteria for a psychiatric hold, and released her
to return home.
A CSW spoke with maternal grandmother, who stated that
the domestic violence between mother and father was beginning
to impact the children, including J.’s refusal to attend school and
her increased anxiety. Maternal grandmother stated that she
had had concerns about the children in the home for the past
year and that she believed father’s mental health was declining.
DCFS received another referral on December 16, 2019,
reporting that mother and father were in the middle of a divorce
but continued to live together, and that there were six guns in
the home. Mother stated that some of the guns were “fake,” but
she had never examined the weapons as she was too scared to do
so. She also stated that there was a gun in the family vehicle,
and she did not know how or where all of the weapons were
stored in the home. The caller also relayed reports from mother
that father’s mental health appeared to be rapidly declining and
that he had been exhibiting odd behavior and ranting to himself.
6
The caller also stated that J. was displaying signs of depression
and anxiety.
On December 18, 2019, mother’s therapist reported to
DCFS that mother had admitted that there had been domestic
violence between her and father in the children’s presence.
Mother stated that she and the children did not discuss the fact
that father had guns in the home out of fear of father.
DCFS filed a dependency petition on December 18, 2019 on
behalf of sixteen-year-old Mi., fourteen-year-old J., and eight-
year-old M. under section 300, subdivisions (a) and (b)(1).4 In
counts a-1 and b-1, the petition alleged that mother and father
had a history of domestic violence, and that the police were called
to the family home multiple times in 2019 as a result. The
petition further alleged that mother and father had verbal
altercations on numerous occasions in the home and children’s
presence. The children were detained from mother and father
and placed with maternal grandparents.
At the December 19, 2019 detention hearing, the court
found a prima facie case for jurisdiction over the children under
section 300. The court ordered the children to remain detained
4 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. . . . [¶] (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 the child’s
parent... to adequately supervise or protect the child.”
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from mother and father in the home of maternal grandparents,
with monitored visitation for the parents.
III. Jurisdiction/Disposition Report
DCFS filed a first amended petition on January 22, 2020,
alleging jurisdiction under section 300, subdivisions (a), (b)(1), (c),
and (j). In amended counts a-1 and b-1, the petition alleged that
mother and father engaged in violent altercations on numerous
occasions in the children’s presence, including on July 24, 2018,
when law enforcement was contacted due to an “ongoing problem
of mother and father yelling and items being thrown.” The
petition also alleged that law enforcement was contacted on June
29, July 15, September 15, and September 27, 2019, for
altercations between mother and father including father
vandalizing mother’s property, father refusing to allow mother
access to the home or the children, and father pushing mother
into a wall and harassing her, resulting in mother locking herself
and the children in a bedroom. During several of these incidents
mother reported that she was fearful of father. The petition
further alleged that mother failed to protect the children by
allowing father to reside with them and have access to the
children, and that the parents’ conduct endangered the children.
The amended petition added count b-2, alleging that father
had a history of substance abuse, was a current abuser of
marijuana and alcohol, and had been under the influence while
caring for the children. Added counts b-3, c-1, and j-1 alleged
that mother and father created a detrimental and endangering
situation and “continuously emotionally abused” J. by exposing
her to “their ongoing violent altercations,” and that J.’s “mental
8
health has declined due to the family dynamics in the home,”
including displaying signs of depression and anxiety. On prior
occasions, J. threatened to harm herself with a knife, to jump
from a moving vehicle, and to overdose with pills.
In its January 2020 jurisdiction/disposition report, DCFS
reported that father had prior criminal convictions in 1992 for
receiving stolen property, burglary, grand theft, and assault with
a deadly weapon. DCFS met with the children on January 3,
2020 at the home of maternal grandparents. M. said that she
liked living with maternal grandparents. She stated that mother
and father had been fighting as long as she could remember, and
that they often fought at night, waking her up. She reported an
incident in which father carried mother out of the home and
another in which he kept mother from entering the bedroom.
The CSW also met with J., who stated that lately she had
been overwhelmed by feelings of sadness and confusion. J.
reported that mother and father began fighting after father
accused mother of infidelity and became vigilant in monitoring
mother’s activities. J. stated that her feelings of sadness and
hopelessness increased in November 2019 and she felt that the
worst thing in her life was how things were going with the
family. J. said that when mother and father fought, father yelled
at mother, berating her and calling her demeaning names. She
also stated that father tried to keep the children from going
places with mother. J. told the CSW that she felt father was
negative and that she tried to avoid him. She no longer wanted
to play softball and father took it personally, one time yelling and
screaming at her when she did not want to get out of the car for
practice. She felt that father’s negative and controlling energy
9
took a toll on her emotionally. As a result, J. stated that she had
contemplated self-harm.
J. confirmed finding a gun in the family car. She confirmed
her parents’ history of domestic violence, stating that father was
the perpetrator. J. recounted the incident in which father
blocked mother from entering J.’s bedroom, and that afterward
father took J. and M. to paternal grandmother’s house and would
not let them leave. She also reported that mother would often
leave the house to avoid fighting with father, leaving the children
at home, and that she would hear father call mother and continue
to yell accusations and insults over the phone.
Mi. told the CSW that he did not want father to know what
they were talking about. He said that he previously gave social
workers a detailed report but nothing changed.
DCFS met with mother several times in January 2020.
Mother stated that in 2018, father accused her of infidelity and
began monitoring her communications. Father also started
spending more time alone in their bedroom, drinking. She
acknowledged that they had a history of domestic violence and
that the children were affected by it. She confirmed that father
would yell demeaning things at her and that she called the police
multiple times in 2018 and 2019.
DCFS also met with father twice in January 2020. He
stated that he had been living with paternal grandmother since
mother served him with a restraining order. He denied having
any guns and stated that as a convicted felon, he was not allowed
to own guns. He admitted to having a BB gun and claimed that
was the gun J. had seen in the car. Father acknowledged that he
and mother had a verbal argument in 2018 over her contact with
an ex-boyfriend, resulting in his distrust of mother and regular
10
arguments between them. He denied that these arguments
occurred in the children’s presence or escalated to physical
violence. He denied any history of domestic violence and stated
that when mother called the police she gave false reports. Father
also claimed that he and J. had always been close, but mother
was turning J. against him. He denied drinking to the point of
intoxication and claimed he had stopped using marijuana before
the start of 2020. When the CSW noted he had a positive
toxicology screening for marijuana on January 14, 2020, father
responded that he did not smoke around the children or when he
was caring for them. Father told DCFS that he wanted to reunify
with the family and had moved past mother’s infidelity. He
submitted proof of enrollment in a domestic violence program on
January 14, 2020.
J.’s academic advisor told DCFS that J. stopped attending
school in November 2019, but had been doing well up to that
point. The advisor noted that around the same time J. had begun
to disengage. The advisor also reported that during a meeting in
December, mother appeared to be thoughtful and concerned,
while father was highly distractible and “went off the rails” while
screaming about athletics. The advisor and mother arranged for
J. to take her final exams in January 2020 so that she would get
credit for the fall semester.
DCFS also spoke with a former teacher at the children’s
middle school. She recalled that Mi. was often absent or late to
school and tended to be tired. She also stated that father was
hard on Mi. about sports and screamed at him if he did not
perform. Father was a volunteer coach but was not allowed to be
alone with the children because he tended to yell and say unkind
11
things to the children and to staff. Father was eventually asked
not to coach or come to campus.
DCFS concluded that the children were at “very high” risk
for future abuse and neglect based on the parents’ “extensive
history of engaging in violent altercations, minimizing, denials
and misleading statements coupled with their lack of insight,
empathy, and interference with the investigation.” DCFS also
cited father’s unresolved substance abuse issues and mother’s
failure to protect.
In a last-minute information on January 28, 2020, DCFS
reported that according to J.’s therapist, when J. started therapy
she was severely depressed and “plagued by feelings of
hopelessness and helplessness due to the family situation and
ongoing conflict between mother and father.” However, once the
children were removed from the family home, J.’s symptoms
significantly dissipated.
In a last-minute information on February 26, 2020, DCFS
reported that father had been participating in his domestic
violence program. Father appeared motivated and was
developing insight into his role in the family situation and how
the children were affected negatively by the home environment.
IV. Adjudication and Disposition
At the adjudication hearing on February 26, 2020, the
juvenile court dismissed counts a-1, b-2, b-3, c-1, and j-1 from the
first amended petition. The court amended the remaining count
b-1 by striking the allegations regarding domestic violence by
mother and father, instead alleging that they had a history of
“parental conflict that places the children at risk of harm,” and
that law enforcement was contacted on multiple occasions in
2018 and 2019 “due to ongoing parental conflict.” The amended
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count b-1 also added the allegation that J.’s “mental health has
declined due to the family dynamics in the home,” that she was
“displaying signs of depression and anxiety,” had become
“withdrawn and isolative,” stopped attending school in November
2019 due to severe anxiety, and was taken to the emergency room
in December 2019 because she was not eating, not engaging with
anyone, and was locking herself in her room.
Mother and father pled no contest to count b-1 as amended.
The court sustained the amended petition, found jurisdiction over
all three children under section 300, subdivision (b)(1), and found
by clear and convincing evidence under section 361 that removing
the children from mother and father was necessary. The court
ordered monitored visitation for both parents, domestic violence
and parenting programs for father, on demand drug tests for
father, individual counseling for both parents, and conjoint
counseling for both parents with the children if recommended by
the children’s therapists.
V. Period of Review
In a status review report on August 21, 2020, DCFS
reported that the children continued to do well in the care of
maternal grandparents. Mother told DCFS that she had filed for
divorce, although she was still living with father. The CSW made
attempts to discuss the case with father but was unable to do so.
Both M. and Mi. appeared to be doing well. Maternal
grandparents stated that J. was having a harder time than her
siblings, and J. stated she was struggling with being separated
from her parents, especially mother. Mother and J. had begun
conjoint counseling.
DCFS reported that father had completed his 26-week
domestic violence program with demonstrated participation and
13
effort. Father stated he was eager to begin conjoint counseling
with J., but J.’s therapist had not yet recommended it. Father
also completed his parenting class and was participating in
individual therapy. Father’s therapist could not disclose any
information regarding any progress by father without a signed
release from him.
The children, mother, and father reported that their visits
were going well. During visits, the children appeared to be close
with both parents. DCFS observed that father’s relationship
with the children appeared playful, loving, and secure. DCFS
liberalized both parents’ visits to unmonitored full day visits.
However, DCFS expressed concern that the parents continued to
live together. DCFS assessed the children as having a moderate
risk of harm if returned to the care of their parents. DCFS
recommended continued family reunification services with the
goal of returning the children to the home of parents prior to the
next review.
At the six-month review hearing, the court granted DCFS
continued discretion to liberalize visitation and requested
supplemental reports. DCFS filed an interim review report in
October 2020. Mother and father began separate overnight visits
with the children in mid-September 2020. Each parent agreed to
leave the family home during the other parent’s overnight visits.
Mi. and J. told DCFS that mother and father’s separation
was a good thing. J. stated that she was doing well in school and
loved both parents, but preferred to live with mother. She
reported that she did not feel she could speak to father freely and
was not yet ready to begin family counseling. J.’s therapist
agreed that J. was not yet ready for family therapy.
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Mother reported that she would not be “controlled” by
father again but she did not believe father fully grasped the idea
of the separation and divorce. Father told the CSW that it was
important for his family to be together and he wanted to move on
as a family. He appeared to have difficulty accepting that mother
had filed for divorce, stating he believed mother was doing it
because DCFS wanted her to. Mother’s therapist stated she
believed the children would be safe in mother’s care and that
mother had come a long way in her sessions. The parents
reported that there had been no conflicts although they continued
to live together. DCFS reported that both parents continued to
participate in their court-ordered services and showed insight
into past behaviors.
In a last-minute information submitted to the court on
October 8, 2020, maternal great-aunt reported that father
threatened mother by text that “the only way you’re getting out of
this marriage is if you die.” Maternal great-aunt was living with
mother and father in the family home for about a month and
described father’s temperament as a “time bomb.”
Mother reported that she did not want to be with father,
but he was “delusional” and “thinks we’re better than ever.” She
did not think that father would hurt the children, but she was
concerned about J.’s mental health because of father’s
manipulation. Mother denied that the text from father was
threatening but contended that father was verbally and
financially abusive.
Father told the CSW that mother was pursuing separation
only because she thought she had to in order to regain custody of
the children, but that she told him that “we can work on things”
and his goal continued to be reunification. Father also said that
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he would do whatever was required to be able to spend time with
the children. DCFS expressed concern for the children’s risk of
exposure to domestic violence as mother and father navigated a
contentious separation, but recommended a home of parents
order, with shared physical custody.
At the review hearing on October 9, 2020, the court found
that the progress by mother and father had been substantial and
return of the children to their custody would not create a
substantial risk of harm. The court ordered the children
returned to mother’s and father’s custody, with DCFS providing
family preservation services. The court scheduled a review
hearing pursuant to section 364 and ordered DCFS to assess the
appropriateness of terminating jurisdiction.
Mother and father reached a mediation agreement on
October 15, 2020, providing that they would equally share
physical custody of the children. Under the agreement, mother
had parenting time with the children Monday to Thursday
morning, father had parenting time Thursday to Sunday
morning, and they would alternate parenting time on Sundays.
They also agreed that the children would stay in the family home
and mother and father would rotate in and out for their custodial
time.
In January 2021, mother told DCFS that she had moved to
an apartment because she no longer felt safe in the family home,
even with the custody agreement that father would not be
present during her time. She stated that she found marijuana in
the home in January and believed father was not sober while
caring for the children. DCFS requested that both parents take a
drug test. Mother’s test was negative. On January 13, 2021, the
CSW confirmed with father their scheduled assessment visit for
16
the following day and notified father that he would need to
submit to the drug test. Father did not appear for either the drug
test or the monthly visit.
On February 4, 2021, mother reported that she was having
difficulty co-parenting with father. She stated that father often
changed his schedule and was not present with the children
during his custodial time. Father did not respond to the CSW’s
requests for a check in for February.
In March, mother told DCFS that the children were staying
in her apartment full-time, rather than the family home. The
children visited father intermittently on weekends. Mother
stated that she wanted full custody of the children, and that
father often left the children unattended for hours at a time. She
reported that Mi. did not feel comfortable leaving M. alone with
father and insisted on accompanying M. to visits to ensure she
was cared for.
The CSW made multiple requests to father regarding his
availability to meet between January and March 2021 to assess
his progress. Father agreed but never provided his availability to
the CSW. Father continued to attend therapy, but had not
signed a release of information, so his therapist could not
comment on his progress.
In an April 2021 status report, all three children stated
that they were happy living full-time with mother in her
apartment. J. reported that she had not been back to the family
home to visit father in months because she no longer felt
comfortable being there with him. M. told the CSW that she did
not see father during his visits, as he would often leave the home
and she did not know where he went. She stated that Mi. would
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prepare her food if she was hungry, until father returned home
with takeout food around 9:00 p.m.
The CSW stated that each parent claimed the other parent
was not following their mediation agreement. Mother stated that
father did not inform her when he was going to arrive at the
family home so that she could drop the children off there. Father
stated that mother often stayed during his custodial time, saying
she needed to do laundry or other chores.
The CSW assessed the interactions between mother and
the children as caring and attentive. The CSW assessed father
with Mi. and M. during two visits, and observed that the children
appeared comfortable with him and they appeared to have a
loving relationship. Although M. reported that father would
often leave at night and she would not see him until the
afternoon the following day, father denied leaving the children
alone for hours, stating that they were always supervised by
himself or mother. Father had not made himself available to
meet with the CSW to discuss his case progress since November
2020.
DCFS concluded that it had continued concerns regarding
the parents’ high-conflict divorce and their ability to co-parent
effectively, as well as the lack of information regarding father’s
progress in therapy. However, DCFS observed that the children
had made positive strides in their mental health and education
under mother’s care. DCFS assessed that the risk of harm to the
children was low and recommended terminating jurisdiction,
with an exit order awarding joint legal custody to the parents,
sole physical custody to mother, and unmonitored visitation for
father.
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In a last-minute information on May 17, 2021, DCFS
reported that co-parenting between mother and father was an
“ongoing issue.” The CSW recommended that the parents utilize
a co-parenting app to assist with respectful communication.
Mother agreed to use any tool agreed upon, but father had not
responded, and their communication “remain[ed] contentious.”
DCFS also reported that father continued to fail to respond
to requests to meet to discuss his case plan, and he had not
provided progress letters regarding his individual counseling.
Mother and the children consistently reported that they were
doing well living together full-time. J. refused to have any
visitation with father.
VI. Section 364 Review Hearing
The court held the contested section 364 review hearing on
May 18, 2021. Father testified that although he and mother had
agreed that the children would remain living in the family home,
they were now only there during his parenting time. He
complained that he usually did not see all three children starting
on Thursdays per the agreement and often had to pick them up
from mother. There were some instances when mother requested
to have the children during father’s time, and father would agree
“at least nine times out of ten,” but never intended that to be a
permanent change to the agreement. He also said that he had
communicated multiple times with DCFS about not getting his
full amount of parenting time, but received no assistance.
Father testified that he and J. used to be very close, but
now he had no relationship with her, which he attributed to
mother having “undermined” his efforts to help J. Mi. told him
that mother and J. spoke negatively about him “constantly.”
Father claimed that he was not kept apprised of the children’s
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schooling or medical issues, and when he asked about them he
was ignored. He was very concerned about J., as he heard from
the other children that she was not going to school, was staying
up all night, never left the house, and her occasional text
message replies to him were rude and disrespectful. He wanted
the custody to remain equally split.
When asked by mother’s counsel whether he had responded
to the CSW’s inquiries about using an app to communicate with
mother, he testified that his response to the CSW was that “my
problem is not communication; my problem is visitation and
getting my visitation when it’s my time. . . . I’m not terribly
interested in communicating with [mother].” He acknowledged
the emails between him, mother, and the CSW, in which mother
complained that he was not at the family home for the scheduled
drop off on Thursday mornings.
Father’s counsel argued that the court should retain
jurisdiction over the family. Alternatively, he requested that the
court close the case leaving the mediated agreement in place,
arguing that nothing in the record “would warrant mother to
have primary custody, other than the situation that mother has
created herself.”
Mother’s counsel agreed with DCFS’s recommendation for
her to have sole physical custody and father to have unmonitored
visits with the children. Counsel for the children also agreed
with DCFS’s recommendation, echoing the argument by counsel
for mother that father’s testimony was inconsistent with the
reports from DCFS. He noted that the children had expressed
their desire to live with mother and that she provided stability
for them.
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The court dismissed Mi. from the petition, as he was now
18 years old. As to minors J. and M., the court found that the
conditions justifying the assumption of jurisdiction no longer
existed and therefore terminated jurisdiction. The court ordered
counsel to draft a juvenile custody order awarding mother and
father joint legal custody of the children, with sole physical
custody to mother. The court found that although father had
completed some of the items on his case plan, including his
domestic violence program, he had not signed the release to allow
DCFS to assess his progress. The court further noted father’s
“pattern of . . . noncompliance and his lack of cooperation with
the social worker,” including failing to meet with the CSW when
requested and failing to respond to the CSW’s request that he use
the recommended communication tools to facilitate his co-
parenting with mother.
The court also found, “most importantly,” that the best
interest of the children supported awarding physical custody to
mother, as both J. and M. stated that they were more comfortable
living with mother and J. said she was not comfortable in the
home with father. The court noted the reports by the children
that father would leave in the middle of the night, they would not
know when he was going to return, and that Mi. had to prepare
food in his absence. The court also cited J.’s statements that
father had pressured her about playing sports and caused her
stress, and that J. was now suffering from severe anxiety and
mental health issues. The court found no evidence that the
statements from the children were influenced by mother. The
court concluded that sole physical custody to mother was in the
children’s best interests because all of the children said that
“mother is consistent in her care, and they feel that the mother is
21
more reliable. And all of them feel safe in the mother’s care, and
the evidence demonstrates that they have been thriving in the
mother’s care.”
The court ordered unmonitored visitation for father,
including overnight visits. After the court admonished the
parties that they would have to agree upon a visitation schedule,
mother stated that she was willing to continue with the schedule
set forth in their prior agreement.
Father timely appealed from the court’s May 18, 2021
orders.
DISCUSSION
I. Termination of Jurisdiction
Father contends that the juvenile court abused its
discretion in terminating jurisdiction over J. and M., because
conditions continued to exist that would justify ongoing
supervision. We find no error.
A. Legal Principles
When the juvenile court takes jurisdiction over a child at
the disposition hearing but does not remove the child from the
custody of the previously-custodial parent, section 364 governs
review hearings. (§ 364, subd. (a).) Section 364 also applies
when a child has been removed, but then returned to the
custodial parent(s), as here. (See Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 313-316; In re N.S. (2002) 97
Cal.App.4th 167, 171-172.) At a section 364 hearing, “the court
shall determine whether continued supervision is necessary. The
court shall terminate its jurisdiction unless [DCFS] establishes
by a preponderance of evidence that the conditions still exist
which would justify initial assumption of jurisdiction ... or that
those conditions are likely to exist if supervision is withdrawn.”
22
(§ 364, subd. (c).) Thus, “[w]here, 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. (2015) 241 Cal.App.4th 1142, 1163.)
Because father, as the appealing party, failed to carry his
burden of proof below, we review the juvenile court’s ruling under
the standard of In re I.W. (2009) 180 Cal.App.4th 1517, 1527-
1528, overruled in part on other grounds as stated in
Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010. We therefore
review “whether the evidence compels a finding in favor of the
appellant as a matter of law,” by examining “whether the
appellant’s evidence was (1) ‘uncontradicted and unimpeached’
and (2) ‘of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a
finding.’” (In re I.W., supra, at p. 1528.)
B. Analysis
Father asserts that the court should not have terminated
jurisdiction at the section 364 hearing, and should have instead
ordered six more months of services for the family. As evidence
of the need for continued jurisdiction, father cites J.’s continued
mental health issues and lack of documentation that she was
attending school, his deteriorating relationship with J., and the
fact that he had not been able to begin conjoint counseling with
her. We conclude that father has not met his heavy burden to
show that the evidence compels a finding in his favor.
Here, the juvenile court found that J. and M. were doing
well living with mother, based on reports from the CSW, J.’s
23
therapist, and the children’s own statements. Mother had
separated from father and moved out of the home, and she and
the children reported being happy to be living together. While
J.’s issues with anxiety and depression were not fully resolved,
she was regularly attending individual therapy as well as
conjoint therapy with mother, was taking medication, and mother
was committed to ensuring her continued care. J. and mother
also reported that she was attending school online.
Moreover, although J’s relationship with father had
markedly deteriorated, father does not suggest how that would
have been a basis for the assumption of jurisdiction under section
300, or even how six more months of services would have
alleviated their issues, given J.’s refusal of visitation with him.
Father complains that he was not able to begin conjoint
counseling with J., but both J. and her therapist continued to
state that she was not ready to do so. Under these
circumstances, there was ample evidence supporting the court’s
decision to follow the recommendation of DCFS and conclude that
conditions no longer existed to require the court’s jurisdiction.
II. Custody Order
Father also argues that the juvenile court erred in granting
sole physical custody to mother. Specifically, he contends that
because the court removed the children from his custody, it was
required to make a finding of detriment by clear and convincing
evidence pursuant to section 361. We disagree. The court did not
err in assessing the best interests of the children when making
custodial exit orders or in granting sole physical custody to
mother under that standard.
A. Legal Principles
24
Section 362.4 governs the termination of juvenile court
jurisdiction and related orders. The statute authorizes a juvenile
court to make “exit orders” regarding custody and visitation upon
terminating dependency jurisdiction over a child. (§ 362.4, subd.
(a); In re Chantal S. (1996) 13 Cal.4th 196, 203; In re Kenneth S.,
Jr. (2008) 169 Cal.App.4th 1353, 1358.) 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.)
“[I]n making exit orders, the juvenile court must look at the
best interests of the child.” (In re John W. (1996) 41 Cal.App.4th
961, 973; see also In re T.S. (2020) 52 Cal.App.5th 503, 513 (T.S.)
[“‘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.’”], quoting In re Nicholas H. (2003) 112
Cal.App.4th 251, 268 (Nicholas H.).) The court must be guided
by the totality of the circumstances and issue orders that are in
the child’s best interests. (In re Chantal S., supra, 13 Cal.4th at
p. 201; In re Roger S. (1992) 4 Cal.App.4th 25, 30–31.) 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, 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
25
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.) We will
not disturb the juvenile court's decision “unless the trial court
has exceeded the limits of legal discretion by making an
arbitrary, capricious, or patently absurd determination.” (In re
Stephanie M., supra, 7 Cal.4th at p. 318.)
B. Analysis
Father argues the trial court erred in issuing the custody
order without making a detriment finding as required by section
361, and that the evidence would not support a detriment finding
against him in any event. Section 361 requires that “[a]
dependent child shall not be taken from the physical custody of
his or her parents . . . unless the juvenile court finds clear and
convincing evidence [that] . . . [t]here is or would be a substantial
danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned
home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor
from the minor’s parent’s . . . physical custody.” (§ 361, subd. (c).)
However, section 361 findings are required at the
disposition stage of dependency proceedings. The statute does
not apply to custody and visitation determinations made at a
section 364 review hearing concurrent with the termination of
juvenile court jurisdiction. “To be sure, at the disposition stage of
a dependency proceeding, a court may not remove a child from a
parent’s custody and place the child in the custody of [DCFS]
unless the court finds there is a substantial danger to the child
26
and no available services to protect the child absent removal.
[Citation.] . . . There is no statutory language, however,
suggesting this standard be applied when the court issues a
custody order upon the termination of jurisdiction pursuant to
section 364. To the contrary, at [the section 364] stage of the
proceedings, the court must consider the child’s best interest.”
(T.S., supra, 52 Cal.App.5th at p. 515.)
Instead, section 362.4 governs the court’s authority to issue
exit orders determining custody and visitation of a child when
terminating jurisdiction at a section 364 hearing. (§ 362.4, subd.
(a); In re Roger S. (1992) 4 Cal.App.4th 25, 30.) Section 362.4
does not require a finding of detriment under any circumstances;
as a result, courts have applied the best interest standard in
determining appropriate custody and visitation exit orders at this
stage. (See, e.g., T.S., supra, 52 Cal.App.5th at p. 513; Nicholas
H., supra, 112 Cal.App.4th at p. 268; In re John W., supra, 41
Cal.App.4th at p. 973; Jennifer R., supra, 14 Cal.App.4th at p.
712.) Indeed, once the court found that terminating jurisdiction
was appropriate because the dangerous conditions justifying
assumption of jurisdiction under section 300 no longer existed,
the court could not also find under section 361 that there was
substantial danger to a child justifying removal from a custodial
parent.
Father argues that section 361 nevertheless applies here,
because the court returned custody to him at a review hearing,
and then removed it again when awarding sole physical custody
to mother and terminating jurisdiction. He fails to cite any
authority supporting this contention. None of the cases father
cites apply to a court terminating jurisdiction and issuing exit
orders at a section 364 review hearing. For example, in In re
27
D.D. (2019) 32 Cal.App.5th 985, 987-988, the case on which
father primarily relies, the juvenile court removed the children
and then returned them to the mother’s custody. DCFS then filed
a supplemental petition under section 387, seeking to once again
remove the children from the mother. (Id. at p. 988.) The
juvenile court made a detriment finding under section 361,
subdivision (c) at the dispositional hearing on the section 387
petition and removed the children. (Id. at p. 990.) On appeal, the
court analyzed the juvenile court’s dispositional finding that
there was clear and convincing evidence of a risk of detriment
requiring removal. (Id. at p. 996 [“‘When a section 387 petition
seeks to remove a minor from parental custody, the court applies
the procedures and protections of section 361.’”].) Thus, this case
does not assist father, as it did not involve custodial exit orders
issued at a section 364 hearing. In fact, none of the cases upon
which father relies involve custodial exit orders. (See In re Henry
V. (2004) 119 Cal.App.4th 522, 528-529 [applying section 361 at
dispositional hearing]; In re Kristin H. (1996) 46 Cal.App.4th
1635, 1654 [same].)
As such, father has failed to show that the juvenile court
was required to make a detriment finding under section 361 in
connection with its custody order. The court here applied the
correct standard in considering the best interests of the children
in awarding sole physical custody to mother. Father does not
otherwise contend that the evidence does not support the court’s
finding under the best interest standard.
Instead, father argues that the custody order was
“inconsistent” with the court’s order allowing him unmonitored
visitation and incorporating the mediated agreement which gave
father 50/50 visiting time. He cites no authority for the
28
proposition that the decision by DCFS and the court that it was
sufficiently safe to allow unmonitored visitation with the children
also meant the court was required to order physical custody for
that parent. (See, e.g., Dabney v. Dabney (2002) 104 Cal.App.4th
379, 384 [“We need not consider an argument for which no
authority is furnished”]; Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784–785 [“When an appellant . . . asserts [a
point] but fails to support it with reasoned argument and
citations to authority, we treat the point as waived.”]; Cal. Rules
of Court, rule 8.204(a)(1)(B).)
As we have discussed, the court was charged with making
custody and visitation orders that were in the best interest of the
children, considering the totality of the circumstances. We find
no abuse of discretion in the court’s conclusion that awarding sole
physical custody to mother was in the children’s best interest, as
recommended by DCFS and requested by mother and the
children, and where J. stated she was not comfortable visiting or
living with father at all. The court’s order was further supported
by the evidence that father had failed to comply with on demand
drug testing, failed to meet with the CSW for assessment for
months, blamed mother for his relationship issues with J.,
blamed DCFS and mother for his lack of conjoint counseling, was
frequently absent during his parenting time, and refused to agree
to use the recommended co-parenting app. Moreover, the court
did not abuse its discretion in ordering the parents to comply
with their own mediated agreement regarding visitation.
“Should circumstances change in the future [father] is free to
seek joint [physical] custody in the family law court.” (Jennifer
R., supra, 14 Cal.App.4th at pp. 713-714.)
DISPOSITION
29
The orders terminating jurisdiction and granting sole
physical custody to mother are affirmed.
COLLINS, ACTING P.J.
We concur:
CURREY, J.

STONE, J.

Judge of the Los Angeles County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
30
Filed 3/10/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re J.M. et al., Persons Coming B313754
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. Nos. 19CCJP08077,
19CCJP08077B
19CCJP08077C
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN ORDER GRANTING
AND FAMILY SERVICES, PUBLICATION REQUEST
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
THE COURT:
The opinion in the above-entitled matter filed on March 2, 2023 was not
certified for publication in the Official Reports. Upon application of
respondent and for good cause appearing, it is ordered that the opinion shall
be published in the Official Reports.
Pursuant to California Rules of Court, rule 8.1105(b), this opinion is
certified for publication.
______________________________________________________________________
*COLLINS, ACTING P.J. CURREY, J. STONE, J
**Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.