In re David M. CA2/3 ( 2020 )

Filed 10/6/20 In re David M. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re DAVID M., a Person B298680
Coming Under the Juvenile
Court Law.
LOS ANGELES COUNTY Los Angeles County
DEPARTMENT OF Super. Ct. No. DK03185A
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent;
v.
CLAUDIA V.,
Respondent;
JOSE M.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stephen Marpet, Judge Pro Tempore.
Affirmed.
Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
Elizabeth Klippi, under appointment by the Court of
Appeal, for Respondent.
_______________________________________
INTRODUCTION
Jose M. (father) appeals from the juvenile court’s order
terminating jurisdiction over his son David M. and awarding
Claudia V. (mother) sole physical custody of the child. Father
contends the court abused its discretion when it awarded him
only monitored visitation after relying on a permanent
restraining order that the family court issued while this case was
pending. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
In January 2014, the Department of Children and Family
Services (Department) filed a dependency petition under Welfare
and Institutions Code1 section 300 on behalf of David (then 18
months old) and his younger brother Isaias M. (then nine months
old), alleging: (1) Isaias suffered non-accidental injuries,
including rib and leg fractures, while in the parents’ custody (a-1,
b-1, e-1, and j-1 allegations); (2) mother and father failed to
obtain timely and necessary medical care for Isaias’s injuries (b-2
1All undesignated statutory references are to the Welfare and
Institutions Code.
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and j-2 allegations); (3) mother and father have a history of
engaging in domestic violence (a-2, b-4 allegations); and (4) father
has a history of substance abuse and is a current cocaine user (b-
3 allegation). At the time the Department filed the petition,
mother and father were separated and the children lived with
mother. The court found the petition alleged a prima facie case
under section 300 and detained the children from their parents’
custody.
The court sustained the children’s petition in October
2014.2 The court declared David and Isaias dependents of the
court, ordered them to remain placed outside of mother’s and
father’s custody, and awarded mother and father reunification
services.
In January 2015, the Department filed a subsequent
petition under section 342, alleging Isaias suffered non-accidental
bruising and redness on his head, including a hand-shaped mark
on the side of his face and bruising on his ear, while he was alone
in father’s custody. The court sustained the subsequent petition
in March 2015 and, in May 2015, ordered the Department to
provide mother and father additional reunification services.
In April 2016, the court found mother and father had not
complied with their case plans. The court terminated the parents’
reunification services and scheduled a selection and
implementation hearing under section 366.26.3 The court
2Specifically, the court sustained the a-1, b-1, b-3, b-4, e-1, and j-1
allegations and struck the a-2, b-2, and j-2 allegations.
3In September 2016, we denied mother’s writ petition challenging the
order terminating her reunification services and setting the selection
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eventually held a selection and implementation hearing as to
Isaias only. The court terminated mother’s and father’s parental
rights and Isaias was later adopted.
In June 2017, father filed a petition under section 388,
asking the court to modify its order terminating his reunification
services as to David. The court granted father’s petition in
August 2017, awarding him six additional months of
reunification services and unmonitored visits with the child. The
court ordered father to participate in individual counseling and
“Parent Child Interaction” therapy with David and to submit to
weekly drug tests.
In November 2017, father tested positive for alcohol and
failed to show up for a drug test. Father became upset and
verbally aggressive when the Department’s social worker advised
him that a missed drug test is considered a positive test. The
court restricted father to monitored visits in January 2018 based
on his positive test for alcohol and missed drug test.
In June 2018, father told the Department he had completed
individual therapy and joint therapy with David. All of father’s
toxicology tests to that point were negative for drugs and alcohol.
Later that month, the court authorized father to have
unmonitored visits with David.
In August 2018, the court found father had made
substantial progress in his court-ordered case plan and returned
David to his custody. The court advised father that the
Department was authorized to remove David from father’s
custody if he tested positive for drugs or alcohol. The court
and implementation hearing. (Claudia V. v. Superior Court of the State
(In re David M.) (Sept. 27, 2016, B271730) [nonpub. opn.].)
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ordered father to continue participating in individual counseling.
The court granted mother’s section 388 petition, awarding her
family maintenance services and unmonitored visits with David.
In November 2018, the Department filed a supplemental
petition under section 387, alleging father failed to comply with
his court-ordered case plan because he continued to test positive
for alcohol and produce invalid toxicology test results. The court
found the supplemental petition alleged a prima facie case under
section 300 and ordered David detained from father’s custody and
placed in mother’s custody. The court awarded father monitored
visits with David and ordered father to attend “AA/NA” meetings
three times a week and to continue submitting to weekly random
drug and alcohol tests.
The court sustained the section 387 petition in January
2019. The court ordered David to remain placed in mother’s
custody and awarded father unmonitored visits on the condition
he continue to test negative for drugs or alcohol with no missed
tests.
In mid-March 2019, father refused to return David after
one of their visits. When mother went to pick David up, father
walked out of his home and started yelling and cursing at her.
Mother became scared for her safety and drove to a police station
to report father. The police told mother she couldn’t file a report
because father didn’t commit a crime.
The next day, mother returned to father’s home to pick up
David. Father brought David outside and started yelling and
cursing at mother again. Father then called a parent advocate
and started yelling and cursing at the advocate in front of mother
and David. Father complained that mother had caused “drama,”
and he accused the advocate of being on mother’s side. The
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advocate tried to deescalate father’s behavior because David was
present and aware of how father was acting. While father was
talking to the advocate, he put David inside mother’s car. When
David rolled down the car’s window, father reached inside,
unlocked the door, and tried to get inside the car. As mother
drove away, father yelled “ ‘[s]he’s trying to kill me.’ ”
In late March 2019, father approached mother while she
was sitting in her car in front of David’s school and on the phone
with the parent advocate. Father cursed at mother and got inside
her car.
In late April 2019, father confronted mother again while
she waited to pick David up at school. When father started
cursing and flashing obscene gestures at mother in front of
David, mother began recording the encounter with her cell
phone’s camera. Father then reached inside mother’s car and
tried to grab the phone, hurting mother’s wrist and hand. On the
video, father could be heard telling David “not to worry” because
father had “already spoken to his attorney regarding these
matters.” After mother reported father’s conduct, the police
advised her to apply for a restraining order.
As of May 2019, David’s school had banned father from
coming onto or near school grounds because he had acted
“inappropriate[ly].” The school’s principal also established a
“special school pick up schedule” for mother so she could avoid
father when picking David up from school.
Father’s wraparound facilitator was concerned about
father’s behavior both during joint counseling sessions with
David and outside of counseling. Father would sometimes focus
only on himself and his own issues during sessions. The
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facilitator also noted that father had difficulty controlling his
language and behavior when he was around the child.
In early May 2019, mother filed a request for a domestic
violence restraining order against father in the family court.
Mother sought an order precluding father from contacting her
and David or coming within 100 yards of them and limiting
father to only monitored visits with David. In addition to
describing the April 2019 incident at David’s school, mother
reported that father had been verbally abusive toward her and
David in the past. Father had repeatedly said, “ ‘fuck you’ ” to
mother in front of David. Father had also threatened to use
explicit videos against mother and told her she is a “ ‘whore’ ” and
a “ ‘fat zero.’ ”
The family court partially granted and partially denied
mother’s request for a temporary restraining order. The court
precluded father from contacting mother and David or coming
within 100 yards of them, except as authorized by the juvenile
court’s visitation orders. On the Notice of Court Hearing form
issued with the temporary restraining order, the court explained
it partially denied mother’s request because it was making “no
orders regarding custody or visitation since there is an open
DCFS investigation. Court defers matter to DCFS.”
The family court held a hearing on mother’s request for a
restraining order on May 24, 2019. Mother and father were
present at the hearing. The family court issued a three-year
restraining order precluding father from coming within 100 yards
of mother and David or contacting them in any form, except for
peaceful contact as required for court-ordered visitation.
On May 28, 2019, the court commenced a review hearing
under section 364. The court advised father that because mother
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had obtained the restraining order, he needed to refrain from
contacting her in any form and, if he did, he could be arrested.
The court restricted father to monitored visits with David and
continued the matter for a contested review hearing at father’s
request.
On June 21, 2019, the court held the contested review
hearing. The court terminated jurisdiction, awarded mother sole
legal and physical custody of David, and awarded father
monitored visits with the child. In issuing its exit order, the court
explained that father “has an anger issue and has acted out
incredibly inappropriate[ly] with mother,” which caused her “to
get a restraining order in the last two months.” The court ordered
mother not to monitor father’s visits and stated that the “three-
year restraining order” needed to be attached to the exit order.
The court advised father to use a third party or “family law
communication” to arrange visitation.
Father appeals from the court’s exit order.
DISCUSSION
1. Applicable Law and Standard of Review
A juvenile court has broad discretion to make custody and
visitation orders tailored to the child’s best interests when it
terminates jurisdiction in a dependency case. (§ 362.4; see also In
re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4.) In deciding
whether and how parental visitation should continue when
issuing an order terminating jurisdiction, the court must consider
the best interests of the child under the totality of the
circumstances. (In re John W. (1996) 41 Cal.App.4th 961, 972.)
We review custody and visitation orders issued when the
court terminates jurisdiction for abuse of discretion. (In re Cole Y.
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(2015) 233 Cal.App.4th 1444, 1456.) Accordingly, we will not
disturb an exit order determining a parent’s custody and
visitation rights unless it constitutes an “ ‘ “arbitrary, capricious,
or patently absurd determination [citations].” ’ [Citations.]” (In re
Stephanie M. (1994) 7 Cal.4th 295, 318.) In other words, if we can
draw two or more reasonable inferences from the facts, we will
not substitute our discretion for that of the juvenile court. (In re
J.N. (2006) 138 Cal.App.4th 450, 459.)
2. Father has not shown the court abused its discretion
in issuing the exit order.
Father contends the juvenile court abused its discretion
when it awarded him only monitored visitation with David as
part of its exit order terminating jurisdiction. Specifically, father
argues the court erred when it left in place the family court’s May
2019 restraining order and relied on that order in deciding to
limit his visitation. According to father, the family court lacked
jurisdiction to issue the restraining order because section 304
granted the juvenile court exclusive jurisdiction over custody and
visitation issues while David’s dependency case was pending.
This argument is not well-developed.
It is a fundamental principle of appellate practice that a
reviewing court is not obligated to develop an appellant’s
arguments for him. “Conclusory assertions of error are ineffective
in raising issues on appeal. [Citation.]” (Howard v. American
National Fire Ins. Co. (2010) 187 Cal.App.4th 498, 523.)
Consequently, “[t]he absence of cogent legal argument or citation
to authority allows this court to treat the contention as waived.”
(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
830 (Falcone & Fyke).)
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In challenging the validity of the restraining order in his
opening brief, father includes only: (1) a block quote from section
3044; and (2) a citation to A.H. v. Superior Court (2013) 219
Cal.App.4th 1379, 1389 to support the general proposition that
juvenile courts have exclusive jurisdiction over custody and
visitation issues while a child’s dependency case is pending.
Father then states in conclusory fashion that the juvenile court
had exclusive jurisdiction to issue restraining orders concerning
the family in this case.
Father engages in no meaningful analysis, however, to
explain why the restraining order issued by the family court falls
within the scope of the juvenile court’s exclusive jurisdiction over
custody and visitation issues, why the juvenile court had the
authority to vacate an order it did not issue, or why an appeal
from the juvenile court’s exit order is the proper vehicle to
4 Section 304 provides in relevant part: “While the child is under the
jurisdiction of the juvenile court all issues regarding his or her custody
shall be heard by the juvenile court. In deciding issues between the
parents or between a parent and a guardian regarding custody of
a child who has been adjudicated a dependent of the juvenile court, the
juvenile court may review any records that would be available to the
domestic relations division of a superior court hearing that matter. The
juvenile court, on its own motion, may issue an order as provided for
in Section 213.5, or as described in Section 6218 of the Family
Code. The Judicial Council shall adopt forms for these restraining
orders. These form orders shall not be confidential and shall be
enforceable in the same manner as any other order issued pursuant to
Division 10 (commencing with Section 6200) of the Family Code. [¶]
This section shall not be construed to divest the domestic relations
division of a superior court from hearing any issues regarding the
custody of a child when that child is no longer a dependent of the
juvenile court.”
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challenge the restraining order. In fact, father doesn’t even
acknowledge that, in issuing the temporary restraining order, the
family court stated that it was making “no orders regarding
custody or visitation” because David’s dependency case was still
pending in the juvenile court. Because father fails to develop his
argument beyond a conclusory claim of error, he has waived any
challenge concerning the validity of the May 2019 restraining
order. (Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
We also reject father’s argument that the juvenile court
abdicated its authority to define his visitation rights by deferring
to the restraining order. (See In re S.H. (2003) 111 Cal.App.4th
310, 317 [the juvenile court must determine whether and how
frequently a parent may visit his child; the court cannot delegate
that responsibility to a third party].) Although the court
referenced the restraining order when it issued its ruling limiting
father to monitored visits with David, nothing in the record
indicates the court delegated the decision to decide father’s
visitation rights, including the frequency of visits, to any third
party. Rather, the juvenile court merely advised father that
because of the restraining order, he needed to communicate with
mother through a third party when scheduling visits. (See In re
Rebecca S. (2010) 181 Cal.App.4th 1310, 1314 [court may
delegate to a third party the responsibility for arranging and
managing the details of visits, such as their time, place, and
manner].)
In addressing the juvenile court’s decision to limit his
visitation, father focuses only on whether the court abdicated its
duty to determine the extent of his visitation rights. Father does
not address in any detail whether the facts of this case support
the court’s decision to restrict him to monitored visitation.
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Father, therefore, has failed to show the court abused its
discretion in awarding him only monitored visits with David.
In any event, overwhelming evidence supports the juvenile
court’s decision to limit father to monitored visitation. In the
months leading up to the court’s termination of jurisdiction,
father repeatedly engaged in inappropriate and violent behavior
around mother and David. For instance, in March 2019, father
refused to return David to mother’s custody after a scheduled
visit. When mother first tried to pick David up after the visit,
father screamed and cursed at her, causing her to leave David at
father’s home and report father’s behavior to the police. Father
engaged in similar behavior when mother tried to pick David up
the next day, this time screaming and cursing at mother and the
parent advocate in front of David. Father also confronted mother
in front of David at the child’s school on several occasions, often
cursing and yelling at her, causing the school’s principal to ban
father from coming onto school grounds. And, on one occasion less
than two months before the court terminated jurisdiction, father
physically attacked mother in David’s presence and tried to talk
to the child about case issues. In short, the court acted well
within its discretion to conclude it was in David’s best interests to
limit father to monitored visitation, and it is not reasonably
probable the court would have reached any other decision had the
family court not issued the restraining order. (In re Jonathan B.
(1992) 5 Cal.App.4th 873, 876 [“We will not reverse for error
unless it appears reasonably probable that, absent the error, the
appellant would have obtained a more favorable result.”].)
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DISPOSITION
The juvenile court’s exit order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
DHANIDINA, J.
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