In re K.B. CA2/5 ( 2020 )

Filed 11/19/20 In re K.B. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re K.B. et al., Persons B304427
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No.
19LJJP00530A–D)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
K.D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Michael C. Kelley, Judge. Affirmed.
Caitlin Christian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, Sarah Vesecky, Senior Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
I. INTRODUCTION
K.D. (mother) appeals from the juvenile court’s exit order
granting sole physical custody of her four children to their father
S.B. (father). According to mother, because the court was
unaware of its obligation to consider the best interests of the
children when making its custody order, and instead considered
improper criteria, that order must be reversed. We affirm.
II. BACKGROUND
On August 1, 2019, the Department of Children and Family
Services (Department) filed a Welfare and Institutions Code
section 3001 petition alleging against mother2 that she physically
1 All further statutory references are to the Welfare and
Institutions Code, unless otherwise indicated.
2 The petition also asserted against father allegations that he
physically and emotionally abused J.B. and that his girlfriend
physically abused his daughter L.B.
2
and emotionally abused her minor son, J.B.3 At the
August 2, 2019, detention hearing, the juvenile court found that
the Department had made a prima facie showing that the
children were persons as described in section 300. The court
ordered that the children be “released to the home of parents,
with the existing custody orders to remain in full force and
effect.”4
At the continued January 16, 2020, adjudication hearing,
the juvenile court sustained the petition based on mother’s no
contest plea to counts b-1 and j-1 and dismissed all other counts
against her. The juvenile court found all allegations against
father untrue and dismissed the counts based on his conduct
from the petition.
3 The petition alleged in counts a-1, b-1, and j-1 as follows:
“In or about April 2019, . . . mother [] physically abused [J.B.] by
striking [his] arm with a brush. Such physical abuse was
excessive and caused [J.B.] unreasonable pain and suffering. The
physical abuse of [J.B.] by [] mother . . . endanger[ed] [his]
physical health and safety and place[ed him and his] siblings
[K.B., N.B., and L.B.], at risk of serious physical harm, damage
and physical abuse.”
The petition alleged in count c-1 as follows: “[Mother and
father] emotionally abused [J.B.] by failing to provide ongoing
and necessary treatment for [his] mental health and behavioral
issues, including, Encopresis. [J.B.] exhibit[ed] suicidal
ideations. [M]other and father’s emotional abuse of [J.B.] place[d
him] at substantial risk of suffering serious emotional damage as
evidenced by severe anxiety, depression, withdrawal, and
aggressive behavior toward [him]self.
4 Father had previously been awarded physical custody of
the children.
3
At the hearing on disposition, the Department asked for an
exit order giving the parents joint legal custody, but ordering the
“primary residence [to be] . . .with [] father.” Father’s counsel
asked for a joint custody order, but with “primary physical
custody” to remain with father. Mother’s counsel then indicated
that she “would submit on joint legal [custody],” but requested
“that the court characterize [the custody arrangement] as joint
legal, joint physical and shared residence, [so] that it [would] be
joint across the board . . . .”
After the parties submitted on the matter, the juvenile
court terminated jurisdiction, but stayed that order pending the
submission of a proposed family law order, indicating that the
proposed order “should provide for joint legal [custody], primary
physical [custody] to father.” After further discussion between
the court and parties about the details of the joint custody
arrangement, the court’s judicial assistant inquired, “Is it joint
physical [custody] with primary residence to father?” and the
court replied in the affirmative. The court and counsel then
engaged in the following exchange: “[Mother’s counsel]: Joint
physical [custody] with primary [residence] to father? [¶] The
Court: I’m sorry. It is joint legal [custody], primary physical
[custody] to father. [¶] [Mother’s counsel]: There’s a provision
for physical and there’s a provision for primary residence. I
would request that it be joint, joint, and I understand the court
wants primary residence to be with father. [¶] The Court:
Maybe I misunderstood Department’s recommendation. [¶]
[Does father] have any objection to the joint physical, primary
residence? [¶] . . . [¶] [Father’s counsel]: Father is concerned
about [a] joint physical [custody order], Your Honor. And, again,
I believe [] father in good faith is attempting to resolve these
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issues but [there is no] communication . . . between [] father and
[] mother.”
After that exchange, the juvenile court clarified that “[t]he
order will be joint legal [custody], primary physical [custody] to
father. I think in light of the sustained petition and the fact that
the petition was not found proven as against father, I’m most
comfortable with that as the custody arrangement, so that will be
the order.” The court then issued a written custody order
granting legal custody jointly to mother and father and physical
custody and primary residence to father.
III. DISCUSSION
“‘When a juvenile court terminates its jurisdiction over a
dependent child, it is empowered to make “exit orders” regarding
custody and visitation. [Citations.] Such orders become part of
any family court proceeding concerning the same child and will
remain in effect until they are terminated or modified by the
family court. [Citation.]’ [Citation.]” (In re A.C. (2011) 197
Cal. App. 4th 796, 799.) In issuing an exit order under section
362.4, the juvenile court’s goal in assigning custody is to serve
“the best interests of the child.” (In re Jennifer R. (1993) 14
Cal. App. 4th 704, 712; In re Nicholas H. (2003) 112 Cal. App. 4th
251, 268 [“When making a custody determination in any
dependency case, the court’s focus and primary consideration
must always be the best interests of the child”].)
“We normally review the juvenile court’s decision . . . to
issue a custody (or ‘exit’) order pursuant to section 362.4 for
abuse of discretion . . . .” (Bridget A. v. Superior Court (2007) 148
Cal. App. 4th 285, 300.) “[W]hen a court has made a custody
5
determination in a dependency proceeding, ‘“a reviewing court
will not disturb that decision unless the [juvenile] court has
exceeded the limits of legal discretion by making an arbitrary,
capricious, or patently absurd determination [citations].”’
[Citations.] And we have recently warned: ‘“The appropriate test
for abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably
be deduced from the facts, the reviewing court has no authority to
substitute its decision for that of the trial court.”’” (In re
Stephanie M. (1994) 7 Cal. 4th 295, 318–319.)
Mother contends that the juvenile court abused its
discretion by awarding sole physical custody to father.5
According to mother, in making that custody order, the court was
unaware of the governing standard for custody determinations
and, as a result, failed to apply the proper criteria. Mother bases
her conclusion on the fact that “[t]he court did not say it was
awarding [f]ather sole physical custody because that was in the
children’s best interests” and instead appeared to award sole
5 “‘“Joint legal custody” means that both parents shall share
the right and the responsibility to make the decisions relating to
the health, education, and welfare of a child.’ (Fam. Code,
§ 3003.) ‘“Sole physical custody” means that a child shall reside
with and be under the supervision of one parent, subject to the
power of the court to order visitation.’ (Id., [Fam. Code] § 3007.)
‘In making an order for custody with respect to both parents, the
court may grant joint legal custody without granting joint
physical custody.’ (Id., [Fam. Code] § 3085.) ‘An order of joint
legal custody shall not be construed to permit an action that is
inconsistent with the physical custody order unless the action is
expressly authorized by the court.’ (Id., [Fam. Code] § 3083.)” (In
re Marriage of Burgess (1996) 13 Cal. 4th 25, 29, fn. 2.)
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physical custody to father merely because it had sustained the
section 300 petition as against mother only.
We are required on appeal to follow the fundamental
principles that a trial court’s judgment is presumed correct, all
presumptions are indulged to support it on matters as to which
the record is silent, and the appellant must affirmatively
demonstrate error. (In re Julian R. (2009) 47 Cal. 4th 487, 498–
499.) We also presume that the juvenile court was aware of and
followed the applicable law. (Id. at p. 499; People v. Stowell
(2003) 31 Cal. 4th 1107, 1114.) Thus, “when ‘a statement of
reasons is not required and the record is silent, a reviewing court
will presume the trial court had a proper basis for a particular
finding or order.’” (In re Julian R., supra, 47 Cal.4th at p. 499;
Evid. Code, § 664 [it is presumed that an official duty has been
regularly performed].)
Nothing in the record of the custody hearing here rebuts
the presumption that the juvenile court was aware of its
obligation to consider the best interests of the children, and duly
considered those interests, prior to making its order. To the
contrary, by noting that the petition had been sustained as to
mother, but not as to father, the court considered mother’s
history of abuse and implicitly found that maintaining the status
quo by granting sole physical custody to father was in the best
interests of the children. Mother therefore has failed to
demonstrate an abuse of discretion.6
6 The Department contends that mother forfeited her
challenge to the custody exit order by failing to call the juvenile
court’s attention to the proper criteria for making a custody
determination or otherwise adequately raising the issue with the
court. (See In re Dakota S. (2000) 85 Cal. App. 4th 494, 502.) We
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IV. DISPOSITION
The order granting father sole physical custody of the
children is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
will assume, without deciding, that mother did not forfeit her
argument on appeal.
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