In re Melissa H. CA2/7 ( 2023 )

Filed 1/12/23 In re Melissa H. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Melissa H. et al, Persons B315094
Coming Under the Juvenile Court
Law. (Los Angeles County
Super. Ct.
No. 20CCJP04240A-B)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JING H.,
Defendant and Appellant;
DAN S.,
Respondent.
APPEAL from orders of the Superior Court of Los Angeles
County, Jean M. Nelson, Judge. Affirmed.
John P. McCurley for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Sarah Vesecky, Senior Deputy
County Counsel, for Plaintiff and Respondent.
Pamela Rae Tripp for Respondent.
_____________________________
At a jurisdiction hearing 10 months after the original
dependency petition had been filed, the juvenile court sustained
an amended petition filed by the Los Angeles County Department
of Children and Family Services pursuant to Welfare and
Institutions Code section 300, subdivision (b)(1),1 alleging Jing H.
and Dan S., the father and mother of now-16-year-old Melissa H.
and 11-year-old Hammond H., had a history of engaging in
escalating verbal arguments and physical altercations in the
children’s presence that endangered the children’s physical
health and safety and placed them at risk of serious physical
harm. On the same day as the jurisdiction hearing, the court at
disposition declared Melissa and Hammond dependent children
of the court; found it was not necessary to remove the children
from the care and custody of their parents; entered a permanent
mutual restraining order requiring Jing and Dan to stay at least
100 yards away from each other; and conditionally terminated its
jurisdiction pending receipt of a juvenile custody order awarding
the parents joint physical and legal custody, but rejecting Jing’s
request that he have 50 percent custody time with Hammond.
On appeal Jing contends the jurisdiction finding and
disposition order declaring the children dependents of the court
were not supported by substantial evidence, arguing any risk to
the children from the parents’ acts of domestic violence had been
1 Statutory references are to this code unless otherwise
stated.
2
eliminated by the time of the June 2021 jurisdiction and
disposition hearings due to the passage of time; the fact that he
and Dan were living in separate residences; and restraining
orders, initially ordered on a temporary basis by the family court
prior to initiation of the dependency case, eliminated any need for
juvenile court oversight. Jing also contends, even if jurisdiction
was properly assumed by the juvenile court, the court abused its
discretion in entering a custody order that granted joint physical
custody of Hammond, but limited his custody time to every other
weekend and Wednesday evenings for dinner.
We affirm the juvenile court’s jurisdiction finding and
disposition and custody orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Procedural Overview
Prior to the family’s initial referral to the Department, Jing
and Dan were going through a contentious marital dissolution.2
However, they both continued to reside in the family’s Beverly
Hills residence with an agreement to alternate days during which
one of the parents would stay with the children in the three-
bedroom main house and the other would live in a one-bedroom
guesthouse on the property. In early July 2020 the family court
issued temporary mutual restraining orders requiring Jing and
Dan to stay 10 yards away from each other. The orders did not
require either parent to move out of the family residence and
2 In a declaration filed in support of his request for a
domestic violence restraining order, Jing said, although he had
filed a petition for dissolution of the marriage in April 2010 and
he and Dan had separated that year, they did not decide to
proceed with the dissolution of their marriage until the fall of
2019.
3
made no provisions regarding child custody or visitation, and
Jing and Dan persisted in living in the same residence on
alternating days.
The original dependency petition, alleging counts under
section 300, subdivisions (a) and (b), was filed on August 12,
2020. Several days earlier the juvenile court authorized the
Department to remove Melissa and Hammond from their parents’
custody based on allegations of domestic violence between Jing
and Dan. That removal was confirmed at a detention hearing
held on August 17 and 18, 2020. The Department placed the
children with their maternal aunt and uncle in Hacienda
Heights. The court ordered monitored visits for Jing and Dan
and reissued the temporary restraining orders previously issued
by the family court.
The Department filed an amended dependency petition on
September 11, 2020. At a hearing following that filing, the court
released Melissa to Dan, and Hammond to both parents, under
the supervision of the Department and on condition the parents
not live in the same residence. The court further ordered
Hammond’s primary residence be with Dan; Jing had custody of
the boy every other weekend and Wednesday evenings for dinner.
The court again reissued the temporary mutual restraining
orders.
The court began the jurisdiction hearing in November 2020.
In January 2021 the court granted in part Jing’s motion to
dismiss the petition, leaving in place the allegations relating to
domestic violence as alleged in counts under section 300,
subdivisions (a) and (b)(1). The jurisdiction hearing continued
for several additional days in February through May 2021, with
testimony from the dependency investigator, Dan and Jing, and
4
multiple exhibits introduced into evidence by each of the parties.
The parents’ and children’s counsel submitted written closing
arguments; the Department presented its closing argument
orally in June 2021.
The juvenile court sustained in part the first amended
petition on June 24, 2021. Immediately following the jurisdiction
hearing, the court proceeded to disposition, declaring Melissa and
Hammond dependent children of the court. The court ruled there
was no need to remove the children from their parents’ custody
and stated it intended to terminate its jurisdiction with a juvenile
custody and visitation order that tracked the order for Jing’s time
with Hammond that had been in place since September 2020.
The court also issued a three-year mutual restraining order
requiring Jing and Dan to remain 100 yards apart, rather than
10 yards as provided in the temporary orders.
2. The December 15, 2019 and June 30, 2020 Incidents
In addition to generally finding Jing and Dan had an
extended history of verbal and physical altercations, the
sustained dependency petition pursuant to section 300,
subdivision (b)(1), identified two specific incidents of domestic
violence: one on December 15, 2019, and the second on June 30,
2020. Viewing the evidence before the juvenile court in the light
most favorable to its findings, as we must on substantial evidence
review (see In re I.J. (2013) 56 Cal.4th 766, 773), Jing and Dan
had engaged in violent altercations with each other; and each had
been the aggressor on occasion.
On December 15, 2019 Dan came to Jing’s bed holding a
small container (a flask or thermos) of water as he was watching
television. She told Jing, if he did not keep the sound down, she
5
would pour hot water on him. She then did so. Jing called the
police, and Dan was arrested.
On June 30, 2020 Dan was at the guesthouse when
Hammond phoned or texted her for help with bleeding from a
tooth. Dan went to the main house to check on Hammond and
found him sitting on one of four kitchen barstools with a bloody
tissue in his mouth. She sat down next to Hammond to inspect
his mouth. Jing, who was at the kitchen sink, told Dan she was
sitting in Jing’s seat and demanded she get up. Dan ignored
Jing. Jing told Dan he and Hammond had not finished breakfast
and ordered her to get out of the kitchen. Jing started yelling at
Dan and then pulled the stool from underneath her. Because
Dan’s arms were on the counter, she did not fall. Jing hit Dan’s
arm with his elbow, shoved himself between Dan and Hammond
and hit Dan with his elbow a second time, causing her to fall over
the barstool next to her. Dan left the kitchen. As she did, she
could hear Jing telling Hammond, “Mommy is bad; she shouldn’t
have taken my seat.” Dan called the police, who came to the
house and arrested Jing.3
In addition to these two episodes, Dan claimed Jing had
during their marriage slammed a door on her, striking her
shoulder and elbow on at least one occasion; pushed and twisted
her arm; broke objects in the home and threw them; kicked a door
and caused the door frame to break in Melissa’s presence; and
3 In her July 6, 2020 declaration in support of her request for
a domestic violence restraining order in family court, Dan stated,
when Jing pushed against her chest, causing her to fall against
the stool, the “force of Jing’s jab knocked the wind out of [her]
and caused [her] head to snap back.” Her head, neck and back
continued to hurt a few days after the June 30, 2020 incident.
6
threatened to kill Dan. Jing asserted Dan had struck his ribs
with her fists; hit him with a cell phone; and ripped Jing’s shirt
in the children’s presence.
3. Minor’s Counsel’s Recommendation to the Court
In her written closing argument for the jurisdiction
hearing, minor’s counsel explained the children had been residing
primarily with Dan since September 16, 2020; Melissa had not
wanted any contact with Jing; Hammond consistently requested
limited contact with Jing; and, although children’s wishes should
not always be determinative, she believed the children’s wishes
and their best interests were aligned. She supported her belief
that limited contact between Hammond and Jing was in
Hammond’s best interests on various grounds, including
Hammond’s having told her that Jing had been discussing the
dependency case with him despite Hammond’s request to Jing
not to do so, placing the child in the uncomfortable position of
having to take sides in the conflict between the parents, which
was neither appropriate nor healthy for the child; Hammond
saying he had been frequently upset witnessing Jing’s anger; and
Hammond having expressed feeling more support and less
anxiety when residing with Dan.
Hammond’s living preference, his counsel continued, was
reinforced by the outside observations of others, including
Hammond’s therapist, who agreed limited contact with Jing was
in Hammond’s best interest. Although the therapist observed
emotional growth from Dan since the case’s inception, the
therapist had not observed similar growth from Jing; rather, the
therapist stated, “Father displays rigid and easily angered
behavior . . . . The father lacks insight about child development
and is not open to hearing suggestions and can be combative.”
7
Accordingly, minor’s counsel requested the court order joint
physical and legal custody of Hammond, but with Hammond’s
primary residence to be with Dan and Hammond to continue with
the existing schedule of custody time with Jing.
4. The Juvenile Court’s Jurisdiction Finding
As discussed, the juvenile court sustained the dependency
petition in part, finding the Department had proved most of the
section 300, subdivision (b)(1), allegations of domestic violence. It
dismissed the subdivision (a) allegations. Elaborating on its
finding, the court stated the parental conflict “has been going on
for years” concerning issues in the marriage and the control of
the children and property “to the point that the parents have
become physically territorial around their children and in the
home.”
The court explained it was modifying the subdivision (b)(1)
allegations by, among other changes, striking references to Jing’s
and Dan’s arrests for domestic battery of each other as not
relevant; replacing the phrase “threw hot water at” with “spilled
hot water on” Jing for the December 15, 2019 incident because it
believed “there was some intent there but ‘threw’ is not really the
right verb”; and striking all references to specific incidents other
than the December 15, 2019 and June 30, 2020 incidents. It
clarified, “[E]ven though I am striking reference to these other
incidents, I’m not finding it didn’t happen; I’m finding there was
some prior violence but I’m not going to make specific findings as
to each of those incidents.”4 The court found, although the
4 The court further explained it had some concerns about the
parents’ credibility in describing these past conflicts but
nonetheless expressly found “there is some evidence of prior
domestic violence because the nature of the parents’ relationship
8
parents had engaged in some services, they had not shown “any
real progress” and, if the parents were “together in any way,”
they would “continue to have these escalating and physical
arguments.”
5. Disposition, the Restraining Order and the Decision To
Terminate Jurisdiction with a Custody Order
Following its jurisdiction finding the court asked, “Now
before we get to the [domestic violence restraining order], what
does counsel want to do about disposition? Were you expecting to
handle it today?” Jing’s counsel responded he was ready to
proceed. The court admitted for purposes of the disposition
hearing all exhibits that had been admitted for the jurisdiction
hearing and ruled all testimony offered during the jurisdiction
hearing would be part of the disposition hearing.
The court declared the children dependents of the court.
Turning to the question whether it was necessary to remove the
children from the custody of either parent pursuant to
section 361, subdivision (c), or to keep the case open for services,
the court ruled the evidence was insufficient to require removal
and stated its intention to terminate its jurisdiction. “What we
have is a bitter custody battle that has resulted in the parents
engaging in escalating arguments that have become physical and
threaten to become physical again. . . . That risk will be
addressed by the restraining order that I’m going to order. . . . I
understand that not all issues will be resolved, but this court’s
supervision is not needed to further resolve the disputes between
the parents and the custody issues. Those were custody issues
has been so intense and negative for a long period of time. . . . I
can infer there has been prior domestic violence.”
9
that don’t rise to the level of a risk to the children. There is some
risk that the custody battle causes some emotional harm to the
children, but I do not find it rises to the level where I can remove
the children from either parent.”
With respect to custody on a going-forward basis, the court
stated the children’s primary residence would be with Dan, which
the court noted (as had minor’s counsel) had been the existing
arrangement and with which the children had expressed
happiness, and indicated it would enter a juvenile custody order
providing for joint legal and joint physical custody with the
arrangements for Hammond to reflect “the current schedule,” but
with Jing to also have Hammond for up to two weeks for any
planned summer vacations. The court directed the parties to
work out an arrangement as to “regular holidays and such.” As
for Melissa, the court stated it would provide the parties some
time to agree on an arrangement; and, if the parties were unable
to do so, it would make an arrangement on July 28, 2021, the day
it scheduled for a further hearing to finalize the juvenile custody
order.
The minute orders for June 24, 2021 stated the court found
the conditions justifying the assumption of jurisdiction no longer
existed and were not likely to exist if supervision was withdrawn.
The court terminated its jurisdiction as to both children with
termination stayed pending receipt of the juvenile custody order
at the hearing on July 28, 2021.
The court next addressed the requests for restraining
orders and found there was a sufficient basis to grant a three-
year restraining order protecting each parent from the other by
prohibiting them from coming within 100 yards of each other and
from being “on the home property together.” It declined to grant
10
an order excluding either parent from the property. The juvenile
court signed and filed the restraining orders on June 30, 2021.
6. The Custody Hearing and Order
The custody hearing was continued to August 11 and 13,
2021. After hearing the parties’ requests, the court entered a
juvenile custody order for Melissa and Hammond providing for
joint legal and physical custody with the primary residence for
both children to be with Dan. Jing was generally to have the
following custodial time: Every Wednesday at 3 p.m. until return
to Dan’s home by 7 p.m.; every other weekend; and additional
time, which included holidays and summer and other breaks,
according to a detailed scheduled that provided for the parents to
each have time with the children.
DISCUSSION
1. Substantial Evidence Supports the Juvenile Court’s
Finding of Jurisdiction over Hammond
a. Governing law and standard of review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being
exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2, subd. (a); see In re A.F. (2016) 3 Cal.App.5th 283, 289;
In re Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
Section 300, subdivision (b)(1)(A), provides a child is within
the jurisdiction of the juvenile court if “[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of any of the following: [¶]
(A) The failure or inability of the child’s parent or guardian to
adequately supervise or protect the child.” A jurisdiction finding
under section 300, subdivision (b)(1)(A), requires the Department
11
to prove three elements: (1) the parent’s or guardian’s neglectful
conduct or failure or inability to protect the child; (2) causation;
and (3) serious physical harm or illness or a substantial risk of
serious physical harm or illness. (In re L.W. (2019)
32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th
537, 561; see In re R.T. (2017) 3 Cal.5th 622, 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].)
Although section 300 requires proof the child is subject to
the defined risk of harm at the time of the jurisdiction hearing
(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child. (In re
I.J., supra, 56 Cal.4th at p. 773; In re Kadence P. (2015)
241 Cal.App.4th 1376, 1383; In re N.M. (2011) 197 Cal.App.4th
159, 165.) The court may consider past events in deciding
whether a child currently needs the court’s protection. (In re
Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216; In re
N.M., at p. 165.) A parent’s “‘[p]ast conduct may be probative of
current conditions’ if there is reason to believe that the conduct
will continue.” (In re S.O. (2002) 103 Cal.App.4th 453, 461;
accord, In re J.N. (2021) 62 Cal.App.5th 767, 775 [“[e]vidence of
past conduct may be probative of current conditions, and may
assist DCFS in meeting [its burden of proof]”]; In re Kadence P.,
at p. 1384.)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
12
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.”’” (In re I.J., supra, 56 Cal.4th at p. 773; see In re I.C.
(2018) 4 Cal.5th 869, 892.)
b. There was ample evidence domestic violence between
Jing and Dan placed Hammond at substantial risk of
serious physical harm
Exposure to domestic violence may serve as the basis for a
jurisdiction finding under section 300, subdivision (b)(1). (In re
R.C. (2012) 210 Cal.App.4th 930, 941.) “‘“Both common sense
and expert opinion indicate spousal abuse is detrimental to
children.”’” (Id. at p. 942; see In re S.O., supra, 103 Cal.App.4th
at pp. 460-461 [“‘domestic violence in the same household where
children are living is neglect; it is a failure to protect [them] from
the substantial risk of encountering the violence and suffering
serious physical harm or illness from it’”]; see also In re L.O.
(2021) 67 Cal.App.5th 227, 238 [“[j]urisdiction is appropriate
since a minor can be ‘put in a position of physical danger from
this violence, since, for example, they could wander into the room
where it was occurring and be accidentally hit by a thrown object,
by a fist, arm, foot or leg’”]; In re T.V. (2013) 217 Cal.App.4th 126,
135 [“[e]ven though [the child] had not been physically harmed,
the cycle of violence between the parents constituted a failure to
protect her”].)
Jing argues the evidence did not show Hammond was at
substantial risk of serious physical harm because, although the
first amended petition alleged multiple episodes of domestic
violence, the court had found true only the December 15, 2019
and June 30, 2020 incidents, which the court stated at the
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jurisdiction hearing did not involve a level of violence “as high or
as extreme as in many other domestic violence cases.” The
premise for this argument is seriously flawed: That there may be
other cases in which the parents were more violent does not
mean the evidence was insufficient for the court to find Jing and
Dan’s altercations placed Hammond at substantial risk of serious
physical harm, particularly since Hammond not only was present
for, but was actually in the middle of, the June 30, 2020 fight,
which resulted in Dan’s injury and Jing’s arrest. Moreover, Jing
ignores the court’s finding, in addition to the two specific
instances identified, that he and Dan had a history of domestic
violence to which their children were repeatedly exposed. Indeed,
the court stated when sustaining the first amended petition there
was a history of domestic violence that “wasn’t limited to simply
the December incident and the June incident.”
Jing relies on other evidence—emphasizing, for example,
the incidents did not result in criminal charges and Hammond
was eight years old at the time of the June 2020 incident and
thus not as fragile as an infant—to argue the evidence did not
support the court’s finding of a substantial risk of serious injury.
Jing’s argument essentially invites us to reweigh the evidence, a
task outside the proper scope of appellate review. (See, e.g., In re
I.J., supra, 56 Cal.4th at p. 773 [“‘“[w]e do not reweigh the
evidence”’”]; see also People v. Gomez (2018) 6 Cal.5th 243, 309
[“‘[i]n deciding the sufficiency of the evidence, a reviewing court
resolves neither credibility issues nor evidentiary conflicts’”].)
Jing also points out that the section 300, subdivision (b)(1),
allegation sustained by the court on June 24, 2021 stated he and
Dan continued to reside in the same house, while the evidence
showed by that time they had not lived together for nearly
14
10 months. He also notes there had been no further instances of
domestic violence after they began living separately.
Although Dan moved from the Beverly Hills home in
September 2020 to comply with the juvenile court’s condition for
release of the children from their out-of-home placement (that
she and Jing not live together), Jing misperceives the import of
the language in the sustained finding. The reference to the
parents continuing to reside in the same house followed the
allegations of their history of escalating verbal arguments and
physical altercations and of the December 2019 and June 2020
incidents. There was abundant evidence the parents had, in fact,
continued to live in the Beverly Hills family residence after
multiple incidents of domestic violence, creating the ongoing risk
of new episodes of violence. Indeed, even after the family court
issued temporary mutual restraining orders in July 2020,
requiring each parent to stay at least 10 yards from the other but
not from the other’s home, Dan and Jing continued to reside in
the Beverly Hills family home under their agreement to alternate
between the main house and the guest house.
Moreover, in discussing its jurisdiction finding at the
hearing, the court did not suggest it believed Dan and Jing were
both still living in the Beverly Hills house. After stating the
parents were not showing any real progress and would likely
continue their battle for control of the house and the children, the
court observed that Dan had moved out to ensure the children
could live with her, while Jing stayed in the house.
Finally, Jing’s reliance on the permanent mutual
restraining orders to argue it was unnecessary for the court to
sustain the dependency petition fundamentally misapprehends
the status of the case at the time of the jurisdiction hearing.
15
When the court found Melissa and Hammond were children
described by section 300, subdivision (b)(1), there were no
permanent restraining orders in place, only temporary orders
requiring Jing and Dan to stay 10 yards away from each other.
And those temporary orders did not prohibit them from
continuing to reside together at the family home in Beverly Hills,
the site of ongoing domestic violence. Moreover, the question at
the jurisdiction hearing was whether the children were at
substantial risk of serious physical harm, not what measures
were necessary to protect them if they were. That issue was
addressed at disposition.
2. The Juvenile Court Did Not Abuse Its Discretion by
Declaring Hammond a Dependent of the Court
Once the juvenile court has made a finding at the
jurisdiction hearing that a child is a person described by one of
the subdivisions of section 300, it may adjudge the child to be a
dependent child of the court. (§ 360, subd. (d).) As we explained
in In re Destiny D. (2017) 15 Cal.App.5th 197, 205-206,
“Typically, once the child has been adjudged to be a dependent
child pursuant to section 360, subdivision (d), the juvenile court
determines what services the child and family need to be
reunited and free from court supervision. [Citations.] The court
then sets a review hearing, which must be held within
six months, to evaluate the family’s circumstances and decide
whether continued dependency jurisdiction is necessary.”
Nonetheless, we held, “the juvenile court retains the discretion in
an appropriate case to terminate its jurisdiction at the close of a
disposition hearing when it finds services and continued court
supervision are not necessary to protect the child” (id. at p. 208),
provided, “protections imposed at disposition will be sufficient to
16
permit the conclusion that termination is appropriate.” (Id. at
p. 211.)
Several other statutory provisions arm the juvenile court
with the tools needed to protect a child like Hammond when
terminating dependency jurisdiction. Section 362.4,
subdivision (a), authorizes the court, after adjudicating a child a
dependent child of the court at disposition, to issue protective
orders pursuant to section 213.5 and “an order determining the
custody of, or visitation with, the child.” Section 213.5,
subdivision (a), in turn, provides the juvenile court may issue
protective orders on behalf of children and their parent or current
caregiver from the time a petition has been filed to declare a child
a dependent child of the juvenile court until the petition is
dismissed or dependency is terminated.5
The juvenile court has broad authority to declare a child a
dependent child of the court; we review the determination to do
so for abuse of discretion. (See In re Ethan C. (2012) 54 Cal.4th
610, 637 [“The dependency scheme in general . . . leaves ample
room for discretionary treatment that allows for the equities of
particular situations”]; In re Corrine W. (2009) 45 Cal.4th 522,
532 [“‘[T]he juvenile court has broad discretion to determine what
would best serve and protect the child’s interest and to fashion a
5 Section 213.5, subdivision (d)(1), allows the juvenile court
to issue protective orders upon notice and a hearing and further
provides, “A restraining order granted pursuant to this
subdivision shall remain in effect, in the discretion of the court,
no more than three years, unless otherwise terminated by the
court, extended by mutual consent of all parties to the restraining
order, or extended by further order of the court on the motion of
any party to the restraining order.”
17
dispositional order in accordance with this discretion.
[Citations.] The court’s determination in this regard will not be
reversed absent a clear abuse of discretion’”].)
Relying on the legislative policy that a child remain a
dependent child of the court only as long as necessary, Jing
argues a declaration of dependency was not required here
because the court had stated its intent to protect the children
through issuance of permanent mutual restraining orders and,
pending those orders, there were temporary mutual restraining
orders in place that adequately protected the children, as
demonstrated by the absence of any additional incidents of
domestic violence after the family court first issued them. Again,
Jing’s argument disregards the reality of the parties’ situation
and misperceives the import of the court’s rulings and statements
explaining them.
The fact there was no further domestic violence after the
Department filed the initial dependency petition in August 2020
and Jing and Dan were under the scrutiny of both the
Department and the juvenile court provides no support for Jing’s
contention it was the family court’s mutual temporary
restraining orders that were responsible for his and Dan’s
cessation of physical confrontations. To the contrary, there was
ample evidence to support the juvenile court’s view the truce (and
thus the children’s safety) was only made possible by the
combination of restraining orders and orders defining the nature
of the parents’ shared custody and establishing a specific
visitation schedule. And to provide that protection for the
children in the future, the court could not dismiss the petition, as
Jing urged it to do, but, pursuant to section 362.4, subdivision (a),
had to adjudge the children dependents of the court in order to
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enter juvenile custody orders continuing the shared custody and
visitation schedule it believed was necessary.6
While acknowledging a continuing custody order could only
be made after disposition adjudging the children dependents of
the court, Jing contends the court found custody orders were not
necessary to protect the children from harm. It did not.
Although, as discussed, the court stated its “supervision is not
needed to further resolve the disputes between the parents and
the custody issues,” that was an explanation why it could
terminate its jurisdiction. The orders to be issued—both
restraining and custody orders—would adequately protect the
children; further court oversight was not required (although the
court cautioned it could become necessary once again in the
future). The court’s next comment that the parents’ custody
battles, although causing the children emotional harm, “don’t rise
to the level of risk to the children,” was an explanation why the
court did not order either child removed from parental custody
pursuant to section 361, subdivision (c), as made clear when the
court reiterated, “I do not find it rises to the level where I can
remove the child from either parent.” These were not
statements, let alone a finding, that custody orders pursuant to
section 362.4 were not necessary to protect the children. Indeed,
the court made termination of its jurisdiction contingent on the
6 Section 362.4, subdivision (a), authorizes the court to issue
a juvenile custody order only when it “terminates its jurisdiction
over a minor who has been adjudged a dependent child of the
juvenile court.” And as we explained in In re Anna T. (2020)
55 Cal.App.5th 870, 877, “[O]nly a juvenile court custody order
issued pursuant to section 362.4, not any juvenile court order
affecting custody, will continue in effect after termination.”
19
signing of the custody orders, unequivocally demonstrating its
determination that those orders were needed to sufficiently
resolve the risks to the children’s safety that prompted the
initiation of dependency proceedings.7
3. Any Error in the Custody Order Relating to Hammond
Would Be Harmless
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; accord, In re Nicholas H. (2003) 112 Cal.App.4th 251, 268;
In re John W. (1996) 41 Cal.App.4th 961, 965 [“it is the best
interests of the child, in the context of the peculiar facts of the
case before the court, which are paramount”]; see In re
Chantal S. (1996) 13 Cal.4th 196, 206.) This determination is
made without reference to preferences or presumptions ordinarily
applicable in the family court. (See, e.g., In re C.M. (2019)
38 Cal.App.5th 101, 109-110; In re John W., at p. 972.)8
Jing contends the juvenile custody order as to Hammond
improperly restricted his physical custody of the child to every
other weekend and one weeknight per week, arguing that
7 Asked by Dan’s counsel at the custody hearing about
termination of dependency jurisdiction, the court indicated it had
made termination contingent on the signing of the custody
orders, which, the court explained, was what it meant when it
stayed termination pending receipt and signing of those orders.
8 We review a juvenile court custody order for abuse of
discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863; In re M.R.
(2017) 7 Cal.App.5th 886, 902; see In re T.H. (2010)
190 Cal.App.4th 1119, 1124.) In applying that standard,
however, we review questions of law de novo. (E.g., In re C.B.
(2010) 190 Cal.App.4th 102, 123.)
20
schedule effectively granted sole physical custody to Dan with
visitation by Jing, not joint physical custody as the court stated it
was ordering. In support Jing relies on the definition of “joint
physical custody” in Family Code section 3004,9 as well as cases
interpreting that provision. (See, e.g., In re Marriage of Biallas
(1998) 65 Cal.App.4th 755, 760 [listing family law cases holding it
was not joint physical custody when fathers had alternate
weekends, one weeknight per week and other periods agreeable
to the parties]; see also In re A.R. (2015) 235 Cal.App.4th 1102,
1119, fn. 5 [noting the definition of “joint physical custody” under
Family Code section 3004 in referring to the failure of the
juvenile court’s disposition order to distinguish between physical
custody and legal custody]; but see, e.g., In re Chantal S., supra,
13 Cal.4th at pp. 206-207 [“application of a family-law-based joint
custody presumption would be inconsistent with the purpose of
juvenile court law” because, “‘[a]lthough both the family court
and the juvenile court focus on the best interests of the child, the
juvenile court has a special responsibility to the child as parens
patriae and must look at the totality of the child’s
circumstances’”; “the Legislature knows how to make the Family
9 Family Code section 3004 provides, “‘Joint physical custody’
means that each of the parents shall have significant periods of
physical custody. Joint physical custody shall be shared by the
parents in such a way so as to assure a child of frequent and
continuing contact with both parents, subject to Sections 3011
and 3020.” Family Code section 3020, at subdivision (b), provides
in part an exception to the public policy of ensuring that children
have frequent and continuing contact with both parents “when
the contact would not be in the best interests of the child.”
Family Code section 3011 provides the factors a court is to
consider in determining the best interests of the child.
21
Code applicable to the juvenile court when it intends to do so, and
. . . the Legislature’s omission to do so . . . reveals that the
Legislature did not intend that section to apply in juvenile court
proceedings”]; In re C.M., supra, 38 Cal.App.5th at p. 109
[referring to “the long line of precedent that the Civil and Family
Codes are not applicable in dependency cases unless expressly
stated”].)
Whatever the merit of Jing’s argument, and even assuming
he did not forfeit the issue by failing to raise his objection in the
juvenile court, any error was harmless—that is, it is not
reasonably probable a result more favorable to Jing would have
been reached in the absence of the error. (See, e.g., In re
Celine R. (2003) 31 Cal.4th 45, 59-60.) As Jing concedes, the
juvenile court made clear its intent the order reflect, with limited
exceptions for holidays and miscellaneous other occasions, the
preexisting court-ordered custody arrangement granting Dan
“primary residence of the children”—an arrangement with which
the children had been happy (and that their counsel endorsed).
That preexisting arrangement had restricted Jing’s physical
custody of Hammond to alternate weekends and one weeknight.
Thus, any inconsistency between the custody order and the
schedule was merely one of nomenclature—that is, of mislabeling
the existing arrangement as one for joint physical custody rather
than liberal visitation by Jing. Had the court been alerted to that
error (assuming it was indeed error), it is highly improbable the
court would have altered Jing’s underlying custodial time with
Hammond rather than merely recharacterizing its order as one
for sole physical custody by Dan and liberal visitation by Jing—a
result that would not have been more favorable to Jing.
22
What is paramount is whether the court-ordered
arrangement of Jing having physical custody of Hammond on
alternate weekends, one weeknight and miscellaneous additional
time was in the child’s best interests, regardless of the label
attached to it. Ample evidence supported the court’s implied
finding that arrangement was in Hammond’s best interest. The
court acted well within its considerable discretion in ordering it.
4. The Appeal as to Melissa
Evaluating the jurisdiction finding and disposition order as
to Melissa could be somewhat different from the issues as they
relate to Hammond. Melissa is five years older than her brother
(she was nearly 15 years old at the time of the June 24, 2021
jurisdiction and disposition hearings) and, unlike Hammond, was
not present during either of the two most recent episodes of
domestic violence found to have occurred by the juvenile court.
But Jing does not differentiate between his two children in
arguing the court’s jurisdiction finding and disposition order are
not supported by substantial evidence. And he does not challenge
the juvenile custody order entered for Melissa, as he does with
Hammond.10 Accordingly, for the reasons discussed, the
jurisdiction finding, disposition and custody orders as to Melissa
are also affirmed.
10 Arguably, because the court terminated its jurisdiction and
Jing does not appeal the custody order as it relates to Melissa,
Jing’s appeal as to her is moot—we can provide no effective relief
even if we were to find reversible error. (See In re Rashad D.
(2021) 63 Cal.App.5th 156, 163-164; In re D.N. (2020)
56 Cal.App.5th 741, 757.)
23
DISPOSITION
The juvenile court’s jurisdiction finding and disposition and
custody orders are affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
24