In re B.W. CA2/7 ( 2024 )

Filed 10/28/24 In re B.W. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re B.W., a Person Coming Under B321346
the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 18LJJP00784D)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SPENCER K.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Pete R. Navarro, Juvenile Court Referee. Affirmed in
part and dismissed as moot in part.
Emery El Habiby, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
In this consolidated appeal, Spencer K., the biological and
presumed father of B.W. (born August 2016), appeals from four
orders by the juvenile court: (1) the jurisdiction findings and
disposition order removing B.W. from his physical custody; (2) the
reasonable services finding and placement order not returning
B.W. to his custody at a six-month review hearing; (3) the
placement order not returning B.W. to his custody at a
subsequent hearing (and denying his request for a continuance);
and (4) the termination of jurisdiction with exit orders granting
shared custody of B.W. to his two presumed mothers (his
biological mother and her wife), with unmonitored visitation to
Spencer.
We affirm the jurisdiction findings and removal order,
dismiss as moot Spencer’s appeals of the interim placement
orders and his reasonable services challenge, and affirm the
juvenile court’s termination of jurisdiction and exit orders. We
also affirm the juvenile court’s order granting Spencer
enhancement services at the six-month review hearing and its
denial of his request for continuance.
2
FACTUAL AND PROCEDURAL BACKGROUND
B.W. has three parents: his mother Amanda W., his
presumed mother Coressa W. (Amanda’s wife),1 and his father
Spencer. Spencer first became involved in B.W.’s life after
dependency proceedings began.
A. Dependency Proceedings Resulting in Spencer’s Shared
Custody of B.W.
In 2018, the Los Angeles County Department of Children
and Family Services (Department), filed a petition under Welfare
and Institutions Code section 300 on behalf of then-two-year-old
B.W and three of his half-siblings.2 At the time, the children
lived with Amanda and Coressa. The petition alleged the
children were at risk of harm due to Amanda’s history of
substance abuse and failure to ensure appropriate medical
treatment for one of the children, and was later amended to add a
count alleging risk of harm from Amanda’s history of domestic
violence with Coressa. Amanda identified Coressa as B.W.’s
second mother and stated B.W. “was [a] product of rape” and his
father unknown.
Amanda subsequently identified Spencer as a potential
father, and the Department spoke with him in December 2019.
Spencer, who lived in Idaho, stated Amanda had been in touch
with him over the past year and a half, it was possible he was
1 The record indicates Amanda and Coressa married in June
2017, divorced in February 2018, and remarried in December
2018.
2 Undesignated statutory references are to the Welfare and
Institutions Code.
3
B.W.’s biological father based on a brief relationship he had with
Amanda, and he was willing to have B.W. live with him. Spencer
disclosed he had a prior substance abuse and criminal history
that, as relevant here, included a conviction for domestic battery.
A subsequent DNA test confirmed Spencer was B.W.’s biological
father.
In February 2020, the juvenile court held the jurisdiction
hearing, sustained the amended section 300 petition on the basis
that the mothers’ domestic violence placed B.W. at risk of harm,
and ordered the Department to assess Spencer for placement and
to provide virtual visitation with B.W. Spencer told the
Department he wanted to establish a relationship with B.W. and
have B.W. live with him in Idaho. Four months later, Spencer
reported he was having virtual visits with B.W. three times a
week, and wanted full custody.
In July 2020, the court held a disposition hearing and
found Coressa was B.W.’s presumed mother and Spencer was
B.W.’s biological and presumed father, and that it would be
detrimental to B.W. to recognize only two parents. The court
removed B.W. from Coressa’s custody and released him to the
shared physical custody of Amanda and Spencer, with his
primary residence with Amanda. The court ordered family
maintenance services for Spencer and Amanda, and unmonitored
visitation for Coressa.
In February 2021, the Department reported B.W. was
living with Amanda and appeared to be doing well. Amanda had
initially stated in August 2020 that Spencer had not made
contact with B.W. in over a month, and sometimes called when
B.W. was asleep. By December 2020 Amanda reported Spencer
contacted B.W. several times per week. Amanda reported she
4
drove B.W. to Idaho, and he stayed with Spencer for two days
over Thanksgiving and two and a half weeks over winter break.
Coressa, who was also living in Idaho, visited with B.W. over
Thanksgiving as well. During B.W.’s visit, Spencer reported
Coressa was stalking and harassing him, and Coressa stated it
was unfair Spencer was not willing to share his Christmas visit
with her.
The Department reported Amanda was making
“tremendous progress” in her case plan, and recommended the
juvenile court terminate jurisdiction and grant joint legal and
physical custody of B.W. to Amanda and Spencer. The court
noted it was unclear where Coressa as presumed mother fit into
the Department’s custody recommendations, and ordered the
hearing continued for mediation regarding a joint legal and
physical custody schedule.
The day before the March 2021 hearing, the Department
received a referral stating Amanda used marijuana in the
presence of the children in December 2020, traveled to Arizona
with the children in February without notifying the Department,
and interfered with visitation between B.W. and Spencer.
Amanda told the Department she could not come in for a drug
test because her leg was broken, she was upset by Spencer
making false allegations against her, and she was concerned the
Department allowed her alleged rapist to have contact with her
child. She later stated she had injured her leg during a physical
altercation with her older son D.E. while he was having a
psychiatric episode, D.E. struck B.W. in the head while Coressa
was present in the home, and that D.E. was in a psychiatric
hospital for assessment.
5
The court continued the review hearing and mediation at
the Department’s request.
B. Section 387 Proceedings, Removal of B.W. from Spencer,
and the First Appeal
In April 2021, the Department filed a section 342
subsequent petition, and a section 387 supplemental petition for
more restrictive placement on behalf of B.W.3 The section 342
petition alleged additional risk of harm from the mothers’ history
and recent incidents of domestic violence; risk of harm from
Amanda’s mental health challenges and failure to take her
psychotropic medications; Amanda leaving the children without
adult supervision (in one instance resulting in D.E. striking B.W.
with a bat); and Amanda’s and Coressa’s failure to ensure B.W.
regularly participated in mental health services.
The section 387 petition alleged the previous disposition
did not protect B.W. because of the mothers’ ongoing violent
altercations and cohabitation in violation of court orders, and
recommended B.W. be placed with Spencer or in foster care.
Spencer reported he wanted full custody of B.W. and
preferred B.W.’s current placement with Amanda until B.W.
3 Section 342 provides: “In any case in which a minor has
been found to be a person described by Section 300 and the
petitioner alleges new facts or circumstances, other than those
under which the original petition was sustained, sufficient to
state that the minor is a person described in Section 300, the
petitioner shall file a subsequent petition.” (§ 342, subd. (a).)
Under section 387, the Department may file a supplemental
petition for “[a]n order changing or modifying a previous order by
removing a child from the physical custody of a parent.” (§ 387,
subds. (a), (b).)
6
could be placed in his sole care, rather than foster care or
placement with Coressa. He reported Coressa continued to
threaten and harass him.
On May 4, 2021, the court held a detention hearing and
detained B.W. in shelter care.
The next day the Department received Idaho incident
reports stating that Spencer had arrests for: injury to his ex-
girlfriend’s one-year-old son in 2003; battery, kidnapping and
false imprisonment of an ex-girlfriend in 2004; attempted
strangulation of an ex-girlfriend in 2014; and domestic battery in
2015. The Department also learned Spencer was on the Idaho
child abuse registry for a substantiated allegation of physical
abuse of a child in 2003. As relevant here, the injuries to the
infant resulted in fractures to his arm and leg, and bruising of his
back and shoulder. The Department informed the juvenile court
it no longer recommended release of B.W. to Spencer. The court
released B.W. to Amanda and Spencer, with B.W. to reside with
Amanda. The court also issued a mutual stay-away order
prohibiting contact between Amanda and Coressa, and ordered
monitored visitation for Coressa.
In a subsequent interview with the Department, Spencer
admitted he had a criminal history but claimed the child abuse
and false imprisonment charges were false. Spencer also denied
B.W. was conceived through rape, and stated that Amanda told
him she lied to the Department because she thought Spencer
made the 2018 referral to the Department.
The Department filed an amended section 387 petition
further alleging the previous disposition failed to protect B.W.
because Spencer had “an extensive violent criminal history that
included concealing a weapon, multiple warrants, false
7
imprisonment, attempted strangulation, domestic battery, and
injury to child.” The Department changed its recommendation
from placement with Spencer or foster care to a recommendation
of “Other.”
The court ordered B.W. remain released to Amanda and
Spencer, and ordered the Department to file the necessary
paperwork supporting the detention of B.W. from Spencer. The
Department filed an ex parte application for change of order
under section 385, asking the court to terminate its prior order
placing B.W. with Spencer and to detain B.W. from Spencer’s
custody based on Spencer’s criminal history.
The court held a detention hearing on the amended
section 387 petition and ordered B.W. detained from Spencer and
to remain released to Amanda. Shortly thereafter, Amanda told
the Department that Spencer failed to maintain contact with her
for multiple days during a previous visit with B.W. in Idaho, she
got into a physical altercation with Spencer when she went to
Idaho to pick up B.W., and B.W. complained of arm pain and
disclosed to her that Spencer would twist his arms. The court
subsequently sustained the allegations of the section 342 petition
based on the mothers’ domestic violence and Amanda leaving the
children alone without adult supervision, but ordered B.W.
remain released to Amanda.
On December 3, 2021, the court held a jurisdiction and
disposition hearing on the amended section 387 petition.
Spencer’s counsel argued Spencer was a nonoffending parent, his
criminal history was many years in the past and he posed no
current risk, he had completed anger management, life skills,
and parenting programs in 2014, he had services for B.W. lined
up in Idaho, and he had visited successfully with B.W. in Idaho
8
without incident. Spencer’s counsel asked that B.W. be released
to Spencer’s custody, or released to shared custody with Spencer
and the other parents, with Spencer having primary physical
custody.
B.W.’s counsel objected to B.W. being released to Spencer,
and argued that although the criminal history was not recent, it
was serious and included injury to a child. B.W.’s counsel further
argued Amanda reported a physical altercation with Spencer
when she picked up B.W. in Idaho, and that B.W. told Amanda
that Spencer twisted his arm and caused him pain. B.W.’s
counsel also objected to B.W. being released to Amanda, and
asked that B.W. be placed with a non-relative extended family
member (NREFM), the father of his half-sibling K.W. Counsel
for K.W.’s father confirmed he was willing to be a placement for
B.W.
The Department asked the court to sustain the allegations
and order B.W. removed from parental custody. Coressa’s
counsel asked that B.W. be placed with Coressa, on the condition
that Coressa reside with K.W.’s father, who was Coressa’s former
roommate and with whom she was coparenting K.W. Amanda’s
counsel asked that B.W. remain placed with Amanda.
The court sustained both counts of the amended section 387
petition, finding by clear and convincing evidence that there was
substantial danger to B.W. if he were to be returned to any of his
parents and no reasonable means to protect him without removal
from Spencer and the mothers. The court found it would be
detrimental to release B.W. to Spencer as a parent who resided
out of state “without the court having any real supervision or any
real knowledge of the circumstance of a parent who had been
convicted of a violent act against an infant.” The court ordered
9
B.W. removed from parental custody and placed with K.W.’s
father, with family reunification services for all three parents.
Spencer’s case plan consisted of drug and alcohol testing, a
parenting program, and individual counseling.
Spencer timely appealed from the findings and orders at
the section 387 hearing in case number B328429.
C. Six-month Review Hearing, Placement with Coressa with
Enhancement Services to Spencer, and the Second Appeal
At the six-month review hearing, the Department reported
Amanda and Coressa were participating in services and
maintaining regular visitation with B.W. Coressa had moved
back from Idaho to California, and the Department had
liberalized her visitation to unmonitored visits. B.W.’s counsel
requested B.W. be placed with Coressa, and the Department
requested continued family reunification services to the mothers
with discretion to release B.W. to Coressa.
The Department reported Spencer had not provided any
documentation he was participating in services and had not
engaged in any visitation with B.W. Spencer’s counsel stated
Spencer had not had any visits for six months “due to his work
schedule.” The court denied a request for continuance by
Spencer’s counsel to obtain the Department social workers’ case
activity notes. Spencer’s counsel asked the court either to find
the Department had not provided Spencer with reasonable
services or order B.W. placed in his custody. Spencer’s counsel
argued there was no reasonable effort or contact regarding
services, no indication the Department had reached out to
Spencer, Spencer had not heard from the Department in over a
year and received no calls back to his voice messages, and
10
Spencer was attempting to enroll in services in Idaho on his own
but was on a wait list.
The court ordered B.W. placed with Coressa, with family
enhancement services to Spencer and Amanda, and monitored
visits for Spencer (with discretion to the Department to
liberalize). The court found continued supervision was necessary,
the Department “has complied with the case plan in making
reasonable efforts to return the child to a safe home,” and return
of the child to Coressa would not create a substantial risk of
detriment to B.W. The court made no express finding on the
reasonableness of reunification services to Spencer during the
six-month review period, but its order directing family
enhancement services for Spencer effectively terminated his
reunification services.
Spencer timely appealed from these orders in case
number B321346.
D. Section 364 Review Hearing, Termination Findings, and the
Third Appeal
At a review hearing pursuant to section 364, B.W.
remained placed with Coressa with overnight weekend visits
with Amanda. Amanda had completed a 10-week parenting
program and had participated in six months of individual
counseling by mid-2022. The Department reported Spencer had
not provided any documentation that he was participating in
services and had not visited B.W.
The Department recommended the court continue
dependency jurisdiction, order B.W. to remain with Coressa, and
return B.W. to Amanda’s custody, so that Coressa and Amanda
would have shared physical custody. The mothers’ respective
11
attorneys asked the court to terminate jurisdiction and issue
family law custody orders. B.W.’s counsel asked the court to
continue jurisdiction for another six months if it placed him with
the mothers.
Spencer’s counsel requested a continuance to receive and
review recent case activity notes for any evidence of enhancement
services, and objected that there was no recommendation in the
Department’s report as to Spencer. Spencer’s counsel asked the
court to grant Spencer shared custody of B.W. or unmonitored
visitation, and to provide resources and services if the court did
not terminate jurisdiction.
The court denied Spencer’s request for a continuance
because Spencer had no statutory entitlement to enhancement
services, ordered B.W. placed in the shared physical custody of
Coressa and Amanda, and ordered mediation of custody and
visitation. The court found continued supervision unnecessary
because the circumstances of acrimony and domestic violence
which brought the case before the dependency court no longer
existed, terminated jurisdiction over B.W., and stayed the
termination order pending the mediation and the issuance of
family law orders.
Spencer timely appealed from these findings and the order
placing B.W. with both mothers in case number B327389.
E. The Exit Order and the Fourth Appeal
On January 11, 2023, the juvenile court held a second
section 364 review hearing. The Department reported B.W. had
been living with Amanda while Coressa stabilized her housing
situation, and Coressa had kept in contact with B.W. through in-
person visits and telephone calls. B.W. was behaving well and
12
said he liked living with Amanda and having visits with his half-
siblings. Amanda reported B.W. had no recent contact with
Spencer and reasserted that B.W. was conceived through her
rape by Spencer.
Spencer’s counsel asked the court not to terminate
jurisdiction, or to make an order granting him primary physical
custody and shared legal custody of B.W. The court ordered the
Department to assess the mothers’ homes, ordered Coressa’s
counsel to prepare family law orders giving Amanda and Coressa
shared legal and physical custody of B.W. and granting Spencer
unmonitored visitation, and again entered and stayed its
termination order pending the custody order hearing.
On January 24, 2023, the juvenile court held the custody
order hearing, lifted its stay of the order terminating jurisdiction,
and issued family law orders giving Coressa and Amanda shared
legal and physical custody and giving Spencer unmonitored
visitation, including a mediated schedule of in-person visits in
Idaho for one week of summer break and one week of winter
break, in-person visits in California if Spencer was in state, and
virtual or phone visits for up to four hours per week.
Spencer timely appealed the termination of jurisdiction and
exit orders in case number B326646.4
4 Spencer’s January 26, 2023 notice of appeal states that he
appeals from the juvenile court’s January 11, 2023 order that
“terminated jurisdiction pending the receipt of the custody order
granting the mothers joint legal and physical custody, and
unmonitored visits for the father.” Both parties construe this as
an appeal from the termination of jurisdiction and exit order, as
do we. (See In re J.F. (2019) 39 Cal.App.5th 70, 75-76 [where it is
“reasonably clear” what the appellant is trying to appeal from,
13
This court consolidated Spencer’s four appeals.
DISCUSSION
A. Mootness of Spencer’s Appeals from the Removal Order,
Interim Placement Orders, and Reasonable Services
Finding
As an initial matter, we consider the Department’s
argument that Spencer’s appeal of the disposition order removing
B.W. from his custody and his appeals of the two interim custody
orders were rendered moot by the juvenile court’s termination of
jurisdiction and exit orders, as well as the Department’s
argument that Spencer’s reasonable services appeal is moot.
1. The Mootness Doctrine
“Juvenile dependency appeals raise unique mootness
concerns because the parties have multiple opportunities to
appeal orders even as the proceedings in the juvenile court
proceed.” (In re N.S. (2016) 245 Cal.App.4th 53, 59.) “‘[T]he
critical factor in considering whether a dependency appeal is
moot is whether the appellate court can provide any effective
relief if it finds reversible error.’” (In re Rashad D. (2021)
63 Cal.App.5th 156, 163 (Rashad D.); see In re D.P. (2023)
14 Cal.5th 266, 275-276 (D.P.).) An “‘appeal may become moot
where subsequent events, including orders by the juvenile court,
render it impossible for the reviewing court to grant effective
relief.’” (Rashad D., at p. 163.) “A reviewing court must “‘decide
“[g]enerally, we must liberally construe a notice of appeal in favor
of its sufficiency”]; see also Cal. Rules of Court, rules 8.100(a)(2),
8.405(a)(3).)
14
on a case-by-case basis whether subsequent events in a juvenile
dependency matter make a case moot and whether [its] decision
would affect the outcome in a subsequent proceeding.’”” (D.P., at
p. 276.) “‘“When no effective relief can be granted, an appeal is
moot and will be dismissed.”’” (In re J.A. (2020) 47 Cal.App.5th
1036, 1050-1051.)
Even when a case is moot, a court may exercise its
“inherent discretion” to reach the merits of the dispute. (In re
D.P., supra, 14 Cal.5th at p. 282.) Discretionary review generally
is appropriate only when a case presents an issue of broad public
interest that is likely to recur, when the controversy between the
parties may recur, or when a material question remains for the
court’s determination. (See ibid.) D.P. identified several non-
exhaustive additional factors for evaluating whether
discretionary review of a moot case may be warranted. (See id. at
pp. 284-286.) First, the court may consider whether the
challenged jurisdiction finding could impact current or future
dependency proceedings, for example, by influencing the child
protective agency’s decision to file a new dependency petition or
the juvenile court’s determination about further reunification
services. (See id. at p. 285.) Second, the court may consider the
nature of the allegations against the parent: “The more egregious
the findings against the parent, the greater the parent’s interest
in challenging such findings.” (Id. at p. 286.) Third, the court
may consider whether the case became moot due to prompt
compliance by parents with their case plan: “It would perversely
incentivize noncompliance if mootness doctrine resulted in the
availability of appeals from jurisdictional findings only for
parents who are less compliant or for whom the court has issued
additional orders.” (Ibid.)
15
2. Spencer’s Appeal of the Removal Order Is Not Moot
As noted, the juvenile court terminated jurisdiction as to
B.W. with an exit order awarding joint legal and physical custody
to Amanda and Coressa, with unmonitored visitation for Spencer.
The Department argues Spencer’s appeals from the initial
removal order and interim custody orders are moot. (See
Rashad D., supra, 63 Cal.App.5th at p. 163 [“[a]n order
terminating juvenile court jurisdiction generally renders an
appeal from an earlier order moot”].) But “termination of
dependency jurisdiction does not necessarily moot an appeal from
a jurisdiction finding that directly results in an adverse juvenile
custody order,” so long as the appellant also appealed from the
termination of jurisdiction and exit order. (Id. at p. 159.) “[T]o
the extent an appellant argues, as here, that the challenged
jurisdiction finding resulted in an adverse juvenile custody order
and seeks to have that custody order set aside, in addition to the
appeal from the jurisdiction finding, an appeal from the orders
terminating jurisdiction and awarding custody is necessary for
this court to be able to provide effective relief.” (Id. at p. 164.)
We conclude Spencer’s appeal of the removal order is not
moot because he also appealed from the termination of
jurisdiction and exit order, and his challenge is to a custody
determination that continues to impact his parental rights, for
which we may provide effective relief. As this court explained in
Rashad D., supra, 63 Cal.App.5th 156, “in most cases . . . for this
court to be able to provide effective relief, the parent must appeal
not only from the jurisdiction finding and disposition order but
also from the orders terminating jurisdiction and modifying the
parent’s prior custody status.” (Id. at p. 159.)
16
Spencer also seeks relief that has an impact on the harm he
complains of, namely the return of B.W. to his physical custody.
“For relief to be ‘effective,’ two requirements must be met. First,
the plaintiff must complain of an ongoing harm. Second, the
harm must be redressable or capable of being rectified by the
outcome the plaintiff seeks.” (D.P., supra, 14 Cal.5th at p. 276.)
“[R]elief is effective when it ‘can have a practical, tangible impact
on the parties’ conduct or legal status,’” requiring “some effect on
the plaintiff’s legal status that is capable of being redressed by a
favorable court decision.” (Id. at p. 277.) “[S]peculative future
harm” is insufficient to avoid mootness. (Id. at p. 278.) But
“when a parent has demonstrated a specific legal or practical
consequence that will be averted upon reversal, the case is not
moot, and merits review is required.” (Id. at p. 283.)
Here, Spencer has identified a harm affecting his ongoing
legal rights: the juvenile court’s removal of B.W. from his
custody. As stated, the juvenile court terminated jurisdiction and
released B.W. to the mothers’ custody and not to Spencer.
Reversal of the court’s rulings would avert this consequence and
return Spencer to the legal position of a custodial parent.
Accordingly, Spencer’s appeal from the removal order is not moot.
(See Rashad D., supra, 63 Cal.App.5th at p. 164; In re J.S. (2011)
199 Cal.App.4th 1291, 1295 [juvenile court’s order terminating
jurisdiction did not moot the appeal from prior orders where the
“exit orders [were] also pending appeal”].)
3. Spencer’s Appeals of the Interim Custody Orders Are
Moot
Spencer’s appeals from the interim custody orders,
however, are moot. These appeals challenge the court’s interim
17
custody determinations, and the orders did not modify Spencer’s
custody status between removal and termination. Although the
initial removal had a continuing impact on dependency
proceedings, there is no indication the court’s interim custody
determinations affected its final exit order. (Cf. In re C.C. (2009)
172 Cal.App.4th 1481, 1488 [“‘An issue is not moot if the
purported error infects the outcome of subsequent
proceedings.’”].) This court can no longer provide relief from the
juvenile court’s decision not to return B.W. to Spencer during
earlier stages of the dependency proceedings because these orders
are no longer in effect, and there is no ongoing harm from these
earlier determinations. (See D.P., supra, 14 Cal.5th at p. 283
[case is moot when there is no “specific legal or practical
consequence that will be averted upon reversal”].) Now that
dependency jurisdiction is terminated, B.W. is placed outside of
Spencer’s custody pursuant to the court’s exit order, not its
interim orders. (See Heidi S. v. David H. (2016) 1 Cal.App.5th
1150, 1165 [“the exit order ‘shall be a final judgment and shall
remain in effect after . . . jurisdiction is terminated’”]; see also
§ 362.4, subd. (b) [custody and visitation orders “continue until
modified or terminated by a subsequent order of the superior
court”].) And Spencer properly challenged the exit order in his
fourth appeal, which we address in Part E.5
4. Spencer’s Reasonable Services Challenge Is Moot
The parties do not dispute that Spencer was entitled to
reunification services during the period B.W. was removed from
5 Spencer has not asked us to exercise our discretion to reach
the merits of these moot orders. (See D.P., supra, 14 Cal.5th at
pp. 282-286.)
18
all three parents. When a child is removed from parental
physical custody, “the court ordinarily must order child welfare
services designed to facilitate the reunification of the family,” and
section 361.5 generally authorizes a maximum of 18 months of
reunification services before parental rights must be terminated
(which may be extended to 24 months under certain
circumstances). (Michael G. v. Superior Court (2023) 14 Cal.5th
609, 624 (Michael G.); § 361.5, subd. (a).) This same complement
of mandatory, time-limited reunification services applies where,
as here, a previously noncustodial parent gains custody of a child
but subsequently the child is removed.6 (See In re Jaden E.
(2014) 229 Cal.App.4th 1277, 1281; In re T.W. (2013) 214
Cal.App.4th 1154, 1169-1170 (T.W.).)
At the six-month review hearing for a child not placed with
any parent, “[t]here is a statutory presumption the child will be
returned to parental custody unless the court finds the child’s
return would create ‘a substantial risk of detriment to the
physical or emotional well-being’ of the child. [Citation.] . . .
[¶] At this hearing the court must also determine whether
reasonable reunification services have been offered or provided.”
(Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 305
(Bridget A.); see § 366.21, subd. (e).) “[T]o support a finding that
services were reasonable, ‘the record should show that the
6 When a child is removed from custodial parent care and
placed with a previously noncustodial parent, reunification
services for each parent are initially discretionary. (See § 361.2,
subd. (b)(3).) If the child is subsequently removed from the
previously noncustodial parent and placed in foster care,
reunification services are mandatory. (See In re Jaden E., supra,
229 Cal.App.4th at p. 1281; T.W., supra, 214 Cal.App.4th at
pp. 1169-1170; In re Joel T. (1999) 70 Cal.App.4th 263.)
19
supervising agency identified the problems leading to the loss of
custody, offered services designed to remedy those problems,
maintained reasonable contact with the parents during the
course of the service plan, and made reasonable efforts to assist
the parents in areas where compliance proved difficult.’”
(Michael G., supra, 14 Cal.5th at p. 625, fn. 6.)
Spencer argues there is no evidence he was provided any
reunification services between B.W.’s removal from his custody at
the section 387 hearing and the six-month review hearing. But
even if Spencer was not provided reasonable reunification
services during this period, we cannot provide him effective relief.
Generally, “[t]he remedy for the failure to provide . . .
reunification services to a parent is to provide an additional
period of reunification services to that parent and to make a
finding on the record that reasonable services were not offered or
provided to that parent.” (In re A.G. (2017) 12 Cal.App.5th 994,
1005.) The additional period of reunification services extends the
mandatory reunification period, and the record finding ensures
the time without reasonable services does not count toward the
statutory maximum before parental rights are terminated. (See
Michael G., supra, 14 Cal.5th at p. 637.)
But a finding that Spencer received no reasonable services
would provide him no benefit because the mandatory
reunification period for all the parents stopped once B.W. was
placed with Coressa. Thereafter, B.W. remained in a parent’s
custody until jurisdiction was terminated, and any danger of
Spencer having his parental rights terminated also ended when
jurisdiction was terminated. So long as the child remains in the
physical custody of at least one parent (such as Coressa), “[t]he
goal of the dependency proceedings—to reunify a child with at
20
least one parent—has been met.” (In re A.B. (2014)
230 Cal.App.4th 1420, 1440.) Moreover, “[t]he juvenile court is
no longer capable of ordering reunification services in the present
case given its subsequent termination of jurisdiction.” (In re
Damian L. (2023) 90 Cal.App.5th 357, 369.)
Any conclusion on appeal that reasonable reunification
services were not provided to Spencer during the review period
would not provide him any meaningful relief due to the juvenile
court’s termination of jurisdiction. And any potential impact to
future dependency proceedings is speculative.7 (See D.P., supra,
14 Cal.5th at pp. 282-286.) To the extent Spencer argues the
juvenile court abused its discretion by ordering enhancement
services at the six-month hearing, rather than continuing
reunification services, we address this argument in Part C.
B. The Juvenile Court Did Not Err in Sustaining the
Section 387 Petition and Removing B.W. from Spencer’s
Custody
1. Governing Law and Standard of Review
When a child protective agency seeks to change the
physical custody of a dependent child from placement with a
parent to a more restrictive placement, the agency must file a
supplemental petition under section 387. (See T.W., supra,
7 If a parent’s reunification services were terminated for
failure to reunify with a child after removal, and the parent “has
not subsequently made a reasonable effort to treat the problems
that led to removal,” reunification services may be bypassed in a
future dependency proceeding involving that child’s sibling.
(§ 361.5, subd. (b)(10)(A)). Spencer makes no argument this
exception would apply to the facts of this case.
21
214 Cal.App.4th at p. 1161; Cal. Rules of Court, rule 5.560(c).)
“In the jurisdictional phase of a section 387 proceeding, the court
determines whether the factual allegations of the supplemental
petition are true and whether the previous disposition has been
ineffective in protecting the child. [Citations.] If the court finds
the allegations are true, it conducts a dispositional hearing to
determine whether removing custody is appropriate. [Citations.]
A section 387 petition need not allege any new jurisdictional
facts, or urge different or additional grounds for dependency
because a basis for juvenile court jurisdiction already exists.
[Citations.] The only fact necessary to modify a previous
placement is that the previous disposition has not been effective
in protecting the child.” (T.W., at p. 1161; see In re D.D. (2019)
32 Cal.App.5th 985, 989-990 (D.D.).)
To remove a child from parental custody under section 387,
the Department must prove by 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 . . . 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)(1); see D.D., supra, 32 Cal.App.5th 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.’”]; T.W., supra, 214 Cal.App.4th at p. 1163 [same].)
We review the juvenile court’s jurisdiction and disposition
findings under section 387 for substantial evidence. (See T.W.,
supra, 214 Cal.App.4th at p. 1161; D.D., supra, 32 Cal.App.5th at
p. 990.) “When reviewing a finding that a fact has been proved
by clear and convincing evidence, the question before the
22
appellate court is whether the record as a whole contains
substantial evidence from which a reasonable fact finder could
have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011 (O.B.); see
In re V.L. (2020) 54 Cal.App.5th 147, 149.) “In conducting its
review, the court must view the record in the light most favorable
to the prevailing party below and give appropriate deference to
how the trier of fact may have evaluated the credibility of
witnesses, resolved conflicts in the evidence, and drawn
reasonable inferences from the evidence.” (O.B., at pp. 1011-
1012.)
2. Substantial Evidence Supports the Juvenile Court’s
Finding the Previous Disposition Had Not Been
Effective in Protecting B.W.
Spencer argues the juvenile court erred in sustaining the
section 387 petition because substantial evidence did not support
the court’s finding his criminal history from 2002 to 2018 put
B.W. at a substantial risk of harm in 2021 when the court ruled
on the petition. He argues the most violent offenses were remote
in time, there were no concerns with his visits with B.W., he had
completed classes in 2014 on parenting and anger management,
and also participated in a substance abuse recovery support
group.
We conclude Spencer’s past criminal history is substantial
evidence supporting the juvenile court’s ruling. Although “‘[t]he
parent need not be dangerous and the minor need not have been
actually harmed before removal is appropriate[,] [t]he focus of the
statute is on averting harm to the child.’ [Citation.] The court
may consider a parent’s past conduct as well as present
23
circumstances.” (In re N.M. (2011) 197 Cal.App.4th 159, 169-170;
see In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383 [“The
court may consider past events in deciding whether a child
currently needs the court’s protection.”].) Spencer’s criminal
history was somewhat distant in time, but it also involved
violence he inflicted on those in a close relationship with him.
These included his 2003 arrest for assault of an ex-girlfriend’s
child resulting in the infant suffering fractured bones, attempted
strangulation of an ex-girlfriend in 2014, and domestic battery of
the ex-girlfriend in 2015. (See In re L.O. (2021) 67 Cal.App.5th
227, 238 [past violent behavior in a relationship is the best
predictor of future violence].)
Further, given the violent nature of Spencer’s criminal
history, which Spencer had not previously fully disclosed to the
Department, the juvenile court could reasonably find that
Spencer’s criminal history placed B.W. at substantial risk of
suffering serious physical harm, and that the court’s previous
disposition granting Spencer shared custody was not effective in
protecting B.W.
3. Substantial Evidence Also Supports Removal of B.W.
from Spencer’s Custody
Spencer also contends the juvenile court erred in removing
B.W. from his custody because there were reasonable means to
protect him without removal, such as ordering the Department
“to make unannounced home visits” and providing “family
preservation services” and “housing assistance.” Our review is
whether substantial evidence supports the juvenile court’s
finding, by clear and convincing evidence, that there were no
reasonable means by which B.W.’s physical health could be
protected without removing him from Spencer’s physical custody.
24
(See T.W., supra, 214 Cal.App.4th at p. 1163; see also § 361,
subd. (c).) We conclude there is such substantial evidence.
Spencer’s residence in Idaho limited the Department’s ability to
provide direct services and assistance and prevented close
oversight of such a placement. Given the distance and Spencer’s
criminal history, the juvenile court reasonably concluded it would
be detrimental to release B.W. to a parent out of state “without
the court having any real supervision or any real knowledge of a
parent who had been convicted of a violent act against an infant.”
On substantial evidence review, “‘“[w]e do not reweigh the
evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of
the trial court.”’” (In re I.J. (2013) 56 Cal.4th 766, 773.)
Spencer also contends he was “open and forthcoming” with
the Department, thus services would be effective in protecting
Spencer. But, although Spencer disclosed some of his criminal
history to the Department, he did not disclose the most pertinent
items in his history for dependency purposes: his arrest for
assault of a child and placement on Idaho’s child protection
registry. The Department first learned of this through the Idaho
incidents reports received in May 2021, a year and a half later.
And, in the Department’s subsequent interview of Spencer, he
claimed the child abuse and false charges were false, which could
indicate minimization and failure to acknowledge his prior abuse.
The court could reasonably conclude Spencer would not be
forthcoming with the Department about his behavior or B.W.’s
welfare if B.W. were placed with him.
25
C. The Juvenile Court Did Not Abuse Its Discretion By
Ordering Enhancement Services for Spencer at the
Six-month Review Hearing
Spencer also appeals the juvenile court’s order of
enhancement services instead of continuing reunification services
at the six-month review hearing. Enhancement services are
discretionary “‘child welfare services offered to the parent not
retaining custody, designed to enhance the child’s relationship
with that parent.’” (In re C.S. (2022) 80 Cal.App.5th 631, 636;
In re Destiny D. (2017) 15 Cal.App.5th 197, 212; see § 362,
subd. (a).) “Enhancement services” are authorized by the court’s
general authority to “make any and all reasonable orders for the
care, supervision, custody, conduct, maintenance, and support of
the child.” (§ 362, subd. (a); see In re C.S., at p. 637; In re A.L.
(2010) 188 Cal.App.4th 138, 142, fn. 2.) Accordingly, an order for
enhancement services is subject to the court’s discretion. (See
In re C.S., at p. 637; In re Destiny D., at p. 212.) Such orders are
affirmed unless the juvenile court has “‘“‘exceeded the limits of
legal discretion by making an arbitrary, capricious, or patently
absurd determination.’”’” (In re Destiny D., at p. 213.)
As stated, once B.W. was placed with a parent (Coressa) at
the six-month review hearing, reunification services for Spencer
were discretionary. (See In re Erika W. (1994) 28 Cal.App.4th
470, 478 [“When a child is placed in nonparental custody,
reunification services are necessary to promote a possible return
of the child to parental custody. However, when a child is placed
in parental custody, this goal has already been met and therefore
reunification services are not necessary.”]; In re Destiny D.,
supra, 15 Cal.App.5th at p. 212 [because child was placed with
her custodial parent, father was not entitled to reunification
26
services].) Because Spencer was not entitled to reunification
services after B.W. was placed with Coressa, the juvenile court
did not abuse its discretion by ordering enhancement services
rather than reunification services.
D. Substantial Evidence Supports the Juvenile Court’s
Termination of Jurisdiction over B.W.
1. Governing Law and Standard of Review
“Section 364, subdivision (a), requires the juvenile court to
schedule a review hearing at least every six months for a
dependent child who has not been removed from the physical
custody of his or her parent or guardian. Section 364 applies also
in cases where a child had been removed from the physical
custody of a parent but later returned.” (In re T.S. (2020)
52 Cal.App.5th 503, 512; see In re Armando L. (2016)
1 Cal.App.5th 606, 614.) Dependency jurisdiction must be
terminated at a section 364 review hearing unless the conditions
that created the need for supervision still exist or are likely to
exist if supervision is discontinued. “After hearing any evidence
presented by the social worker, the parent, the guardian, or the
child, the court shall determine whether continued supervision is
necessary. The court shall terminate its jurisdiction unless the
social worker or his or her department establishes by a
preponderance of evidence that the conditions still exist which
would justify initial assumption of jurisdiction under Section 300,
or that those conditions are likely to exist if supervision is
withdrawn.” (§ 364, subd. (c); see In re Shannon M. (2013)
221 Cal.App.4th 282, 290-291 [§ 364, subd. (c), establishes a
“statutory presumption in favor of terminating jurisdiction and
returning the children to the [custodial] parents’ care without
27
court supervision”].) “‘The juvenile court makes this
determination based on the totality of the evidence before it.’”
(In re T.S., at p. 513; see In re Armando L., at p. 615.)
Orders terminating jurisdiction pursuant to section 364 are
reviewed for substantial evidence. (See In re Aurora P. (2015)
241 Cal.App.4th 1142, 1156.) The party challenging the juvenile
court’s termination of jurisdiction has the burden of proving that
conditions justifying assumption of jurisdiction continued to exist
or would exist if supervision were withdrawn. (See id. at
pp. 1155-1156.) Where a parent is appealing a termination of
jurisdiction order, the court considers “‘whether [undisputed]
evidence compels a finding in favor of [the parent] as a matter of
law.’” (Id. at p. 1163; see In re Janee W. (2006) 140 Cal.App.4th
1444, 1452 [If undisputed evidence “supports a finding that there
is no need for continued supervision, we may affirm the order
terminating jurisdiction.”].)
2. Substantial Evidence Supports the Order
Terminating Jurisdiction
At the outset, the Department argues Spencer forfeited his
challenge to the termination of jurisdiction because his counsel
made no argument that continued supervision was necessary at
the initial section 364 review hearing (at which the court first
ordered termination, which it stayed pending custody mediation).
This argument is unpersuasive. “[F]orfeiture generally applies
when a party did not alert the juvenile court that he or she
objected to an order being made or when a party failed to ask in
the juvenile court for relief being sought on appeal.” (In re
Malick T. (2022) 73 Cal.App.5th 1109, 1127.)
28
At the initial section 364 hearing, Spencer’s counsel asked
the court to order the Department to provide services to promote
family stability if it did not grant Spencer custody and did not
terminate jurisdiction, which may be reasonably construed as a
request for continued supervision.8 And, at the second
section 364 review hearing (at which termination was again
ordered and stayed), Spencer’s counsel expressly asked the court
to keep the case open if it did not grant him primary physical
custody and shared legal custody of B.W. Spencer’s notice of
appeal specifically stated that he appealed from the order
terminating jurisdiction at the second section 364 review hearing.
8 The court denied a request by Spencer’s counsel for a
continuance of the first section 364 review hearing so that
counsel could obtain and review recent case activity notes for
evidence of any enhancement services provided to Spencer. A
juvenile court has discretion to continue a hearing upon a
showing of good cause, provided the continuance is not contrary
to the interest of the child. (See In re Elizabeth M. (2018)
19 Cal.App.5th 768, 779-780; see § 352, subd. (a)(1).) But at a
section 364 hearing, the court examines whether further
dependency proceedings are necessary or should be terminated,
not whether a noncustodial parent has received reasonable
services. (See § 364; In re Pedro Z. (2010) 190 Cal.App.4th 12, 19-
21.) Because enhancement services for a noncustodial parent are
discretionary (see § 362, subd. (a); In re Destiny D., supra,
15 Cal.App.5th at p. 213), and because the court’s consideration
of the child’s best interest “give[s] substantial weight to a minor’s
need for prompt resolution of his or her custody status” (In re
Elizabeth M., at p. 779), under the circumstances presented, the
court did not abuse its discretion by denying a continuance.
29
In all events, the evidence amply supports the juvenile
court’s termination of jurisdiction. At the time of the hearing
terminating jurisdiction, B.W. had been living successfully with
Coressa for six months. Coressa was meeting his basic needs.
He had regular overnight visits with Amanda, which he reported
he enjoyed. Amanda had completed a 10-week parenting
program and at least six months of individual counseling, and
there had been no reports of any domestic violence between the
mothers for over a year and a half. This is substantial evidence
that the conditions that justified the assumption of jurisdiction—
the mothers’ domestic violence and Amanda’s failure to ensure
adult supervision—no longer existed and would not exist if
juvenile court supervision were withdrawn.
E. The Juvenile Court Did Not Abuse its Discretion by
Granting Joint Physical Custody to Amanda and Coressa
with Unmonitored Visitation for Spencer in its Exit Order
1. Governing Law and Standard of Review
“When terminating its jurisdiction over a child who has
been declared a dependent child of the court, section 362.4
authorizes the juvenile court to issue a custody and visitation
order (commonly referred to as an ‘exit order’) that will become
part of the relevant family law file and remain in effect in the
family law action ‘until modified or terminated by a subsequent
order.’” (In re T.S., supra, 52 Cal.App.5th at p. 513; see In re
Ryan K. (2012) 207 Cal.App.4th 591, 594, fn. 5; In re T.H. (2010)
190 Cal.App.4th 1119, 1122.) 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., at p. 513; accord, In re Chantal S. (1996)
30
13 Cal.4th 196, 206; see In re J.M. (2023) 89 Cal.App.5th 95, 112
[“‘[I]n making exit orders, the juvenile court must look at the best
interests of the child,’” “guided by the totality of the
circumstances.”].) The court’s custody determination is “not
restrained by ‘any preferences or presumptions.’ [Citation.]
Thus, for example, a finding that neither parent poses any
danger to the child does not mean that both are equally entitled
to half custody, since joint physical custody may not be in the
child’s best interests for a variety of reasons.” (In re Nicholas H.
(2003) 112 Cal.App.4th 251, 268.)
We review the juvenile court’s exit order for abuse of
discretion. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318;
In re Maya L. (2014) 232 Cal.App.4th 81, 102; Bridget A., supra,
148 Cal.App.4th at pp. 300-301.) Under this standard, “‘“a
reviewing court will not disturb [the custody determination]
unless the trial court has exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination.”’” (In re Stephanie M., at p. 318.)
2. The Juvenile Court Did Not Abuse Its Discretion by
Determining Shared Custody to the Mothers, with
Unmonitored Visitation for Spencer, Was in B.W.’s
Best Interest
Spencer contends the juvenile court abused its discretion by
issuing an exit order granting joint custody to Amanda and
Coressa, with visitation to Spencer. He argues he was better
suited than the mothers to care for B.W. in Idaho, given their
history of domestic violence and his stability and support
networks.
31
We conclude the juvenile court did not abuse its discretion.
B.W. lived with his two mothers most of his life before the
underlying dependency proceedings began, and he was bonded
with both of them. As of early January 2023, B.W. had
successfully lived with Coressa for several months with positive
overnight visits with Amanda, then B.W. lived with Amanda
while Coressa stabilized her housing situation, and Coressa had
kept in contact with B.W. through in-person visits and telephone
calls. B.W. was behaving well, enjoyed living with Amanda, and
enjoyed visits with his half-siblings. The record before us
indicates there had not been incidents of domestic violence
between Amanda and Coressa for over two years at the time of
the exit order, both mothers willingly participated in services and
worked diligently on their case plans to reunify with B.W.,
Coressa moved back from Idaho to be near B.W., and they each
served as B.W.’s primary custodial parent at different periods of
the dependency proceedings.
By contrast, Spencer was not involved in B.W.’s life until
early 2020 (when he was age three and a half), Spencer was
never a primary custodial parent, he lived out of state in Idaho,
and he did not see B.W. regularly. Although Spencer initially
had regular phone contact with B.W. and in-person visits in
November 2020 and January 2021, his visits declined after B.W.
was detained from him in August 2021. Amanda reported B.W.
and Spencer last had contact in December 2021. B.W. had also
been removed from Spencer due to Spencer’s criminal record and
prior substantiated child abuse allegations, which Spencer had
not fully disclosed to the Department.
Although Spencer’s interest in having a relationship with
B.W. and providing a home for his son is laudable, under the
32
totality of the circumstances, we cannot say the court abused its
discretion by granting joint legal and physical custody to the
mothers and not to Spencer. (See In re Jennifer R. (1993)
14 Cal.App.4th 704, 713 [no abuse of discretion awarding custody
to parent where other was “irregular in her visitation” with the
child]; see also In re Maya L., supra, 232 Cal.App.4th at p. 103
[no abuse of discretion awarding custody given “evidence that
father provided excellent care for [child]” and they “shared a
strong, loving bond”].)
DISPOSITION
The juvenile court’s jurisdiction findings and disposition
orders on the section 387 petition regarding B.W. are affirmed.
We dismiss as moot Spencer’s appeals of the interim placement
orders and his reasonable services challenge. The juvenile court’s
order of enhancement services at the six-month review hearing is
affirmed, as is its denial of Spencer’s request for continuance of
the first section 364 review hearing. The juvenile court’s
termination of jurisdiction and exit orders are affirmed.
MARTINEZ, P. J.
We concur:
FEUER, J.
STONE, J.
33