In re Destiny D.

Filed 9/11/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DESTINY D., a Person B279742
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No. DK20132)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
SERGIO D.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Philip L. Soto, Judge. Affirmed.
Terence M. Chucas, by appointment of the Court of Appeal,
for Defendant and Appellant.
Marcy C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel for Defendant and Respondent.
The juvenile court sustained allegations that Sergio D., the
presumed father of 15-year-old Destiny D., had a history of
alcohol abuse and was a current abuser of alcohol and Claudia A.,
Destiny’s mother, had failed to protect the child from Sergio. The
court declared Destiny a dependent child of the court, released
her to Claudia’s custody, limited Sergio to monitored visitation
with Destiny and terminated its jurisdiction. Without
challenging the court’s findings at jurisdiction or disposition,
Sergio contends the court acted in excess of its authority when it
terminated dependency jurisdiction with a juvenile custody order
at the conclusion of the combined jurisdiction/disposition hearing
rather than setting a future review hearing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Superior Court’s Predependency Restraining Order
and Custody and Visitation Orders
Sergio and Claudia have a long history of engaging in
domestic violence in Destiny’s presence. During one incident in
August 2016 Sergio held a knife to Claudia’s throat. Destiny
intervened to protect her mother; Sergio shoved Destiny, injuring
her.
On August 18, 2016 Claudia petitioned the superior court
for a restraining order to protect her from Sergio. On
September 9, 2016, after an evidentiary hearing, the superior
court issued a restraining order requiring Sergio to move out of
1
the family home and stay at least 100 yards from Claudia. In
addition, the superior court issued temporary child custody and
visitation orders granting Claudia and Sergio joint legal custody
of Destiny, Claudia sole physical custody, and visitation for
1
The restraining order expires on September 9, 2019.
2
Sergio on alternate weekends and three afternoons and evenings
during the week after school until 8:00 p.m. The order specified
the transfer of physical custody for visitation purposes would
occur at a police station and stated Sergio “shall not consume any
alcoholic beverage 12 hours prior to, and during, visitation” with
Destiny.
2. The Referral and Investigation
On September 13, 2016 the Los Angeles County
Department of Children and Family Services (Department)
received a telephone referral alleging Sergio had inflicted serious
physical and emotional abuse on Destiny. During an interview
Claudia told the social worker Sergio had been violent
throughout their 18-year relationship, but she had remained with
him to keep her family together. Following the August 2016
incident, however, she finally had had enough and obtained the
restraining and custody orders to protect herself and Destiny
from Sergio.
Destiny confirmed her father’s history of violent behavior
toward her mother, stating he had “[p]ut his hands on my mom
more times than I can count.” Destiny reported Sergio typically
did not hit her, but he did shove and injure her during the
August 2016 incident when she tried to defend her mother.
Destiny also admitted to engaging in self-harming “cutting”
behaviors when she was 13 years old because she had been
unable to cope with her parents’ marital conflict.
Both Claudia and Destiny stated Sergio abused alcohol
regularly and had a history of driving while intoxicated with
Destiny in the car. While both Claudia and Destiny were
concerned about Sergio’s visitation while intoxicated, neither
identified any incident since the superior court’s orders were
3
obtained in which Sergio had consumed alcohol prior to or during
a visit with Destiny.
Sergio denied engaging in any intimate partner violence.
He claimed Claudia was volatile and aggressive and deliberately
incited arguments. He denied abusing Destiny. He
acknowledged pushing Destiny away during an argument with
Claudia when Destiny intervened, but insisted “that was it.” He
did not injure her. Sergio also denied abusing alcohol.
In a follow-up telephone interview on October 27, 2016
Claudia reported everything had been going well. Destiny had
not visited with Sergio and was thriving. Claudia had new
insight into the extent to which the domestic violence had
harmed Destiny and wished she had taken action earlier to
protect herself and Destiny.
3. The Dependency Petition and Detention Hearing
On November 1, 2016 the Department filed a petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (serious physical harm) and (b) (failure to
2
protect), alleging Sergio and Claudia had a long history of
domestic violence; Sergio had physically abused Destiny at least
once during a violent altercation with Claudia; Sergio was a
current abuser of alcohol and drove with Destiny while
intoxicated; and Claudia had failed to protect Destiny from
Sergio’s violent conduct and alcohol abuse.
In the report prepared for the detention hearing the
Department acknowledged the September 2016 restraining order
had gone a long way toward protecting Destiny from domestic
violence and both Sergio and Claudia appeared to be abiding by
2
Statutory references are to this code.
4
it. Nevertheless, the Department observed, Claudia had a
history of disregarding Sergio’s violent past to keep the family
together, and the Department was concerned her insight into the
effect of the domestic violence and Sergio’s alcohol abuse on
Destiny’s well-being, although a positive development, was too
recent to ensure Destiny’s safety. The Department also believed
all members of the family would benefit from court-ordered
services. The court agreed, detained Destiny from Sergio and
released her to Claudia provided Sergio not live in or visit the
home. Sergio was granted monitored visitation. The court
directed the Department to provide low cost/no cost referrals to
Sergio for drug and alcohol rehabilitation counseling, domestic
violence counseling, individual counseling and parenting classes.
The juvenile court set the jurisdiction hearing for
December 13, 2016 and ordered the Department to address at
that time closure of the case with a section 362.4 juvenile custody
order.
4. The Combined Jurisdiction/Disposition Hearing
At the combined jurisdiction/disposition hearing Sergio
vigorously argued for dismissal of the petition. He insisted the
superior court’s orders, including the restraining order,
adequately protected Destiny and there was no need for the
dependency court to intervene. He believed Claudia had made
the referral that prompted the Department’s involvement
because she had been unhappy with the superior court’s
temporary custody order, which permitted Sergio unmonitored
visitation as long as he did not consume alcohol. His counsel also
argued, if Sergio picked up Destiny for her visitation while he
was under the influence of alcohol, 15-year-old Destiny was old
enough to realize it and refuse to ride with him.
5
Claudia argued the petition should be dismissed as to her
because Destiny was no longer in danger from her failure to
protect Destiny from Sergio. Quite the contrary, Claudia had
done everything in her power to protect Destiny by obtaining the
restraining order and visitation and custody orders.
Destiny’s counsel argued Destiny remained in danger from
Sergio notwithstanding the superior court’s restraining order and
custody and visitation orders. She argued the order requiring
Sergio to refrain from consuming alcohol before picking Destiny
up for a visit effectively, and improperly, imposed on Destiny the
obligation to determine if her father had been drinking. In
addition, Destiny’s counsel argued, “It’s not just the drinking that
concerns us, it’s also the anger. And there’s nothing to cover that
in the family law order.” Destiny’s counsel did not argue Destiny
remained in danger because of Claudia’s action or inaction.
The Department acknowledged the superior court’s orders
adequately protected Destiny from the risk of harm from
domestic violence and recommended the court dismiss those
allegations. However, it argued, the superior court’s order
requiring Sergio to refrain from consuming alcohol prior to
visiting Destiny was insufficient to protect Destiny. More was
needed, the Department asserted, including monitored visitation
and programs for Sergio to address his long-standing alcohol
dependency. The Department also reiterated that Claudia had a
history of not appreciating the harm caused by Sergio’s alcohol
abuse and had not prevented him from driving while intoxicated
when Destiny was in the car. The Department recommended the
court sustain the allegations in the petition pertaining to both
Sergio and Claudia, release Destiny to Claudia’s custody and
terminate its jurisdiction with a juvenile custody order granting
6
Claudia and Sergio joint legal custody, Claudia primary physical
custody and Sergio reasonable visitation. In a last minute
information report provided to the court the day of the hearing,
the Department requested Sergio’s visitation with Destiny be
monitored.
The juvenile court adopted the Department’s
recommendations. It dismissed the subdivision (a) counts and
the subdivision (b) allegations relating to domestic violence,
concluding the restraining order had removed any threat to
Destiny, but rejected Sergio’s and Claudia’s requests the
remaining allegations pertaining to each of them be dismissed.
The court sustained allegations under Section 300,
subdivision (b), relating to Sergio’s alcohol abuse and Claudia’s
failure to protect, stating, “While it was all well argued by
father’s counsel, I cannot agree that this is just a family law case
that should be dismissed and sent back to family law. We need
the ability to protect the child from both parents. We have the
ability to do so. I make a finding regarding that. I don’t agree
with mother’s counsel that mother with the knowledge of the
father’s prolonged, protracted drinking habits and his anger
management problems that were facilitated by his current
drinking, she needed to have done something much, much sooner
than she did. And failing to do so, she’s liable for the risks to the
child as well.”
The juvenile court declared Destiny a dependent child of
the court, removed her from Sergio’s custody pursuant to
section 361, subdivision (c), and released her to Claudia’s
7
3 4
custody. Over Sergio’s objection, the court terminated its
jurisdiction with a juvenile custody order that granted Claudia
and Sergio joint legal custody of Destiny, Claudia sole physical
custody and modified the superior court’s prior visitation order by
3
The court’s citation to section 361, subdivision (c), in
connection with its orders concerning Sergio was error. That
provision applies only when the issue is whether to remove a
dependent child from the physical custody of a parent with whom
the child was residing at the time the dependency petition was
initiated. (See In re Anthony Q. (2016) 5 Cal.App.5th 336, 347.)
Nonetheless, the error was harmless: In making its disposition
orders the juvenile court has broad discretion under sections 361,
subdivision (a)(1), and 362, subdivision (a), to resolve issues
regarding the custody and control of the child. (See Anthony Q.,
at pp. 346, 353-354.)
4
In objecting to the court’s decision to terminate its
jurisdiction, Sergio’s counsel urged the court to continue
supervision and provide enhancement services to Sergio and
Destiny so they could begin to repair their relationship: “I think
this court should . . . make sure that the father has a reasonable
chance of having a relationship with this child. I think if the
court dismisses this case, terminates this case, I think the
chances of this father and this child getting back together are
practically nil given the estranged relationship between these
two people, and the angst that is going on in this family law
matter. So I am asking that the court keep the case open. . . .
And order the father into the programs. But most importantly,
order conjoint counseling with the minor so that the father can
get back with this child.”
8
requiring Sergio’s visitation of at least eight hours per week be
5
monitored.
DISCUSSION
1. The Juvenile Court Possesses the Statutory Authority To
Terminate Its Jurisdiction at Disposition in an
Appropriate Case Upon Releasing the Dependent Child
To a Custodial Parent
a. Standard of review
Without challenging any of the juvenile court’s findings,
Sergio contends the court acted in excess of its statutory
authority when it terminated its jurisdiction at the conclusion of
the combined jurisdiction/disposition hearing. The question
whether a court is authorized to perform a certain act under a
statutory scheme is a purely legal question subject to de novo
review. (People ex rel. Lockyer v. Shamrock Foods Co. (2000)
24 Cal. 4th 415, 432; In re Anthony Q. (2016) 5 Cal.App.5th 336,
344; see In re Andrew A. (2010) 183 Cal. App. 4th 1518, 1525
[“‘[t]he question whether a court is authorized to perform a
certain act is a purely legal question which entails construction of
statutory language and application of legal principles . . . [to
which] we apply de novo review’”].)
5
The court stayed the termination order for one day
“pending receipt of juvenile custody order on December 14, 2016.”
The court received a custody order from counsel for Claudia and
filed it on December 14, 2016. Sergio’s notice of appeal, filed
December 14, 2016, identifies only the December 13, 2016 order.
9
b. The court’s statutory authority at disposition to
make any reasonable orders necessary to protect
the dependent child includes the power to
terminate jurisdiction in an appropriate case
At the jurisdiction stage of a dependency proceeding, the
court determines whether the child is a person described by
section 300. (§§ 355, 356.) If the juvenile court finds a basis to
assume jurisdiction, the court is then required to hear evidence
on the question of the proper disposition for the child. (§ 358,
subd. (a); Cynthia D. v. Superior Court (1993) 5 Cal. 4th 242, 248;
In re Anthony Q., supra, 5 Cal.App.5th at p. 345; see Cal. Rules of
6
Court, rules 5.684(g), 5.690.) 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. (In re Carl H. (2017) 7 Cal.App.5th 1019, 1037; In re
Anthony Q., at p. 346; Bridget A. v. Superior Court (2007)
148 Cal. App. 4th 285, 302-303.) 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. (§§ 366.21, subd. (e) [review hearing if
child removed from physical custody of his or her parent]; 364
[review hearing if child remains in the custody of one or both
parents].)
Under this statutory scheme, Sergio contends, once the
court asserted dependency jurisdiction and released Destiny to
Claudia’s custody at disposition, it was obligated to set a
section 364 review hearing before it could consider terminating
its jurisdiction. (See § 364, subd. (a) [“[e]very hearing in which
6
Rule references are to the California Rules of Court.
10
an order is made placing a child under the supervision of the
juvenile court pursuant to Section 300 and in which the child is
not removed from the physical custody of his or her parent or
guardian shall be continued to a specific future date not to exceed
six months after the date of the original disposition hearing”].)
Alternatively, he observes, the court could have set aside its
jurisdiction findings and dismissed the petition upon finding
“that the interests of justice and the welfare of the minor require
the dismissal, and the parent or guardian of the minor is not in
need of treatment or rehabilitation.” (§ 390; see In re Carl H.,
supra, 7 Cal.App.5th at p. 1038.) However, the court did neither.
Instead, it sustained jurisdiction based on the conduct of both
parents, released Destiny to her custodial parent and closed the
case at the conclusion of the disposition hearing. Emphasizing
that the court’s action was not directly authorized by any specific
statutory language or rule 5.695, which governs findings and
7
orders of the court at disposition, Sergio argues the court
7
Rule 5.695(a) provides, “At the disposition hearing, the
court may: [¶] “(1) Dismiss the petition . . . ; [¶] (2) [p]lace the
child under a program of supervision for a time period consistent
with section 301 and order that services be provided; [¶]
(3) [a]ppoint a legal guardian for the child . . . ; [¶] (4) [d]eclare
dependency and appoint a legal guardian for the child . . . ; [¶]
(5) [d]eclare dependency, permit the child to remain at home, and
order that services be provided; [¶] (6) [d]eclare dependency,
permit the child to remain at home, limit the control to be
exercised by the parent or guardian, and order that services be
provided; or [¶] (7) [d]eclare dependency, remove physical custody
from the parent or guardian, and: [¶] (A) After stating on the
record or in writing the factual basis for the order, order custody
to a noncustodial parent, terminating jurisdiction, and direct that
Custody Order--Juvenile--Final Judgment (form JV-200) be
11
exceeded its authority in terminating its jurisdiction. His
argument is flawed in multiple respects.
First, contrary to Sergio’s contention, section 364,
subdivision (a), which requires the juvenile court to schedule a
review hearing within six months of the original disposition
hearing when the court allows the child to remain at home with
ongoing court supervision, is not an impediment to the court’s
decision to terminate jurisdiction at the conclusion of a
disposition hearing. That section requires a post-disposition
review hearing only when the court has released the child to
parental custody and found that continued supervision with
family maintenance services is necessary to protect the child from
8
the risk of serious harm. If services and ongoing supervision are
not needed, section 364, subdivision (a), is not implicated.
Second, Sergio’s narrow characterization of the juvenile
court’s discretion at disposition is contrary to the statutes that
grant the juvenile court broad authority to enter orders to protect
a dependent child and to reunite the family and terminate
jurisdiction as quickly as possible. (See John v. Superior Court
(2016) 63 Cal. 4th 91, 95-96 [court’s fundamental task in statutory
prepared and filed . . . ; [¶] (B) After stating on the record or in
writing the factual basis for the order, order custody to a
noncustodial parent with services to one or both parents; or [¶]
(C) Make a placement order and consider granting specific
visitation rights to the child’s grandparents.”
8
If the court permits a parent or guardian to retain custody
of a dependent child subject to its supervision, “the parents or
guardians shall be required to participate in child welfare
services or services provided by an appropriate agency designated
by the court.” (§ 362, subd. (c).)
12
construction is to construe statute in light of statutory language
and in context of statutory scheme as a whole, to effect legislative
intent and avoid absurd results]; In re Anthony Q., supra,
5 Cal.App.5th at p. 344 [same].) Apart from the statutory
limitation on its authority to remove a child from a custodial
parent with whom the child was residing at the time the
dependency petition was filed (see § 361, subd. (c)), the juvenile
court enjoys wide discretion to make any orders necessary to
protect the dependent child (§ 361, subd. (a)), including “all
reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child” (§ 362, subd. (a)) and
those orders directed to the parents of a dependent child that it
“deems necessary and proper for the best interests of or for the
rehabilitation of the minor” (§ 245.5). That authority necessarily
includes, in an appropriate circumstance, discretion to terminate
dependency jurisdiction when the child is in parental custody and
no protective issue remains. (See § 361, subd. (a)(1) [limitations
on parental rights “may not exceed those necessary to protect the
child”]; In re Ethan C. (2012) 54 Cal. 4th 610, 625 [“[e]ven after a
dependency finding has been made, the statutory scheme is
designed . . . to return full custody and control to the parents or
guardians if, and as soon as, the circumstances warrant”]; cf.
§ 364, subd. (c) [absent evidence the conditions still exist that
would justify the initial assumption of jurisdiction under section
300 or that those conditions are likely to exist if supervision is
9
withdrawn, “[t]he court shall terminate its jurisdiction”].)
9
Although rule 5.695 articulates some of the options
available to the court under sections 245.5, 358, 360, 361, 361.2
and 390, the rule does not (and could not) preclude other options
at disposition if authorized by statute. (See In re Abbigail A.
13
Third, Sergio’s contention that the juvenile court’s only
options at disposition if it permits a child to remain at home are
to set aside the jurisdiction findings and dismiss the dependency
petition (§ 390; rule 5.695(a)(1)) or to declare dependency and
continue court supervision with services (§§ 361, subd. (a), 364,
subd. (a); rule 5.695(a)(5)), disregards the court’s statutory
discretion to impose necessary limitations on an offending
parent’s contact with a dependent child before terminating its
jurisdiction. (See § 362.4 [before terminating jurisdiction over
“minor who has been adjudged a dependent of the juvenile court,”
court may issue protective orders under section 213.5 and orders
determining custody of, or visitation with, the dependent child].)
If no substantial risk of harm exists once those restrictions are in
place, and ongoing supervision is unnecessary, termination of
jurisdiction is appropriate. (Cf. In re Chantal S. (1996)
13 Cal. 4th 196, 204 [“[t]he juvenile court’s determination that
continuation of dependency was at that time unnecessary for
Chantal’s protection, was in turn [properly] premised on the
existence of the court’s custody and visitation order”].) To hold
otherwise and conclude that court supervision must be continued,
even absent a continuing risk of harm, simply because the
protective and custody orders that eliminated the risk were made
at the conclusion of a disposition hearing, rather than a
(2016) 1 Cal.5th 83, 92 [Judicial Council may not adopt rules that
are inconsistent with the governing statutes]; People v. Hall
(1994) 8 Cal. 4th 950, 960 [same]; see also Trans-Action
Commercial Investors, Ltd. v. Firmaterr, Inc. (1997)
60 Cal. App. 4th 352, 364 [“[i]t is settled [law] that in order to
comply with the constitutional requirement of consistency with
the statutory law, a rule of court must not conflict with statutory
intent”].)
14
subsequent review hearing, would be wholly at odds with the
fundamental goal of the dependency system to return the child to
his or her custodial parent and terminate dependency jurisdiction
as soon as circumstances permit. (See In re Ethan C., supra,
10
54 Cal.4th at p. 625.)
Our conclusion that 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
is further strengthened, if not compelled, by analogy to
section 361.2, which permits the juvenile court to terminate its
jurisdiction at disposition after placing the dependent child with
a noncustodial parent and ordering that parent to become the
legal and physical custodian of the child. (See § 361.2,
11
subd. (b)(1); In re Janee W. (2006) 140 Cal. App. 4th 1444, 1452
[jurisdiction properly terminated at disposition under section
10
Exercise of the court’s discretion to terminate dependency
jurisdiction at the conclusion of a disposition hearing when
protective and custody orders are in place and court supervision
is unnecessary would seem particularly appropriate in failure-to-
protect cases under section 300, subdivision (b), which specifically
provides that “[t]he child shall continue to be a dependent child
pursuant to this subdivision only so long as is necessary to
protect the child from risk of suffering serious physical harm or
illness.”
11
Section 361.2, subdivision (b), provides in part, “If the court
places the child with th[e] [previously noncustodial] parent it
may do any of the following: [¶] (1) Order that the parent
become legal and physical custodian of the child. The court may
also provide reasonable visitation by the noncustodial parent.
The court shall then terminate its jurisdiction over the child. . . .”
15
361.2, subdivision (b)(1), absent evidence child was at continuing
risk of harm].) It simply makes no sense to conclude, as Sergio
urges, that the Legislature intended to authorize the juvenile
court to terminate its jurisdiction at disposition after placement
of a child with a noncustodial parent when there is no longer a
reason for court supervision and not afford the juvenile court the
same discretion when the child has been released to a custodial
parent and orders made at disposition have fully resolved any
issue of continuing risk of harm. (Cf. In re Jaden E. (2014)
229 Cal. App. 4th 1277, 1286 [“‘a section 361.2 placement with a
noncustodial parent should be treated in the same manner as a
section 362 placement with a custodial parent’”]; In re Pedro Z.
(2010) 190 Cal. App. 4th 12, 21 [same].)
As with placement of a child with a noncustodial parent
and termination of jurisdiction under section 361.2,
subdivision (b)(1), whether the custodial parent to whom a child
is released is “offending” or “nonoffending” is, of course, relevant
to the appropriate disposition orders, but not necessarily outcome
determinative. (See In re D’Anthony D. (2014) 230 Cal. App. 4th
292, 300 [nothing in section 361.2 requires a previously
noncustodial parent to be nonoffending to be considered for
placement; “‘[t]he term “nonoffending” does not appear in the text
of section 361.2’”]; In re Nickolas T. (2013) 217 Cal. App. 4th 1492
[same]; but see In re A.A. (2012) 203 Cal. App. 4th 597, 607
[implicitly reading a requirement that noncustodial parent be
nonoffending to obtain custody under section 361.2].) Thus, as
we discuss more fully in the next section, the failure-to-protect
finding as to Claudia is relevant for the court to consider in
making orders at disposition, including whether to terminate
jurisdiction; it does not categorically disqualify her from custody
16
or otherwise limit the court’s ability to issue orders necessary to
further Destiny’s best interest.
Arguing in favor of affirming the order terminating
jurisdiction, the Department urges us to adopt the reasoning of
In re A.J. (2013) 214 Cal. App. 4th 525, in which our colleagues in
Division One of the Fourth Appellate District held the juvenile
court possessed “inherent authority” to terminate jurisdiction at
the disposition hearing when further supervision was
unnecessary to protect the child. In that case, during a contested
disposition hearing, the juvenile court declared A.J. a dependent
child of the court, removed her from her mother’s custody and
placed her with her out-of-state, nonoffending, noncustodial
biological father, Joshua. The court continued the disposition
hearing for lack of proper notice to Joshua and indicated it would,
at the continued hearing, consider terminating its jurisdiction
after it had more information about A.J.’s adjustment to living
with Joshua. After several continuances, at a combined
contested disposition and six-month review hearing, the court
heard evidence concerning A.J.’s progress with Joshua.
Thereafter, the court declared Joshua A.J.’s presumed father and
terminated its jurisdiction, stating, “‘I don’t think there’s a
protective issue at this point.’” (Id. at p. 535.)
On appeal A.J.’s mother, Jamie, argued the juvenile court
lacked the statutory authority at disposition to place A.J. with
Joshua and terminate its jurisdiction. When the court placed
A.J. with Joshua, Jamie observed, Joshua had not been declared
a presumed father. Consequently, she argued, neither
section 361.2, which permits placement of a dependent child with
a noncustodial parent and authorizes termination of jurisdiction
(see In re Zacharia D. (1993) 6 Cal. 4th 435, 454 [“only a
17
presumed father is entitled to assume immediate custody” under
section 361.2]), nor section 364, which only applies if A.J. had not
been removed from Jamie’s custody, authorized the court’s
termination order.
The Court of Appeal agreed that, “[a]t the time the
[juvenile] court ordered that A.J. be placed with [Joshua] in
Hawaii, and indicated its intention to terminate jurisdiction, it
had found that Joshua was a mere biological father, not the
presumed father. For this reason, as Jamie contends, section
361.2 did not govern the juvenile court’s custody analysis.” (In re
A.J., supra, 214 Cal.App.4th at p. 536.) The appellate court also
agreed section 364, authorizing jurisdiction following a child’s
release to his or her custodial parent, was inapplicable because
A.J. had been removed from the custody of her mother. (In re
A.J., at p. 536.) Nevertheless, while Joshua’s request for custody
and termination of jurisdiction “did not fit neatly within the
parameters of either section 361.2 or section 364” (ibid.), the
appellate court held the juvenile court had the inherent authority
to terminate jurisdiction after finding by clear and convincing
evidence it was in A.J.’s best interests to be placed with Joshua
and no further protective issue justified its retention of
jurisdiction. (Id. at pp. 536-537.)
In our view, the In re A.J. court need not have relied on the
juvenile court’s inherent authority to find termination of
jurisdiction proper. By the time the court terminated
jurisdiction, Joshua had been declared a presumed father; thus,
section 361.2 provided adequate statutory authority for the
court’s action. (As for placement with Joshua prior to declaring
him a presumed father, section 362, subdivision (a), authorized
18
the court to make any and all orders for the care and supervision
of the dependent child.)
Still, In re A.J. is not wholly inapposite. In addition to its
reliance on the juvenile court’s inherent authority, the In re A.J.
court explicitly recognized the juvenile court’s broad statutory
authority under section 245.5 to direct any and all orders to the
parent or parents of a child that the court deems necessary and
proper to further the best interest of the child. (In re A.J., supra,
214 Cal.App.4th at pp. 536-537 [“‘“[t]he juvenile court has broad
discretion to determine what would best serve and protect the
child’s interest and to fashion a dispositional order in accordance
with this discretion”’”].) As discussed, that breadth of statutory
authority necessarily includes the discretion to terminate
jurisdiction at the conclusion of the disposition hearing in an
appropriate case when child welfare services and continued court
supervision are no longer necessary to protect the child.
2. The Juvenile Court Did Not Abuse Its Discretion by
Terminating Its Jurisdiction at the Disposition Hearing
In holding the juvenile court has statutory authority to
terminate dependency jurisdiction at the conclusion of a
disposition hearing, we do not intend to suggest such action
should be the norm. To the contrary, it will be an unusual case
when protections imposed at disposition will be sufficient to
permit the conclusion that termination is appropriate. It will be
rarer still for a juvenile court to reach that conclusion when the
parent with whom the child remains has been found to be an
offending parent. Nevertheless, as in the analogous section 361.2
context, the court’s decision is to be guided by the relevant facts.
(Cf. In re D’Anthony D., supra, 230 Cal.App.4th at pp. 300-303
[although section 361.2 does not disqualify an offending
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noncustodial parent, the offense is relevant and properly
considered as part of the detriment determination under that
provision]; In re Nickolas T., supra, 217 Cal.App.4th at pp. 1505-
1506 [same].) Jurisdiction should not be terminated unless the
court concludes services and ongoing supervision are not
necessary to protect the child. (In re Austin P. (2004)
118 Cal. App. 4th 1124, 1134.)
Sergio suggests there is an inherent conflict between the
juvenile court’s jurisdiction finding that Claudia’s failure to
protect Destiny posed a substantial risk of harm to the child (see
In re Carlos T. (2009) 174 Cal. App. 4th 795, 803 [“dependency
jurisdiction is not warranted under subdivision (b) if, at the time
of the jurisdiction hearing, there no longer is a substantial risk
that the child will suffer harm”]; In re Savannah M. (2005)
131 Cal. App. 4th 1387, 1397 [same]), on the one hand, and its
order the same day terminating jurisdiction after releasing
Destiny to Claudia on the ground there remained no further need
for continuing court supervision, on the other. (See In re I.G.
(2014) 226 Cal. App. 4th 380, 387 [“[i]t is a clear abuse of
discretion to make findings that a minor is at risk in her home,
yet return the minor home and terminate supervision and
dependency”].) However, viewed in the aggregate, the court’s
findings are fully reconcilable. Having dismissed the allegations
concerning domestic abuse on the ground the restraining order
obtained by Claudia eliminated any risk of harm, the juvenile
court focused on the risks Sergio’s alcohol abuse posed for
Destiny in connection with Sergio’s visitation rights and whether
Claudia’s insight into the effects of such alcohol abuse were too
recent to adequately protect Destiny from harm. By modifying
the superior court’s visitation order to require monitored
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visitation for Sergio and prohibiting Claudia from serving as the
monitor, the court eliminated those risks, and thereafter
reasonably concluded further court supervision was unnecessary.
(See In re Chantal S., supra, 13 Cal.4th at p. 204 [“[a]s the
present case illustrates . . . , there are situations in which a
juvenile court may reasonably determine that continued
supervision of the minor as a dependent child is not necessary for
the child’s protection, and at the same time conclude that
conditions on visitation are necessary to minimize, if not
eliminate, the danger that visits might subject the minor to the
same risk of physical abuse or emotional harm that previously
led to the dependency adjudication”].)
Finally, Sergio contends termination of jurisdiction was
inherently prejudicial because it effectively denied him
reunification and/or enhancement services vital to repairing the
rupture in his relationship with Destiny. Because Destiny
remained with her custodial parent, Sergio was not entitled to
reunification services. (See § 16507, subd. (b) [“[f]amily
reunification services shall only be provided when a child has
been placed in out-of-home care, or is in the care of a previously
noncustodial parent under the supervision of the juvenile court”];
In re A.L. (2010) 188 Cal. App. 4th 138, 145 [no reunification
services are called for when a child is not removed from her
custodial parent]; see generally Bridget A. v. Superior Court,
supra, 148 Cal.App.4th at p. 303 [when child remains in home of
parent, proper form of child welfare services is family
maintenance services, not family reunification services].)
Sergio was also not entitled to what are now often referred
to in dependency jargon as enhancement services, “child welfare
services offered to the parent not retaining custody, designed to
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enhance the child’s relationship with that parent.” (Earl L. v.
Superior Court (2011) 199 Cal. App. 4th 1490, 1497, fn. 1; see In re
A.C. (2008) 169 Cal. App. 4th 636, 642, fn. 5 [“‘enhancement’
services are ‘not designed to reunify the child with that parent,
but instead to enhance the child’s relationship with that parent
by requiring that parent to address the issues that brought the
child before the court’”].) An order for enhancement services is
subject to the court’s discretion. (See § 362, subd. (a); In re A.L.,
supra, 188 Cal.App.4th at p. 145.) The Department was ordered
to provide Sergio with referrals for services at the detention
hearing. Whether or not to continue jurisdiction in order to
permit Sergio to participate in additional services, given
Destiny’s safe placement with Claudia, was a decision for the
court. Sergio has not shown the court’s rejection of his request
for some form of enhancement services was arbitrary, capricious
or patently absurd. (See In re Stephanie M. (1994) 7 Cal. 4th 295,
318 [under abuse of discretion standard, order must be affirmed
unless juvenile court has “‘“exceeded the limits of legal discretion
by making an arbitrary, capricious, or patently absurd
determination”’”].)
DISPOSITION
The disposition order terminating dependency jurisdiction
is affirmed.
PERLUSS, P. J.
We concur:
ZELON, J. SEGAL, J.
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