In re K.M. CA2/2

Filed 7/27/23 In re K.M. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re K.M., a Person Coming B321344, consolidated with
Under the Juvenile Court Law. B323677
(Los Angeles County Super.
Ct. No. 20CCJP02157A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
MARK M.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Kristen Byrdsong, Judge Pro Tempore. Affirmed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
******
This is the second appeal in this juvenile dependency case.
In the prior appeal, we affirmed the juvenile court’s orders
exerting dependency jurisdiction over K.M. (born 2012), removing
K.M. from father’s custody and placing her with mother. In this
appeal, father challenges (1) the juvenile court’s orders in April
2022 and June 2022 rejecting father’s request to terminate
jurisdiction,1 and (2) the juvenile court’s April 2022, June 2022,
and August 2022 orders delineating visitation. Because father’s
arguments are without merit, we affirm.
1 Although father’s notice of appeal from the August 2022
order purports to appeal broadly from “[t]he court’s continued
jurisdiction and all orders made on 8/8/2022 that may be
appealed,” his opening brief does not challenge the juvenile
court’s continued exertion of jurisdiction at the August hearing.
(Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 653 [issues not
argued are waived].)
2
FACTS AND PROCEDURAL BACKGROUND
I. Facts Underlying Initial Assertion of Jurisdiction2
Mark M. (father) and K.P. (mother) have one child
together, a daughter named K.M., who was born in 2012. They
split up within a year of K.M.’s birth, and from that time until
March 2020, a family court order was in place granting both
parents legal custody of K.M. and granting mother physical
custody of K.M. with father having weekend visits.
On March 30, 2020, father physically assaulted mother and
K.M. during a custody exchange at a police station. Father drove
his car onto the sidewalk in front of mother and K.M. as they
walked from the police station to the bus stop, then got out of the
car and followed mother and K.M. into an alleyway. Father
pushed mother up against a wall, choked her, punched her in the
head with a closed fist, threw her to the ground, and stomped on
her, inadvertently punching K.M. as well.
This was not father’s first physical attack on mother or
K.M. He had physically assaulted mother on several prior
occasions, including another incident in K.M.’s presence when
K.M. was just a baby in June 2012. He had also physically
assaulted K.M. at an earlier custody handoff when he chased
mother and K.M. and pushed K.M., causing her to fall and hit her
head on the ground.
In fact, father has a long history of physical, verbal and
psychological aggression toward women in general. He has
physically punched his own mother and his sister. He has
2 We draw these facts from this court’s prior unpublished
opinion affirming the initial assertion of dependency jurisdiction
in 2020. (In re K.M. (May 21, 2021, B307942) [nonpub. opn.]
(K.M. I).)
3
stalked mother as well as another girlfriend, prompting both of
them, and his own mother, to obtain restraining orders against
him. And he regularly argues with his current girlfriend as well.
Father’s sister reported that father intimidates people and will
“go off on you” if he does not get what he wants.
At the time of the March 2020 incident, father was also a
regular marijuana user.
Father denied that he struck mother during the March
2020 incident, denied that he has ever used marijuana, and
denied that he has any criminal history despite his prior
conviction of crimes that render him a sex offender.
II. Juvenile Court’s Initial Assertion of Jurisdiction
On April 15, 2020, the Los Angeles County Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to assert dependency jurisdiction over
K.M., pursuant to Welfare and Institutions Code section 300,
subdivisions (a) and (b)(1),3 because (1) father’s violent conduct in
K.M.’s presence, in conjunction with his history of domestic
violence with mother, placed K.M. at substantial risk of physical
harm (and mother failed to protect K.M. by allowing father to
have unlimited access to her); and (2) father’s marijuana abuse
rendered him incapable of providing regular supervision of K.M.,
which also placed her at substantial risk of physical harm.
On September 17, 2020, the juvenile court held the
jurisdictional and dispositional hearing. Father testified, and
denied striking mother on March 30, 2020 and denied using
marijuana. The juvenile court found father to be not “credible in
the least.” During the hearing, father was also verbally
3 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
4
aggressive and rude, and repeatedly interrupted the court. The
court sustained the petition as pled, removed K.M. from father,
and ordered the Department to provide him reunification
services. Father’s case plan required him to complete a 52-week
domestic violence program, attend parenting classes, participate
in individual counseling to address case issues and anger
management, randomly drug test, and have monitored visitation
with K.M.4
The court set a review hearing, pursuant to section 364, for
March 17, 2021.
III. Interim Hearings
A. First section 364 hearing (March 2021)
In the six months between September 2020 and March
2021, father’s anger issues were improving to the point where his
monitored visits with K.M. no longer required security, and the
Department allowed father to have unmonitored visits.
Following the hearing, the court ordered dependency jurisdiction
to continue but granted father unmonitored visits on weekends
and Mondays. The court set the next section 364 hearing for
June 2021.
B. Second section 364 hearing, and jurisdictional
and dispositional hearing involving mother (June 2021)
In the early part of this next period, mother started to
exhibit mental and emotional problems, stopped participating in
family preservation services and the domestic violence counseling
that was part of her case plan, and stopped taking K.M. to her
medical and dental appointments, including for her sickle cell
anemia. In mid-April 2021, the Department filed supplemental
4 This court affirmed the juvenile court’s jurisdictional and
dispositional orders in our unpublished opinion.
5
petitions under section 342 and 387 seeking to exert jurisdiction
over K.M. on these additional grounds and to remove her from
mother. At a combined hearing on June 16, 2021 to address the
pending supplemental petitions and for the 364 hearing, the
juvenile court sustained the supplemental petitions, removed
K.M. from mother and placed her with father, ordered
dependency jurisdiction to continue, and ordered the Department
to provide father with family maintenance services, including a
parenting course, individual counseling, and conjoint counseling
with K.M. if recommended by father’s and K.M.’s therapists. The
court set the next section 364 hearing for September 2021.
C. Third and fourth section 364 hearings
(September 2021, December 2021/January 2022)
In the six months between June 2021 and December 2021,
mother did not visit K.M. regularly, but K.M. expressed a desire
to spend more time with mother and a preference to live with
mother and have visits with father. Father continued to deny
ever striking mother and stopped attending his domestic violence
class because he thought that “once he regain[ed] custody, he
didn’t need to do [the classes] anymore,” but re-enrolled at the
Department’s urging; by December 2021, he had attended only 17
of the 52 sessions. Because he was still in the beginning stages of
that class, the Department assessed the risk to K.M. as
remaining high. Thus, the juvenile court ordered the dependency
jurisdiction to continue, and set a hearing for April 2022.
D. Fifth section 364 hearing (April 2022)
In the three months between January 2022 and April 2022,
mother improved and was scheduling regular visits with K.M.,
K.M. was doing well when she visited mother, and K.M.
continued to express her desire to return to live with mother and
6
have visits with father. Father was increasingly non-compliant
with the court-ordered visitation schedule: He “started to
implement his own schedule” and took increasing control over the
amount of contact between K.M. and mother, even preventing
K.M. from seeing mother for “several weeks.” Father resisted the
Department’s requests to interview K.M. privately and “insist[ed
on] knowing what questions are asked or what [K.M.] will say”;
the Department noted that it had an “ongoing concern over the
amount of control [father] demands when it comes to” K.M. By
mid-March 2022, over a year after father had started the series of
domestic violence classes, he had completed only 36 of the 52
classes. The court ordered that K.M. visit with mother for 29
days in May 2022 with father to have one weekend visit, in part
because father “prevented” mother’s past visits “from happening”
and due to the parents’ inability to agree on terms of sharing
custody of K.M. over the summer. In light of father’s “failure to
comply with his visitation schedule and court orders,” the court
continued dependency jurisdiction on April 28, 2022. The court
scheduled a further section 364 hearing for June 1, 2022.
E. Sixth section 364 hearing (June 2022)
In the two months between April 2022 and June 2022,
father became increasingly uncooperative about exchanging K.M.
with mother, causing the Department to reiterate its “concern”
about “[f]ather’s need to be in control of the situation all the
time.” Father changed the time, location, and method of
exchange for a planned visit “several times” and “would only
accept proposals that he himself came up with.” The juvenile
court observed that father was “purposefully” “trying to be very
difficult” and “continually evidenc[ing]” his “controlling nature”
“through his actions.” Based on father’s controlling behavior, the
7
court continued dependency jurisdiction over father’s objection.
The court altered the removal order from home of father to home
of both parents and set a visitation schedule for the summer,
arranging for K.M. to live with mother during June and August
and with father during July; this month-by-month schedule was
partially due to father’s extreme hostility to cooperating with
exchanges on a weekly basis.
Father’s behavior during the June 1, 2022 hearing was
illustrative. After the court issued its tentative rulings in the
morning session, the court recessed for lunch but ordered father
to appear in the afternoon. Father did not appear. Instead, he
“speed dial[ed]” the Department’s “office all day asking to speak
with someone about the recommendation on this case”; on those
calls, he was “verbally aggressive” with the social worker. When
the court was made aware of father’s conduct, it noted that father
was “ordered to appear” for the afternoon session because he had
“constantly shown an inability to follow court orders to try to
control every situation,” and that father was “purposely not
making himself available because he doesn’t like the ruling that
I’ve already made this morning and he’s choosing to control the
situation by badgering the Department.”
F. Progress report hearing (August 2022)
Father did not take K.M. for his scheduled visitation for the
month of July because the Department would not fund a private
babysitter, and father would not cooperate with the Department’s
recommendations to use its childcare subsidy that would pay for
a local childcare program or to enroll K.M. in a county-sponsored
day camp. The Department noted that “father appears to have a
need to be in control of every situation, even if the
recommendation or suggestion is in his best interest” and father’s
8
“great difficulties with co-parenting” stemmed from “him wanting
to be in full control of everything.”
In mid-July 2022, father filed papers asking the juvenile
court to “admonish[]” mother to have K.M. call father every night.
K.M. told the social worker that she called father “‘almost every
day,’” but when father did not pick up the first time, she would
sometimes forget to call again that day. Although the social
worker had previously suggested several solutions, such as
having father download an app to K.M.’s tablet that would let her
call him directly, father had “not followed through with any” of
the suggestions. When K.M. returned from one of her visits with
father in a “sad and emotional” mood, she told the Department
social worker that when she expressed a preference to eat at one
fast food restaurant rather than another, father yelled at K.M. in
front of others that K.M. “‘g[ot] this disrespectful stuff’” from
mother and “‘you’re doing all this and acting like this and they
don’t even love you.’” When the social worker brought up this
incident with father, father became irate, yelled at the social
worker, and declared that he could raise his daughter however he
chose. The Department observed that father’s behavior was once
again escalating.
The juvenile court held a progress report hearing on
August 8, 2022. Father again asked that the case be closed,
blaming his increasing frustration and escalating confrontational
behavior toward mother, K.M. and the social workers as being the
court’s fault for keeping the case open too long. Counsel for both
mother and K.M. urged the court to continue jurisdiction because
“father has tried to strong[arm] and manipulate everybody
involved in this case” and the juvenile court had a good
understanding of the family dynamic. The court elected to
9
continue dependency jurisdiction. The court left the summer
schedule in place; K.M. was to live with mother during August,
with father having weekend visits and one phone call during the
week. In light of father’s conduct, the court also admonished
father not to yell at K.M., not to disparage mother in front of
K.M., and not to interrupt K.M.’s school or pull her out of class
for visits.
Once again, father’s behavior during the hearing illustrated
his continuing problems. Father interrupted the hearing several
times, once verbally interrupting the judge and once raising his
hand while mother’s attorney was speaking. Later, while the
court was reviewing its order and admonishing father not to “yell
at or harass” K.M., either “in public or in private,” father
disconnected from the call.
The court set the next section 364 hearing for November
30, 2022.
IV. Appeals
Father filed timely notices of appeal from the April and
June hearings and from the August hearing. We consolidated the
appeals.
V. Events Following These Appeals5
Mother filed a section 388 petition in October 2022. On
December 15, 2022, the juvenile court terminated dependency
jurisdiction and issued an exit order granting mother full legal
and physical custody over K.M., with father’s visitation (once
5 We take judicial notice of these post-appeal minute orders.
(Evid. Code, §§ 452, subd. (c), 459.)
10
approved as “appropriate” by a therapist) limited to one
monitored visit per month in a therapeutic setting.6
DISCUSSION
In this appeal, father raises two categories of arguments—
namely, that the juvenile court erred (1) in continuing
dependency jurisdiction over K.M. in April 2022 and June 2022,
and (2) in making orders affecting his visitation with K.M. in
April 2022, June 2022, and August 2022 without making
predicate findings that would justify removal.7
I. Orders Continuing Dependency Jurisdiction
Father argues that the juvenile court erred when, in April
2022 and June 2022, it denied father’s requests to terminate
dependency jurisdiction over K.M.
As a threshold matter, the Department urges that we need
not consider father’s challenge to the juvenile court’s refusal to
terminate dependency jurisdiction because it is moot in light of
the juvenile court’s subsequent termination of that jurisdiction in
December 2022. A challenge becomes moot when subsequent
“events ‘“render[] it impossible for [a] court, if it should decide in
favor of [the appellant], to grant him any effect[ive] relief.”’” (In
6 Father has separately appealed these orders in a third
appeal, which we considered simultaneously with this one. (In re
K.M. (July 27, 2023, B325978) [nonpub. opn.] (K.M. III).)
7 Father submitted his reply brief six days late, and after
previously being granted two extensions and despite the last
order granting an extension warning that no further extensions
would be granted. We are not required to review late-filed reply
briefs and could have stricken the filing (see Cal. Rules of Court,
rule 8.200(a)(3) [reply brief optional]); having reviewed the brief,
however, we find the arguments meritless.
11
re D.P. (2023) 14 Cal.5th 266, 276.) Because the December 2022
order granted the very relief that father’s challenge on appeal
seeks—namely, termination of dependency jurisdiction over
K.M.—father’s challenge is undeniably moot. We nevertheless
retain “‘inherent discretion’” to entertain moot challenges (id., at
p. 282), and we are to exercise that discretion where a
jurisdictional finding could be prejudicial in future dependency
cases, where such a finding “is based on particularly pernicious or
stigmatizing conduct,” or where the reason for mootness is a
parent’s “prompt compliance . . . with [his] case plan” (id., at pp.
285-286). None of these conditions exist here because father is
not challenging the jurisdictional findings in this appeal (and we
rejected his challenges in the prior appeal); instead, he is
challenging the juvenile court’s post-jurisdictional, interim orders
retaining jurisdiction. Father argues that (1) he was prejudiced
by the juvenile court’s failure to terminate jurisdiction earlier
because the status quo at that earlier time was more favorable to
father (and that it will be more difficult for him to obtain relief in
family court now that the exit order has issued); and (2) the
challenge he presents—a “[c]larification of the limited scope of
juvenile dependency courts in the context of a section 364
review”—is an important and recurring issue. We reject father’s
arguments. The first argument boils down to the assertion that
the juvenile court’s orders prejudiced father because those orders
enabled the court to respond to father’s subsequent misbehavior;
yet father was the one in control of his behavior, and that—not
the court’s jurisdiction—was the proximate cause of the
subsequent, less favorable custody arrangements. The second
argument rests on a valid basis for exercising discretion (namely,
the existence of a recurring issue of importance) (In re Caden C.
12
(2021) 11 Cal.5th 614, 629, fn. 3; In re Kieshia E. (1993) 6 Cal.4th
68, 74, fn. 5), but this case involves no more than the application
of settled law to the facts of this case. Although father provides
little or no reason to exercise our discretion, we will nevertheless
reach the merits for completeness’s sake.
When a juvenile court exerting dependency jurisdiction has
removed a child from the parent having physical custody over the
child and later placed the child back in that parent’s custody,
section 364 dictates that the court must hold a review hearing at
least every six months and, after considering the “‘totality of the
evidence’” regarding the status of the case at that time, “‘shall
terminate its jurisdiction’” unless the Department or a parent
“‘establishes . . . that the conditions still exist which would justify
initial assumption of [dependency] jurisdiction’” or are “‘likely to
exist if [juvenile court] supervision is withdrawn.’”8 (§ 364,
8 It is not entirely clear whether section 364 or section 361.2
applies here. As noted in the text, section 364 applies when a
child is not removed from the custody of a parent. Section 361.2,
however, applies when a child is removed from one parent and
placed with another parent “with whom the child was not
residing at the time” of the events and conditions giving rise to
jurisdiction. (§ 361.2, subds. (a) & (b)(1).) Here, the family court
order in effect when the juvenile court initially exerted
jurisdiction over K.M. granted mother primary physical custody
but with joint legal custody to both parents; immediately after
exerting jurisdiction, the court ordered K.M. removed from father
and left her placed with mother, but the court subsequently
removed K.M. from mother and placed her with father. If this
sequence of events is deemed as a noncustodial parent later
gaining custody of K.M., the applicable standard would be
provided by section 361.2, which permits a juvenile court to
continue to exert jurisdiction as long as “there is a need for
13
subds. (a) & (c); In re Aurora P. (2015) 241 Cal.App.4th 1142,
1154-1155 & fn. 9 (Aurora P.) [applying section 364 when a child
has been removed from the custody of one parent and later
returned to that parent’s custody]; Bridget A. v. Superior Court
(2007) 148 Cal.App.4th 285, 313 [same].) Section 364 thus sets
up a “‘default’” rule or “presumption” favoring termination of
dependency jurisdiction absent proof that the conditions
warranting continued exercise of that jurisdiction “still exist.”
(Aurora P., at pp. 1156-1157; In re D.B. (2015) 239 Cal.App.4th
1073, 1084-1085 (D.B.); In re N.O. (2019) 31 Cal.App.5th 899, 923
(N.O.).) Although there is a split of authority over whether the
conditions that still exist must be the same conditions that
justified the initial assertion of jurisdiction (Janee W., supra, 140
Cal.App.4th at p. 1451; D.B., at p. 1085; In re R.F. (2021) 71
Cal.App.5th 459, 469) or may instead be any condition that
“‘would’” justify the exertion of jurisdiction at the time of the
review hearing (N.O., at p. 923; In re J.F. (2014) 228 Cal.App.4th
202, 209-210), we will sidestep that split by using the more
parent-friendly standard and asking whether the same conditions
that justified the initial assertion of jurisdiction still exist. We
review a juvenile court’s finding that the same conditions that
justified the initial assertion of jurisdiction still exist for
substantial evidence, construing the record in the light most
continued supervision” by the dependency court (In re Janee W.
(2006) 140 Cal.App.4th 1444, 1451 (Janee W.); In re Maya L.
(2014) 232 Cal.App.4th 81, 100-101), which in turn seems to tip
more in favor of continued jurisdiction because it does not erect a
presumption against continued jurisdiction like section 364. In
light of the uncertainty, however, we will assume that section
364—and its standard that is more favorable to father—applies
here.
14
favorable to that finding. (In re N.S. (2002) 97 Cal.App.4th 167,
172; In re I.W. (2009) 180 Cal.App.4th 1517, 1525, overruled in
part on other grounds as stated in Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010 & fn. 7.)
Substantial evidence supports the juvenile court’s finding
that one of the conditions that justified the court’s initial exertion
of jurisdiction of K.M.—namely, father’s conduct in engaging in
domestic violence with mother in K.M.’s presence—still existed in
April 2022 and June 2022. As the juvenile court noted at the
time it exerted jurisdiction, father’s outbursts of violence arose
when he was unable to control a situation and lost control of his
anger; this is why father’s case plan required him to take anger
management classes. These very same conditions still existed in
April 2022 and June 2022 (and, frankly, into August 2022):
Father continued to try to control K.M. as well as to control the
conditions under which K.M. visited mother and himself, and
father continued to get angry with—and yell at—K.M. and social
workers, and to be rude and inappropriate with the juvenile court
during hearings.
Father makes what boils down to four arguments in
response.
First, father argues that jurisdiction in this case was based
solely on his conduct in striking mother and K.M. (rather than
his “controlling nature” or anger management issues), and that
jurisdiction is no longer justified because he has not resorted to
hitting anyone, including not hitting K.M. during the year she
was in custody. Father construes “the conditions” that “justif[ied]
initial assumption of jurisdiction” under section 364 too narrowly;
the “conditions” that justified the exertion of jurisdiction over
K.M. include not only the one instance when father struck
15
mother and K.M., but also his displays of domestic violence that
stopped short of physical contact. Giving section 364 the reading
father urges would mean that the court would be required to
terminate jurisdiction even though father has continued to
engage in controlling behavior, continued to yell at people, not
completed the domestic violence course, and continued to deny
ever committing domestic violence in the first place—in other
words, even though K.M. still faces a substantial risk of serious
physical harm if left in father’s custody unsupervised. We decline
to give section 364 such a myopic reading, as it would obligate a
juvenile court to cede jurisdiction when a child is still very much
at risk of harm, a result inimical to the very purpose of
dependency jurisdiction. (§ 300.2, subd. (a) [purpose of
dependency law is to “provide maximum safety and protection for
children” and to “ensure the safety, protection, and physical and
emotional well-being of children”].)
Second, father argues that his failure to complete the
domestic violence courses cannot be a basis for invoking section
364’s presumption “that the conditions which justified initial
assumption of jurisdiction still exist” whenever a parent fails to
“participate regularly in any court ordered treatment program”
because the juvenile court’s pronouncement of an amended case
plan for father in April 2022 (that did not explicitly repeat the
requirement that he attend domestic violence classes) superseded
the prior case plan. We need not decide whether the later case
plan nullified the prior case plan because our analysis does not
rely on the presumption; there is substantial evidence that
continued jurisdiction was appropriate without it.
Third, father argues that this case is more about K.M.’s
custodial arrangement (as well as the Department’s preference to
16
have mother and father co-parent K.M.) than anything else, and
thus is really a family law case masquerading as a juvenile
dependency case. We reject this argument. To begin, father
made this precise argument when challenging the juvenile court’s
initial exercise of jurisdiction in the last appeal, and we soundly
rejected it. (K.M. I, at pp. *9-*10.) Recycling it does not make
the argument any more persuasive. More the point, father’s
implicit contention that child placement issues only belong in
family court ignores that the placement of children when
undertaken to ensure their safety is a major component of
juvenile dependency; to declare that such issues render
dependency supervision inappropriate is to negate the very
statutes creating the juvenile dependency system and to put the
juvenile dependency courts out of business. For obvious reasons,
we decline father’s invitation to dismantle the juvenile
dependency system.
Fourth and lastly, father argues that he is being
impermissibly punished for failing to “‘internalize’” the
Department’s preferred parenting philosophy and for not being a
“‘perfect’” parent. For support, father cites Blanca P. v. Superior
Court (1996) 45 Cal.App.4th 1738 (Blanca P.) and In re J.M.
(2020) 50 Cal.App.5th 833 (J.M.). Blanca P. holds that a juvenile
court may not penalize a parent for not “‘internaliz[ing]’” the
“child discipline” theory taught in therapy when the parent has
foresworn corporal punishment (Blanca P., at p. 1751); and J.M.
held that a court, in considering whether to modify an order, may
not demand that a parent be “perfect” (J.M., at p. 848). All the
juvenile court did in this case was examine whether the portions
of the case plan father had completed had changed his controlling
and anger-prone behavior. This was entirely appropriate, and we
17
reject father’s implicit assertion that a juvenile court’s
examination of whether a parent’s behavior has changed is an
impermissible inquiry into whether a parent has “internalized” a
parenting philosophy.
II. Visitation Orders
Father next challenges three of the juvenile court’s
orders—namely, (1) the court’s April 28, 2022 order specifying
that K.M. would visit mother for 29 days (with a weekend visit
for father); (2) the court’s June 1, 2022 order changing K.M.’s
placement to home of both parents (instead of just home of
father), and having K.M. stay with each parent for alternating
months; and (3) the court’s August 8, 2022 order specifying
mother has K.M. during the weeks and father on the weekends,
with father to make only one call to K.M. during the week.
Father does not argue that these orders are an abuse of
discretion; instead, he argues that these visitation-related orders
“effectively” constitute “removal” orders that require compliance
with all of the trappings of removal orders under section 361 (and
section 387, for supplemental removal orders), including a finding
by clear and convincing evidence that the child “would” face “a
substantial danger to [their] physical health, safety, protection,
or physical or emotional well-being” if returned to the parent and
that there are “no reasonable means” short of removal to protect
the child. (§ 361, subd. (c)(1).) This is a question of law that we
review de novo. (In re Brianna S. (2021) 60 Cal.App.5th 303,
311.)
We reject father’s procedural challenge. The implicit
premise of father’s challenge is that changes to visitation
schedules constitute a removal of a child vis-à-vis the parent who
has less visitation. Father offers no support for this notion of
18
“effective removal.” We have looked for ourselves, and also find
no support. (Accord, In re D.P. (2020) 44 Cal.App.5th 1058, 1068-
1069 [child’s “effective[] remov[al]” from mother due to court
order requiring mother to move out of residence is not subject to
removal procedures]; California Rules of Court, rule 5.502(a)(35)
[“‘Removal’ means a court order that takes away the care,
custody, and control of a dependent child or ward from the child's
parent or guardian, and places the care, custody, and control of
the child with the court, under the supervision of the agency
responsible for the administration of child welfare or the county
probation department”].) This is for good reason: Father’s
argument, if accepted, would require formal removal procedures
for every conceivable shift in visitation. Indeed, father himself
takes a one-sided view of the matter, demanding that removal
procedures be followed whenever his visitation is reduced but not
when mother’s is.
19
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
CHAVEZ
20