In re A.S.










Filed 3/8/17 In re A.S. CA1/5






NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re A.S., a Person Coming Under the Juvenile Court Law.


MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
G.S.,
Defendant and Appellant.





A146268

(Mendocino County
Super. Ct. No. SCUK-JVSQ14-1700701)


G.S. appeals from juvenile court ordersdismissing dependency proceedings under Welfare and Institutions Code section 300,[1]granting custody of his son to the mother, allowing the mother to move with the child to another state (with visitation), and imposing a five-year restraining order against him. G.S. contends the court erred by dismissing the proceedings, granting the move-away order, terminating his reunification services, and imposing the restraining order for five years.
We will remand for the issuance of a restraining order with a duration of three years rather than five years, and affirm the orders in all other respects.
I. FACTS AND PROCEDURAL HISTORY
A. Dependency Petition
In May 2014, the Mendocino County Department of Social Services (Agency) filed a petition alleging that A.S., born that month, was within the jurisdiction of the juvenile court under section 300. The Agency alleged that mother L.S. and father G.S. had a violent relationship and substance abuse issues, and that mother and the child tested positive for marijuana.
A.S. was detained and placed in foster care. Father was arrested in light of mother’s reports of domestic violence.
B. Jurisdiction
In July 2014, the juvenile court assumed jurisdiction under section 300, subdivision (b) and sustained the petition as amended, finding that the parents were in a violent relationship and were unable to provide A.S. with a home free from the effects of violence, and that mother had substance abuse issues that inhibited her parenting and her ability to provide a home free from the effects of drugs.
C. Disposition
After a contested dispositional hearing on August 8, 2014, the juvenile court ordered that A.S. remain a dependent under the care and custody of theAgency and that reunification services be provided to both parents. Mother’s progress toward alleviating or mitigating the causes necessitating placement had been adequate, while father’s progress had been minimal. The case plans for mother and father included participation in a domestic violence and anger management program, staying free from illegal drugs (assessment and testing), enrolling in a social services family empowerment group, complete a parenting program, and complying with visitation.
D. Section 388 Order Returning Child to Mother
In December 2014, the court granted mother’s section 388 petition and ordered that A.S. be returned to mother’s physical custody under a plan of family maintenance. In agreeing with mother’s request, the Agency noted that it was a critical period in the bonding process between mother and A.S., mother’s interactions with A.S. had been appropriate, and mother had completed the intake for a parent support group and obtained certificates in programs related to alcohol and drugs, anger management, and communication.
E. Father’s Section 388 Petitions
On January 29, 2015, G.S. filed a section 388 petition requesting that A.S. be placed with him instead of mother. On February 2, 2015, he filed a section 388 petition asking the court to set aside the jurisdictional findings and disposition orders as to father, because mother had recanted her accusation that he hadbeen violent towards her. The juvenile court denied both petitions.
In opposition to father’s section 388 petition, the Agency reported that father was not fully engaged in services, such as domestic violence counseling, and was “obsessed” with mother’s behavior and unable to fully benefit from services. The social worker, after over 21 hours of contact with father, advised that father’s “continual focus on the past and [mother’s] shortcomings[] does not demonstrate that [father] has focused on himself or his growth through this process,” and father’s focus on mother while A.S. is in his care “will impact his parenting.” The Agency admonished: “[Father] has not demonstrated new behaviors; his progress is not measurable, he still has the same behaviors towards the Agency, and his inability to control his emotions will impede his ability to parent his child. . . . If [father] would focus his energy on doing services to become a better father, rather than perseverate on the blaming of Agency and the undermining of the mother, he will have a better chance for success.”
F. Six-Month Review
On March 30, 2015, the juvenile court denied father’s request at the continued six-month review hearing to returnA.S. to him under a plan offamily maintenance, but ordered six more months of reunification services for father and modified his case plan to include a psychological evaluation.
G. Subsequent Review Reports
In its periodic family maintenance review report for mother filed on June 29, 2015, the Agency recommended continuing the case until December 16, 2015, rather than dismissing the case, because of the volatility of the exchanges between the parents. The report recounted the programs in which mother had engaged and advised that she was successfully participating in a family empowerment group, had a good support network, demonstrated what she learned in classes by calming down and “talking problems out,” recognized what brought her to the Agency’s attention and the detriment it can have on A.S., and maintained consistent communication with the social worker. The Agency also noted that the visits between father and A.S. were of a “good nature” and father was shown to be a concerned parent. However, the Agency advised, “[t]he road block for the mother is being able to have safe exchanges of the child with the father,” and the Agency could not recommend dismissal with the parents’ relationship being “extremely volatile.”
In its 12-month review report filed on July 2, 2015, the Agency recommended continuing jurisdiction with family maintenance to mother and reunification services to father. The Agency noted, among other things, that father’s participation in domestic violence and anger management treatment had been terminated because he was not progressing, and that he continued to display anger and focus solely on mother’s behavior.In addition, father was arrested in June 2015 for violating a criminal protective order, was unable to demonstrate sustained behavioral changes, and still did not recognize what brought him to the attention of the Agency. The Agency recommended that father’s visitations with A.S. decrease and become supervised, noting that father did not listen to the concerns of the Agency or others and does not see how those concerns will affect A.S.
The Agency’s addendum report, filed on July 21, 2015, recommended continuing jurisdiction and family maintenance to mother, but this time recommended terminating father’s reunification services. The Agency explained that the prior recommendation of continuing reunification services for father had been based on the social worker’s misapprehension that services would have to continue for father due to an “ICWA Appeal.” The Agency observed that father “continues to alienate himself from staff” and his “inability to effectively engage in services”affects his ability to make progress toward safely parenting A.S. “His focus continues to be highly adversarial, thereby deterring him from acquiring, and then fundamentally using, the court ordered services to his benefit.” He continues to violate visitation protocols and places A.S. at risk by failing to notify the Agency of her whereabouts during the visits. He also appeared willing to place A.S. at risk in an effort to show that mother was negligent. The Agency concluded: “In summary, the father continues to fixate on external issues and remains indignant about the actions of others, and at this twelve month review has failed to make substantive, heartfelt progress in his court-ordered case plan. His current and ongoing actions continue to be a large indicator regarding this lack of progress in resolving the problems that led to [A.S.]’s removal. These actions further demonstrate a lack of capacity and ability to provide for [A.S.]’s safety, protection, physical and emotional well-being. Therefore, the Agency requests to terminate the father’s family reunification services.”
H. Hearing and Orders
At a hearing commencing on July 27, 2015, the court considered the 12-month review of father’s reunification services and mother’s family maintenance services. Several witnesses, including father, testified.
At the continued hearing on August 10, 2015, mother’s counsel contended that, because A.S. had a safe home with mother, the dependency case could be dismissed with a custody order. Counsel further advised that mother would like to move to Colorado with A.S. and was “willing to allow once a month visitation.”
At the conclusion of the hearing on August 11, 2015, the court terminated father’s reunification services, finding that father did not successfully engage in domestic violence treatment, did not understand his role in domestic violence and the danger it presented to the child, and had not made sufficient progress to justify further reunification services. The court was also troubled by father’s progress in his services overall, including the fact that father had done “almost nothing that the agency asked in regards to [drug] testing.” The court continued:“While the father presented evidence that he’s done well in services he has determined, himself, are necessary and appropriate such as parenting classes and selection of a counselor that he chose rather than the counselor referred by the agency, he hasn’t done well overall with the services that the agency thought were necessary and appropriate.”
The court issued a domestic violence restraining order against father, finding that mother had presented sufficient evidence of his past acts of physical abuse. The court acknowledged that mother’s statementsconcerning the abuse had been inconsistent, but also noted testimony that it was not uncommon for victims to recant and, after observing mother’s “demeanor and the manner in which she spoke,” found that the evidence she presented in support of the restraining order was credible.
Turning to the six-month review of mother’s family maintenance and dismissal of the dependency, the court noted that the reports of mother’s treatment providerswere “quite uniform in their assessment that she has grasped the material, that she has made significant changes in her life, that she is able to put the child first and be a – not only an adequate but a good parent to [A.S.].” Further, the court had “heard [mother’s] testimony on the stand” and found her “credible,” concluding that “her demeanor and presentation concerning the information she had learned in her domestic violence treatment supported the agency’s revised recommendation that jurisdiction over [A.S.] is no longer needed.” Accordingly, the court terminated the dependency case and expressed its intent to grant mother physical and legal custody.
As to visitation, the court noted both father’s history of interpersonal conflict and the evidence that he had quality visits with A.S., concluding “she has a clear bond with him, and he should have contact with his child.” The court invited further argument by counsel as to visitation, as well as the issue of mother’s move to Colorado, in light of the short notice and lack of documentation supporting the move. The court set a hearing for September 3, 2015, as to the final custody order, moveaway, and father’s visitation.
After the hearing on September 3, 2015, the juvenile court granted sole legal and physical custody of A.S. to mother, with visitation to father of six times per year plus weekly electronic contact, and terminated jurisdiction over A.S.Formal orders of custody, visitation, approval of mother’s relocation to Colorado, and termination of jurisdiction (DV-200), and a five-year restraining order against father (DV-130), were subsequently entered. (The restraining order protected mother only, with an exception for brief and peaceful conduct in connection with visitation.)
Father filed a notice of appeal from the juvenile court’s orders terminating reunification services and dismissing dependency.We construe the notice of appeal broadly to include challenges to the move-away and restraining orders.
II. DISCUSSION

A. Dismissal of Dependency
Dependency proceedings will be dismissed by the juvenile court when the child can be safely returned to a parent and the problems leading to removal and dependency jurisdiction with respect to that parent have been addressed. The decision to terminate dependency jurisdiction and dismiss the proceedings will be upheld if supported by substantial evidence. (See In re Marcus G. (1999) 73 Cal.App.4th 1008, 1014.)
Here, the juvenile court concluded that the dependency should be dismissed because mother had addressed the problems leading to A.S.’s removal. The court supported its conclusion with the fact that mother’s service providers all represented that she grasps the issues that had brought the case to the court’s attention, she made significant changes in her life, she is not just an adequate parent but a “good parent” according to treatment providers, she had learned from her domestic violence treatment, and jurisdiction over A.S. was no longer necessary. Substantial evidence, from mother’s testimony and the reports and testimony of treatment providers and the social worker, supported the court’s decision.
Father’s arguments are unpersuasive. He complains that the Agency’s written report had not recommended a dismissal of the proceedings. He provides no authority, however, for the proposition that the absence of an agency recommendation precludes the juvenile court from terminating jurisdiction where, as here, the evidence warrants it. Furthermore, the court noted on the record—without objection by any party—that the Agency had “revised” its recommendation by the end of the hearing, and that the court’s dismissal was in accord with this revised recommendation.
Father also urges that the parties had no notice that jurisdiction would be terminated. But at the hearing on August 10, 2015, mother’s counsel specifically questioned the social worker whether the dependency case needed to remain open, providing notice from at least that point. Father does not identify any evidence or argument he would have presented if he had more notice, let alone why he could not have presented that evidence or argument before the court issued its rulings on August 11, 2015, and September 3, 2015.
Father additionally argues that mother’s depictions of what she learned from her domestic violence treatment program—specifically, the sources of her anger issues—was not credible. Acknowledging that it is the trial court’s role to assess the credibility of the witnesses, father nonetheless urges that, as the juvenile court noted, mother’s credibility was “at issue” due to inconsistent statements she had made about her anger and prior abuse.[2]
The record clearly showsthat the juvenile court was aware of mother’sinconsistent statements, including the matters set forth in G.S.’s brief. But after considering these matters, the court explicitly found that mother’s testimony at the hearing as to what she learned in the program was credible: “I heard [mother]’stestimony on the stand. I did find her credible. I found her demeanor and presentation concerning the information she had learned in her domestic violence treatment supported the agency’s revised recommendation that jurisdiction over A.S. is no longer needed and therefore my ruling is to adopt the recommendation and terminate the case.” The record therefore demonstrates that the court took stock of factors relevant to mother’s credibility and ultimately concluded that she should be believed on the salient points.
Father fails to establish error in the court’s termination of jurisdiction and dismissal of the dependency proceedings.
B. Move-Away Order
In addition to dismissing the dependency proceedings, the juvenile court granted sole legal and physical custody to mother, issued an order allowing mother to move to Colorado with A.S. (with visitation), and issued a restraining order against father. Section 362.4 authorizes the juvenile court “ ‘to make custody and visitation orders that will be transferred to an existing family court file and remain in effect until modified or terminated by the superior court.’ ” (In re Chantal S. (1996) 13 Cal.4th 196, 203.)We review these exit orders for an abuse of discretion. (E.g., Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300–301.) Restraining orders issued upon termination of jurisdiction are authorized by section 362.4.
Father does not challenge the order granting sole legal and physical custody to mother. Instead, he challenges the order allowing her to move with A.S. to Colorado, which we address in this section, and the duration of the restraining order, which we address post.
1. Move-Away Law
Father refers us to Family Code section 7501, subdivision (a), which provides: “A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.” Under this statute, a parent with sole or primary physical custody has a presumptive right to change the child’s residence. (In re Marriage of LaMusga (2004) 32 Cal.4th1072, 1087 (LaMusga); In re Marriage of Burgess (1996) 13 Cal.4th 25, 29, 32 (Burgess).) It is the burden of the parent opposing the move to show that the relocation would be detrimental to the child. (LaMusga, supra, 32 Cal.4that p. 1078; see In re Marriage of Campos (2003) 108 Cal.App.4th 839, 843 [non-custodial parent opposing a move-away request has the right to present evidence on the bad faith of the request and the potential detriment to the child].)
As a threshold matter, we question whether Family Code section 7501 and the cases on which father relies are germane to dependency cases like this one. Under the authorities cited by father, if the parent opposing the custodial parent’s relocation with the child makes a showing that the relocation would be detrimental to the child, the court must then consider whether a change in custody is in the child’s best interest. (LaMusga, supra, 32 Cal.4th at p. 1078.) In other words, the question is not whether the custodial parent is allowed to move away; the question is whether the detriment to the child in also moving away would be so great as to warrant custody to be changed to the other parent, so that, in effect, the child stays put.
In the matter before us, however, custody cannot be changed to father as a matter of law. Only mother reunified with A.S., and mother has been granted sole physical and legal custody—a determination that father does not contest. Since father cannot obtain custody, the issue becomes how mother’s move with the child should affect the issue of father’s visitation, so as to ameliorate any detriment the move may impose on A.S.’s relationship with him. This is precisely how the juvenile court proceeded in this case.
Father does not provide any authority for the proposition that a parent, having been granted sole physical and legal custody of a child after dependency proceedings, can be precluded from moving to another state or taking the child with her. Nonetheless, we will consider father’s arguments.
2. Mother’s Offer of Proof Regarding Her Intended Move to Colorado
At the hearing on September 3, 2015, mother’s reasons for the move to Colorado were set forth in a written offer of proof, signed by counsel: “[Mother] is now requesting to move with [A.S.] to the state of Colorado. [Mother] has been accepted at Rocky Mountain College of Art and Design. [Mother] has testified and will testify to the following: She would like to move to Colorado because of more options to advance her education and career. [Mother] will be attending school for fashion and art education. These programs are not available over the [I]nternet, and most of the program’s classes require on campus education. There are no such programs in this county that offer the courses she would like to take. [Mother] has always wanted to create clothing and plans on learning as much about this business as possible. She would like to open her own shop eventually. [Mother] also has friends who would like to invest in helping her make her dreams come true. [¶] [Mother] feels there are a lot more job opportunities in Denver as well as early childhood education classes for [A.S.]. [Mother] also has a goal of getting involved with art education for youth and in nursing homes. Furthermore, she has family in Denver and a large support network of friends. [Mother]’s friends in Colorado have children around [A.S.]’s age and they already have begun planning play dates and adventures to take the children on. There is also a Montessori early childhood education school that [mother] has contacted and that her family has agreed to help pay for. [Mother] has a place to live arranged in Colorado as well.” Mother’s counsel also explained when she wanted to move.
Father contends that mother’s offer of proof was contradicted by other evidence. Specifically, while mother claimed in her offer of proof to have supportive family, father asserts there was evidence that her family of origin had experienced abuse, and mother had stated in her December 2012 letter to the District Attorney that she “had no family to help her – her mother was sick and her father was working on oil rigs in Egypt.” Father’s argument is unpersuasive. What mother actually said about her family in the 2012 letter was this: “I have no family in the state [of California] (except K[] and S[]) and have no family that can come help me get on my feet a little before I leave the country. My mother is sick and had to cancel her trip out and my father is working managing 8 oil rigs in Egypt.” (Italics added.) Nothing in mother’s 2012 statement is contrary to her 2015 assertion that she has supportive family in Colorado. Furthermore, father overlooks the Agency’s report filed in June 2015—before mother even proposed moving to Colorado—that “most of her friends and support system live in other states such as[] Colorado and Indiana.” (Italics added.)
Father also contends mother’s offer of proof was insufficient because she did not submit supporting documentation. She did, however, testify under oath that she was accepted to the Rocky Mountain College of Art and Design and wanted to pursue a vocation working with children and elders in art therapy. Father counters that this testimony was impeached by her letter to the District Attorney, in which she claimed to be leaving California by the end of the month (December 2012) and going to Cambodia for three years. But claiming in December 2012 that she intended to move to Cambodia for three years does not demonstrate she was lying when she asserted in August 2015 that she was moving to Colorado.
3. Bad Faith Intent and Detriment to the Child
Father contends there was evidence that mother’s move to Colorado was motivated by a bad faith intent to frustrate his relationship with A.S. and that the move would be detrimental to A.S. because it would interfere with her bond with father. His arguments lack merit.
a. Opportunity to Argue Against the Move Away
At the hearing on August 11, 2015, the court acknowledged that father would retain Dr. Daniel Pickar to “perform an assessment of [father]’s bond with [A.S.] and how that bond could potentially be impacted shouldmother be allowed to relocate out of state.” (Italics added.) But at the hearing on September 3, 2015, the court stated it was concerned with “the appropriate nature of father’s visitation under the final custody order given mother’s plans to relocate outside the state of California, so we set a special hearing to consider that issue.” (Italics added.) Father asserts the court therefore “forgot that it had stated the purpose of the September 3rdhearing upon setting it on August 11th, was to consider ‘allow[ing] mother to relocate if the court grants her request.’ ” Father claims the court therefore abused its discretion and violated father’s due process rights because “[n]one of the factors which contraindicated a grant of relocation to Colorado,” such as mother’s alleged bad faith and the detriment to A.S., were “able to be heard.”
Father’s argument is meritless. As already explained, the court’s delineation of the issue at the September 3 hearing was correct in that the salient question, under the circumstances, was the effect of mother’s plans on father’s visitation. But in any event, there is no indication that the court ever precluded father from challenging the propriety of mother’s proposed move to Colorado with A.S. While the September 3 hearing did end up addressing visitation in light of the move away rather than the propriety of the move away, the record indicates that was a result of counsel, not any limitations imposed by the court.[3]
b. Bad Faith Intent to Frustrate Father’s Relationship With A.S.
Father contends that mother’s move to Colorado was intended to frustrate his relationship with A.S., based on evidence that he thinks reveals her general intent to undermine his contact with the child: mother was repeatedly late bringing A.S. to the Agency’s center for visitation exchanges; mother told the social worker she would not let father have a Christmas holiday visit; mother told the social worker she was taking A.S. to a weekend music festival and two friendswould watch A.S. while she worked at the festival; mother informed the social worker that she would not participate in exchanges with father at the sites proposed by the Agency; mother had requested court authorization to travel to Oregon with A.S. on July 20–23, 2015, to visit close family members, and then through counsel on July 16requested the court to modify the travel authorization to July 16–26 based on a family emergency,without a declaration or supporting evidence; when asked at the hearing whether she had received therapy to address how to deal with co-parenting, she answered that they might not see G.S. if he went to prison; and before A.S. was subject to the court’s jurisdiction, mother tried to leave the birth hospital with A.S. against medical advice.
Besides the fact that father ignores the evidence that he caused the problems during visitation exchanges, the evidence he cites does not establish that mother decided to move to Colorado to frustrate his relationship with A.S. When mother proposed the move away, she offered to allow monthly visitation, which was as frequent as father ultimately requested and at least as frequent as the experts believed necessary to maintain the father-child bond. And even if there was evidence from which a bad faith motive on mother’s part mighthave been inferred, father does not show that the evidence was such that the only reasonable inference was that mother was acting in bad faith.He fails to demonstrate an abuse of discretion.
c. Detriment to A.S.
Father argues that the move to Colorado would be detrimental to A.S. because he had bonded with her. Evidence at the August hearings indicated that father loved A.S. and his interactions with her were positive, and the court acknowledged that father had quality visits with [A.S.], she had a bond with him, and he should have contact with her. Dr. Pickar reported that frequent visitation and contact is necessary for a child of A.S.’s age because such a child cannot hold onto memory for very long and the bond with father would be adversely affected.
Father’s argument misses the mark. The question is not simply whether there was evidence that the relocation would adversely affect the bond between A.S. and father. An offer of proof by Dr. Singer, presented on mother’s behalf, agreed with Dr. Pickar that frequent contact between father and A.S. would be needed to maintain their bond. But both experts also agreed that the bond could be preserved with visitation each month or every other month, along with interim electronic contact. Because the court ordered such visitation and electronic contact, the detriment purportedly threatened by the move away was avoided.
Father fails to demonstrate an abuse of discretion in connection with mother’s move to Colorado with A.S.


C. Restraining Order
On August 11, 2015, the juvenile court issued a domestic violence restraining order against father with an expiration date of August 11, 2020. In his supplemental opening brief in this appeal, father contends this was error because there is no applicable authority for a five-year restraining order.
Under section 362.4, the juvenile court may issue a protective order as provided for in section 213.5 or defined in Family Code section 6218. Section 362.4 states:“When the juvenile court terminates its jurisdiction over a minor who has been adjudged a dependent child of the juvenile court prior to the minor’s attainment of the age of 18 years, and . . . an order has been entered with regard to the custody of that minor, the juvenile court on its own motion, may issue a protective order as provided for in Section 213.5 or as defined in Section 6218 of the Family Code.”
Section 213.5, subdivision (d)(1) allows the court to issue a restraining order which “shall remain in effect, in the discretion of the court, no more than three years, unless otherwise terminated by the court, extended by mutual consent of all parties to the restraining order, or extended by further order of the court on the motion of any party to the restraining order.” (Italics added.)
Family Code section 6218 defines “protective order” to mean an order described in Family Code sections 6320, 6321, and 6322, none of which authorize a duration longer than the three years specified under section 213.5. (A restraining order under Family Code section 6345 may be issued for up to five years, but that section is not referenced in Family Code section 6218.)
Father contends the court therefore lacked jurisdiction to issue the order or, alternatively, the order was not supported by substantial evidence and constituted an abuse of discretion. The Agency had the opportunity to respond to the supplemental brief but has not done so. (See In re Ramone R. (2005) 132 Cal.App.4th 1339, 1351 [failure to offer contrary argument implicitly concedes the point]; County of Butte v. Bach (1985) 172 Cal.App.3d 848, 867 [failure to offer contrary argument results in matter submitted].)
We will remand for the juvenile court to issue a new restraining order with a duration of three years and an expiration date of August 11, 2018. Upon the filing of that new order, the existing restraining order will be deemed vacated.Nothing herein precludes the juvenile court from extending the duration of the new restraining order upon a motion by a party to the order. (See § 213.5, subd. (d)(1).)
D. Termination of Reunification Services
Father contends the court erred in terminating reunification services because no substantial evidence supported the conclusion that the Agency provided or offered reasonable services, and because the record reflects father’s substantial compliance with the case plan.
For several reasons, we need not and do not address this issue. First, since the juvenile court did not err in dismissing dependency jurisdiction with full custody vested in mother, whether or not the court should have ordered additional reunification services for father is moot. Second, father’s contention that the record reflects his substantial compliance with the case plan is immaterial; it is not our role on appeal to reweigh the evidence but merely to review for substantial evidence supporting the court’s conclusion. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) Third, father has waived any challenge to the sufficiency of the evidence by failing to provide a fair recitation of the evidence, stating the facts he believes favorable to his position but ignoring evidence favorable to respondent. (See Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.)[4]
III. DISPOSITION
The matter is remanded to the juvenile court for the issuance of a restraining order on the same terms as the restraining order filed on September 15, 2015, but with an expiration date of August 11, 2018. Upon the filing of the new restraining order, the existing restraining order shall be deemed vacated. Nothing herein precludes the juvenile court from extending the term of the new restraining order pursuant to Welfare and Institutions Code section 213.5, subdivision (d)(1), or other applicable law. The move-away order, custody order, visitation order, and dismissal of the dependency proceedingsare affirmed.




NEEDHAM, J.



We concur.




JONES, P.J.




SIMONS, J.





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(A146268)


[1] Except where otherwise indicated, all statutory references are to the Welfare and Institutions Code.
[2] At the hearing on August 10, 2015, mother testified she had successfully engaged in domestic violence treatment and anger management, which led her to accept that she had not been angry until she was in a relationship with father. Father argues, however, that there was evidence she had anger issues before meeting him. Father introduced into evidence, as “Exhibit E,” a police report of December 2, 2012, in which she asserted that her previous boyfriend had pushed her down the stairs, and a letter she later wrote to the District Attorney recanting that statement. The court noted that mother’s statement to law enforcement differed from her testimony because it suggested she had been angry and engaged in mutual domestic violence with her prior boyfriend, and her letter to the District Attorney was different from her alleged statement to the officer.
[3] At the hearing, father’s counsel did not contend that Dr. Pickar’s expert witness evidence, or any other evidence, warranted a denial of mother’s relocation request, but urged instead that the evidence supported a grant of additional visitation: “So with that said, my client, while he would like to ask the court to say no you can’t relocate, my child has to stay here, we’re really just asking for monthly visits despite what Dr. Pickar said.” Father now contends that his attorney misunderstood the law. Even if that were true, father was not prejudiced by counsel’s approach. There is no reasonable probability that, but for counsel’s tactic, the result of the proceeding would have been different. (See generally In re Emilye A.(1992) 9 Cal.App.4th 1695, 1712–1715.)
[4] In a separate petition for habeas corpus, case number A148699, father has contended that his attorney in the juvenile court proceddings provided ineffective assistance of counsel. We have denied that petition by separate order filed this date.