Filed 3/27/17 In re Damian S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR


In re DAMIAN S., et al., Persons Coming Under the Juvenile Court Law. B270548
(Los Angeles County
Super. Ct. No. DK03557)

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

WILLIAM S.,

Defendant and Appellant.


APPEAL from an order of the Superior Court of Los Angeles County, Michael L. Miller, Commissioner. Affirmed.
Law Office of Robert McLaughlin and Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel, and Stephanie Jo Reagan, Principal Deputy County Counsel, for Plaintiff and Respondent.
A father appeals from a juvenile court’s family law order granting sole legal and physical custody of his three minor children to the children’s mother, and requiring that father’s visits be supervised. (Welf. & Inst. Code, § 364.) Finding that the father has failed to demonstrate that the juvenile court abused its discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND
Appellant William S. (father) and Barbara S. (mother) are the parents of the minor children, Damian (born Sept. 2003), Rebecca (born May 2008), and Barbara S. (“Bibi”; born July 2010), who are the subjects of this appeal. In December 2013, the parents had just begun the process of obtaining a divorce, but were still living together with the children in the children’s paternal grandmother’s (grandmother) home. On New Year’s Eve, while intoxicated, mother violently assaulted Rebecca, father, a paternal aunt and grandmother, resulting in mother’s involuntary hospitalization and a referral to respondent Department of Children and Family Services (DCFS).
An investigation by a DCFS children’s social worker (CSW) revealed that the children were apparently happy, physically and emotionally healthy, and developmentally on target. Both girls, however, were afraid of mother. Damian told the CSW he wanted mother to get healthy, so the children did not have to endure more episodes of her drunken yelling, screaming and destruction of things.
In February 2014, DCFS filed a petition under section 300, subdivisions (a), (b), and (j). The petition alleged that mother (1) had a history of substance abuse and supervised the children while under the influence of alcohol, marijuana and prescription drugs; (2) had a history of mental and emotional problems which rendered her unable to care for the children; (3) had grabbed and squeezed Rebecca to the point the child had been unable to breathe; (4) struck Bibi and placed a pillow over her face; and (5) bit Damian on the arm. The petition also alleged that the parents engaged in violent altercations in the children’s presence, and that father was aware of mother’s mental and emotional problems and her substance abuse, and failed to protect the children by permitting her to care for them. In February 2014, the children were detained from mother (who had vacated the grandmother’s/family’s home), and released to father’s care. Mother was ordered to submit to on–demand drug testing and given twice–weekly visitation.
A first amended petition was filed in March 2014, after DCFS learned that father was on probation for a 2011 conviction for driving under the influence (DUI) and, as a condition of his probation had been required to complete, but had not completed, an 18-month DUI program. The amended petition added allegations regarding alcohol abuse by father, a DUI conviction and failure to comply with the terms of his probation.
In a summary prepared for the April 3, 2014, jurisdictional hearing, DCFS reported that Damian was “good” living with father and wanted to stay with him. Rebecca also enjoyed living with father and grandmother, and liked to visit mother. Although mother denied most of the allegations of the petition, she had enrolled in a drug treatment program, parenting and domestic violence classes, and individual counseling. She told the CSW she “want[ed] to get [her] kids back.” As a result of the programs, mother had learned never to argue in front of the children, and understood that she had an alcohol problem and needed help.
Father appeared to be providing appropriate care for the children. However, DCFS remained concerned that he had allowed the chaotic and violent situation in the family’s home and mother’s substance abuse to continue for so long without making an effort to protect the children. DCFS also expressed concern regarding father’s problems with alcohol, his DUI conviction and his failure to comply with the terms of his probation. Father said the children were physically healthy, and he would take them for regular medical and dental exams. He did not believe they needed counseling, but positive screenings revealed that therapy was in order.
The children were declared dependents in early May 2014, after the parents submitted on the amended petition, and agreed to comply with their case plans and to have the children placed in father’s care. Mother’s case plan required that she complete a substance abuse program with aftercare, submit to weekly drug and alcohol testing, complete a parenting education course, undergo mental health counseling and follow all treatment recommendations, and sign all necessary releases. Father’s case plan required that he complete a drug rehabilitation program with aftercare, submit to random or bi–weekly on–demand testing, complete a 12–step program with a court card and obtain a sponsor, comply with all criminal court orders and sign releases as necessary for information. Mother was given two weekly monitored visits.
By November 2014, DCFS reported that mother was fully complying with her case plan, and “appear[ed] very committed to her program of recovery,” and to regaining custody of the children. Mother had completed parenting, HIV awareness and anger management courses. She was actively participating in several courses, including addiction education, relapse prevention and family recovery, attended at least four NA/AA 12–step meetings per week, and followed her psychiatrist’s recommendations, including taking her prescribed medication. All of mother’s drug tests were clean, and she had not missed a test. The children had overnight visits with mother in her treatment program, and their interactions were appropriate. DCFS opined that the potential risk of future abuse or neglect if the children were returned to mother’s care was moderate, and that continued supervision was in order.
Despite agreeing to do so, father had not signed any consents for the release of information, so DCFS was unable to verify most aspects of his progress or compliance with his case plan. DCFS did learn that father’s bi–weekly drug tests in June, August, September and October were clean. He missed two tests in July (one was excused and the other was purportedly missed because of a work conflict).
The children remained developmentally on target and, for the most part, their grades were fine. All three were receiving counseling, and father claimed to have scheduled physical exams for them in early November. At the review hearing on December 12, 2014, the juvenile court found continued jurisdiction necessary. The court continued reunification services for mother and maintenance services for father, left the children in father’s care, and directed DCFS to facilitate a co–parenting visitation schedule.
Mother continued having regular visits with the children in her sober living home through March 2015, although the schedule varied due to the children’s disruptive behavior. She graduated from her drug program in March 2015. DCFS reported that mother was fully compliant with her treatment program and case plan.
In March 2015, the children’s therapist expressed concern about their behavior: all three were rambunctious and out of control. At around the same time, grandmother also told the CSW that the children were acting up in school and had been disrespectful toward her. Grandmother also revealed for the first time that it been she, not father, who had been the primary caretaker for the children ever since DCFS opened this case. Grandmother said she “just [couldn’t] do this anymore,” and had told father it was time for him to “step up” and stop using mother as an excuse not to care for his children.
In April 2015, the family was referred for Wraparound Services (Wrap). A Wrap facilitator tried–and failed–three times to contact father to schedule weekly family visits. Regular Wrap meetings were scheduled with mother at her home.
In May 2015, mother told DCFS she was having difficulty scheduling medical appointments for the children because father had their medical cards. The CSW tried unsuccessfully to contact father to resolve this issue. DCFS expressed concern that father was not meeting the children’s physical needs after a further investigation revealed that, contrary to father’s claim, none of the children had undergone a medical exam in November 2014.
In mid–May 2015, DCFS learned that father had been terminated from his drug rehabilitation program at the beginning of December 2014. Father claimed he would provide DCFS documentation showing how much of the program he had completed after he paid a fee he still owed the program. He did not contact the CSW again. DCFS learned that due to DCFS oversight on its part, father did not drug test after mid–October 2014. Father resumed testing in mid–May 2015, after DCFS corrected its error. Three of the drug tests father took in June 2015 were positive for marijuana, and he missed a fourth test. Father admitted smoking marijuana, but claimed to have a medical marijuana card.
In mid–June 2015, the children’s placement was modified from father’s home to “home of parents” under DCFS’ supervision, with visitation schedules for each parent. Father was ordered to provide four consecutive drug tests and to cooperate with DCFS regarding referrals. DCFS was ordered to address termination of jurisdiction at a review hearing set for December 2015.
In July 2015, DCFS filed a subsequent petition as to father. (§ 342.) As amended and ultimately sustained, the subsequent petition alleged that in late June 2015, father grabbed each of his daughters and tossed them on the bed, causing “physical injury with bruises to the children’s arms, shoulders, and legs which was excessive.” The subsequent petition also alleged that father knew or should have known that grandmother struck the children with her hands and a wooden spoon, but nevertheless permitted them to remain in grandmother’s care and supervision, thereby exposing them to substantial risk of physical harm. The children were detained from father’s care and placed with mother, and father was given two monitored visits per week.
According to a report prepared by DCFS, this custodial shift was precipitated by an event during which Rebecca and Bibi were playing in a bedroom and a television fell. Bibi reported that father shook her, “grabbed [her] by [her] arm, hard, and threw [her] on the bed.” Her shoulders were bruised. She was afraid, just as she said she was “always afraid when [she got] in trouble.” Bibi told the CSW that father and grandmother spanked her butt with “their open hand[s],” and that she had seen grandmother spank Rebecca’s butt “with a paddle.”
Rebecca told DCFS that father hit her and Bibi after the TV fell, and screamed and yelled at them “super loud.” She said father grabbed her shoulders “really tight,” picked her up by one knee and her neck, and threw her on the bed. Her shoulders were bruised, as was one of her arms. Rebecca said father did not spank her, but grandmother did. She said she was “kinda” afraid of father and grandmother. She only “sometimes” felt safe with them because “they hit [the children].” Bibi and Rebecca told the CSW that mother did not yell at, hit or spank the children. Rebecca was not afraid of mother.
Damian said father yelled at everyone after the TV fell, said “mean stuff” and was “calling names.” He said father “cusses, gets angry, and tells [Damian] he needs to ‘[g]et more skinny.’” Like Rebecca, Damian was sometimes “a little scared” while living with his father. He admitted that he found it difficult to be in the middle of his parents’ divorce, and liked living with mother.
Father acknowledged having been “really stern” with his daughters during the incident involving the TV, but denied yelling or throwing them on the bed. He did place his hands on Rebecca’s shoulders and under Bibi’s arms, but only to move them out of the way. The CSW questioned father about his lack of compliance with his case plan, and explained that he needed to participate in the services provided in order to learn how manage the children’s behavior. Father responded that, “when they start accusing me and want me to do services, I feel like I’m admitting guilt.” He told the CSW that, although he had been “told . . . to do a 12–step on top of [his] DUI, [he] didn’t want to do more.” He claimed to have finished half of his 18–month program, which he stopped for financial reasons, but planned to resume in two weeks. He also said he was in the process of setting up a Wrap meeting, but never did. Father was living with a woman whose three adolescent children had been detained by the juvenile court following an April 2015 referral for a substantiated allegation involving neglect. That case remained open and father’s companion, who had several DUI convictions, still struggled with alcohol abuse.
The CSW told father she was concerned about an increasing number of bruises on the children after they returned from their visits with him. For example, Damian had a mark on his cheek from roughhousing with his sisters, and Bibi had last left father’s house with a bruised eye and cheek. Father said Bibi ran into a wall, but Bibi told the CSW that Rebecca hurt her and balled her hand into a fist to demonstrate how. Father acknowledged that his daughters “play[ed] rough” and were “always fighting with each other.” Grandmother said the girls hurt themselves climbing and running, and often hurt one another. She said Rebecca was “very violent,” and pinched, pushed and scratched her siblings, and grandmother lacked the “tools” to discipline her. The CSW explained to father that he had to maintain continual supervision over the children. Both father and grandmother told the CSW that incidents the children reported during which father had bound their wrists and ankles behind them with rope, or grandmother slapped her hand with a wooden spoon, were part of a “game” the family played when a child misbehaved entitled, “You need an attitude adjustment.” The CSW opined that such behavior was part of an unacceptable and “ongoing pattern [by] the paternal family using the word ‘play’ to confuse the children or make it appear as though abusing them is okay because it is just a game.”
Father complained to DCFS that mother let the children do whatever they wanted and was afraid to discipline them. But Damian said mother did try to stop the children’s rough housing. He described mother as “calm,” and father as “stressed.” He said his father was “rough and mean,” but mother was not. Damian also thought that one reason father looked “sad and stressed” was that “[h]e just [didn’t] want to lose [the children] cuz he loves [them.]”
DCFS observed that the children shared an emotional bond with both parents. However, DCFS recommended that they be detained from father (§ 319), and remain in mother’s care to ensure their health and safety. This recommendation was based on DCFS’ concern about father’s continued neglect and what appeared to be an escalating pattern on his and grandmother’s part of inappropriate physical discipline. In addition, 17 months after the case had begun, father was still refusing to comply with his case plan (or the criminal court orders), had positive drug tests, was not participating in a drug treatment program, and refused to make himself available for Wrap services. The adjudication hearing was set for August 2015, but continued to January 13, 2016.
In its report for the jurisdictional hearing, DCFS expressed concern about father’s ongoing use of marijuana, which two of the children had observed on multiple occasions. DCFS also remained concerned about the children’s aggression toward one another, which it attributed to their exposure to domestic violence, conflict between father and his companion, and yelling and screaming in father’s and grandmother’s home. The parents’ animosity toward one another also made it difficult for DCFS to work with the family. Father missed two consecutive visits with the children in August 2015, and did not call to cancel nor respond to messages left for him. He later claimed he missed the visits due to a work conflict.
In August 2015, Rebecca was placed on a psychiatric hold for five days after a violent, destructive outburst, and prescribed medication to treat agitation and anxiety. Afterwards, mother continued to struggle with behavioral issues with both girls, and the Wrap team helped her develop coping mechanisms to use with the children during these episodes, and referred Bibi for extra therapy. Despite these behavioral challenges, DCFS reported that mother was doing well with the children. The Wrap facilitator reported that the team had done great work with the family. Most notably, Rebecca’s angry outbursts decreased and she had a more positive relationship with her siblings.
Father had twice weekly monitored visits with the children which went very well, and he was given referrals for parenting and anger management programs. The CSW opined that it was safe to terminate jurisdiction, because mother had resolved the issues that precipitated this dependency action. The children were happy living with her, and mother and father were developing a more amicable relationship.
At the January 13, 2016, jurisdictional hearing, father waived his right to a trial and pled no contest to an amended version of the subsequent petition by which the court found:
“On 6/28/15, [father] inappropriately grabbed [Bibi] and Rebecca by the arms and tossed [them] on the bed, and caused physical injury with bruises to [their] arms, shoulders, and legs which was excessive. On prior occasions, [father] failed to protect the children in that he knew or reasonably should have known that [grandmother] hit the children with her hands and a wooden spoon and allowed the children to be in [her] care and supervision. Such conduct by [father], places the children at a substantial risk of physical harm.”


A contested disposition hearing was conducted on January 29, 2016. The court admitted various DCFS reports. DCFS and the children’s counsel recommended that the court terminate jurisdiction and issue a family law order granting mother full legal and physical custody, and giving father monitored visitation. Father did not present any evidence, but requested joint legal custody and unmonitored visitation Mother’s counsel noted that, although mother was not opposed to joint legal custody, mother was concerned that joint decision making might create a problem in some situations, e.g., in the case of conflict and/or the need for prompt decisions regarding Rebecca’s mental health treatment or her need for psychotropic medication.
The court found that the conditions which justified its initial assumption of jurisdiction under section 300 no longer existed and were not likely to exist if supervision were withdrawn as to mother. It terminated jurisdiction and issued a family law order granting mother full legal and physical custody of the children and ordering monitored monthly visits for father. This appeal followed.

DISCUSSION
Father insists that the juvenile court’s exit orders awarding mother sole legal custody and giving him only monitored visitation were contrary to the children’s best interests for three reasons: (1) mother’s history of violent, erratic conduct might not have been fully resolved by the time she was given sole decision–making authority; (2) the children faced no substantial risk of danger if permitted unmonitored contact with him; and (3) given the parents’ demonstrated ability to co–parent, an order awarding joint legal custody would benefit their children.

1. Controlling Legal Principles and the Standard of Review
In the case of dependent children, the juvenile court is vested with exclusive jurisdiction to make custody and visitation orders, commonly known as “exit orders,” on termination of jurisdiction. (See §§ 304, 362.4; In re Armando L. (2016) 1 Cal.App.5th 606, 616; In re John W. (1996) 41 Cal.App.4th 961, 970 (John W.).) An exit order remains in effect after dependency court jurisdiction is terminated, unless modified or terminated in a later family law proceeding involving the child. (§§ 362.4, 302, subd. (d); John W., supra, at p. 970.)
In fashioning exit orders, the court’s focus is on the child’s best interests, viewed under the totality of circumstances. (See In re Chantal S. (1996) 13 Cal.4th 196, 206 (Chantal S.); John W., supra, 41 Cal.App.4th at pp. 973-974.) Unlike the family law court, the juvenile court’s determination is not constrained by “any preferences or presumptions” regarding parental custody. (John W., supra, 41 Cal.App.4th at p. 972; In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.) A dependency court judge determines what is in the child’s best interests, whereas a family law judge determines “the best interests of the child as between two parents.” (John W., supra, at p. 971, italics omitted.) And, importantly, family law courts operate under the presumption that both parents are equally fit to care for the child or children; the juvenile court does not. (In re Jennifer R. (1993) 14 Cal.App.4th 704, 712 (Jennifer R.).) Indeed, a child becomes a dependent of the juvenile court in the first place as a result of abuse or neglect by at least one parent.
“In making ‘exit’ orders . . . it is the best interests of the child, in the context of the peculiar facts of the case before the court, which are paramount.” (John W., supra, 41 Cal.App.4th at p. 965.) The juvenile court has broad discretion to make this determination and we will not disturb its decision absent a clear showing of abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227–1228.) In short, we will not reverse the juvenile court’s order absent a showing that the court exceeded the limits of its discretion by making an arbitrary, capricious or patently absurd decision. (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300.) On this record we find no such abuse of discretion.

2. The Juvenile Court’s Decision to Award Sole Legal Custody to Mother Was Not an Unreasonable Exercise of its Discretion

Father argues that the juvenile court abused its discretion when it gave mother full legal custody, i.e., the sole right and responsibility to make decisions regarding the children’s health, education and welfare. (Fam. Code, § 3006.) He argues that, given the severity of mother’s problems that led to this proceeding, she has not yet fully demonstrated an ability to care for and protect the children.
The juvenile court concluded otherwise and that conclusion finds evidentiary support in the record. First, mother’s commitment to her children, her sobriety and her recovery has been unwavering from the outset of this action. She successfully completed a year-long drug program and aftercare program, and her drug tests have been consistently clean. She complied fully with her case plan, including the completion of a parenting program and participation in counseling. Once mother began seriously to address her problems with alcohol, the children no longer feared her and enjoyed living with her. By the time it issued its exit orders, the court found that mother had progressed to the point that no further supervision was required.
Second, father cites no evidence to suggest that mother remains ill–equipped to handle the responsibility of sole decision–making authority regarding the children’s welfare. Mother has revealed her steadfast commitment to her own sobriety, has willingly cooperated with DCFS and has fully complied with her case plan in a concerted effort to reunify with her children as soon as possible and to ensure their safety, and physical and mental well-being. She has taken advantage of the services offered to her, and maintained regular contact with DCFS and her Wrap team. Those services and the programs she has completed have enabled her to learn the skills and obtain tools to better cope with the children and address their needs, particularly with regard to their aggressive behavior toward one another and Rebecca and Bibi’s mental health issues. Mother’s physical custody of the children, combined with her willingness to work with DCFS to evaluate and enhance the children’s progress, health and behavior, has placed her in the best parental position to make decisions as to such matters. Notably, father does not take issue with the court’s award of full physical custody to mother, nor with its finding that no further judicial supervision is required as to her.
Third, the parents have had an historically acrimonious relationship. The court did not err in concluding that an award of joint legal custody would be unwise given their volatile history. Although mother and father had begun to co–parent more effectively by the time of the adjudication and disposition hearings, that nascent relationship was still too tenuous for the court to rely upon. As mother’s counsel pointed out, if the parents reverted to their more familiar volatile interactions, shared legal custody could delay and might dangerously hinder necessary and prompt decision-making involving the children, especially as to matters regarding Rebecca’s mental health treatment and medication.
Finally, the court was within its discretion to find that it was not in the children’s best interests to permit father to participate in making important decisions as to their welfare, given his failure to address the concerns that brought him to the court’s attention with respect to the subsequent petition. As in Jennifer R., supra, 14 Cal.App.4th 704, among the considerations in affirming an exit order granting a father sole legal custody, was the mother’s failure to follow through on drug rehabilitation referrals, her failure to drug test and her inappropriate behavior during visits. (Id. at p. 713.) Here, father acknowledged having completed only about half of his court–ordered treatment program following his DUI conviction and incorporated into his case plan, and tested positive for marijuana which, according to the children, he smoked regularly and in full view of them. In addition, there is no evidence that father made any effort to cooperate with DCFS or to participate in the Wrap services, and made no progress in learning how to relate to his children. If anything, the evidence shows his behavior regressed, in light of the disciplinary “game” he and grandmother played by tying the children’s limbs behind them, threatening them with spoons, and grabbing his daughters so roughly he bruised their shoulders and arms. These are significant concerns, yet father took no action to address them. Based on the totality of the circumstances, there is ample evidence to support the juvenile court’s conclusion that vesting joint decision-making authority in both parents was not in the children’s best interests. As such, the juvenile court did not abuse its discretion in awarding sole legal custody to mother.

3. The Order Giving Father Monitored Visitation was Not an Abuse of the Juvenile Court’s Discretion

Father also argues that the juvenile court erred by limiting him to monitored visits because there was no evidence the children would be in danger if he were given unmonitored visits. He is mistaken in several respects.
First, he misstates the standard. In fashioning an exit order, the juvenile court is focused primarily on a disposition that will advance the children’s best interests, not just on an absence of danger. (See John W., supra, 41 Cal.App.4th at pp. 973–974.)
Second, the record supports the court’s conclusion that unsupervised visits with father would pose a safety risk to the children. In addition, the court made a critical–and unchallenged–finding that the children could no longer safely remain in father’s care due to his continued consumption of alcohol, his failure to complete the treatment program, the danger posed to the children by the possibility that he might operate a vehicle again while under the influence, and his use of drugs in the children’s presence.
Third, as discussed above, the record demonstrates that father cannot manage the children’s behavior and has made no effort to curb the children’s excessive roughhousing, even when they leave marks and bruises on their siblings. Indeed, father’s own inappropriate, excessive discipline has likely exacerbated such conduct. He yells at them “super loud[ly],” and confuses the children by pretending that inappropriate physical discipline (hog-tying them and threatening to slap or slapping them with a wooden spoon) is a “game,” and lets grandmother do so too. Father’s unpredictable, volatile behavior has caused his son to feel safe only “sometimes” when in father’s care, and has made Rebecca afraid because father “hit [the children],” and because she knows how easily he “gets really mad,” and can shift from zero–to–30 in 10 seconds. As the court observed, father’s volatility and inability to control his temper has caused him to engage in “outrage[ous]” violent and abusive behavior against the children in his home, i.e. “domestic violence.” The record contains no evidence that father has taken steps to ameliorate this problem which has caused his children to suffer fear and stress, especially Rebecca who, as her counsel noted, is clearly “an emotionally fragile child.”
Under appropriate circumstances, “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.” (Chantal S., supra, 13 Cal.4th at p. 204.) This is such a case. Mother fully embraced and excelled in her program and addressed the issues within her power that brought her family within juvenile court jurisdiction. The best that may be said of father here is that he chose to ignore them. As a result, the court concluded the children would be at risk if left unsupervised in father’s care, and reasonably exercised its discretion to require that his visits be monitored.

DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


WILLHITE, J.


We concur:



EPSTEIN, P. J.



MANELLA, J.