Filed 3/15/22 In re E.H. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from orders of the Superior Court of Los Angeles County, Amir Aharonov, Judge Pro Tempore. Affirmed.

Linda J. Vogel, under appointment by the Court of Appeal, for Defendant and Appellant.

Shaylah Padgett-Weibel, under appointment by the Court of Appeal, for Defendant and Respondent.

The juvenile court assumed jurisdiction over three-year-old E.H.[1] after sustaining allegations that J.H. (Father) committed acts of domestic violence against K.R. (Mother). The court later terminated jurisdiction and awarded Mother sole legal and physical custody of E.H. Father appeals and we are asked to decide whether the juvenile court’s decision to grant Mother sole legal custody was an abuse of discretion, particularly in light of Father’s partial compliance with his case plan.[2]

I. BACKGROUND

A. The Conduct Leading to Dependency Jurisdiction

In May 2017, approximately one month after E.H. was born, Mother and Father were living with the child’s paternal grandparents. The parents began arguing when Mother saw a text message from another woman on Father’s phone. Father wanted to talk about the situation immediately, but Mother wanted to wait. Father then began yelling at Mother, and the paternal grandmother entered the room and took E.H. elsewhere in the home. As the parents continued to argue, Father grabbed Mother by the arms and pushed her at least twice.

By December 2019, Mother and Father were no longer in a relationship.[3] They met one day to exchange custody of E.H. and Father asked Mother for her phone, stating it was his property. Mother refused to give him the phone, which was in the back pocket of her jeans. Father reached to take the phone, Mother tried to keep it in her pocket, and Father hit the side of Mother’s face with his elbow. He then took the phone and left. Later that day, Father returned the phone and apologized to Mother. At the time, Mother thought Father hit her accidentally, but she later came to believe he hit her on purpose.

In March 2020, Father returned E.H. to Mother’s custody after spending the day with her. Later the same night, Father arrived at Mother’s apartment and forcefully entered, somehow opening the locked front door. Father said he wanted to pick up his property and cracked his knuckles in front of Mother’s face. A male friend of Mother’s was in the apartment at the time, and Father told him to leave; Mother said her guest could stay. Mother then went to the bathroom to retrieve her cellphone and Father followed. When Mother tried to close the bathroom door, Father pushed the door open, which pinned Mother between the wall and bathroom door. Eventually, Father allowed Mother to walk out of the bathroom and E.H., who was at home at the time, was in a position to see at least part of what happened. Mother called the police, and officers later arrived and arrested Father.

B. The Petition and Assumption of Jurisdiction

The Department was notified of Father’s arrest and began investigating the family’s welfare. The Department obtained authorization to remove E.H. from Mother and Father in April 2020. E.H. was placed with a maternal great aunt. Mother filed a request for a restraining order protecting her from Father.

Shortly after obtaining the removal order, the Department filed a two count dependency petition asking the juvenile court to assume jurisdiction over E.H. under Welfare and Institutions Code section 300, subdivisions (a) and (b)(1).[4] As pertinent here, the petition alleged Mother and Father have a history of violent altercations and specifically cited the aforementioned violent episodes in May 2017, December 2019, and March 2020. At an initial detention hearing, the juvenile court removed E.H. from Father’s custody and released her to Mother. The court also issued a temporary restraining order protecting Mother from Father.

At a later jurisdiction and disposition hearing held in August 2020, the juvenile court amended the petition by interlineation (to strike allegations of threats by members of Father’s family and an allegation that Mother failed to protect E.H) and sustained the petition as amended. The court removed E.H. from Father’s custody and issued a three-year restraining order protecting Mother from Father. The court-ordered case plan directed Father to participate in a 52-week batterer’s intervention domestic violence program, a parenting course, mental health counseling, and individual counseling to address case issues (including domestic violence, effects of violence on children, and protective parenting).

C. Subsequent Department Reporting and the March 2021 Review Hearing

The Department filed a status review report in March 2021. The report stated Father had been cooperative with the Department. He enrolled in a 52-week domestic violence class and an anger management class, but had completed only several sessions of each. Father had also completed a 16-session parenting class (his instructor called him an exceptional participant) and had participated in 21 group counseling sessions. As for visitation with E.H., Father’s visits had been consistent and the Department reported no concerns with the visits. The Department recommended terminating jurisdiction over E.H. with a Family Law Order that gave Mother sole physical custody, gave the parents joint legal custody, and ordered unmonitored visitation for Father once he proved he completed the 52-week domestic violence program.

The juvenile court held a review hearing in March 2021. After hearing testimony from Father and argument from counsel, the juvenile court terminated jurisdiction and granted sole legal and physical custody to Mother, with monitored visitation for Father. The court explained it was ordering monitored visitation because Father was making only slow progress with his domestic violence classes—in the more than three months between updates on Father’s status, he had only completed three additional classes. The court also stated its custody and visitation orders took into account Father’s failure to complete one year of individual counseling.

II. DISCUSSION

Father contends the juvenile court abused its discretion by giving Mother sole legal custody of E.H. rather than making a joint legal custody order. As we go on to explain, the juvenile court’s order was within its discretion because Father did not fully—or even substantially—complete the court-ordered services intended to address his violent conflicts with Mother and joint legal custody would require Father and Mother to make decisions about E.H.’s welfare together.

“‘When the juvenile court terminates its jurisdiction over a dependent child, section 362.4 authorizes it 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 (Chantal S.).) In making such orders, a juvenile court has “broad discretion” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 265, fn. 4 (Nicholas H.)) and principally considers “what would best serve and protect the child's interest.” (In re Gabriel L. (2009) 172 Cal.App.4th 644, 652; see also Chantal S., supra, at 206; Nicholas H., supra, at 268.) “Thus . . . a finding that neither parent poses any danger to the child does not mean that both are equally entitled to half custody, since joint physical custody may not be in the child’s best interests for a variety of reasons. [Citation.] By the same token, a finding that the parent from whom custody was removed no longer poses a risk of detriment or that the parent whose custody has been subject to supervision no longer requires supervision is relevant to, but not necessarily determinative of, the best interests of the child.” (Nicholas H., supra, at 268.)

Here, the juvenile court assumed jurisdiction over E.H. after sustaining allegations that Father committed multiple acts of domestic violence. In doing so, the court ordered Father to take certain steps to address the domestic violence—including by participating in a 52-week domestic violence course and individual counseling. However, during the approximately seven months between the jurisdiction hearing and the review hearing, Father completed only ten domestic violence classes and did not participate in any individual counseling. The juvenile court could appropriately make a discretionary determination that Father had not yet substantially addressed the core issues that led to juvenile court jurisdiction—issues that could well come to a head again in the future if the court were to grant joint legal custody and Father and Mother would have to work together to make medical, educational, and other decisions regarding E.H.’s life.

Father, however, believes the court’s ruling was erroneous because any implicit finding that it was in E.H.’s best interest for Father not to have joint legal custody of her is not supported by the record. Father emphasizes the ways in which he complied with the court’s orders, noting, for example, the Department’s representation that he was cooperative throughout the proceedings and the laudatory comment from the instructor of his parenting class. The argument is unavailing, particularly under the governing standard of review. Father’s ability to parent E.H. is only one aspect of joint legal custody; his ability to cooperate with Mother is another. The juvenile court did not abuse its discretion when concluding joint legal custody would have to wait until Father made further progress in services in light of the years-long history of domestic violence perpetrated by him against Mother.

DISPOSITION

The court’s order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.

[1] E.H. was three years old at the commencement of dependency proceedings.

[2] The Los Angeles Department of Children and Family Services (the Department) did not file a brief in this court, believing it was not the “proper respondent” because it recommended joint legal custody. This court appointed counsel for Mother and she filed a respondent’s brief.

[3] Mother had primary custody of E.H. and Father had visits with E.H. on Tuesdays and every other weekend. Father’s visitation did not include overnight visits.

[4] Undesignated statutory references that follow are to the Welfare and Institutions Code.