Filed 1/21/15 In re Bianca B. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE


In re BIANCA B., et al., Persons Coming                                    B257427
Under the Juvenile Court Law.
                                                                           (Los Angeles County
LOS ANGELES COUNTY                                                         Super. Ct. No. CK98406)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

FALLON B.,

         Defendant and Appellant.



         APPEAL from a judgment and order of the Superior Court of Los Angeles
County, Margaret S. Henry, Judge. Affirmed.
         Jack A. Love, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the County Counsel, Mark J. Saladino, County Counsel,
Dawyn R. Harrison, Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.
                        ___________________________________________
       Fallon B. (mother) appeals from the juvenile court’s judgment terminating
jurisdiction and order awarding mother only monitored visitation with her three
children, Bianca B., age nine, Cadence P., age eight, and M. J., age three. Mother
contends that (1) she was not provided with adequate notice that the court would modify
her visitation, and (2) continued jurisdiction was in the children’s best interests because
the court did not have sufficient information about the children’s fathers’ ability to
provide them with safe homes or “the quality of the children’s visits with [] mother.”
We disagree and affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On February 22, 2011, the Department of Children and Family Services
(Department) received a referral alleging that mother had “mental health issues” and
there was domestic violence between her and Mi., M.’s father. The Department found
the allegations to be “substantiated,” and recommended that mother enroll in parenting
and domestic violence classes. Mother voluntarily agreed to participate in family
maintenance services but did not complete the domestic violence class.
       On March 5, 2013, mother walked into M.’s day care shouting for M. The
director of the day care said that mother was “in a rage screaming and holl[er]ing I want
my mother fucking baby right now,” and “grab[bed] the baby and his backpack and
r[a]n for the front door.” Mother “was complaining Mi. [had] serve[d] [her] [with]
some court paper trying to take [her] m[other-]f[ucking] son,” and threatened that Mi.
would “never see him again.” Two days later, mother came to pick up M. at the day
care center with a black eye and bruises on her body, and told the director the injuries
were a result of a fight with her girlfriend.
       On March 8, 2013, the Department received a referral alleging that mother and
her girlfriend, Jessica E., engaged in frequent domestic violence. According to the
reporting party, the children had been present during a recent incident which left mother
with two black eyes, scratches on her face, and a “big gash” on her arm.
       The Department investigated the referral. Mother denied any domestic violence
with Jessica, but admitted that she had previously engaged in domestic violence with


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Mi. and Bryant P., Cadence and Bianca’s father.1 Mother said that both Mi. and Bryant
had punched her, and that she had attempted to stab Bryant.
       Mi. claimed that mother was often the aggressor and had stabbed him in the leg.
Mi. further reported that, in early March 2013, he had observed mother with a black
eye, and mother had told him she had “got[ten] into a fight with her girlfriend.” Bryant
also said that mother had been the aggressor during their fights and had punched him
multiple times. The girls, Bianca and Cadence, denied having witnessed domestic
violence between mother and her girlfriend.
       On March 22, 2013, the Department filed a petition alleging that the three
children were at risk due to domestic violence in the family. Bryant was deemed the
presumed father of Cadence and Bianca, and Mi., M.’s presumed father.2 The court
detained the children, but ordered that Bianca remain in mother’s custody, and Cadence
and M., in their parents’ joint custody. The children were to continue to reside with
their fathers during the week, and to stay with mother on the weekends. The court
further ordered that Jessica was not to be present during the children’s visits.
       A social worker from the Department interviewed the family again in early
April 2013. Bianca said that mother “argue[d] a lot” with Jessica, but denied witnessing
any physical altercations between them. Cadence confirmed that she “always” saw
mother and Jessica fighting, that she had seen them fight more than 20 times, and that
Jessica had hit mother. Mother still denied the allegations of domestic violence between
her and Jessica.
       Mi. reported that, after he had seen mother with two black eyes, Jessica had
called him and admitted she had gotten into a “bad” fight with mother and had “broke
out” mother’s car windows. Mi. also said that mother had threatened to send M. out of


1
       Bryant was Cadence’s biological father and had also acted as a father to Bianca
since her birth. Bianca’s biological father had never been involved in her life.
2
       Bryant was deemed Cadence’s presumed father at the detention hearing, and,
later on, the court also found him to be Bianca’s presumed father.

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state to a family member. Bryant said that Cadence and Bianca had told him that
Jessica was present during the girls’ recent weekend visit with mother.
       On April 26, 2013, the Department filed an ex parte application asking the court
to detain the children from mother’s custody on the grounds that mother continued to
deny the allegations of domestic violence and there was evidence Jessica had been
present during a recent visit with the children. The court granted the request and limited
mother’s contact with the children to monitored visits.
       On May 10, 2013, the court sustained allegations that mother’s history of
domestic violence with both Mi. and Jessica endangered the children. Mother was
ordered to participate in domestic violence counseling, a parenting class, and individual
counseling. Bryant was ordered to attend individual counseling, and Mi. was ordered to
attend domestic violence counseling. Mother’s visits remained monitored.
       On October 15, 2013, the Department reported that mother was participating in
individual counseling but had not attended domestic violence counseling. By early
November 2013, mother had completed a parenting class and had enrolled in domestic
violence counseling. At the six-month review hearing on December 19, 2013, the court
ordered unmonitored visitation for mother for two hours a week. The following week,
Mi. reported that mother had gotten into another fight with her girlfriend which resulted
in a “gash” to mother’s head.
       On January 27, 2014, Bryant told the Department that Bianca had returned crying
from an unmonitored visit with mother. Bianca said that she was at church with mother
when mother “started screaming and calling her bad words.” Mother had also told her
“ ‘[y]ou are lucky that I don’t hit you with the broom,’ ” and had instructed Bianca not
to say anything to Bryant, otherwise mother would “ ‘whoop’ ” her.
       On February 3, 2014, mother told the Department that she had looked up M.’s
biological father on-line and that he “ ‘wants to be a part of [M.’s] life.’ ” This
individual was told that he needed to participate in a paternity test but did not do so.
Mother informed Mi. that she had found M.’s “ ‘real daddy,’ ” and Mi., who was “very



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upset,” told the Department he believed mother’s motive was only to “hurt him.” M.
was then three years old and had lived with Mi. since he was five months old.
       On April 28, 2014, Mi. informed the Department that during mother’s last visit
with the children, she had taken maternal grandmother’s car without permission, had
run through a red light while the children were in the car, and had been stopped by the
police. The police had impounded the car because mother did not have a valid driver’s
license.
       On June 19, 2014, the Department reported that mother’s visitation during the
prior six months had been sporadic and recommended that mother’s visits be monitored
due to mother’s erratic behavior. The Department further recommended that the court
terminate jurisdiction because there were no “immediate child safety concerns” in the
fathers’ homes. Although neither Mi. or Bryant had complied with court-ordered
therapeutic services, the children were well-cared for and the fathers had provided for
all the children’s needs.
       At a Welfare and Institutions Code3 section 3644 review hearing on June 19,
2014, the court stated “the recommendation is to terminate jurisdiction with a family
law order. . . . [¶] [T]he report says [Mi.] has not done any of his programs, so we
won’t be terminating jurisdiction.” Mi.’s counsel then indicated that father had
completed domestic violence counseling, and mother’s counsel stated that she was
challenging the Department’s recommendations. Accordingly, the court set the matter
for a contested hearing on June 27, 2014, and ordered the Department to file
a supplemental report on mother’s progress in her programs and on her visits.
       On June 26, 2014, the Department filed a supplemental report stating that it had
received a referral alleging that Bryant had physically abused Bianca. The Department

3
      All other statutory references are to the Welfare and Institutions Code unless
otherwise stated.
4
       Section 364 provides for review hearings every six months when a child is
declared a dependent of the court but not removed from the physical custody of his or
her parent.

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recommended continuing the matter for sixty days for disposition of the referral. The
Department further reported that mother had not provided any update regarding her
participation in court-ordered services, and had last visited the children a month prior.
Mi. filed evidence he had completed a program of domestic violence counseling.
       At the contested hearing on June 27, 2014, the court declined to continue the
matter on the ground that if the Department substantiated the referral’s allegations, it
could file a new petition. The court then entered judgment terminating jurisdiction and
issued a family law order giving Bryant and Mi. sole physical custody and joint legal
custody with mother over their respective children. Mother’s visitation with all three
children was ordered to be monitored. Mother timely appealed.
                                    CONTENTIONS
       Mother contends (1) she was not provided with adequate notice that her visitation
would be modified, and (2) it was not in the children’s best interests to terminate
jurisdiction because the court did not have sufficient information about the fathers’
ability to provide the children with safe homes or “the quality of the children’s visits
with [] mother.”5
                                      DISCUSSION
       1.     Mother Was Provided With Adequate Notice
       In this appeal, mother contends she was provided with insufficient notice the
court would modify her visitation at the June 27, 2014 hearing. Although mother
acknowledges that the Department recommended that the court change mother’s visits
from unmonitored to monitored, she argues that, due to two subsequent events, she was
no longer on notice that her visitation might be changed to monitored: (1) the court said
at the June 19, 2014 hearing that it would not “be terminating jurisdiction”; and (2) prior
to the continued hearing, the Department made a new recommendation that the case be
continued for 60 days.

5
        Mother also initially argued that the juvenile court had no jurisdiction to make
exit orders regarding custody and visitation. However, mother conceded in her reply
that the court does have this authority under section 362.4.

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       The court modified mother’s visitation rights at a review hearing held pursuant to
section 364. That section requires that the court hold a review hearing every six months
when custody of a dependent child has not been removed from the parent. 6
(Section 364, subd. (a).) At a section 364 hearing, “the court shall determine whether
continued supervision is necessary. The court shall terminate its jurisdiction unless the
social worker or his or her department establishes by a preponderance of evidence that
the conditions still exist which would justify initial assumption of jurisdiction under
Section 300, or that those conditions are likely to exist if supervision is withdrawn.” 7
(Section 364, subd. (c).) When the court terminates jurisdiction, “under section 362.4, it
can also make a ‘termination’ or ‘exit’ order determining custody and/or visitation.”
(In re Natasha A. (1996) 42 Cal.App.4th 28, 36.)
       “The juvenile court is forbidden to change, modify, or set aside its previous
orders without advance notice to the minor and [the Department].” (In re Natasha A.,
supra, 42 Cal.App.4th at pp. 34-35.) Mother argues that, here, the court’s statement at
the earlier June 19, 2014 hearing that it was not terminating jurisdiction and the
Department’s subsequent recommendation to continue the section 364 hearing misled
her into believing that her visitation would no longer be an issue at the contested
section 364 hearing held on June 27, 2014.
       Mother’s apparent confusion as to whether the court was still considering
termination of jurisdiction or whether the Department continued to recommend that the
case be dismissed is irrelevant to whether she was provided proper notice about the
modification of her visitation rights. The court had the power to modify visitation at

6
       Section 364 applies when a child has been removed from both parents and
returned to only one parent. (In re Gabriel L. (2009) 172 Cal.App.4th 644, 650.)
7
       Mother briefly argues that section 364 requires the court to make express
findings when it terminates jurisdiction. However, we note that section 364, unlike
other provisions in the Welfare and Institutions Code, does not require the court to make
express findings. (C.f. section 361, subd. (d) [“The court shall state the facts on which
the decision to remove the minor is based.”]; section 361.2, subd. (c) [“The court shall
make a finding either in writing or on the record . . . . ”])

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a section 364 hearing even if it did not terminate jurisdiction. (In re Natasha A., supra,
42 Cal.App.4th at p. 36.) Therefore, even if the court had decided to not terminate
jurisdiction, it could still order that mother’s visits be changed to monitored. Mother
does not dispute that a Department’s recommendation that a parent’s visitation be
changed, served on the parent in advance of a section 364 hearing, constitutes proper
notice to the parent that the court may modify her visitation rights. The subsequent
events of which mother complains did not alter the Department’s recommendation that
her visits be changed to monitored and, therefore, did not undermine that notice.
       2.     The Termination Order was in the Children’s Best Interests
       Mother contends that it was not in the children’s best interests to terminate
jurisdiction with the accompanying exit orders because the court had incomplete
information about the safety of Mi.’s and Bryant’s homes and mother’s progress.
Specifically, mother argues that the court should have continued the case to allow the
Department time to (1) investigate the recent referral against Bryant, (2) confirm that
Mi. had received therapy from a licensed therapist, and (3) update the court as to
mother’s progress on her court-ordered counseling and the quality of her visits with the
children.
       “We normally review the juvenile court’s decision to terminate dependency
jurisdiction and to issue a custody (or ‘exit’) order pursuant to section 362.4 for abuse of
discretion (citation) and may not disturb the order unless the court ‘ “ ‘exceeded the
limits of legal discretion by making an arbitrary, capricious, or patently absurd
determination (citations).’ ” ’ [Citations.]” (Bridget A. v. Superior Court (2007)
148 Cal.App.4th 285, 301.)
       We conclude that the court acted within its discretion in terminating jurisdiction.
Although the Department was still investigating a referral against Bryant, if the
Department were to discover evidence substantiating the referral, it could file a new
petition reopening the case. Furthermore, the petition at issue in this case did not
include any sustained allegations against Bryant, and substantial evidence indicated that
Cadence and Bianca were well cared for in his home.


                                             8
       With respect to Mi., mother’s claim that he did not receive counseling from
a licensed therapist is not supported by the record. The record establishes that Mi.
completed 25 sessions of domestic violence counseling and it is unclear if his therapist
was licensed. In addition, the court’s order that he complete counseling did not require
that the therapist be licensed. Furthermore, there was substantial evidence that M. was
well cared for in Mi.’s home.
       Lastly, the court had sufficient information about mother’s participation in
court-ordered programs and the quality of her visits with her children to determine that
it was in the children’s best interests to live with their respective fathers and have only
monitored visits with mother. Even if there were evidence mother had completed her
court-ordered programs, this alone would not guarantee return of the children to her
care; the court must still consider a parent’s “progress and [] capacity to meet the
objectives of the [reunification] plan . . . . ” (In re Dustin R. (1997) 54 Cal.App.4th
1131, 1144.)
       Here, there was evidence that, during the six months preceding the section 364
hearing, mother’s visits with the children had been sporadic and she had repeatedly
engaged in behavior that endangered the children’s well-being and safety: yelling at
Bianca in church and threatening to hit her with a broom, driving recklessly with the
children in the car when mother did not have a license, and attempting to manipulate
Mi.’s relationship with M. Based on all this evidence, the court did not abuse its
discretion in terminating jurisdiction, granting sole physical custody to Mi. and Bryant,
and limiting mother’s contact with the children to monitored visitation.




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                                    DISPOSITION
      The judgment and order are affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                    LAVIN, J.*

WE CONCUR:




      KITCHING, Acting P. J.




      ALDRICH, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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