 Filed 7/31/19
                 CERTIFIED FOR PUBLICATION*


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                        DIVISION FIVE


  In re C.M., a Person Coming         B291817
  Under the Juvenile Court            (Los Angeles County
  Law.                                Super. Ct. No. DK22753A)


  LOS ANGELES COUNTY
  DEPARTMENT OF
  CHILDREN AND FAMILY
  SERVICES,

       Plaintiff and
  Respondent,

            v.

  C.E.,

       Defendant and
  Appellant.


        Pursuant to California Rules of Court, rules 8.1105
        *

 and 8.1110, this opinion is certified for publication with the
 exception of part B of the Discussion.
     APPEAL from an order of the Superior Court of Los
Angeles County, Martha A. Matthews, Judge. Affirmed.
     Jamie A. Moran, under appointment by the Court of
Appeal, for Defendant and Appellant.
     Mary C. Wickham, County Counsel, Kristine P. Miles,
Assistant County Counsel, Tracey F. Dodds, Principal
Deputy County Counsel, for Plaintiff and Respondent.
                __________________________

      C.E. (father) appeals an order providing that he and
B.D. (mother) share joint legal custody of their son, C.M.,
issued as part of an order terminating dependency
jurisdiction under Welfare and Institutions Code section
362.4. 1 Father contends it was error to order joint legal
custody in light of Family Code section 3044 and sustained
petition allegations that mother engaged in acts of domestic
violence against her male companion in the presence of her
children. Alternatively, father contends the joint legal
custody order was an abuse of discretion. The Los Angeles
County Department of Children and Family Services
(Department) contends the joint legal custody order was a
valid exercise of the court’s discretion. We conclude Family
Code section 3044, and its rebuttable presumption against
awarding sole or joint custody of a child to certain
perpetrators of domestic violence, does not apply to
dependency proceedings under section 300 et seq. We also

     1All further statutory references are to the Welfare
and Institutions Code unless otherwise indicated.



                              2
find the juvenile court’s decision to award joint legal custody
was not an abuse of discretion, and so we affirm.

    FACTUAL AND PROCEDURAL BACKGROUND

      Mother has two children, half-siblings C.M. (born June
2012) and N.M. (born August 2014). 2 Mother had previously
participated in voluntary family maintenance in 2016, after
N.M.’s father, M.M., was arrested for domestic violence.
      The current case started in May 2017, when the
Department filed a dependency petition alleging that both
minor children were dependents described by section 300.
The factual allegations—which were identical for separate
counts under section 300, subdivisions (a) and (b)—stated
that mother and M.M. had a history of engaging in domestic
violence in the children’s presence, mother was arrested for
domestic violence and child endangerment, and the violent
conduct between mother and M.M. placed the children at
risk of suffering serious physical harm. The court ordered
the children detained and placed with maternal
grandmother, with separate monitored visits for the parents.
      In a July 2017 jurisdiction and disposition report, the
Department stated mother refused to be interviewed for the
report without her attorney. Mother had started services in

     2 The only parties to the current appeal are father and
the Department. While mother, C.M., N.M., and his father,
M.M., were all parties in the dependency proceedings, they
are not parties to this appeal.



                               3
June 2017. Reviewing the history of his relationship with
mother and C.M., father told a social worker he had an “on
and off” relationship with mother that he ended after she
started hitting herself and threatening to call the police
during an argument. According to father, mother told him
he was the father when she was pregnant with C.M., but
after C.M. was born, she asked father to stay away because
M.M. had a problem with father, and C.M. believed M.M.
was his father. When M.M. was not around, she would allow
father to see C.M. Father regretted not seeking custody of
C.M. sooner, and he felt sorry for M.M. because mother was
also interfering in M.M.’s relationship with N.M. Father
was glad the Department was involved so he could now see
C.M. Father was concerned about mother telling C.M. he is
not C.M.’s father. He did not want to take M.M. from C.M.
or confuse C.M., so father would tell C.M. he has two dads.
      By August 2017, mother was enrolled and participating
in services, and father had completed an online parenting
course. The Department liberalized father’s visits to
unmonitored. The Department raised concerns that mother
continued to reside on the same property as maternal
grandmother; mother was seeing C.M. every day, and she
and maternal grandmother would discuss case issues with
him, saying that he would be able to live with mother again
soon. Maternal grandmother accused father of hitting C.M.,
but when the social worker interviewed C.M., he denied
being hit by father, and said he enjoyed visits with father
and would like visits to be longer.




                            4
      In September 2017, mother completed a parenting
program. However, maternal grandmother continued to
accuse father and his fiancée of mistreating C.M., and the
Department remained concerned that mother and maternal
grandmother were coaching C.M. When asked about visits
with father, C.M. advised the social worker that mother had
told him that M.M. is his father, and that father is just his
mother’s friend. Father contacted the social worker after
maternal grandmother was uncooperative about visitation
exchanges.
      On September 29, 2017, the court released C.M. to
father’s custody under the Department’s supervision.
Maternal grandmother was given monitored visits, and
mother’s visits—which could no longer be monitored by
maternal grandmother—were to take place at the
Department’s offices.
      In November 2017, mother accused father of abusing
C.M., posting on social media a photo of C.M. with a bruise
on his right cheek. According to the social worker, the bruise
occurred when C.M. fell on some rocks on Halloween. On
November 9, 2017, the first day of the contested adjudication
hearing, the court ordered that “no parties, including family
members, are to speak negatively about anything to [C.M.]”
or to discuss or post case-related matters on social media.
      On December 26, 2017, the second day of the
adjudication hearing, father told the Department he was not
comfortable with the case being closed, because mother
would not follow any of the rules if the Department was no




                              5
longer involved. Father had scheduled an intake session for
C.M. to start individual counseling, and he noted that C.M.
was more aggressive and bratty after visits with mother.
Mother wanted unsupervised visits with the children, and
described father’s fiancée as overly permissive with C.M.
Mother provided the Department with character letters from
a pastor, a friend, and a cousin, describing her as family-
oriented, nurturing, and loving. She also provided the boys’
Sunday school attendance records from July 2016 through
October 2017.
      After reviewing the testimony and evidence, the court
sustained the petition allegations and ordered mother to
participate in a 52-week domestic violence batterer’s
program, anger management, parenting program, mental
health counseling, psychiatric and psychological assessments
(psychological evaluations under Evid. Code, § 730), and
individual counseling to address case issues and co-
parenting.
      In early 2018, mother filed a section 388 petition
seeking to have C.M. returned to her custody. The
Department filed a response, acknowledging mother’s
participation in anger management classes and individual
counseling. The domestic violence program mother
completed was only a 10-week domestic violence awareness
course, not a 52-week domestic violence batterer’s course as
ordered by the court. The Department had not yet received
mother’s psychological evaluation report. According to the
Department’s report, Mother stated she was bonded to the




                             6
children and that, before detention, C.M. had no contact with
father. Mother expressed concern about stability and
consistency, noting she took the children to church weekly.
The Department expressed concern about whether mother
was able to take responsibility for her actions, noting she
had not acknowledged fault for the detention of her children,
and was quick to blame others. Mother was unable to tell
the social worker what she had learned or what had changed
since the children were detained. Mother also discussed case
issues with C.M. during visits, telling him he would be living
with mother and would not see father, reportedly causing
C.M. to feel sad and scared. Based on the lack of evidence
that mother had resolved the issues leading to the
dependency case, along with her failure to complete a 52-
week domestic violence batterer’s program and her pending
psychological evaluation, the Department recommended that
the court deny mother’s section 388 petition.
      On May 30, 2018, the Department provided the court
with mother’s psychological evaluation, but expressed
concern that the parties who were interviewed for the
evaluation were not sufficiently trained to opine on mother’s
mental health. The evaluation itself is not part of the record
on appeal. According to the Department, the psychological
evaluation recommended mother continue with monitored
visitation and continue in counseling, with visits increasing
gradually if mother was making good progress. The court
denied mother’s section 388 petition after a hearing.




                              7
      Before the six-month status review hearing, the
Department reported father had three conjoint counseling
sessions with C.M. At a child and family team meeting in
March 2018, father said he mostly worried about co-
parenting with mother, because she is very controlling and
not likely to follow court orders. These tendencies were
evidenced by her efforts to talk to the children about their
fathers during visits despite being reminded not to do so.
Mother would badger C.M. with questions and not stop even
after C.M. would make it known he was uncomfortable or
tired of answering questions. C.M. told the social worker on
multiple occasions that he just wants all this to be over with
and for everyone to get along. He loves both mother and
father, and doesn’t want to “pick” his favorite family.
      During mother’s monitored visits, she was observed to
be attentive to her children, playing with them at all times.
She would bring many toys and a variety of foods. During
visits, mother would occasionally discuss case issues, but
would stop when reminded by the monitor. Mother stated
she believes she is an “amazing mother,” who doesn’t need to
change anything because she is the victim in all of this.
Mother believed father’s fiancée verbally abuses C.M. and
causes him emotional distress. Mother stated C.M. doesn’t
feel safe in father’s home, but the Department’s report noted
that mother’s belief was not consistent with C.M.’s
statements to the social worker.
      Noting that C.M. has been in father’s home since
September 2017, and there were no current safety concerns,




                              8
the Department recommended terminating jurisdiction and
entering an order of sole physical custody to father, with
monitored visits for mother, and joint legal custody.
       At the July 3, 2018 hearing under section 364, the
court advised the parties that it planned to terminate
jurisdiction with basic visitation and custody orders, but the
parties would mediate specifics regarding mother’s
monitored visitation. Noting the Department’s
recommendation for joint legal custody, father raised the
presumption under Family Code section 3044,3 arguing that
joint legal custody is presumptively not in a child’s best
interest when there has been a history of domestic violence.
Father requested an order of sole physical and legal custody.
Minor’s counsel joined in father’s request for sole legal
custody based on minor’s counsel’s concerns about the
parents’ ability to make decisions together. The court was
hesitant to exclude mother from healthcare and educational
decisions, given that mother was the parent closely involved
in those decisions in the past. Given mother’s past role,
combined with the fact that all of the factual details about
the domestic violence were in dispute and there were
insufficient facts for application of the presumption, the
court maintained its joint legal custody order. The question



     3 According to the reporter’s transcript, father’s
attorney referred to Family Code section 34, but based on
the context, we construe the reference to mean Family Code
section 3044.



                              9
of legal custody did not arise at the hearing after mediation.
Father did note he was not waiving “any appealable issues.”
      Father filed a notice of appeal on August 2, 2018.

                       DISCUSSION

      In his timely appeal, father contends the juvenile court
erred when it ordered mother and father to share joint legal
custody despite the presumption against joint custody set
forth in Family Code section 3044. First, he contends the
court’s failure to apply Family Code section 3044 was error.
Second, he contends that even if the presumption did not
apply, the joint legal custody order was an abuse of
discretion.

  A. The Family Code presumption is inapplicable to
     dependency proceedings under the Welfare and
     Institutions Code

      Issues involving statutory interpretation and
application are subject to a de novo standard of review. (In
re Cheyenne B. (2012) 203 Cal.App.4th 1361, 1371.)
Although both juvenile and family courts have authority to
make orders regarding custody and visitation, the two courts
operate under separate statutory schemes and serve distinct
purposes. (In re Chantal S. (1996) 13 Cal.4th 196, 200–201;
In re J.T. (2014) 228 Cal.App.4th 953, 961.)




                              10
      “[D]ue to the separate and distinct purposes of the
juvenile and family courts, many Family Code provisions do
not apply in dependency proceedings.” (In re J.T., supra, 228
Cal.App.4th at p. 961.) No published decision has addressed
whether the rebuttable presumption created by Family Code
section 3044 applies in a dependency case where the court
has sustained an allegation meeting the requirements of
Family Code section 3044, subdivisions (a) or (d)(2). 4
      Father has not made any legal argument about why we
should depart from the long line of precedent that the Civil

     4  The relevant statutory language at the time of the
court’s July 2018 hearing stated, “Upon a finding by the
court that a party seeking custody of a child has perpetrated
domestic violence against the other party seeking custody of
the child or against the child or the child's siblings within
the previous five years, there is a rebuttable presumption
that an award of sole or joint physical or legal custody of a
child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child, pursuant to
Section 3011. This presumption may only be rebutted by a
preponderance of the evidence.” (Former Fam. Code, § 3044,
subd. (a), as amended by Stats. 2003, ch. 243, § 1, p. 2329.)
“The requirement of a finding by the court shall also be
satisfied if a court, whether that court hears or has heard
the child custody proceedings or not, has made a finding
pursuant to subdivision (a) based on conduct occurring
within the previous five years.” (Former Fam. Code, § 3044,
subd. (d)(2), as amended by Stats. 2003, ch. 243, § 1,
p. 2330.) The statutory language was later amended, but the
amendments do not have a material impact on our analysis.
(Stats. 2018, ch. 941, § 3, pp. 6217–6218.)



                             11
and Family Codes are not applicable in dependency cases
unless expressly stated. (In re Chantal S., supra, 13 Cal.4th
at p. 207 [Family Code section 3190 did not apply in a
juvenile court proceeding]; In re J.T., supra, 228 Cal.App.4th
at pp. 961–962 [Family Code section 3104 does not govern
visitation in a dependency context]; In re Alexandria M.
(2007) 156 Cal.App.4th 1088, 1098 [juvenile court had no
authority to make orders concerning child support]; In re
Jennifer R. (1993) 14 Cal.App.4th 704, 711–712
[presumption that joint legal custody is in a child’s best
interests did not apply to a juvenile court issuing custody
orders upon termination of dependency jurisdiction].)
Instead, father simply argues that the plain language of
Family Code section 3044 creates a rebuttable presumption
in any case where a court has made a finding that a parent
seeking joint physical or legal custody has perpetrated
domestic violence “against the other party seeking custody of
the child, or against the child or the child’s siblings,” within
the past five years. (Fam. Code, § 3044, subd. (a).)
      “Dependency proceedings are governed by the Welfare
and Institutions Code, rather than the Civil Code or the
Family Code.” (In re Alexandria M., supra, 156 Cal.App.4th
at p. 1098.) When a juvenile court makes custody and
visitation orders, it does so pursuant to its authority under
the Welfare and Institutions Code, guided by the totality of
the circumstances in issuing orders that are in the child’s
best interests. (§§ 304, 362.4; In re Chantal S., supra, 13
Cal.4th at p. 201 [“The juvenile court has a special




                              12
responsibility to the child as parens patriae and must look to
the totality of a child’s circumstances when making decisions
regarding the child”]; In re John W. (1996) 41 Cal.App.4th
961, 973; In re Roger S. (1992) 4 Cal.App.4th 25, 30–31.)
      Family Code section 3044 is part of an overall scheme
set forth in the Family Code to govern various considerations
that impact custody decisions under the best interests of the
child standard, including whether any protective or
restraining orders are in effect, or whether there have been
findings that domestic violence has occurred, in which case
“special considerations come into play under the Family
Code. (See, e.g., §§ 3011, subds. (a)–(b), 3020, subds. (a), (c),
3044.)” (Ellis v. Lyons (2016) 2 Cal.App.5th 404, 415.)
Family Code section 3044 is included in Part 2 (“Right to
Custody of Minor Child”) in Division 8 (“Custody of
Children”) of the Family Code. Part 2 is made expressly
applicable to custody disputes only within specified
proceedings, including: proceedings for dissolution or nullity
of marriage; proceedings for legal separation; actions by a
spouse under Family Code section 3120 for exclusive custody
of the children of a marriage; proceedings under the Uniform
Parentage Act; actions by the district attorney for
enforcement of support; and proceedings brought under the
Domestic Violence Prevention Act. (Fam. Code, § 3021.)
Part 2 is not applicable to custody decisions made in




                               13
dependency proceedings under the Welfare and Institutions
Code. 5 (Id.)
        The court in In re Jennifer R., supra, 14 Cal.App.4th
704, explained why the juvenile court is not bound to follow
Family Code provisions regarding custody determinations.
“Although both the family court and the juvenile court focus
on the best interests of the child significant differences exist.
In juvenile dependency proceedings the child is involved in
the court proceedings because he or she has been abused or
neglected. Custody orders are not made until the child has
been declared a dependent of the court and in many cases,
. . . the child has been removed from the parents upon clear
and convincing evidence of danger. The issue of the parents’
ability to protect and care for the child is the central issue.
The presumption of parental fitness that underlies custody

     5  The inapplicability of Family Code section 3044 to
dependency proceedings is also made clear by provisions
relating to issuance of domestic violence restraining orders
under the Welfare and Institutions Code. When a juvenile
court issues a restraining order pursuant to section 213.5,
and then makes an order for custody pursuant to that
section, the juvenile court is required to “follow the
procedures specified in subdivisions (c) and (d) of Section
6323 of the Family Code,” relating to ensuring safety in
making orders relating to the time, place, and manner of
visitation with children. (§ 213.5, subd. (k).) Notably,
section 213.5 does not require the juvenile court to follow
any other provisions of the Family Code—including Family
Code section 3044—in making custody orders relating to
domestic violence restraining orders.



                               14
law in the family court just does not apply to dependency
cases. Rather the juvenile court, which has been intimately
involved in the protection of the child, is best situated to
make custody determinations based on the best interests of
the child without any preferences or presumptions.” (In re
Jennifer R., at p. 712, italics added.) We see no basis to
depart from the sound reasoning of the cases that conclude
Family Code provisions are inapplicable in dependency cases
unless expressly stated.

  B. The joint legal custody order was not an abuse of
     discretion

       Even without the presumption under Family Code
section 3044, father contends the court erred in ordering
joint legal custody. We review a juvenile court’s custody
determination in a dependency proceeding for abuse of
discretion. We will not disturb the juvenile court’s
determination unless it is arbitrary, capricious, or patently
absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318;
Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285,
300.)
       While father makes reasonable and valid arguments
about why sole legal custody should have been granted, he
has not established that it was an abuse of discretion to
award joint legal custody. Father emphasizes the challenges
of consulting with mother on educational and medical
decisions. He argues mother and maternal grandmother




                             15
made repeated efforts to deny or minimize his status as
C.M.’s father. In addition, after mother and maternal
grandmother accused father of physically abusing C.M.
during visits, the Department found the claims were
unsubstantiated, and even C.M. himself denied any abuse,
despite attempts to coach him to say otherwise. We do not
turn a blind eye to the significant evidence that mother at
times actively undermined father’s efforts to build a
relationship with C.M. However, there is also evidence in
the record to support the court’s determination that on
balance, it was in C.M.’s best interest for his mother to have
joint legal custody. Mother was C.M.’s primary caretaker
from birth until May 2017, when he was almost five years
old. In addition, there was evidence that mother and C.M.
shared a close bond, and that C.M. did not want to have to
choose between mother and father. Mother maintained a
close connection with both children after detention, seeing
them every day when they were placed with maternal
grandmother. Even when mother’s contact was restricted to
monitored visits, she was observed to be engaged with her
children during visits, and she considered herself responsible
for their spiritual education.
       Father argues that if mother causes difficulties in the
future, he may not be able to demonstrate the changed
circumstances necessary to obtain a modification of the
custody order. He asks this court to reverse the joint legal
custody order now to avoid such difficulties. That, however,
is not the test. Father has not demonstrated that the court’s




                             16
decision was contrary to C.M.’s best interests, or that it
constituted an abuse of discretion.

                       DISPOSITION

     The court’s order for C.E. and B.D. to share joint legal
custody of their son, C.M., is affirmed.



                  MOOR, J.

     We concur:




                  BAKER, Acting P. J.




                  KIM, J.




                              17
