Filed 3/16/16 In re M.J. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re M.J., a Person Coming Under the                                B262323
Juvenile Court Law.
                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. DK01360)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ASHLEY J.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Teresa Sullivan, Judge. Affirmed in part, reversed in part, and remanded.
         Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Mary C. Wickham, Interim County Counsel, Dawyn R. Harrison, Assistant
County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and
Respondent.
                                             _________________________
                                       INTRODUCTION
       Ashley J., mother of five-year-old M.J., appeals from the juvenile court’s exit
order that granted sole legal and physical custody of the child to his father Charles M.1
and required that mother’s visits be supervised. (Welf. & Inst. Code, § 364.)2 We hold
that mother has failed to demonstrate that the court abused its discretion in terminating
juvenile court jurisdiction. However, the court’s exit order contains a factual error in that
it appears to have given an incorrect reason for the court’s order for supervised visits.
Accordingly, we affirm the court’s order under section 364 but remand the matter to the
juvenile court to correct that portion of the exit order explaining why the court ordered
supervised visitation for mother and M.J.
                      FACTUAL AND PROCEDURAL BACKGROUND
       1. The events giving rise to the dependency jurisdiction
       When this case commenced, mother had three children from three different
fathers, M.J., N.J. (aged 2), and Noah A. (aged 5 months). M.J., then three years old, was
living with father.
       M.J.’s half brother Noah was born in May 2013 with an underdeveloped heart and
suffering from congenital syphilis and right facial palsy. The newborn remained in the
hospital for seven weeks. The infant underwent two surgeries by August 2013, the first
to install a band on his pulmonary artery, and the second to insert a G-tube for feeding.
       In September 2013, Noah went into cardiac arrest and was placed on full life
support. When he arrived at the hospital, he was severely dehydrated and suffered from
“ ‘Acute, sever[e] malnutrition . . . that . . . is likely primarily non-illness related
(behavioral vs. socioeconomic).’ ” The medical providers eventually agreed that the
baby’s problem was not organic, meaning that his heart condition did not contribute to
his hospitalization. Rather, the malnutrition exacerbated other conditions in the baby.
The infant was so emaciated that he had no muscle or fat. His bones were visible

1
       Father is not a party to this appeal.
2
       All further statutory references are to the Welfare and Institutions Code.

                                                2
throughout his body and his skin was hanging in places. He also showed signs of
neglect: he had bed sores and his G-tube was crusted from lack of use or proper cleaning.
The dehydration prevented the baby from producing urine or blood for testing, and so the
doctors tapped his spine.
       The hospital staff found that the parents “presented poorly, showing little concern
for the child, and focusing their attention on each other or their mobile devices.” During
the discussion of Noah’s nutrition, mother appeared disinterested and kept checking her
phone. The attending physician was unwilling to discharge the baby into his parents’
care. Concerned that Noah’s severe dehydration and malnutrition were not “medical in
nature,” and given the parents’ history of missing medical appointments, the hospital staff
alerted the Department of Children and Family Services (the Department) to possible
child abuse.
       The Department concluded that Noah was at “very high risk” for abuse. His
condition was obvious to everyone and yet mother failed to provide a reasonable
explanation why she did not bring him to the hospital sooner. The juvenile court ordered
the children detained from mother in October 2013. M.J. remained with father.
       M.J., who suffers from asthma and a heart murmur, has lived with his paternal
grandmother most of his life. Mother and father have no formal, legal custody
arrangement. Instead, mother, unable to care for M.J., gave him to the grandmother when
he was a baby. Hence, mother has not been responsible for M.J. since his infancy and
M.J. does not know his half siblings. Although father was M.J.’s custodian, the
grandmother served his as primary caregiver because father, a truck driver, saw the child
only on the weekends. Father claimed to have provided mother with some money for
diapers and food even though he had custody of M.J. and he is not the father of the other
children. He stopped giving mother money about two weeks before her children were
detained.
       There is no love lost between mother and father. Father described mother as
dishonest. He explained that mother lied to the social worker about M.J.’s whereabouts
and falsely reported that M.J. visited her. Father stated he had seen mother feed Noah a

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couple of times and reported that Noah had no problems eating. Father’s sister related
that mother told her to hide M.J. from the Department. The grandmother reported that
mother has never been a part of M.J.’s life and showed no interest in him. Mother
reminded the Department of allegations from 2008 to 2009 that father had emotionally,
physically, and sexually abused his two sisters and his daughter Platinum and son Malaki
from another mother. Triggered by mother’s report, the Department investigated and
discovered that no case had been opened for father’s sisters. As for Platinum and Malaki,
the Department determined that the physical and sexual abuse allegations were
unfounded, but Platinum was declared a dependent of the juvenile court in 2008 because
of domestic violence between father and Platinum’s mother. When that case was closed,
father was given custody of Platinum. Mother has had no previous involvement with the
juvenile court.
       M.J. and his half siblings were declared dependents by the juvenile court in May
2014 (§ 300, subds. (b), (e) & (j)) after the court found true the allegations mother
willfully failed to provide Noah with adequate food for a sustained period of time; failed
to take the child to his scheduled medical appointments; and failed to maintain the child’s
hygiene. Father was not named in the petition and so he was non-offending. The court
awarded mother monitored visits with M.J., twice weekly. As a case plan for mother and
M.J., the court ordered mother to complete parenting classes, to submit to a psychological
assessment (Evid. Code, § 730), to undergo individual counseling to address child safety,
co-parenting, and all case issues, to attend all of Noah’s medical appointments, and to
follow all doctors’ recommendations.
       2. Events occurring during the dependency
       Mother gave birth to her fourth child, Messiah A., in June 2014. The juvenile
court did not detain Messiah from mother’s care.
       Mother completed a parenting course. She was defensive and initially resisted
enrolling in counseling. She later claimed that she was in counseling but did not provide
the Department with proof. Although mother received funding from the Department to


                                             4
travel from her home in Lancaster to Children’s Hospital in Los Angeles, she missed 8 of
Noah’s 13 medical visits between November 2013 and March 2014.
       Mother underwent the court-ordered psychological assessment (Evid. Code,
§ 730) in July 2014. The psychologist found that mother “has an adequate understanding
of basic parenting skills and infant care.” She did not appear to have any “significant”
clinical issues or cognitive dysfunction that would inhibit her parenting skills, create an
unsafe environment for her children, or prevent her from providing for her children.
However, based on her test scores, mother was distrustful of others, cynical about other
people’s true intentions, and may have difficulties with interpersonal relationships.
Mother exhibited frustration about Noah’s father and tensions between the two could
create difficulties with parenting.
       The Department found that Messiah was well cared for. However, after a safety
assessment, the Department determined that M.J.’s half sister N.J. was at moderate risk of
harm if returned to mother’s care without family preservation services. The child’s return
to mother was also premature because mother’s visits had not been liberalized.
       Meanwhile, the social worker observed that father and the grandmother were
taking good care of M.J. and that father and son shared a “very strong attachment.” As
no safety concerns existed for M.J. in father’s care, the Department recommended
termination of jurisdiction over that child.
       Mother requested that her visits with M.J. be liberalized. At a November 17, 2014
hearing, the juvenile court denied mother’s request because the Department had been
ordered to facilitate visits. The court ordered the Department to provide it with a
supplemental report describing mother’s visits with M.J. and the Department’s efforts to
facilitate visitation.
       The ensuing reports and Departmental logs revealed that father was resistant to
transporting M.J. to visit mother. Father worked 12-hour days and lived in Riverside
County, far from mother. He did not have a car and, although a family member could
transport M.J. for visits, she refused to do so because of the way mother behaved toward
her. Father was also frustrated because mother had spitefully raised old allegations of

                                               5
abuse and had otherwise done nothing for the child from the time he was born. In
October 2014, the social worker had begun a search for a Departmental employee to
transport M.J. to visits and told father that in the interim, he was obligated to help with
transportation. The record contains undated letters to mother and father establishing a
weekly visitation schedule. Despite difficulties in scheduling visits, the Department
recommended, should the juvenile court terminate jurisdiction, that any family law order
include monitored visits.
       In December 2014, the social worker found a Departmental monitor who agreed to
conduct visits on the weekends. The visits went well. M.J. was excited to see mother
and stated he liked visiting her. Mother was appropriate with the child. The monitor
canceled one visit. Generally, mother had twice monthly visits with M.J. between
October 2013 and April 2014. As of April 2014, the visits were occurring weekly.
       3. The six-month mark
       At the hearing for M.J.’s half siblings (§ 366.21, subd. (e)), the juvenile court
declined to return Noah to mother’s custody after finding that return would put the baby
at substantial risk of detriment, although the court did order N.J. returned to mother’s
custody.
       At the section 364 hearing for M.J., held on February 3, 2015, father testified that
he had concerns about his son’s safety in mother’s custody because of what he termed her
“lack of judgment.” As examples, father cited that mother dredged up Platinum’s closed
case; and threatened father. Also, M.J. “act[ed] funny” when he returned from visits with
mother, for example, he reported that mother told him he did not have to eat. Father also
testified that mother discussed case issues with M.J. in violation of court orders. The last
time M.J. returned from a visit with mother, he announced that mother informed the child
that he did not have to listen to father because he did not have to worry about returning to
father’s house any more. M.J. had lived with father since the child was three months old.
Father and mother never made a formal visitation arrangement because, historically if
mother called, it was to ask for money, not to see M.J. Father claimed he only canceled


                                              6
one visit, and the reason was that M.J. was sick. By contrast, father testified that mother
canceled four visits.
       Mother testified in rebuttal that she had a total of five visits between October 2013
and the hearing, three of which occurred in the last six months. Mother claimed she
called and e-mailed the social worker to request visits with M.J. once a week. Mother
testified that the social worker replied that father believed mother did not deserve visits.
       At the close of testimony, mother requested that the parents share joint legal
custody. So as not to “uproot” M.J., mother agreed to an order granting father physical
custody and mother unmonitored, alternating weekend visitation. Mother also asked that
M.J.’s case remain open to ensure that her visits took place. Father noted that he is
nonoffending, has been cooperative, has always provided for M.J., and the two were very
closely bonded. Father also expressed concerns about mother’s judgment, and noted that
mother had unresolved feelings about father causing father to worry that mother would
talk negatively about him to M.J. M.J.’s attorney requested joint legal custody and
unmonitored visits for mother who had complied with her case plan and had custody of
two of her children under a plan of family preservation. The Department recommended
that the case be closed with an exit order giving father legal and physical custody and
mother monitored visits.
       The juvenile court found that the conditions that justified jurisdiction over M.J. no
longer existed and were not likely to arise if supervision were withdrawn. (§ 364, subd.
(c).) Accordingly, the court terminated jurisdiction with a family law order granting legal
and physical custody to father with monitored visits for mother. The court ordered each
party to meet half way. Mother’s appeal followed.3




3
       We grant mother’s request to deem her appeal as prematurely taken from the
juvenile court’s oral exit orders and to augment the record to include the February 11,
2015 custody and visitation order.

                                              7
                                     CONTENTIONS
       Mother contends that the section 364 order awarding sole legal and physical
custody to father and restricting mother’s visits to supervised was not in M.J.’s best
interest and hence an abuse of discretion.4
                                      DISCUSSION
       When the juvenile court terminates jurisdiction in a dependency case, it may issue
an order for custody and visitation. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196,
202-203.) This so-called “exit order” is transferred to the family court (§ 362.4; In re
Jennifer R. (1993) 14 Cal.App.4th 704, 712, citing In re Roger S. (1992) 4 Cal.App.4th
25, 30) and remains in effect until modified or terminated by the family law court. (In re
John W. (1996) 41 Cal.App.4th 961, 970.)
       The juvenile court’s focus when fashioning exit orders is on the best interests of
the child. (See In re Chantal S., supra, 13 Cal.4th at p. 206.) The court has broad
discretion to determine what best serves a child’s interests and such decision will not be
reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218,
1227-1228.) An abuse of discretion occurs when the court “ ‘ “ ‘mak[es]an arbitrary,
capricious, or patently absurd determination [citations].’ ” ’ [Citations.]” (Bridget A. v.
Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
       The record here shows that the exit orders were not an abuse of discretion. M.J.
had been in father’s care since he was three months old. The two were closely bonded.
Father, who was nonoffending, provided the child with good care and the child was
happy and healthy. In contrast, mother was M.J.’s primary caretaker for only the first 3
months of his life. Mother’s assertion - supported by citation only to her attorney’s
argument - that she “had joint custody with father before the dependency case started”
mischaracterizes the events. While the parents did not have a formal legal custody

4
       M.J. was not removed from his mother’s physical custody because he was not in
mother’s custody at the time the petition was filed with the result section 364 governs this
case. (§§ 364, subd. (a) & 361, subd. (c); In re Natasha A. (1996) 42 Cal.App.4th 28,
35.)

                                              8
arrangement, mother chose to abandon M.J. to his grandmother when the boy was an
infant and since then had almost no contact with him until this dependency. M.J. did not
really know his half siblings until court-ordered visitation. Moreover, it was mother’s
conduct that brought the family into the dependency system. It is insufficient that mother
was in substantial compliance with her case plan at the six-month mark, mother’s
argument to the contrary notwithstanding. Noah could not yet be safely returned to
mother and N.J. still required family maintenance services. Moreover, the record reveals
that mother lied to father and the social workers and was difficult to work with. Mother’s
psychological assessment indicated her mistrust and cynicism about others, and her
frustration and tension with Noah’s father that could create parenting difficulties. For
these reasons, the juvenile court’s determination that it was in M.J.’s best interest for
father to have full physical and legal custody of the child to make decisions
independently about the child was neither arbitrary, nor capricious, nor absurd.
       Mother contends there was no evidence that she ever harmed M.J. or posed a risk
of harm to him. While true, the assertion is irrelevant. On this record, the juvenile court
could easily conclude that mother had no opportunity to harm M.J. because the child was
not living with mother and, according to father, had had no contact with mother until
court-ordered visitation, which has always been monitored.5 More important, “both
parents are [not] equally entitled to half custody” in dependency exit orders. (In re
John W., supra, 41 Cal.App.4th at p. 974, italics added.) When the juvenile court hears a
dependency case under section 300, it is handling children who have been abused,
abandoned, or neglected and so it stands as parens patriae, having a special responsibility
to those children and considers the totality of a child’s circumstances when making
decisions regarding the children. (In re Chantal S., supra, 13 Cal.4th at p. 201, citing In
re Roger S., supra, 4 Cal.App.4th at pp. 30-31.) Thus, “ ‘[t]he presumption of parental
fitness that underlies custody law in the family court . . . does not apply to dependency


5
       Mother’s lack of contact with M.J. also renders immaterial her assertion that the
exit orders ignored her “past care of [M.J.].”

                                              9
cases’ decided in the juvenile court. [Citation.]” (In re Chantal S., supra, at p. 201.)
The Family Code’s “presumption that joint custody is in the best interest of the minor is
inconsistent with the purposes of the juvenile court.” (In re Jennifer R., supra,
14 Cal.App.4th at p. 712, fn. omitted.) Under the totality of the circumstances here, the
juvenile court did not abuse its discretion in determining that it was in M.J.’s best interest
for father to have full legal and physical custody.
       As for the visitation portion of the exit order, mother contends that the juvenile
court abused its discretion by requiring that mother’s contact be supervised. Noting that
M.J. enjoyed visits with mother and wanted more, mother argues that the visitation
restriction curtails her relationship with M.J.
       A juvenile court may reasonably determine that continued supervision of the child
as a dependent is no longer necessary for the child’s protection, but at the same time
determine 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. (In re Chantal S., supra,
13 Cal.4th at p. 204.) Here, in fashioning its exit orders, the juvenile court implicitly
concluded that dependency was no longer necessary, provided mother’s visitation was
supervised. In In re Chantal, the Supreme Court approved a similar conclusion on the
ground it was preferable to forcing the child to remain indefinitely in the juvenile court
dependency system while the parent attempted to resolve his problems. (Ibid.) This case
presents an analogous situation. The juvenile court found that father was taking good
care of M.J. who was happy under father’s care. Mother was making progress but had
yet to merit the closure of her children’s dependencies and had never had unmonitored
visits with M.J. Also, the juvenile court heard that mother was attempting to undermine
father’s relationship with M.J. Father testified about the effect mother’s comments had
on M.J., and the fact that she inappropriately discussed court issues with the child. The
court could reasonably conclude that if mother were allowed unmonitored visitation, this
sabotage, which was detrimental to M.J., would continue.


                                              10
       Mother also argues that the visitation portion of the exit order made visits
unnecessarily onerous. The record shows that the Department had difficulty scheduling
visitation. Also, mother requested that the juvenile court not terminate its jurisdiction to
make sure that visits occur. By imposing specific requirements for visitation, including
supervision, the court ensured that the visits would occur.
       Finally, mother observes that the portion of the exit order that explains why the
juvenile court ordered that mother’s visits with M.J. be supervised is incorrect. The
stated reason was that mother had not made substantial progress in her case plan.
However, mother and the Department agree that in fact the juvenile court found that
mother had made “substantial” progress toward alleviating the causes for the dependency.
Accordingly, the matter must be remanded to the juvenile court to correct this portion of
the exit order.
       In the final analysis, mother’s parental rights to M.J. were not terminated here.
Instead, the juvenile court merely terminated its jurisdiction with a family law exit order
(§ 364). That order may always be modified or terminated. (In re A.C. (2011)
197 Cal.App.4th 796, 799.)




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                                      DISPOSITION
       The order under Welfare and Institutions Code section 364 is affirmed. The
portion of the exit order explaining the reasons for mother’s supervised visitation with the
child M.J. is reversed and the matter is remanded to the juvenile court to correct this
portion of the exit order only.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  ALDRICH, J.




We concur:




              EDMON, P. J.




              LAVIN, J.




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