Filed 3/19/14 In re Jonathan H. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN

In re Jonathan H., Jr., et al., Persons                              B246776
Coming Under the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK96368)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

Tonja J. et al.,

         Defendants and Appellants.



         Appeal from orders of the Superior Court of Los Angeles County, Donna Levin,
Juvenile Court Referee. Affirmed.
         Tonja J. and Darrell V.R., in pro. per., for Defendants and Appellants.
         Christopher R. Booth, under appointment by the Court of Appeal, for
Jonathan H., Sr., Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Melinda A. Green, Senior Associate County Counsel, for Plaintiff and Respondent.
                                         ________________________
       Representing themselves, Tonja J. and Darrell V.R., the maternal grandparents of
                                        1
Conner R.-J., Tyler J. and Jonathan H., appeal from juvenile court orders declining to
place the children with them and prohibiting them from having contact with the children.
We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Detention of the Children and the Initial Proceedings
       On November 8, 2012 the Los Angeles County Department of Children and
Family Services (Department) initiated dependency proceedings on behalf of then five-
                 2
year-old Conner, two-year-old Tyler and 15-month-old Jonathan pursuant to Welfare
and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to
                                            3
protect) and (j) (sibling abuse or neglect). According to the maternal grandparents, the
children and their mother, Ashlee J., had been living in the maternal grandparents’ home
for 10 months. The father of Tyler and Jonathan, Jonathan H., Sr. (Father), had moved
out three months earlier because he did not get along with Tonja.
       On November 1, 2012 Tonja noticed bruises on the children. Ashlee became
argumentative when Tonja asked about the bruises and moved into a motel with the
children and Father. A few days later Ashlee told Tonja the family was moving out of
state. On November 5, 2012 Tonja requested Tyler and Jonathan’s daycare center inspect
them for bruises. After bruises and pinch marks were found on them, all three children
were detained. Conner was then released to his father, Thomas R., who had been
awarded primary physical custody of Conner in December 2011 during a protracted and
bitter custody dispute. On November 6, 2012 Tyler and Jonathan were placed with
Tonja. Later that day Ashlee obtained a temporary restraining order against Tonja in Los

1      Darrell is Tonja’s fiancé. However, all parties refer to Darrell as the maternal
step-grandfather.
2    Ashlee J., the children’s mother, was 16 years old when she became pregnant with
Conner.
3      Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.

                                                2
Angeles Superior Court under the Domestic Violence Protection Act (Fam. Code, § 6200
et seq.) based in part on the allegation Tonja had attacked her when she was pregnant
               4
with Jonathan. A hearing date was set for Ashlee’s request for a continuing domestic
violence restraining order for November 26, 2012.
       The detention hearing in juvenile court was held on November 8, 2012. At the
outset the court excused Tonja from the proceedings in light of the temporary restraining
order. Counsel for Father argued the children should not be placed with Tonja,
explaining Ashlee and Father had a bad relationship with her and she had made false
allegations about Father (for example, Tonja claimed Father had pointed a gun at her).
Counsel asserted placement with Tonja might impair Father’s ability to reunify with his
children. Ashlee’s counsel joined the argument, suggesting Tonja may have pinched the
children “and then called it in. She had access to the children and would have been able
to do that and known that there would be a bruise two days later.” The Department
requested the children remain in their current placements notwithstanding the temporary
restraining order. Finding the Department had made a prima facie case for detaining the
children, the juvenile court ordered Conner to be released to Thomas and temporary
placement and custody of Tyler and Jonathan to be vested with the Department with
discretion to release them to any appropriate relative or non-related extended family
member. Pursuant to the juvenile court’s exclusive jurisdiction to issue domestic
violence restraining orders after the filing of a dependency petition (§ 213.5), the court
ordered Tonja back on November 26, 2012 for the order to show cause hearing on
Ashlee’s request for a restraining order.
       On November 9, 2012 Tyler and Jonathan were removed from Tonja and placed in
foster care. The Department explained it learned Tonja had a criminal conviction and
was concerned because Father had adamantly insisted the children be removed from
Tonja’s care. Additionally, under the mistaken belief the temporary restraining order

4      Although the children were identified as additional protected parties in
section three of Judicial Council Form DV-110, Temporary Restraining Order, Tonja was
ordered to stay away from only Ashlee, not the children.

                                              3
prohibited Tonja from having contact with the children, the Department explained it
wanted any apparent violation of that order to cease as soon as possible.
       On November 26, 2012 Tonja and Darrell filed a de facto parent request for
Conner and a separate de facto parent request for Tyler and Jonathan.
       2. The Jurisdiction and Disposition Hearings
       In a report for the jurisdiction and disposition hearings set for December 19, 2012
the Department recommended Conner, Tyler and Jonathan be declared dependent
children of the court; Thomas be granted full physical custody of Conner; Tyler and
                                                   5
Jonathan remain temporarily placed with Thomas; and Ashlee and Father receive
reunification services. The Department did not recommend placement with Tonja
because it believed such placement “would in fact severely impede on the parents’
reunification process.” The report stated Ashlee intended to obtain another restraining
order because Tonja had been “continually harassing them by driving by the current
placement as well as stalking her at her current location.” Describing Tonja as
manipulative and an alcoholic, Ashlee told the Department she had been physically
abused as a child by both Tonja and her father and her father had been incarcerated for
domestic violence against Tonja.
       The report also included an excerpt from a transcript in the family law proceeding
between Ashlee and Thomas detailing Tonja’s involvement in the custody battle over
        6
Conner. (The transcript from the December 15, 2011 hearing on Thomas’s request to
modify child custody and visitation and orders from December 16, 2011 and June 21,
2012 were provided to the juvenile court.) According to the family law judge then
presiding over the matter, “‘[W]e’re close to 40 [c]ourt appearances on this case. This is
a very unusual case unfortunately. And unfortunately for this child [(Conner)] it’s been

5     Although temporarily placed with Thomas, Tyler and Jonathan were on an
extended visit with a paternal aunt, whom the Department was evaluating for placement.
6      According to Ashlee, Tonja “influenced” Ashlee “to start the ‘custody battle’” and
told her “to say things that were not true.” Ashlee admitted, however, she had been the
victim of domestic violence in her relationship with Thomas.

                                             4
marked by acrimony, bitterness, voluminous filings, and [there have] been many
accusations. . . . [S]ince the inception . . . there has been an ongoing war waged by
[Ashlee], but chiefly by [Ashlee’s] mother, [Tonja]. . . . [Tonja] has had considerable
impact on this case. She has filed numerous declarations in this case. September 13,
2010, accusing Mr. Spiller then the minor’s counsel of all types of horrific acts. Even
recently, October 17, 2011 for this hearing, Commissioner Friendenthal has been out of
this case since December of 2008, and yet the opening salvos of [Tonja’s] declaration . . .
three years later, is accusing Commissioner Alan Friendenthal of misleading this
Court. . . . Again, the parties especially when [Tonja] is not in the courtroom, they have
been able to reach stipulations.’” The court granted Thomas’s request for modification
in its entirety, awarding him primary physical custody and, although Thomas and Ashlee
had joint legal custody, giving him “tiebreaking authority” if the parents could not reach
an agreement on issues related to Conner. On June 21, 2012 a new family law judge
hearing the matter denied Thomas’s request to grant him sole legal custody of Conner.
The court ordered the parents to select a co-parenting therapist and that Conner’s name be
changed on his birth certificate to include Ashlee’s family name.
       Describing Ashlee’s relationship with Tonja as “clearly toxic for everyone
including the children,” the Department report concluded “mother’s relationship with the
maternal grandmother must be severed in order for mother and her children to live
happily as a family” notwithstanding “the children, especially Conner, have a strong bond
with the maternal family.”
       At the outset of the December 19, 2012 jurisdiction and disposition hearing, the
juvenile court denied Tonja and Darrell’s petitions for de facto parent status. After
hearing argument, the court sustained an amended petition finding Tyler and Jonathan
had been physically abused, which placed all three children at risk of abuse: “So I have
two parents who knew that their children had bruises. I don’t know who caused the
bruises. I don’t know if it was the grandmother, trying to perpetrate something on the
parents, but in that case, why are these children with the grandmother if they know the
grandmother’s propensity. The parents are responsible here, and the children had

                                             5
multiple bruises and a black eye, and as I said, pretty serious.” The court ordered Tyler
and Jonathan suitably placed and reunification services for Ashlee and Jonathan. With
respect to Conner the court terminated jurisdiction with a family law order giving
Thomas sole physical custody, Ashlee and Thomas joint legal custody, and Ashlee
unmonitored day visits.
       3. The Second Restraining Order and No Contact Order of the Juvenile Court
       Although the record on appeal does not include all the relevant documents, it
appears Ashlee obtained a second temporary domestic violence restraining order against
Tonja from a family law judge on December 18, 2012; but the matter was again
transferred to the juvenile court on December 20, 2012. On December 31, 2012 Tonja
filed a “supplemental declaration” in opposition to the request for a restraining order,
seeking dismissal and sanctions. Tonja argued she had not received notice of the
proceeding and disputed each of Ashlee’s allegations. Providing dates and police report
numbers, Tonja contended Ashlee was the victim of domestic violence at the hand of
Father and Father had assaulted and threatened Tonja on several occasions. Tonja
submitted numerous documents, including a 2004 restraining order obtained by the
mother of Father’s former girlfriend and records showing Father had been convicted of
possessing marijuana.
       On January 7, 2013 the juvenile court held an order to show cause hearing on
Ashlee’s new request for a restraining order. Ashlee informed the court Tonja and
Darrell, who was a police officer, followed her wherever she went and made false
allegations to the Department. The court heard testimony from Tonja and Darrell and
engaged in robust exchanges with them, as well as the maternal aunt who also attended
the hearing—prompting the court to remark at one point, “nobody listens, obviously, in
this entire family.” After testimony and argument, the court ordered that no one in the
maternal family have contact with Conner, Tyler and Jonathan, and also ordered Ashlee
not to contact the maternal family as they contended she had. The court found it would
be detrimental to Ashlee and Jonathan’s reunification efforts for Tonja to be near the
children and Darrell had no right to be near them because he was not related.

                                             6
       On January 9, 2013 Tonja and Darrell filed a notice of appeal from the
November 8, 2012, December 19, 2012 and January 7, 2013 orders. The notice stated,
“[The juvenile court] made orders that we not be allowed any contact with my
grandchildren without any notice, and unilaterally transferred TRO cases to her court
                      7
with no jurisdiction.”
                                     CONTENTIONS
       Tonja and Darrell contend they were entitled to have the children placed with
them in accordance with the relative placement preference in section 361.3. They also
contend the no contact orders were made without a fair hearing and without jurisdiction
                              8
and request they be quashed.
                                      DISCUSSION
       1. This Court’s Review Is Limited to the Record on Appeal
       Tonja and Darrell’s contentions and arguments on appeal have evolved based on
events occurring after January 7, 2013, the date of the last of the three orders from which
they appeal. For example, in their opening brief they requested this court order “an
entirely new Dependency Investigative report be completed”; “all allegations of
Domestic Violence be investigated”; “[t]he therapist for [Ashlee] be ordered to report on
her findings regarding Domestic Violence between the parents”; and “[u]pon a finding of

7       Father also filed a notice of appeal. However, his appointed counsel filed a brief
that raised no issues, and Father submitted no additional letter identifying any contentions
he wished to raise on appeal. Accordingly, his appeal is dismissed as abandoned
pursuant to In re Phoenix H. (2009) 47 Cal.4th 835 and In re Sade C. (1996) 13 Cal.4th
952.
8      Tonja and Darrell also ask the finding they were “‘toxic to reunification’” be
stricken. Because Tonja and Darrell were not permitted access to the confidential
juvenile record pursuant to section 827, they are unable to direct this court to the order in
which the finding was purportedly made; and we have not located any such order or
finding. To the extent the juvenile court used the word “toxic,” we suspect it was a
comment made during a hearing and not reflected in a minute order. In any event, there
is ample evidence to support the court’s conclusion the contentious relationship between
the parents, on one hand, and the grandparents, on the other hand, would be
counterproductive to reunification.

                                              7
Domestic Violence, the parents be ordered into aggressive and long-term treatment to
deal with this matter.” In their reply brief they withdrew these requests because they had
“been resolved satisfactorily” by the Department. Then, after criticizing the Department
for failing to provide this court with information outside the record on appeal, they stated,
“Appellant[s] are concerned by the [Department’s] refusal to share this follow-up report
with this court, however, it does show that several of the issues requested by the
Appellants have been honored by [the Department], and that [the Department] did,
actually, listen to the concerns of the Appellants and by doing so, the progress of the
parents has finally reached a point where their visits have been liberalized, and the
Appellants have seen great improvement in the parent.”
       It is, of course, encouraging that Ashlee and Father appear to be making progress.
But, even if this validates some of the concerns Tonja and Darrell have raised, we are
limited to reviewing the juvenile court’s orders based on the record before it at the time
those orders were made: “It has long been the general rule and understanding that ‘an
appeal reviews the correctness of a judgment as of the time of its rendition, upon a record
of matters which were before the trial court for its consideration.’ [Citation.] This rule
reflects an ‘essential distinction between the trial and the appellate court . . . that it is the
province of the trial court to decide questions of fact and of the appellate court to decide
questions of law. . . .’ [Citation.] The rule promotes the orderly settling of factual
questions and disputes in the trial court, provides a meaningful record for review, and
serves to avoid prolonged delays on appeal.” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
This general rule is applicable to juvenile dependency appeals. (Ibid.) “Various
provisions of the [juvenile dependency] statutory scheme strictly control the timing and
manner of appeal or writ review of the critical findings and orders that can culminate in
an order terminating parental rights, their primary goal being to expedite finality and
thereby achieve permanency for the child.” (Id. at pp. 405-406.)
       The proper vehicle to bring new developments to the juvenile court’s attention,
and to this court on appeal, is a section 388 petition. Indeed, it appears Tonja filed a
section 388 petition on February 20, 2013 to modify certain juvenile court orders based

                                                8
on the more recent events described in the reply brief. The petition was denied on
March 20, 2013 on the ground the proposed modification would not promote the best
interest of the children and would impede family reunification services. Tonja has not
appealed from that order.
       2. The Juvenile Court Did Not Abuse Its Discretion in Declining To Place the
          Children with Tonja and Darrell
                 a. The statutory preference for relative placement and standard of review
       Under section 361.3, subdivision (a), “preferential consideration shall be given to
a request by a relative of the child for placement of the child with the relative” when a
child is removed from the physical custody of his or her parents pursuant to section 361.
In determining whether placement with a relative is appropriate, the Department and the
juvenile court are to consider, among other factors, the best interests of the child,
including the child’s special physical, psychological, educational, medical or emotional
needs; the wishes of the parent, the relative and child, if appropriate; the nature and
duration of the relationship between the child and the relative; and the relative’s desire to
provide legal permanency for the child if reunification is unsuccessful. (§ 361.3,
subd. (a).) Additionally, the social worker and the court assess the ability of the relative
to facilitate court-ordered reunification efforts with the parents, visitation with the child’s
other relatives and implementation of all elements of the case plan. (§ 361.3,
subd. (a)(7).)
       “‘Preferential consideration’ means that the relative seeking placement shall be the
first placement to be considered and investigated.” (§ 361.3, subd. (c)(1).) The relatives
entitled to preferential consideration for placement are “an adult who is a grandparent,
aunt, uncle, or sibling.” (§ 361.3, subd. (c)(2).)
       We review the juvenile court’s decision on relative placement for abuse of
discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067 [“We are persuaded that
the abuse of discretion standard should be applied to the review on appeal of the juvenile
court’s determination regarding relative placement pursuant to section 361.3. Such a
determination, like decisions in custody cases, involves primarily factual matters and a


                                               9
judgment whether the ruling rests on a reasonable basis.”]; accord, In re Sabrina H.
(2007) 149 Cal.App.4th 1403, 1420 [“juvenile court’s placement orders are reviewed
under the abuse of discretion standard; the court is given wide discretion and its
determination will not be disturbed absent a manifest showing of abuse”].)
              b. The juvenile court’s decision not to place the children with Tonja and
                 Darrell was reasonable
       Using the governing reasonableness standard, we find no abuse of discretion here:
“The relative placement preference . . . is not a relative placement guarantee . . . .” (In re
Joseph T. (2008) 163 Cal.App.4th 787, 798.)
       The evidence before the juvenile court at the December 19, 2012 jurisdiction and
disposition hearing established none of the parents wanted the children placed with Tonja
and there was a long history of strife among them that threatened parent-child
reunification, demonstrated in part by the protracted and acrimonious custody battle over
Conner. Whatever procedural flaw may have existed in those family law proceedings,
the juvenile court reasonably concluded there was intense and bitter disharmony between
Ashlee and Tonja, as well as Tonja and Father, which would undermine reunification
efforts—a primary goal of the dependency system at this stage of the proceedings. (See
§ 202, subd. (a) [“[i]f removal of a minor is determined by the juvenile court to be
necessary, reunification of the minor with his or her family shall be a primary
objective”]; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 302.) Tyler at two
years old and Jonathan Jr. at 15 months old were still so young that the duration of the
relationship between them and Tonja was not a significant factor. As for Conner,
although he was five years old and had developed a bond with Tonja and Darrell, Thomas
was a nonoffending parent who had been awarded custody of Conner in the family law
proceedings. Section 361.3’s preference for relative placement is not superior to a
parent’s right to custody. Under these circumstances placement of Conner with anyone
but Thomas would have been an abuse of the court’s discretion.




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       3. The Juvenile Court Had Jurisdiction To Order No Contact Between the
          Children and the Maternal Grandparents and Provided Them an Opportunity
          To Be Heard
       Tonja and Darrell contend the juvenile court failed to provide them with an
opportunity to be heard before it ordered no contact between them and the children.
Noncustodial grandparents of dependents of the juvenile court, however, have “no
substantive due process right to free association with the minors, or to maintain a
relationship with them. The rights of grandparents to assert control over their
grandchildren are restricted by state juvenile jurisdiction to determine and protect the best
interests of dependent minors.” (In re Brittany K. (2005) 127 Cal.App.4th 1497, 1508.)
Notwithstanding Tonja and Darrell did not have a right to a hearing, the court provided
them an opportunity to be heard on January 7, 2013. Both Tonja and Darrell testified—
and repeatedly argued—with the court before it concluded, “I know that those children
will not be safe if I don’t make these orders for now. I am not saying that this is going to
go on and on.”
       Tonja and Darrell also contend the juvenile court acknowledged at the January 7,
2013 hearing that it did not have jurisdiction over them; thus, they argue, it did not have
the power to make the no contact order. Read in context, however, the court merely
                                                             9
stated Tonja was not a party to the case, which she is not. Tonja’s status as a nonparty,
however, did not place her outside the reach of the juvenile court with respect to orders
concerning the children. (See In re Brittany K., supra, 127 Cal.App.4th at p. 1508.) The
court’s no contact order is essentially an order that the grandparents do not have a right to
visitation, which is clearly within the purview of the court. (See § 361.2, subd. (i)
[“[w]here the court has ordered removal of the child from the physical custody of his or
her parents pursuant to Section 361, the court shall consider whether the family ties and
best interest of the child will be served by granting visitation rights to the child’s


9     After the court ordered no contact between the maternal family and the children,
Tonja asked, “So you have jurisdiction over me right now? Am I a party to this case?”
The court replied, “No, you are not.”

                                              11
grandparents”]; see In re Marriage of Harris (2004) 34 Cal.4th 210, 219
[“[g]randparents’ rights to court-ordered visitation with their grandchildren are purely
statutory”].) Moreover, there is no question the court had the power to direct Ashlee or
the foster parents to prohibit contact between the children and the grandparents. (See
§ 245.5 [“In addition to all other powers granted by law, the juvenile court may direct all
such orders to the parent, parents, or guardian of a minor who is subject to any
proceedings under this chapter as the court deems necessary and proper for the best
interests of . . . the minor. These orders may concern the care, supervision, custody,
conduct, maintenance, and support of the minor . . . .”].) On this record the juvenile court
did not abuse its discretion in ordering no visitation between the grandparents and the
children. (Cf. In re Mickel O. (2011) 197 Cal.App.4th 586, 614 [grandfather accused
social workers of bias against him; in affirming denial of section 388 petition for
placement or unsupervised visitation court found, “We recognize that reasonable minds
might differ as to the correct outcome in this case, but we cannot say the juvenile court
                        10
abused its discretion”].)
                                     DISPOSITION
       Jonathan H., Sr.’s appeal is dismissed as abandoned. As to Tonja J. and
Darrell V.R., the juvenile court’s orders are affirmed.




                                                  PERLUSS, P. J.

       We concur:



              WOODS, J.                           ZELON, J.



10     Although we have addressed the merits of the January 7, 2013 no contact order,
the issue was largely mooted on March 3, 2014 when, after a hearing at which Tonja was
present, the juvenile court permitted Tonja to have monitored contact with the children.

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