Filed 8/29/13 In re Maxwell J. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 TWO


In re Maxwell J. et al., Persons Coming                              B245713
Under the Juvenile Court Law.                                        (Los Angeles County
                                                                     Super. Ct. No. CK23029)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

MALINDA J.,

         Defendant and Appellant.



         APPEAL from orders of the Superior Court of Los Angeles County. Stephen C.
Marpet, Juvenile Court Referee. Affirmed.
         Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
         No appearance for Minors.
                                                       ******
       Malinda J. (Mother) appeals from the juvenile court’s jurisdictional and
dispositional orders and findings of November 16, 2012, which include orders declaring
minors Matthew, Maxwell, and M., dependents of the juvenile court pursuant to Welfare
and Institutions Code section 300, subdivisions (a), (b), and (j).1 The court placed the
children with Marcus J. (Father) and terminated the dependency case with a family order.
Mother contends the evidence was insufficient to support dependency jurisdiction and
removal from her custody. She also contends the court abused its discretion when it
terminated dependency jurisdiction.
       Substantial evidence supports the juvenile court’s findings. We affirm.
                    FACTS AND PROCEDURAL BACKGROUND
       This case first came to the attention of the Los Angeles County Department of
Children and Family Services (the Department) on May 5, 2012, as a result of allegations
that Matthew2 (born 1999) had been physically abused. The incident occurred on
April 30, 2012, when Matthew and his siblings, Maxwell (born 2000), and M. (born
2001), were in a car with Mother. Mother became upset and punched Matthew in the
mouth and split his lip. When contacted at her home on May 6, 2012, Mother was upset
and uncooperative with the Department’s social worker (CSW) assigned to the case.
Mother stated she was under a lot of stress. She and Father3 were going through a
divorce and she worked two jobs because Father’s child support was not sufficient.
Mother claimed Father was uncooperative and allowed the children to misbehave when
they visited with him. She stated all of the children were disrespectful to her when they
returned from visiting Father. On the day of the incident, Matthew was fighting with his
sister M. over loose change. She “smacked” him in the mouth and he began to bleed.


1       Unless otherwise indicated, all further statutory references are to the Welfare and
Institutions Code.

2      Matthew is not a party to this appeal.

3      Father is not a party to this appeal.

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Matthew ran from the car. His paternal grandfather picked him up and took him to the
police station.
       On May 6, 2012, the CSW interviewed the children. Matthew said he was arguing
with his sister when Mother hit his mouth and “busted his lip open.” He said Mother had
not hit him since that incident. He was afraid of Mother and wanted to live with Father
because Father did not hit or hurt him. Maxwell said he did not see the incident on
April 30. Mother sometimes gave him a “little smack” and he was a “little” afraid of her.
He liked to visit Father because it was fun there. M. said she was in the store when the
incident occurred and did not see anything. She said Mother did not hit or hurt her and
she liked living with her. She also liked to visit Father and had fun there.
       On May 21, 2012, the CSW conducted follow-up interviews. Mother stated she
had problems with Matthew and in the past he punched her in the face and told her he
hated her. Mother reported that Maxwell was receiving special education services at
school but she did not know his diagnosis. M. recalled the incident on April 30 and said
Mother reached back and took the coins from Matthew. She said Mother did not hit him
and Matthew caused a lot of problems.
       On June 24, 2012, Mother was arrested for physical abuse of Matthew and
charged with a misdemeanor pursuant to Penal Code section 273a, subdivision (b).
Mother told the CSW that Matthew refused to go to church and wanted to go to his
grandparents’ house. She grabbed him from behind when he tried to leave on his bicycle.
The police report indicated Matthew had “a fresh deep bloody scratch to the back of his
neck approximately six inches long.” The CSW observed the scratch “clearly was done
by fingernails.” The CSW asked Mother about an incident earlier that week when
Mother was arrested for assault and battery on Father’s ex-girlfriend. Mother refused to
talk about the incident with Father’s ex-girlfriend and stated it had nothing to do with her
problem with Matthew. M. told the CSW she did not witness the incident. She said the
children spend most of the time with Father and their grandparents. She tried to stay
neutral about her parents’ relationship but Mother tried to convince her to take her side.



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       On July 11, 2012, Mother, Father and the children attended a team decisionmaking
meeting. Mother accused Father of causing all the problems and refused to accept
responsibility for her actions regarding Matthew. She called Father derogatory names
and made accusations concerning his drinking and not taking Prozac. She was
uncooperative and refused to provide her current address.
       On July 17, 2012, the Department filed a dependency petition (§ 300, subds. (a),
(b) & (j)) on behalf of the three children. The petition alleged that Mother physically
abused Matthew on April 30, 2012 and on June 24, 2012. Father requested custody of all
three children and told the CSW he was willing to comply with the Department’s and the
court’s terms and conditions. At the detention hearing held on July 17, 2012, Mother
requested that Maxwell and M. be released to her care. The juvenile court denied
Mother’s request and ordered the children released to Father. The juvenile court ordered
family reunification services for Mother and monitored visitation.
       In the September 6, 2012 jurisdiction and disposition report, the Department
indicated that Mother had an extensive history with the Department dating back to 1996,
including physical abuse of older half siblings. In May 1997, Mother’s four children at
that time were declared dependents of the court. In 2004, Matthew, Maxwell, M., and
two of their half siblings became dependents of the court following allegations that
Mother hit one of the half siblings with a belt. Mother was arrested in 2005 and in 2008
for spousal battery against Father. Mother told the CSW she was currently renting a
room but would not provide the address. She claimed Father turned the children against
her. She denied scratching Matthew and said Father was capable of doing it to Matthew
and blaming her. Father told the CSW that in June 2012, Mother was arrested after she
broke into his ex-girlfriend’s house and started fighting with her. The incident when
Mother scratched Matthew occurred on the day she was released from custody. The
police reports from the incidents on April 30, 2012 and June 24, 2012 were attached to
the jurisdiction and disposition report. The juvenile court set the matter for an
adjudication hearing on November 16, 2012.



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       The Department submitted a progress report prior to the adjudication hearing. The
children were living with Father and their paternal grandparents. The report indicated
there was ongoing tension between the parents. Father reported that Mother was
harassing him. Mother was calling and texting Father up to 22 times each day. Matthew
liked living with Father and never wanted to see Mother again. Maxwell did not want to
live with Mother and preferred to live with Father. Maxwell said he tried to “be nice” so
that Mother would not be “mean” to him. M. missed living with Mother and wanted to
reside with her when possible. M. felt comfortable and safe living with Father. The
Department recommended the children be declared dependents of the court and remain
with Father and that family maintenance services and counseling be provided for the
entire family.
       At the disposition hearing on November 16, 2012, Mother requested that the abuse
of sibling allegation filed pursuant to section 300, subdivision (j) be dismissed. The
juvenile court stated the evidence clearly indicated the children were physically abused.
The court sustained the petition as amended4 under section 300, subdivisions (a), (b), and
(j), based on Mother’s physical abuse of Matthew, which placed all of the children at risk
of physical and emotional harm. Counsel for the children joined in Father’s request that
the matter be terminated with a family law order. The Department, joined by Mother,
requested a continuance. The juvenile court indicated that pursuant to section 361.5,
subdivision (b)(1), it was terminating jurisdiction with a family law order granting Father
sole legal and physical custody. The court ordered monitored visitation for Mother.
                                      DISCUSSION
       Contentions
       Mother contends there was insufficient evidence to support a finding that M. was
described by section 300. Mother also contends the juvenile court erred when it ordered
M. removed from Mother’s custody because M. was not at risk of harm and there were



4      The court struck language referring to Father’s knowledge of the abuse and failure
to protect the children from the allegations.

                                             5
less drastic alternatives available. Lastly, Mother contends the juvenile court abused its
discretion when it terminated dependency jurisdiction over Maxwell and M.
         Standard of Review
         In reviewing the jurisdictional findings of the juvenile court, “we look to see if
substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In
making this determination, we draw all reasonable inferences from the evidence to
support the findings and orders of the dependency court; we review the record in the light
most favorable to the court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” (In re Heather A. (1996) 52 Cal.App.4th
183, 193.) “We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the trial court.”
(In re Matthew S. (1988) 201 Cal.App.3d 315, 321.) If supported by substantial
evidence, we must uphold the judgment or findings, even though substantial evidence to
the contrary may also exist, and the juvenile court might have reached a different
conclusion had it determined the facts and weighed credibility differently. (In re
Dakota H. (2005) 132 Cal.App.4th 212, 228.)
         We also review the court’s dispositional order placing the children with Father
under the substantial evidence standard. (In re John M. (2006) 141 Cal.App.4th 1564,
1569.)
         The juvenile court’s discretion to terminate jurisdiction or continue its supervision
is very broad and the standard of review is abuse of discretion. (In re Nada R. (2001) 89
Cal.App.4th 1166, 1179.)
         Principles Applicable to Section 300
         “The purpose of section 300 ‘is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.’ [Citation.]” (In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.)



                                                6
       Jurisdiction over a child under section 300 may be based on there being “a
substantial risk that the child will suffer . . . . serious future injury based on . . . a history
of repeated inflictions of injuries on the child or the child’s siblings . . . which indicate
the child is at risk of serious physical harm” (§ 300, subd. (a)); if there is “a substantial
risk that the child will suffer, serious physical harm or illness, as a result of the failure or
inability of his or her parent . . . to adequately supervise or protect the child” (§ 300,
subd. (b)); or if the “child’s sibling has been abused or neglected, as defined in
subdivisions [(a) or (b)], and there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions” (§ 300, subd. (j)).
       Substantial Evidence Supported the Juvenile Court’s Finding That M. Was
Described by Section 300
       The juvenile court found true two separate instances of physical abuse perpetrated
by Mother on Matthew and took jurisdiction over Matthew and his siblings, Maxwell and
M. Mother only challenges the jurisdictional finding as to M. Since M. said she missed
Mother and would like to live with her and there is no evidence Mother ever harmed M.,
Mother contends that she poses no risk to M.
       It is true there was no evidence at the jurisdictional hearing that Mother had
harmed M. But the court need not wait until a child is seriously abused or injured to
assume jurisdiction and take the steps necessary to protect the child. (In re R.V. (2012)
208 Cal.App.4th 837, 843.) The juvenile court’s decision was not based on Mother’s
relationship with M. but on her relationship with Matthew and her history of inflicting
injury on him. The issue was whether at the time of the jurisdictional hearing, Mother’s
treatment of Matthew placed M. at serious risk of harm. (In re Rocco M. (1991) 1
Cal.App.4th 814, 824.) Mother’s abuse of Matthew stemmed from her inability to
control her anger. Mother was arrested for assault and battery on Father’s ex-girlfriend
the day before she assaulted Matthew. She punched Matthew in the mouth when he
argued with his sister and scratched him on the neck when he wanted to go to his
grandparents’ house. The circumstances did not warrant Mother’s disproportionate
reaction. The evidence also showed that Mother had a longstanding history of anger

                                                 7
issues and violence not related solely to Matthew. In addition to assaulting Father’s ex-
girlfriend in 2012, Mother struck M.’s half sibling with a belt in 2004. Mother was
arrested in 2005 and in 2008 for spousal battery against Father. Mother displayed a
history of violence towards others which the juvenile court could consider. (See In re
S.O. (2002) 103 Cal.App.4th 453, 461, citing In re Rocco M., supra, at p. 824 [“‘[P]ast
conduct may be probative of current conditions’ if there is reason to believe that the
conduct will continue’”].)
        Based on statements made by M. and Maxwell, the juvenile court could easily
infer M. was in fear of Mother. Maxwell said he tried to “be nice” so Mother would not
be “mean” to him. Mother occasionally gave him a “little smack” and he was afraid of
her. M. told the CSW that she tried to remain neutral about her parents’ relationship but
Mother tried to convince her to take Mother’s side, and there was evidence in the record
of that influence. The incident in the car when Mother struck Matthew in the mouth
resulted from Matthew arguing with M. over loose change but M. initially told the CSW
she was inside the store and did not see anything. A few weeks later M. told the CSW
she remembered the incident and Mother did not hit Matthew.
        On appeal, we must defer to the factual determinations of the trier of fact. The
juvenile court weighed the evidence of Mother’s inability to care for and protect the
children. It is not our function to redetermine the facts. The juvenile court found the
evidence indicated “clearly, that the children were physically abused.” Our review of the
evidence shows that the juvenile court’s decision was supported by substantial evidence
such that a reasonable trier of fact could make such findings, and thus we must affirm the
determination of the juvenile court. (In re Sheila B. (1993) 19 Cal.App.4th 187, 198–
200.)
        Substantial Evidence Supported the Juvenile Court’s Order Removing M.
From the Home of Mother
        Mother also contends there is insufficient evidence to support the juvenile court’s
decision to remove M. from her care. Again, we disagree.



                                              8
       Pursuant to section 361, subdivision (c)(1), the juvenile court may remove a
dependent child from his parents’ custody upon clear and convincing evidence of a
substantial danger to the child’s physical health or well-being if there are no other
reasonable means to protect the child. Such an order “is proper if it is based on proof of
parental inability to provide proper care for the minor and proof of a potential detriment
to the minor if he or she remains with the parent. [Citation.] The parent need not be
dangerous and the minor need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the child. [Citations.]” (In re
Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds in Renee J. v.
Superior Court (2001) 26 Cal.4th 735, 736.)
       The standard has obvious parallels to the jurisdictional issue discussed above, and
the juvenile court’s jurisdictional findings are prima facie evidence M. cannot safely
remain in Mother’s home. (In re Hailey T. (2012) 212 Cal.App.4th 139, 146 (Hailey T.).)
However, Mother argues M.’s removal was unjustified because she could have safely
remained in Mother’s care and there were less drastic alternatives available. In so
arguing, Mother relies on Hailey T.
       In Hailey T., the juvenile court’s removal order with respect to a four-year-old girl
was reversed because the cause of her infant brother’s injuries were the subject of sharp
dispute, her parents had a good relationship, they did not have any substance abuse
problems and “there was no evidence [they] suffered from mental health conditions,
developmental delays or other social issues that often are at the root of dependency cases
and might place children at continuing risk in the home.” (Hailey T., supra, 212
Cal.App.4th at p. 147.)
       In contrast to the parents in Hailey T., Mother has an extensive history of child
abuse and anger outbursts. She was uncooperative with the Department, refusing to
provide her address, failing to acknowledge responsibility for her actions towards
Matthew, and even going as far as suggesting she was “set up” by Matthew because he
did not want to live with her. However, the striking difference between the cases
concerns the infliction of injury. In Hailey T., there was no evidence that either parent

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ever inflicted any injury on the four-year-old, and the only evidence that either parent
inflicted any injuries on the infant was disputed expert evidence that the four-year-old
could not have done so. (Hailey T., supra, 212 Cal.App.4th at p. 148.) The police report
tentatively concluded that the four-year-old had accidentally caused the infant’s injuries.
(Id. at p. 143.) Here, there was no doubt Mother was responsible for Matthew’s injuries.
In light of the prior instances of child abuse and other instances involving Mother’s
violent conduct, the juvenile court was justified in removing M. from Mother’s care.
Because the court’s removal order enjoys substantial evidentiary support, we will not
disturb it.
       Juvenile Court Did Not Abuse Its Discretion When It Terminated the
Dependency Case with a Family Law Order
       Mother contends the juvenile court abused its discretion when it terminated
jurisdiction without determining whether placement with Father would be detrimental to
Maxwell and M. The Department takes no position on this issue. Since there was no
evidence of detriment to the children in Father’s care, Mother’s contention fails.
       The juvenile court stated, “Pursuant to Welfare and Institutions Code
section 361.5 (b)(1)5 the court is terminating jurisdiction today with a family law order of
sole legal, sole physical and primary to Father.” It appears the court misspoke and was
actually referring to section 361.2,6 subdivision (b)(1), the code provision applicable to
noncustodial parents.


5     Section 361.5, subdivision (b)(1) states that “[r]eunification services need not be
provided to a parent or guardian . . . when the court finds, by clear and convincing
evidence, . . . [¶] [t]hat the whereabouts of the parent or guardian is unknown.”

6       Section 361.2, subdivision (a) states, “When a court orders removal of a child
pursuant to Section 361, the court shall first determine whether there is a parent of the
child, with whom the child was not residing at the time that the events or conditions arose
that brought the child within the provisions of Section 300, who desires to assume
custody of the child. If that parent requests custody, the court shall place the child with
the parent unless it finds that placement with that parent would be detrimental to the
safety, protection, or physical or emotional well-being of the child.” Section 361.2,

                                             10
       Under section 361.2, when, as is the case here, Father wanted and requested
custody of the children, the juvenile court “shall place the child with the parent unless it
finds that placement with that parent would be detrimental to the safety, protection, or
physical or emotional well-being of the child.” (§ 361.2, subd. (a), italics added.)
“Shall” is mandatory. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432,
443.) Thus, when a noncustodial parent requests custody, the court must place the
children with him or her. ‘“A court’s ruling under [section 361.2(a)] that a child should
not be placed with a noncustodial, nonoffending parent requires a finding of detriment
. . . [Citation.]’ [Citation.]” (In re Isayah C. (2004) 118 Cal.App.4th 684, 699–700; see
R.S. v. Superior Court (2007) 154 Cal.App.4th 1262, 1271.) The reason is that “a
nonoffending parent has a constitutionally protected interest in assuming physical
custody, as well as a statutory right to do so, in the absence of clear and convincing
evidence that the parent’s choices will be ‘detrimental to the safety, protection, or
physical or emotional well-being of the child.’ [Citations.]” (In re Isayah C., supra, at
p. 697.) Here, because Father as the noncustodial parent requested custody, the court
would have needed to make a detriment finding if it decided not to place the children
with Father.
       Mother relies on In re V.F. (2007) 157 Cal.App.4th 962. In that case, the father
was a noncustodial parent who was incarcerated at the time the child came into the
dependency system as a result of the mother’s neglect and drug use. The only allegation
of the petition naming the father was one made under section 300, subdivision (g),
relating to his incarceration and inability to arrange adequate care for the children. (In re
V.F., supra, at p. 966.) At the disposition hearing, custody was removed from both




subdivision (b)(1) states that if the court places the child with that parent it may “[o]rder
that the parent become legal and physical custodian of the child,” “provide reasonable
visitation by the noncustodial parent” and “[t]he court shall then terminate its jurisdiction
over the child.” Section 361.2, subdivision (c) requires the court to make a finding either
in writing or on the record of the basis for its determination under subdivision (a).

                                             11
parents pursuant to section 361, subdivision (c), and the father was denied services due to
his incarceration. (In re V.F., supra, at p. 967.)
       On appeal, the father argued that because the dependency petition was based only
on the conduct of the children’s mother, he should have been treated as the nonoffending
parent and allowed to retain custody of the children under section 361, subdivision (c)(1).
(In re V.F., supra, 157 Cal.App.4th at pp. 966–967.) The reviewing court agreed,
holding that because the father was not the custodial parent, the court should have
considered the case under section 361.2, stating “If a noncustodial parent requests
custody of a child, the trial court must determine whether placement with that parent
would be detrimental to the child. (§ 361.2, subd. (a).)” (In re V.F., supra, at p. 970.)
       The juvenile court in In re V.F. did not consider whether placement with the
noncustodial incarcerated parent would be detrimental to the children under
section 361.2, subdivision (a). In re V.F. noted that, while the record before it arguably
supported a finding of detriment under section 361.2, “the better practice is to remand the
matter to the trial court where that court has not considered the facts within the
appropriate statutory provision.” (In re V.F., supra, 157 Cal.App.4th at p. 973.)
       Here, all of the children were placed with Father. Where the statutory directive for
placement with the nonoffending parent is followed, the only remaining issue is whether
jurisdiction should be terminated. Based on the record in this case, there is no reasonable
probability that had the trial court made express findings pursuant to section 361.2,
subdivision (c), as interpreted in In re V.F., it would not have terminated jurisdiction.
Thus, remand for an express statement of reasons would constitute an idle act. (See Civ.
Code, § 3532; Letitia v. Superior Court (2000) 81 Cal.App.4th 1009, 1016.)
       Given that Maxwell and M. had been placed with Father and the juvenile court did
not have concerns regarding their care, the juvenile court did not abuse its discretion in
terminating jurisdiction with a family law order for custody and visitation.




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                                    DISPOSITION
      The orders of the juvenile court are affirmed.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           _____________________, J. *
                                                  FERNS
      We concur:




____________________________, P. J.
      BOREN


____________________________, J.
      ASHMANN-GERST




*       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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