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 

Under the Juvenile Court 

Law.

 B291817

 (Los Angeles County

 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.
2

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 

 1 All further statutory references are to the Welfare 

and Institutions Code unless otherwise indicated.
3

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.
4

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.
5

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 
6

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 familyoriented, 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 coparenting.

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 
7

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.
8

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 coparenting 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, 
9

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.
10

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.)
11

“[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.)
12

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 
13

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 
14

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.
15

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 
16

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 
17

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.