Filed 6/13/22 In re D.P. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re D.P. et al., Persons Coming 

Under the Juvenile Court Law.

 B314159

 (Los Angeles County

 Super. Ct. No.

 20CCJP01588A-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ARMANDO P.,

Defendant and Appellant;

KARINA C., 

Respondent.

APPEAL from orders of the Superior Court of Los Angeles 

County, Tamara Hall, Judge. Affirmed in part and dismissed 

in part. 
2

Janette Freeman Cochran, under appointment by the Court 

of Appeal, for Defendant and Appellant. 

No appearance for Respondent Los Angeles County 

Department of Children and Family Services. 

Shaylah Padgett-Weibel, under appointment by the Court 

of Appeal, for Respondent Karina C.

_________________________

Armando P., the father of 12-year-old D.P., nine-year-old 

A.P. and six-year-old K.P., appeals the juvenile court’s orders

terminating dependency jurisdiction and awarding sole physical 

and legal custody to the children’s mother, Karina C. Armando 

also seeks a remand to permit the juvenile court to modify a

September 2020 restraining order to allow him to contact Karina 

to arrange visitation with the children, as authorized by the 

juvenile custody order. We affirm the order terminating 

dependency jurisdiction and the court’s juvenile custody order. 

We dismiss Armando’s request to remand the cause for 

modification of the restraining order as not within our 

jurisdiction in this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Sustained Petition and Disposition Orders

The Los Angeles County Department of Children and 

Family Services filed a petition on behalf of D.P., A.P. and K.P. 

on March 20, 2020 pursuant to Welfare and Institutions Code 

section 300, subdivisions (a) (nonaccidental infliction of serious 

physical harm), (b) (failure to protect) and (j) (sibling abuse).1 On 

September 9, 2020 the juvenile court sustained the petition, 

1 Statutory references are to this code unless otherwise 

stated.
3

finding true allegations under subdivisions (a) and (b) that 

Armando and Karina had a history of domestic violence in the 

presence of the children; Armando had struck Karina with his 

fist, slapped her face and pushed her to the ground; and Karina 

failed to protect the children by allowing Armando to reside in 

the home and have unlimited access to them. The court also 

found true allegations under subdivisions (b) and (j) that 

Armando had physically abused each of the three children and 

Karina had failed to protect them from that abuse.

D.P., A.P. and K.P. were declared dependent children of the 

court, removed from Armando’s care and custody and released to 

Karina under the supervision of the Department. Family 

maintenance and family preservation services were ordered for 

Karina. Enhancement services were ordered for Armando, 

including a 52-week domestic violence program and individual 

counseling with a Department-approved therapist to address 

anger management and other case issues. Armando’s visitation 

with the children was to be monitored and to take place outside 

the family home. The court authorized the Department to 

liberalize visitation and directed it to provide Armando with a 

written visitation schedule.

2. The Restraining Order

The week before the Department filed the section 300 

petition, Karina obtained a temporary restraining order 

protecting her and the children from Armando. The order 

required Armando to move out of the family residence and to stay 

away from Karina, the children, their home, Karina’s workplace 

and the children’s school or child care. The juvenile court 

reissued the temporary restraining order on May 19, 2020. 
4

On September 11, 2020, two days after the jurisdiction and 

disposition hearings, the court heard Karina’s request for a 

permanent restraining order. The court issued a three-year 

restraining order, which protected only Karina, not the children. 

The order prohibited Armando from contacting Karina and 

required him to stay at least 100 yards away from her, her home, 

workplace and vehicle. The box on the restraining order form 

that would except contact for the purpose of visitation with the 

children was not checked. 

3. The Section 364 Review Hearings, Termination of 

Jurisdiction and the Court’s Juvenile Custody Order

At the end of October 2020 the Department approved 

unmonitored visitation for Armando, which began on November 1 

and took place on Sundays between 10 a.m. and 6 p.m. The visits 

were held at a paternal uncle’s home or outdoors. Reports of the 

visits were positive.

In its February 23, 2021 report for the initial section 364 

review hearing on March 10, 2021, the Department recommended 

the court terminate jurisdiction with a custody order awarding 

sole physical custody to Karina, joint legal custody and 

unmonitored visitation for Armando. In a last minute 

information report filed March 9, 2021, however, the Department 

stated Armando had not provided an update on his enrollment in 

individual counseling or the 52-week domestic violence classes for 

perpetrators ordered by the court. Because of Armando’s 

noncompliance with court-ordered services, the Department 

changed its recommendation and requested the court limit 

Armando to monitored visitation. At the hearing the Department 

reiterated its recommendation for monitored visitation based on 

the court’s findings of domestic violence and physical abuse of the 
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children and the fact Armando, at most, had only recently started 

his programs. 

The court indicated its tentative view was to award Karina 

sole physical and legal custody of the children, an outcome

Karina supported. Armando and the children’s counsel asked 

that visitation remain unmonitored. The court expressed concern 

about the inconsistency in the Department’s position on 

visitation, allowing it to be unmonitored before Armando even 

began his programs but then recommending it return to 

monitored upon termination of dependency jurisdiction. Counsel 

for the Department said she would need to speak to her client to 

explain its rationale for the change. The court continued the 

hearing to April 5, 2021.

The Department filed a further last minute information

report for the court on April 1, 2021. The report stated Armando 

had provided proof of his enrollment in March 2021 in both 

individual therapy and a domestic violence group for perpetrators 

and Karina had told a Department social worker she had no 

safety concerns when the children visited with Armando. The 

children also said they were not concerned for their safety and 

had asked for additional visits with Armando. The social worker 

discussed with both Karina and Armando the possibility of 

keeping the case open to allow for Armando to make continued 

progress, and both parents approved the concept. The 

Department, therefore, recommended that the court continue 

family maintenance for Karina and enhancement services for 

Armando for an additional three months and also recommended 

that Armando’s visitation remain unmonitored. 

At the outset of the continued section 364 hearing on 

April 5, 2021, the court again stated its tentative view was to 
6

grant sole legal custody to Karina, explaining, “This is domestic 

violence. Father has not completed his domestic violence. And 

per the law, joint legal is not an option.” The Department 

repeated the recommendation from its April 1 report, suggesting 

the case remain open for another three months, noting Karina 

and Armando consented to that plan. The court agreed, found 

continued supervision was necessary and scheduled another 

section 364 review hearing for July 6, 2021.

In its report for the July 6, 2021 section 364 review 

hearing, the Department recommended the court terminate 

dependency jurisdiction and enter a juvenile custody order 

awarding sole physical custody to Karina and joint legal custody 

to Karina and Armando with unmonitored visitation for 

Armando. As to visitation, the report stated, “The children have 

expressed feeling safe and happy when visiting with their father 

and would like to continue with the current schedule.” 

At the hearing Armando’s counsel asked the court to keep 

the case open to allow Armando to make further progress with 

the goal of a joint physical and legal custody order at 

termination. Karina and children’s counsel asked the court to 

terminate jurisdiction with the joint legal/sole physical custody 

order recommended by the Department. 

The court, finding Karina was in full compliance with her 

case plan and there were no safety issues concerning the 

children, terminated its jurisdiction and stated it would enter a 

custody order awarding sole physical and legal custody of the 

three children to Karina with unmonitored visitation for 

Armando. 

The juvenile custody order entered July 13, 2021 provided 

Karina with sole physical and legal custody of the children and 
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unmonitored visitation for Armando. The order stated, “Parents 

are to agree to visitation schedule.” The order attached 

Armando’s case plan and explained, “Parents may modify the 

custody order in family court upon Father’s substantial 

completion of said case plan.” 

Armando filed a timely notice of appeal on July 20, 2021. 

DISCUSSION

1. The Juvenile Court Did Not Abuse Its Discretion in

Terminating Jurisdiction and Ordering Sole Legal and 

Physical Custody to Karina

a. Governing law and standard of review

Section 364, subdivision (a), requires the juvenile court to

schedule a review hearing at least every six months for a

dependent child who has not been removed from the physical

custody of his or her parent or guardian. At the hearing

dependency jurisdiction must be terminated unless the conditions

that created the need for supervision still exist or are likely to

exist if supervision is discontinued: “After hearing any evidence

presented by the social worker, the parent, the guardian, or the

child, the court shall determine whether continued supervision is

necessary. The court shall terminate its jurisdiction unless the

social worker or his or her department establishes by a

preponderance of evidence that the conditions still exist which

would justify initial assumption of jurisdiction under Section 300,

or that those conditions are likely to exist if supervision is

withdrawn.” (§ 364, subd. (c); see In re T.S. (2020)

52 Cal.App.5th 503, 512-513; In re Shannon M. (2013)

221 Cal.App.4th 282, 290 [section 364, subdivision (c), establishes

a “statutory presumption in favor of terminating jurisdiction and
8

returning the children to the parents’ care without court

supervision”].)

“The juvenile court makes this determination based on the

totality of the evidence before it.” (In re Armando L. (2016)

1 Cal.App.5th 606, 615.) We review the court’s decision to

terminate dependency jurisdiction for abuse of discretion. (In re

Destiny D. (2017) 15 Cal.App.5th 197, 211-212; Bridget A. v.

Superior Court (2007) 148 Cal.App.4th 285, 300.) “‘“The

appropriate test for abuse of discretion is whether the trial court

exceeded the bounds of reason.”’” (In re Stephanie M. (1994)

7 Cal.4th 295, 318-319.)

When the juvenile court terminates its jurisdiction over a 

child who has been declared a dependent child of the court, the 

court, “on its own motion, may issue . . . an order determining the

custody of, or visitation with, the child.” (§ 362.4, subd. (a); see

In re T.S., supra, 52 Cal.App.5th at p. 513.)2 Section 362.4

specifies that order “shall continue until modified or terminated

by a subsequent order of the superior court” and directs the order

be filed in a pending family law proceeding (§ 362.4, subd. (b)) or,

if there is none, as part of a new family court file (§ 362.4,

subd. (c)). 

When making a custody determination under section 362.4, 

“‘the court’s focus and primary consideration must always be the 

best interests of the child.’” (In re T.S., supra, 52 Cal.App.5th at 

2 Once a child has been adjudged a dependent of the juvenile 

court pursuant to section 300, “any issues regarding custodial 

rights between his or her parents shall be determined solely by 

the juvenile court . . . so long as the child remains a dependent of 

the juvenile court.” (§ 302, subd. (c); see In re Anna T. (2020) 

55 Cal.App.5th 870, 876.)
9

p. 513; accord, In re Nicholas H. (2003) 112 Cal.App.4th 251, 268;

In re John W. (1996) 41 Cal.App.4th 961, 965 [“it is the best 

interests of the child, in the context of the peculiar facts of the 

case before the court, which are paramount”]; see In re

Chantal S. (1996) 13 Cal.4th 196, 206.)

We review a juvenile court custody order, like the order 

terminating jurisdiction, for abuse of discretion. (In re C.W.

(2019) 33 Cal.App.5th 835, 863; In re M.R. (2017) 7 Cal.App.5th 

886, 902; see In re T.H. (2010) 190 Cal.App.4th 1119, 1124.) We 

“may not disturb the order unless the court ‘“‘exceeded the limits 

of legal discretion by making an arbitrary, capricious, or patently 

absurd determination.’”’” (Bridget A. v. Superior Court, supra, 

148 Cal.App.4th at pp. 300-301.) 

b. Termination of jurisdiction was appropriate in light 

of Karina’s successful completion of her case plan

Disregarding the statutory mandate that dependency 

jurisdiction must be terminated unless the social worker or the 

child protective agency establishes that continued court 

supervision is necessary to protect the children, as well as the 

abuse-of-discretion standard of review for an order terminating 

dependency jurisdiction, Armando argues the court abused its 

discretion in terminating jurisdiction because keeping the case 

open would have allowed him to complete his programs, making 

joint custody orders possible.

Based on ample evidence set forth in the Department’s 

reports—unchallenged by Armando in the juvenile court or on 

appeal—the court found Karina, whose sole offense was failing to 

protect the children and herself from Armando’s repeated acts of 

violence, had fully complied with her case plan and the children 

were safe in Karina’s care. Particularly with a three-year 
10

restraining order in place, there was, as the court ruled, no 

reason to keep the case open.3

Armando also contends it was an abuse of discretion to 

terminate dependency jurisdiction because of the apparent 

inconsistency between the no-contact provision in the September 

2020 restraining order and the direction in the juvenile custody 

order for Karina and Armando to agree to his visitation schedule. 

Whatever else may be said about this purported issue, which we 

address in section 2, it has absolutely nothing to do with the 

children’s safety in Karina’s care and the absence of any 

continuing need for the family’s involvement in the dependency 

system. 

c. The juvenile court custody award was well within the 

juvenile court’s broad discretion

Emphasizing the juvenile court’s statement at the April 5, 

2021 section 364 hearing that, “per the law,” joint legal custody 

was not an option in a case involving domestic violence, Armando 

argues the court committed legal error when it awarded sole legal 

custody of the children to Karina on July 6, 2021 by implicitly 

relying on Family Code section 3044, which creates “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.” As 

Armando explains, this Family Code presumption is not 

applicable to custody decisions made in dependency proceedings, 

3 Terminating dependency jurisdiction did not preclude 

Armando from continuing with his domestic violence program or 

completing other aspects of the case plan ordered by the juvenile 

court. To the contrary, as discussed, the court encouraged 

Armando to complete his case plan and to seek a revised custody 

order from the family court once he had done so. 
11

which are governed by the Welfare and Institutions Code: “‘[T]he 

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 C.M. (2019) 

38 Cal.App.5th 101, 110, italics omitted.)

Even if the court’s undefined reference to “the law” on 

April 5, 2021 was to Family Code section 3044, however, the 

court made no similar suggestion it was applying an improper 

presumption when it awarded sole legal custody to Karina on 

July 6, 2021. It is that ruling, not a statement of tentative views 

made three months earlier, that is before us. “In the absence of 

evidence to the contrary, we presume that the court ‘knows and 

applies the correct statutory and case law.’” (People v. Thomas

(2011) 52 Cal.4th 336, 361; accord, McDermott Will & Emery LLP 

v. Superior Court (2017) 10 Cal.App.5th 1083, 1103 [“[w]e 

presume the trial court knew and properly applied the law absent 

evidence to the contrary”]; Keep Our Mountains Quiet v. County

of Santa Clara (2015) 236 Cal.App.4th 714, 741 [“‘[i]t is a basic 

presumption indulged in by reviewing courts that the trial court

is presumed to have known and applied the correct statutory and 

case law in the exercise of its official duties’”].) There is no such 

evidence here.

Armando also contends the court abused its discretion in 

awarding sole legal custody to Karina because he had 

participated in court-ordered services; complied with the nocontact restraining order; and not missed any visits with his 

children, who reported they felt safe when with him. While it 

may well have been within the court’s broad discretion to order 

joint legal custody in this case, as the Department had 
12

recommended, it was not arbitrary or irrational for the court to 

conclude it was in the best interest of the children to award sole

physical and legal custody to Karina. 

As the court explained when it made its ruling on July 6, 

2021, the significance of the award of sole legal custody was that 

Karina did not “have to ask, inquire, give the input of the father 

when making any parental decision regarding your children.” 

Given the still early stage of Armando’s efforts to address the 

domestic violence that gave rise to the dependency proceedings 

and the existence of a no-contact restraining order, which will 

remain in effect at least through September 2023, permitting 

Karina to make all necessary decisions affecting the children’s 

welfare without first contacting Armando did not exceed the 

bounds of reason. (See In re Stephanie M., supra, 7 Cal.4th at 

pp. 318-319.)

2. Armando’s Request for Modification of the September 

2020 Restraining Order Is Not Properly Before Us 

Armando contends the no-contact provision in the 

September 2020 restraining order prohibiting him from speaking 

to Karina is inconsistent with the juvenile custody order that 

directs Karina and Armando to agree on a schedule for 

Armando’s unmonitored visitation with the children. He 

contends, even if we affirm the juvenile custody order, the cause 

should be remanded to allow the juvenile court to modify the 

restraining order to allow peaceful contact between Karina and 

Armando to arrange for visitation.

This issue, whatever its merit, is not properly before us. 

Even if the express terms of the custody order directing the 

parties to agree to a visitation schedule did not impliedly limit 

the no-contact provision of the restraining order, Armando did 
13

not ask the juvenile court to modify the restraining order during 

the July 6, 2021 hearing at which the court terminated 

dependency jurisdiction and described the custody order it would 

enter, the subjects of this appeal; and the court, appropriately, 

did not make any ruling on a request not made. (Cf. People v. 

Beames (2007) 40 Cal.4th 907, 923 [trial court did not err in 

failing to grant a continuance in the absence of a request].) 

The time to appeal the terms of the September 11, 2020 

restraining order had long since passed when Armando filed his 

notice of appeal in this case on July 20, 2021. (See Cal. Rules of 

Court, rule 8.406(a)(1) [notice of appeal must be filed within

60 days after entry of the making of the order being appealed].) 

Armando’s proper recourse is to ask the family court, which now 

has jurisdiction over custody and visitation issues, to make any 

necessary modifications in the orders relating to those matters. 

(See § 362.4, subd. (b).)
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DISPOSITION

The orders terminating jurisdiction and awarding sole legal 

and physical custody of the children to Karina, with unmonitored 

visitation for Armando, are affirmed. The request to remand to 

allow modification of the September 11, 2020 restraining order is 

dismissed as an untimely appeal.

PERLUSS, P. J. 

We concur:

SEGAL, J.

FEUER, J.