Filed 7/ 8/22 In re Q.T. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re Q .T . et al., Persons Coming

Under the Juvenile Cour t Law. B 31 4021

LOS ANGELES COUNTY

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

T ONY T

. ,

Defendant and Appellant. (Los Angeles County Super. Ct.

No s

. 20CCJP04657A

, 20CCJP04657 B )

APPEAL from an order of the Superior Court of Los

Angeles County, S tacy Wiese

, Judge . Affirmed.

Jesse F. Rodriguez , under appointment by the Court of

Appeal, for Defendant and Appellant.2 Dawyn R. Harrison

, Acting County Counsel

, Kim Nemoy,
Assistant County Cou nsel, and David Michael Miller , Deputy

County Counsel, for Plaintiff and Respondent.

—————————— Tony T

. ( father ) appeals from the juvenile court ’s order
terminating jurisdiction over his minor sons, Q.T. and A.T., and

granting sole physical custody to the ir mother with un monitored

visit ation to father. On appeal, father argues the juvenile court

abused its discretion i n not allowing father to return to the
family’s home until he completed his case plan. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND 1

I. Initi ation of d ependency p roceedings

“ In August 2020, the El Monte Police Department executed

search warrant s on father ’s home and his female companion ’s

home after receiving information about father distributi ng child

pornography

. Father resided with the mot her and his children.

F ather also had a female companion and sometimes spent the

night at her home. While executing the warrant, the police

recovered child pornography videos on father’s phone. These

videos included 21 files depicting child pornography of young

girls, age s two to five , which police located in a file folder in

father’s phone. A detective concluded that father was looking for
child pornography videos and purposefully sav ed them onto his
phone based on the volume of videos and where the fi les were

saved on father’s phone.

1 A portion of the factual and procedural background is taken from this court’s prior opinion in In re Q.T. ( Dec . 1 7

, 2021,

B31 0598 ) [nonpub. opn.]. On this court’s own motion, we take judicial notice of our prior unpublished opinion. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)3 “ A detective interviewed father after law enforcement

executed a search warrant at the family home. F ather conceded

that he sent a child pornography video to his female companion

. Father denied having any further ch ild pornography other than

the single video

.

“ After his arrest , the El Monte Police Department again

interviewed father

. Father described publishing a video
depicting an ‘ adult and child ’ and described it further as ‘ [s]exual

abuse, like intercourse. ’ He estimated that the girl in the video

was ‘ around 3 ’ years old and stated that he received the video
from a Facebook group. When asked about his motivations for

sending the video to his female companion, father said that he

sent the video to her because it was ‘ very interesting ’ and because

he wanted to have sex with his companion

. F ather described
storing child pornography on his phone from March 2020 to

August 2020, a period of roughly five months , although he denied
enjoying child pornography. In ex ecuting a search warrant with

internet service providers, the El Monte Police Department
concluded that father uploaded the child pornography video that
he sent to his female companion from the internet protocol (IP)

address associated with the family home

.

“ While executing the search warrant at the home of father’s

female companion , law enforcement found 25 ecstasy pills and

21 vials of ketamine.

“ In a n interview with the Los Angeles County Department
of Children and Family Services (DCFS)

. . . , fath er said that he
accidentally clicked on a link from a Facebook group without

realizing it was child pornography. He reported that the videos
automatically downloaded to his phone. Father also denied4

watching the child pornography videos, with the excepti on of the

video that he sent to his female companion

. [¶]

. . . [¶]

“ In September 2020,

. . . DCFS filed a Welfare and

Institutions Code [ 2 ] section 300 petition regarding Q .T. and A.T.
Under section 300, subdivisions (b)(1) and (d),

. . . DCFS alleged

th at father’s possession of child pornography and the mother’s
failure to protect the children from father established a basis for

jurisdiction. Under section 300, subdivision (b)(1),

. . . DCFS
alleged that father’s drug abuse and mother’s failure to prote ct the children from father’s drug abuse created a second basis for

jurisdiction.

“ On September 8, 2020, at the detention hearing, the

juvenile court detained the children from father and placed the
children in the mother’s care. The juvenile court order ed that

father was to have monitored visitation with children. ” ( In re
Q.T.

, supra , B31 0598. )

II. Jurisdiction and d i s position h earing

“ In

. . . DCFS’ s interview with f ather for the jurisdiction

and disposition report , he described looking for videos online

which were ‘ strange and weird ’ during the COVID

- 19 pandemic.
Father said that he randomly clicked on videos on a pornography

website and some of them depicted child pornography. He said

he clicked on one video depicting an adult male having sex with a

tw o

- year

- old girl. Father admitted watching the whole video

, which he estimated lasted 1.5 minutes. He said the 1.5

- minute

video ‘ goes by fast, and it is not a long time. ’ He denied being
sexually aroused by the child pornography. In addition, father

[ 2 ] A ll statutory references are to the Welfare and

Institutions Code unless otherwise i ndicated

.5

ind icated that he placed the child pornography in a secure file

protected by a password to prevent his children from access ing

the child pornography. Father also denied knowing th at i t was illegal to possess child pornography.

“ In the same report,

. . . DC FS noted that f ath e r was engaging in therapy to address both child pornography and drugs

prior to the disposition hearing

. From father’s self

- reporting, t he
therapist understood that father accidentally looked at one piece

of child pornography one time

. The therapist was surprised to

learn from

. . . DCFS that there were 21 child pornography videos
and that they involved children under the age of five

.

“ In the jurisdiction and disposition report

, father said he

began using drugs during the C OVID

- 19 pand emic a fter he lost

his job. Father stated that he would spend the night with his
female companion and used the substances at her home. He said

he would return to his home when he was no longer under the
influence. When visiting his companion, father sai d he took a

quarter pill of ecstasy to stay awake and used marijuana for

recreational purposes. Father also indicated that he used
ketamine to calm himself and to help him sleep. In addition, h e also indicated that he stopped using drugs after

. . . DCFS first

interviewed him. Father voluntarily tested twice for

. . . DCFS

prior to the disposition hearing, and both tests were negative.
The mother said she had no knowledge that father was using

drugs and that he did not use around her or the children.

“ Prior to the jurisdiction and disposition hearing, both

parents participated in a planning meeting with two DCFS social

workers. At the meeting, f ather indicated that he had a personal
goal to stop abusing drugs. ” ( In re Q.T.

, supra , B31 0598. )6 “ At the t ime of the jurisdiction and disposition hearing,
father was charged with two crimes related to child

pornography. ” (

In re Q.T.

, supra , B31 0598. )

“ On January 12, 202 1 , the juvenile court presided over the

jurisdiction and disposition hearing. The parties asked the court
to consider written exhibits and did not offer any testimony.

Regarding father, t he juvenile court sustained the allegations
with regard to both the child pornography and drug abuse

theories . The juvenile court made credibility determinat ions
against father’s statements regarding the number of child
pornography videos he possessed , his motivations for looking at

the videos, and his knowledge of the legality of his actions.

Regarding the drug allegations, the juvenile court only noted that

it was sustaining the entirety of the allegations against father.

For father’s case plan, the juvenile court ordered father to do a

sex abuse program for perpetrators, individual counseling to

address child pornography, a parenting program, and ordered

d rug testing with the matter to be ‘ walked on ’ for hearing if there

were any missed or dirty drug tests. ” ( In re Q.T.

, supra , B31 0598. )

III. S ix

- month s tatus review report
In its July 2021 status review report, DCFS stated that the

children continued to reside with their mother in the family’s

home, and that no concerns had been reported

. The mother was

receiving family maintenance services, and had been compliant
with her case plan. She had completed a family preservation

program, and continued to participate in a parenting education

program and individual counseling services. The mother was
meeting all of the children’s needs, and consistently providing

them with appropriate care and supervision.7 DCFS reported that father also had been overall compliant

wit h his case plan. He had tested negative for drugs and alcohol

in his on

- demand tests. He was attending a parenting education
program, and had completed eight of 1 0 sessions. Father’s

therapist indicated that father had been attending individual

counseli ng every two weeks since September 2020. With DCFS’s

approval, the individual counseling program included sexual
abuse counseling for perpetrators. In a brief letter submitted to

DCFS, the therapist stated that father “ has participated well in
counseling ” by “sharing openly” and “gaining insights and lessons

on how to improve in his role as a husband and father after

reflecting on recent events leading to criminal and DCFS court
cases.” The therapist also was providing conjoint counseling to

the parents, and they had attended four sessions since September
2020. The primary focus of the conjoint therapy was to address

issues in the marriage due to father’s infidelity.

Father had been attending monitored visi ts with the

children at a local park six hours per week. Father was cooperative and compliant with his visitation , and no concerns

had been reported

. The children expressed excitement and joy

when visiting with father, and appeared to be comfortable with

him. Effective June 20, 2021, DCFS liberalize d father’s visits to

unmonitored. At father’s request, the visits took place every
Sunday from 2:00 p.m. to 8:00 p.m. to accommodate his work

schedule.
In its report, DCFS noted that both the parents and

the children wanted father to return to the family’ s home. The

parents also were requesting that the juvenile court terminate its
jurisdiction at the next hearing with a family law order, and

stated that they w ere willing to abide by th e terms of such order.8

Father had pleaded not guilty to the charges i nvolving child
pornography, and the criminal c ase against him remained

pending.

DCFS recommended the juvenile court terminate

jurisdiction over the children with a family law order granting

sole physical to the mother, legal custody to both parents, and

un monitored visit ation to father. DCFS assessed the risk to the

children in mother’s care as “ LOW ” because no new referrals

regarding the family were being investigated , and both parents

continued to participat e in services and to show improvement

in rebuil ding their relationship. DCFS recommended, however,

that father remain out of the family’s home because his criminal

case had not been resolved, and he had not completed his case

plan. In particular, DCFS wanted father to complete his
parenting education program and to continue attending

individual counseling to address sexual abuse counseling issues.

IV. Termination of jurisdiction

On July 13, 2021, the juvenile court held a six

- month
review hearing pursuant to section 364. Counsel for the

mother and couns el for the children submitted on DCFS ’s

recommendation that the court terminate jurisdiction and issue

a family law order granting sole physical custody to mother

, joint

legal custody to both parents, and unmonitored visit s to father

. Counsel for DCFS opp osed father’s request to return to the

family’s home because he had not completed his case plan.

Counsel for the children also opposed the request, noting that

, while the children missed father, he had only recently begun

unmonitored visits and he still n eeded to complete his court

ordered services. Counsel for father continued to object to9

the court’s jurisdiction and requested the children be
immediately returned to father’s custody.

The juvenile court ordered the termination of jurisdiction

over the c hildren pending the receipt of a custody order. In

accordance with DCFS’s recommendation, the custody order
granted joint legal custody to both parents, sole physical custody

to mother, and unmonitored visitation to father a minimum of six

hours per week. In adopting DCFS’s recommendation that father

not return to the family’s home at that time , the court noted that
father had not completed his case plan and had only begun to

have unmonitored visits with the children. On July 16, 2021 , the

court signed t he custody order and terminated its jurisdiction

. The custody order provided that father could petition the family

court for a change in custody once he had completed a parenting
education program and individual counseling to address sexual

abuse counseli ng for perpetrators.

Father filed a timely appeal.

DISCUSSION
On appeal, father solely challenges the portion of the
juvenile court’s custody order limiting his contact with the

children to unmonitored visitation. Father specifically contends

the court ab used its discretion in denying his request to return to
the family’s home because the children were at low risk of abuse

, and it was in the ir best interests for father to reside with them.

I. Governing legal principles

“ Once a child has been adjudged a dep endent 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. ’ ” ( In re Anna T.10

(2020) 55 Cal.App.5th 870, 876 ; § 302, subd. (c).) Section 364

, subdivision (a) requires the juvenile court to conduct a review

hearing every six months for a dependent child who has been

placed in the physical custody of a parent. (See In re T.S. (2020)

52 Cal.App.5th 503

, 512.) At a hearing held pursuant to

section 364, the juvenile court must terminate jurisdiction over

the dependent child unless the conditions that initially justified
jurisdiction still exist or are likely to exist if s upervision is

withdrawn. (§ 364, subd. (c).)

When terminating jurisdiction over a dependent child,
section 362.4, subdivision (a) authorizes the juvenile court to

issue “ an order determining the custody of, or visitation with, the

child. ” Section 362.4

, subdivision (b) specifies that the order

“ shall continue until modified or terminated by a subsequent

order of the superior court ,” and directs that the order be filed in

a pending family court proceeding ( id

., subd. (b)) or if there is
none, as part of a new family court file ( id

. , subd. (c)).

In making a custody or visitation order pursuant to

section 362.4, commonly referred to as an “ ‘ exit order, ’ ” th e juvenile 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 p. 513.) The juvenile court is not restrained by

any preferences or presumptions that are ordinarily applicable in
family court. (

In re Nicholas H. (2003) 112 Cal.App.4th 251

, 268;

accord, In re C.M. (2019) 38 Ca l.App.5th 101, 1 10 [“ ‘ presumption

of parental fitness that underlies custody law in the family court
just does not apply to dependency case ’ ”].) We review the
juvenile court ’s decision to terminate jurisdiction and to issue an

exit order for abuse of di scretion. ( In re C.W. (2019)

33 Cal.App.5th 835, 863; In re M.R. (2017) 7 Cal.App.5th 886,11

902.) We “ ‘ may not disturb the order unless the court

“ ‘ “ exceeded the limits of legal discretion by making an arbitrary,

capricious

, or patently absurd determin ation. ” ’ ” ’ ” ( In re M.R.

, at p. 902.)

I I. The juvenile court did not abuse its discretion in
denying father’s request to return to the family ’s

home prior to completing his case plan
In terminating jurisdiction and issuing a custody exit order,

the juv enile court granted father unmonitored visitation with the
children a minimum of six hours per week. While the juvenile
court denied father’s request to return to the family’s home at

that time , it noted that father could seek a modification of the

order in family court once he had completed his case plan

. We

conclude the juvenile court acted well within its discretion in
fashioning the custody order.

The record reflects that, at the ti me of the six

- month review
hearing , the children were doing well in their mother’s care, and

she was continuing to meet all of their physical and emotional

needs. Father had attended eight of 10 parenting education

sessions and four conjoint counseling sessions with the mother

, and he was participating in individual couns eling that included

sex ual abuse counseling for perpetrators . His weekly visit s with

the children had been monitored until three weeks prior to the
status review hearing, when DCFS had liberalized the visitation

schedule to unmonitored day visits. Given that father had not

completed his case plan and had only recently transitioned to

unmonitored visits , the juvenile court reasonably could conclude

it was in the children’s best interests that father not reside with

them until he had shown more progress wit h his court

- ordered

services.12 In challenging the custody order, father argues that “the

present case does not involve such serious physical, sexual, or

emotional abuse ” against his two minor sons , “but only a risk

of sexual abuse.” As our Supreme Court ha s made clear,
however, the juvenile court “ ‘ need not wait until a child

is seriously abused or injured to

. . . take the steps necessary to
protect the child.’ ” (

In re I.J. (2013) 56 Cal.4th 766, 773.)

Moreover, “ ‘ [s] ome risks may be substantial even if they carry a

low degree of probability because the magnitude of the harm is

potentially great. ’ ” (

Id . at p. 778.) This includes the risk that a
child may suffer sexual abuse based on the parent’s possession

of child pornography in the child’s home

. ( In re S.R. (2020)

48 Cal.App.5th 204, 224 [ “ juvenile court correctly found that

‘ being involved in child pornography or some other hands

- on sexual abuse is a great, great danger to the child and would do

her extreme harm ’ ” ] .) Here, father possessed 21 v ideos depicting
child pornography of girls under the age of five , he published one

of the videos to his female companion from the family’s home IP

address, and he connected that video to his desire to have sexual

relations with his companion. While DCFS a ssessed the current

risk to the children as low in its six

- month status review report,

it did so on the basis that the children had been residing with

their mother and no safety concerns had been reported during the

time they were solely in her care. Inde ed, DCFS’s

recommendation that the juvenile court terminate its jurisdiction
with a family law order was contingent upon father remaining

out of the family’s home until he made more progress with his

case plan.
We likewise reject father’s contention tha t the juvenile

court did not have any ongoing concerns about the children’s13

safety in his care when it terminated jurisdiction because it
allowed father to have unsupervised contact with the children as

part of the custody order

. As the Supreme Court has explained,

“ there are situations in which a juvenile court may reasonably

determine that continued supervision of the minor as a

dependent child is not necessary for the child ’ s protection, and at

the same time conclude that conditions on visitation are

ne cessary to minimize, if not eliminate, the danger that visits

might subject the minor to the same risk of physical abuse or

emotional harm that previously led to the dependency
adjudication. ” (

In re Chantal S. (1996) 13 Cal.4th 196 , 204.) In

such a situa tion, section 362.4 “ authorize [ s ] th e juvenile court to
issue an appropriate protective order conditioning custody or

visitation on a parent ’s participation in a counseling program ” or other services. (

Ibid .) In this case, the juvenile court granted

fath er unmonitored day visits with the children, but denied his

request the children be returned to his physical custody . The

court also stated in its custody order that father could seek

modification of the order “ once he has completed a parenting

education program and individual counseling to address sexual

abuse counseling for perpetrators

. ” Contrary to father’s claim,
the court did not permit him to have “unconditional contact” with

the children. Instead, the court made clear that father’s ability to

see k joint physical custody of the children in the future was contingent upon his substantial compliance with his case plan.
Based on the totality of the record, including the

seriousness of the sustained allegations against father,

his incomplete case plan

, and the relative recency of his

un supervised visit ation , the juvenile court reasonably could

conclude t he best interests of the children would be served by14

awarding sole physical custody to the mother and unmonitored

visit s to father until father demonstr ated greater progress in

addressing the issues that led to the dependency proceedings.

F ather will be able to seek modification of the custody order from

the family court if his progress continues. On this record, the
juvenile court’s order was not an ab use of discretion

. DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED.

KIM , J. *

We concur:

EDMON , P. J.

LAVIN , J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California

Constitution.