Filed 10/13/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ANNA T., a Person

Coming Under the Juvenile

Court Law. B299987

(Los Angeles County

Super. Ct. No.18CCJP0460 5A)

LOS ANGELES COUNTY

DEPARTMENT OF

CHILDREN AND FAMILY

SERVICES,

Plaintiff,

v.

TODD T.,

Defendant and Appellant ;

ANNA T., a Minor, etc.,

Respondent.

APPEAL from orders of the Superior Court of Los Angeles

County, Philip L. Soto, Judge. The or der terminating jurisdiction

is affirmed. Orders purporting to modify the final judgment are

vacated.2 John L. Dodd, under appointment by the Court of Appeal,

for Defendant and Appellant

. Marsha F. Levine, under appointment by the Court of

Appeal, for Minor and Respondent

.

_________________________

W elfare and Institutions Code section 362.4 1 authorizes the

juvenile court , w hen termin ating jurisdiction over a dependent

child

, to issue a custody and visitation order that will become

part of the paren t s’ family law file 2 and remain in effect in the

family law action “until modified or terminated by a subsequent

order.” Section 302, subd ivision (d)

, reinforces the post

termination significance of the juvenile court’s section 362.4

custody order s by providing that those orders (commonly referred

to as “exit orders”) may not be modified by the family court

“ unless the court finds that there has been a significant change of

circumstances since the juvenile court issued the order and

modification of the order is in the best interests of the child.”

Here, t he dependency petition was filed , and the juvenile

court assumed jurisdiction, after th e family c ourt had entered a

final judgment awarding Todd T

. sole legal authority to make

1 Statutory references are to this code unless otherwise

stated

.

2 If no family law action is pending, the court’s order “may be

used as the sole basis for opening a fi le in the superior court of

the county in which the parent, who has been given custody,

resides.” (§ 362.4, subd. (c).)3

health care decisions for his daughter, Anna T. When the juvenile

court terminated its jurisdiction a year later, it expressly declined

to issue a juvenile court cust ody order pursuant to section 362.4

, “revert[ing] back to the original family law decision

. ”

Nonetheless, the court ordered Anna to continue in treatment

with a therapist selected by Anna’s mother, Nancy D., to be paid

by Todd, until that therapist determ ined a change would not

interfere with Anna’s treatment. The court also prohibited Todd

from returning Anna to two healthcare providers (a pediatrician

and a therapist) who had previously seen her

. Todd appeals the healthcare order s, arguing the juvenile

court improperly delegate d to the therapist the decision of how

long Anna would continue in treatment with her at his expense

and abused its discretion by basing the order precluding him

from taking Anna to her former pediatrician and therapist on

mistaken factual assumptions . We do not reach those issues

.

T he challenged orders, not having been made as part of a juvenile

court custody order pursuant to section 362.4, ha d no continuing

effect after the juvenile court terminated its jurisdiction.

According ly, those orders are vacated. 3 Any ongoing issues

regarding Todd’s authority to make healthcare decisions

regarding Anna are properly addressed to the family c ourt.

3 In her supplemental letter brief Anna’s counsel suggests, if

we conclude the challenged orders have no post

- termination

effect, Todd ’s appeal should be dismissed as moot. To avoid any

possible confusion concerning their continuing significance,

however, it is more appropriate to vacate the orders.4 FACTUAL AND PROCEDURAL BACKGROUND

1. The Family Court Proceedings

Nancy and Todd mar ried in 2009. Anna was born

four years later. They separated in early 2015, and Nancy

petitioned for dissolution of the marriage in November of that

year.

Nancy and Todd stipulated to dissolution of their marriage

and agreed on issues of property divisio n and spousal support.

They reserved for trial child custody and child support.

Following a four

- day contested hearing the family court

issued a final judgment on reserved issues on May 17, 2018

, ordering Nancy and Todd to share legal and physical custo dy of

Anna

. However, after observing the hostility between the

parents and their very different decisionmaking styles, the court

concluded joint decisionmaking was impossible. Accordingly, to

keep both parents involved in the child’s life while minimizin g

the need for communication between the parents, the court

awarded each parent sole legal custody on certain issues, with

the other parent entitled to have full access to records and

personnel. Specifically, the family court awarded sole legal

authority on all health care issues to Todd; all legal authority on

educational decisions to Nancy. The court additionally adopted a

physical custody schedule that allowed each parent both weekday

and weekend time. 4

4 The judgment detailed a physical custody/parenting plan

that provided Anna would be with Todd every first, third and

fifth weekend of the month and every Tuesday from 2:00 p.m. or

the end of school to Wednesday at 5:00 p.m. Anna was to be with

Nancy all times not designated as Todd’s custodial time.5 2. The Juvenile Court Assumes Jurisdiction

O n J uly 24, 2018 the Los Angeles County Department of

Children and Family Services (Department) filed a petition on

behalf of Anna alleging she came within section 300,

subdivision (b)(1) (failure to protect) because of an injury

consistent with a healed cigar ette burn and a bruised nose after

being in the care of Nancy’s new partner, and subdivision (c)

(serious emotional damage) because of the conflict between

Nancy and Todd over Anna’s care. The juvenile court found a

prima facie case for detention, removed Anna from Nancy’s care

and released her to Todd.

At a combined jurisdiction/disposition hearing on

September 17, 2018 the court dismissed the subdivision (b)(1)

allegation and sustained the subdivision (c) allegation as

amended by interlineation to state the parents’ disputes over

custody and visitation created a substantial risk to Anna of

serious emotional damage. The court ordered Anna released to

both parties , designated a custody schedule based on the family

court order, granted educational rights t o Nancy and medical

rights to Todd and ordered the Department to provide family

maintenance services

. The court also directed Nancy and Todd to

submit the names of potential therapists to Anna’s counsel, who

would select someone to treat Anna from that li st.

3. Issues Regarding Anna’s Therapy

In December 2018 Nancy and Todd agreed Anna would be

seen by Dr. Angela Bissada, a therapist selected by Nancy.

“[M]other agree[d] to bear the cost of these sessions ($300.00

per hour), while father agree[d] to pay the co

- pay (not to exceed

Decisions on issues not specifical ly addressed in the judgment

were to be made by the parent with custody at that time.6

$50.00) for said sessions.” Notwithstanding this arrangement,

Todd and Nancy continued to disagree regarding Anna’s therapy

and the responsibility for its costs. In Todd’s view, expressed in

an email to the Department’s social worker, Anna was

deteriorating, rather than progressing, in her therapy sessions

with Dr. Bissada. Todd stated his intent to change therapists.

4. The Section 364 Review Hearing and Termination of

Dependency Jurisdiction

At the section 364 review hearin g on August 9, 2019 Todd

urged the court to terminate dependency jurisdiction and award

Nancy and him equal legal and physical custody of Anna. T he

Department , concerned about Anna’s emotional well

- being,

recommended the court retain jurisdiction and cont inue to

provide services to the family. Anna’s counsel and Nancy joined

that request and proposed that the court resolve the difficulties

regarding Anna’s therapy by granting Nancy sole legal authority

to make healthcare decisions for the child

. 5

The co urt concluded there were no issues that justified

retaining dependency jurisdiction

, explaining its sole concern was

“we’ve now got [Anna] in a therapy situation with a therapist

who seems to be helping her. And I don’t want to have the dad

rock that boat .” 6 Accordingly, the court ruled it would terminate

5 Anna’s counsel argued it was “untenable for father to hold

medical and mother to hold education rights. They can’t agree on

one single issue

. . . . This is a prot ra cted family law case with a

family law exit order that was not tenable. And we see that

here.”

6 The court observed, “[T]here are no other dependency

issues. We’ve settled all of the dependency issues. The rest are7

jurisdiction and revert to the family court’s order “with this carve

out: .

. . Father will have all of the medical rights for those

decisions with the exception that minor is to continue to be seen

by Dr. Angela Bissada. Father will not be permitted to change

that. She will remain with Bissada, and he will pay the bills for

Bissada. . . . There will be no change in therapist s until

Dr. Bissada agrees that she can transfer the case to a therapist in

f ather’s health plan without detriment to the minor’s treatment.

There’s no way I can find that the best interest of the child is

going to be effectuated unless and until I know that the therapist

who is doing a good job with the child right now continues to be

the therapist.”

Notwithstanding its acknowledgment that it was modifying

the family court’s final judgment granting Todd the authority to

make all medical decisions concerning Anna, the court, without

explanation, stated, “I don’t think we need an e xit order. We are

reverting to the original family law order. And the only thing

that I’m changing are the things that I’ve stated on the record

that will go into the minute order.” Anna’s counsel then asked

the court to include in the minute order that Anna could not see

her former pediatrician (Dr. Marianne Finerman) or her former

therapist (Dr. Gary Larkin). Todd did not object.

The August 9, 2019 minute order terminating juvenile

court jurisdiction restates the court’s decision not to issue a

juven ile court custody order pursuant to section 362.4 : “Father to

hold all minor’s medical rights with the exception that the minor

continues to be seen by Dr. Bissada. Father can’t change that

and father is to pay the bills for Dr. Bissada. Mother is to en sure

all family law issues that the parti es can deal with in family

court.”8

the minor is seen by Dr. Bissada and mother is responsible for

transporting the minor to and from therapy sessions with

Dr. Bissada. [¶] There is to be no change until Dr. Bissad a can

change to a therapist in f ather’s health plan and does not

interf ere with the minor’s treatment. [¶] Father is not to return

the minor to Gary Larkin or Marianne Finerman or individuals

in their offices. [¶] The Court reverts back to the original family

law decision

— no Juvenile Custody Order is required for his

case .”

5. Todd’s Appeal

Todd filed a timely notice of appeal. 7 In his opening brief

Todd conceded substantial evidence support s a finding it was in

Anna’s best interest to remain in therapy with Dr. Bissada for

some period for purposes of continuity. Howev er, he argued the

open

- ended nature of the juvenile court’s order and its grant to

Dr. Bissada of the right to de termine when Anna could change

therapists constituted an improper delegation of decisionmaking

authority to her

— authority Todd asserted should be exercised by

the court or Anna’s parent. Todd also argued the prohibition on

returning Anna to Dr. Larkin or Dr. Finerman was based on a

mistaken assertion it had been the court, rather than the

Department, that had earlier concluded those healthcare

p rofessionals were favoring Todd rather than acting impartially

in their treatment of Anna.

After Todd filed his opening brief, the Department

submitted a letter in lieu of a respondent’s brief explaining it had

recommended the case remain open because it believed Anna

7 Nancy also filed a notice of appeal . H er appeal was

dismissed for failure to file an opening brief.9

continued to be at risk of emotional harm and stating it took no

position on the issues raised by Todd’s appeal. Anna, through

appointed counsel, then filed a respondent’s brief and a motion to

take additional evidence on appeal, urging us t o dismiss Todd’s

appeal under the disentitlement doctrine because of Todd’s

alleged interference with Anna’s treatment by Dr. Bissada after

the juvenile court’s August 9, 2019 order 8 or, in the alternative, to

affirm the juvenile court’s order as well with in its discretion

. After briefing was completed we invited the parties to

submit supplemental letter briefs addressing the court’s failure to

issue a juvenile court custody order under section 362.4.

DISCUSSION

1. The Law Governing Issuance of a Juveni le Court

Custody Order

a. Statutory provisions

The Legislature clearly defined the respective roles of the

family court and the juvenile court in determining issues of child

custody. The family court has jurisdiction to make orders

regarding custody and visitation of the minor children of a

marriage in an action for dissolution of the marriage or legal

separation of the parties. (Fam. Code, §§ 2010, subd. (b); 3021,

subds. (a), (c); see Fam. Code

, § 30 11 [factors considered in

determining best interest o f child]; see also Fam. Code, § 3 1 20

[“[w]ithout filing a petition for dissolution of marriage or legal

separation of the parties, a spouse may bring an action for the

8 According to the declarations submitted with Anna’s

motion to take additional evidence, Dr. Bissada has stoppe d

treating Anna because of Todd’s interference. Todd submitted

evidentiary objections to most of the material presented in Anna’s

motion. We deny the motion as unnecessary to our decision

.10

exclusive custody of the children of the marriage ”]

. ) Once a child

has been adjudged a dependent of the juvenile court pursuant to

Welfare and Institutions Code section 300, however, “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 dependen t of the juvenile court.” (Welf. & Inst. Code,

§ 302, subd. (c); see id. , § 304 [“[w]hile the child is under the

jurisdiction of the juvenile court all issues regarding his or her

custody shall be heard by the juvenile court”]; Cal. Rules of

Court, rule 5 .620(a) [“[o]nce a petition has been filed alleging that

a child is described by section 300, and until the petition is

dismissed or dependency is terminated, the juvenile court has

exclusive jurisdiction to hear proceedings relating to the custo d y

of the child and visitation with the child and establishing a

guardianship for the child”].) 9

The Legislature has also expressly delineated the

procedure s that must be followed by the juvenile court if it

intends a custody or visitation order to have continuing effect

after dependency jurisdiction terminates

. Section 362.4

, subdivision (a), provides, “ If the juvenile court terminates its

jurisdiction over a minor who has been adjudged a dependent

child of the juvenile court prior to the minor’s attainment of the

age of 18 years, and proceedings for dissolution of marriage, for

nullity of marriage, or for legal separation, of the minor’s parents

. . . are pending in the superior court of any county, or an order

has been entered with regard to the custody of that m inor, the

juvenile court on its own motion, may issue

. . . an order

determining the custody of, or visitation with, the child. ”

9 All rule references are to the California Rules of Court.11

Section 362.4, subdivision (b), specifies an order issued pursuant

to subdivision (a) “shall continue until modified or termin ated by

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

filed in family court proceedings.

That only a juvenile court custody order issued pursuant to

section 362.4, not a ny juvenile court order affecting custody

, will

continue in effe ct after termination is made plain by section 302,

subdivision (d), and its legislative history. As discussed, that

subdivision provides, “ A ny custody or visitation order issued by

the juvenile court at the time the juvenile court terminates its

jurisdict ion pursuant to Section 362.4 regarding a child who has

been previously adjudged to be a dependent child of the juvenile

court shall be a final judgment and shall remain in effect after

that jurisdiction is terminated

. The order shall not be modified

in a proceeding or action described in Section 3021 of the Family

Code unless the court finds that there has been a significant

change of circumstances since the juvenile court issued the order

and modification of the order is in the best interests of the chil d.”

As initially drafted , however, Assembly Bill No. 2464 (1999

-

2000 Reg. Sess .) (Assembly Bill 2464), which added

subdivision (d) to section 302 prohibit ing a family court from

modifying a custody or visitation order issued pursuant to

section 362.4 wit hout a showing of a significant change of

circumstances, 10 extended this continuing, post

- termination effect

10 Prior to the addition of subdivision (d) to section 302

, custody and visitation orders issued by the juvenile court on

termination of dependency jurisdiction were treated by many

courts as temporary orders in a pending family law action that

could be m odified upon a showing that modification was in the

best interest s of the child without an additional showing of a

material change in circumstances. (See Assem. Com. on12

to all juvenile court custody and visitation orders, not only to

section 362.4 exit orders

. The first version of section 302’s new

subdivision (d) in Assembly Bill 2464 provided, “ Any order issued

by the juvenile court regarding the custody of, or visitation with,

a child who has been previously adjudged to be a dependent child

of the juvenile court shall remain in effect after that jurisdiction

is t erminated and shall not be modified unless

. . . .”

(Assem. Bill 2464 (1999

- 2000 Reg. Sess.) as amended April 10,

2000.) 11 As explained in t he bill analysis prepared for the

Assembly Committee on the Judiciary’s hearing on May 9, 2000

,

the bill’s author a gree d to amend this language to include the

limiting reference to section 362.4 orders in response to concerns

raised by staff: “The precise language of the bill prohibits the

modification of an order issued by the [juvenile] court regarding

custody or vi sitation. The family court is bound by custody or

visitation orders of the juvenile court to the extent that the

juvenile court issues exit orders upon the juvenile court’s

termination of jurisdiction

. . . . The author has therefore agreed

to amend the bill at page 3, line 1, to clarify that it was meant to

only apply to modification of juvenile court exit orders.” (Assem.

Com. on Judiciary, Analysis of Assem. Bill No. 2464 (1999

- 2000

Reg. Sess.), as amended April 10, 2000 , p. 5 [discussing proposed

ame ndment to “limit to modification of exit orders”].) The new

Judiciary, Analysis of Assem. Bill 2 464 (1999

- 2000 Reg. Sess.), as

amended April 10, 2 000, p. 4.)

11 As originally introduced on February 24, 2000 by

Assemblymember Sheila Kuehl, Assembly Bill 2464 was a shell,

or placeholder, bill. The legislation as amended on April 10, 2000

was the initial version that contained a proposed new

subdivi sion (d) to section 302.13

language restricting continuing effect to custody and visitation

orders issued pursuant to section 362.4 appeared in May 17, 200 0

amendments to Assembly Bill 2464 and remained through its

enactme nt into law.

b. The mandatory Judicial Council form (JV

- 200)

The Legislature directed the Judicial Council to adopt

forms for any post

- termination custody order issued under

section 362.4. (§ 362.4, subd. (e).) The Judicial Council has done

so and, i n rule 5.700(b), made use of that form mandatory: “ The

order must be prepared on Custody Order

- Juvenile

- Final

Judgment (form JV

- 200).” Rule 5.700(b), (c) and (d) further

prescribe the procedures that must be followed for the

preparation and transmission of the juvenile court custody order

from the juvenile court to the receiving family court and for filing

and providing notice to the parties once the order has been

received.

The importance of using mandatory form JV

- 200 was

explained in the August 18, 201 5 report by the Judicial Council’s

Family and Juvenile Law Advisory Committee (Advisory Com

. )

recommending changes to the form

, which were thereafter

adopted by the Council and remain in effect today: “The orders

need to provide specific direction to the parents and other parties

to facilitate compliance and reduce the potential for conflict

. . . . [¶] Juvenile final custody orders also need to provide sufficient

detail, and use language familiar to the family law bench and

bar, to permit the family cou rt to enforce them if a dispute does

arise or to modify or terminate the orders if circumstances

change significantly and modification would be in the best

interest of the child. The information included in the juvenile

court order must address the circum stances that led to the14

juvenile court’s child custody and parenting time orders to enable

a family court to determine whether circumstances have changed

to a degree that just ifies considering whether the requested

modification is in the best interests of the child. The child

custody orders need to serve these functions without disclosing

juvenile case information that should remain confidential,

because juvenile court child custody orders, including

attachments, are not themselves confidential. (§ 362.4. )”

(Adv isory Com. Rep., pp. 3

- 4.)

2. The Juvenile Court’s Failure To Follow Required

Procedures for Issuing Post

- termination Custody Order s

Deprives Its Orders of Continuing Effect

Although the juvenile court here plainly recognized its

ability to issue a juvenile court custody order pursuant to

section 362.4

, the court believed it unnecessary in this case,

stating as it ordered termination of dependency jurisdiction, “I

don’t think we need an exit order .” The court was wrong. For the

court’s orders th at Anna continue in therapy with Dr. Bissada

and that Todd not return Anna to the care of Dr. Larkin or

Dr. Finerman to remain effective after dependency jurisdiction

terminated, use of the procedures outlined in section 362.4 and

rule 5.700 and preparatio n and filing of mandatory f o rm JV

- 200

were essential. The failure to do so means those orders are no

longer valid : Except as provided in sections 302, subdivision (d),

and 362.4, orders of the juvenile court regarding custody and

visitation are effective only while that court exercises its

jurisdiction over the child. (See §§ 302, subd. (c) [issues

regarding parents’ custodial rights are to be determined by the

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

juvenile court”], 304, 2d par. [“[t]his section shall not be15

construed to divest the domestic relations division of a superior

court from hearing a ny issues regarding the custody of a child

when that child is no longer a dependent of the juvenile court”].)

Insistence that the juvenil e court adhere to the statutes

and rules of court detail ing the procedures for issuance of post

termination custody orders is not simply a matter of

hypertechnical appellate court literalism. Because the juvenile

court failed to utilize those procedures, its orders regarding

Anna’s treatment were not forwarded for fil ing and service i n

Todd and Nancy’s family law action and properly remain

confidential, depriving the family court judge and the parties in

that proceeding of a nonconfidential explanation on form JV

- 200

of the circumstances the juvenile court found justified its decision

to modify the May 17, 2018 final judgment awarding Todd full

authority to make healthcare decisions for Anna. 12 The rules for

issuance of a juvenile court custody order are r ules for a reason

and must be followed.

12 In her supplemental letter brief Anna’s counsel states it

appears the family court was provided with the juvenile court’s

minute order as an exhibit to a request for modification filed by

Todd. Putting aside any issue as to th e appropriateness of filing

a confidential minute order in the family law proceedings, a

party’s submission of the document without the court

- provided

information on form JV

- 200 is a wholly unsatisfactory substitute

for the procedure mandated by statute an d the California Rules

of Court.16 DISPOSITION

The juvenile court’s order terminating dependency

jurisdiction is affirmed. Its orders purporting to modify the

family c ourt’s final judgment granting Todd the authority to

make all healthcare decisio ns for Anna are vacated.

PERLUSS, P. J.

We concur:

SEGAL , J.

FEUER , J.