Filed 5/16/16 In re Carlos D. CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re CARLOS D., a Person Coming Under 

the Juvenile Court Law.

 B266474

 (Los Angeles County

 Super. Ct. No. CK90770)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

A.C.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Julie F. 

Blackshaw, Judge. Affirmed.

Liana Serobian, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Mary C. Wickham, County Counsel, Dawyn R. Harrison, Assistant County 

Counsel, and Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.

____________________
2

A.C. (Mother) appeals from the juvenile court’s order terminating jurisdiction over 

her three children and awarding full legal custody to Carlos D., Sr. (Father) and joint 

physical custody to Mother and Father. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2012 Mother and Father’s three children, Carlos D., Alexa D. and 

Samantha D., were declared dependents of the juvenile court arising from Father’s 

physical abuse of Samantha. The children remained in Mother’s care under a family 

maintenance plan while Father received enhancement services. In April 2013 jurisdiction 

was terminated. Mother and Father were granted joint legal and physical custody of the 

children with the primary residence at Mother’s home.

In August 2013 the Los Angeles County Department of Children and Family 

Services (Department) initiated new dependency proceedings on behalf of the children

(then 10 years old, eight years old and three years old) pursuant to Welfare and 

Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to 

protect) and (j) (abuse of sibling).

1

 The petition alleged Mother had hit Carlos with a belt 

and her hands as well as pulled his hair. The petition further alleged Mother had yelled at 

Carlos and called him demeaning names, placing him at substantial risk of suffering 

serious emotional damage pursuant to section 300, subdivision (c). The subdivision (c) 

count also alleged that Mother and Father emotionally abused Carlos by frequently 

engaging in verbal altercations in his presence.

2

Mother admitted to the social worker she had hit Carlos with her hand and a belt, 

but explained it was to punish him for stealing money and breaking a window with a 

BB gun. She also admitted she had called Carlos a “fat-ass” out of frustration, but 

regretted doing so. At the detention hearing on August 9, 2013 the court declared Father 

the presumed father of Carlos, Alexa and Samantha, found a prima facie showing had 

 

1 Statutory references are to this code unless otherwise indicated.

2 The petition was also filed on behalf of the children’s 14-year-old half sibling J.S., 

who is not a party to this appeal.
3

been made the children came within section 300 and ordered the children released to 

Father. Mother was permitted monitored visits.

At the combined jurisdiction and disposition hearing on September 27, 2013 the 

court sustained the section 300, subdivisions (a) and (j), allegations, finding true Mother 

had physically abused Carlos, but dismissed the physical abuse allegation under 

subdivision (b) and the emotional abuse allegation under subdivision (c). The children 

were placed with Father with a home-of-parent order under a court-supervised family 

maintenance plan. The court ordered Mother to receive family reunification services and 

monitored visits.

3

In a report for the six-month review hearing the Department stated, “A constant 

theme for this family has been mother and father’s inability to ‘see eye to eye.’” Father 

described Mother as “very difficult to get along with,” and Mother would report to the 

Department that Father drank too much and Samantha engaged in inappropriate behavior 

suggesting sexual abuse, allegations the children and Father denied. Notwithstanding this 

conflict, Father asked that Mother be permitted unmonitored overnight visits to relieve 

him of constant childcare. At the review hearing on March 12, 2014 the court ordered 

family maintenance services for both parents and granted Mother unmonitored visits with 

discretion to the Department to permit overnight visits. 

As described in a report for the September 8, 2014 review hearing, Father 

expressed concern during the beginning of the period that Mother had been traumatizing 

Alexa and Samantha by constantly taking them to doctors and reporting child abuse by 

Father and inappropriate conduct by one of Samantha’s teachers. Although the 

Department was in the process of filing a section 388 petition to change Mother’s visits 

to monitored, in late July Father reported Mother had made a dramatic change and they 

were able to effectively communicate. In August 2014 the Department permitted 

overnight visits. At the review hearing on September 8, 2014 the court ordered Mother 

and Father to continue to participate in all previously ordered services. 

 

3 J.S. was returned to Mother with a home-of-parent order.
4

In a report for the March 9, 2015 status review hearing, the Department 

recommended, as it had in connection with the September 8, 2014 review hearing, the 

court terminate jurisdiction with a family law order giving sole legal custody to Father 

and joint physical custody to Mother and Father. The Department explained, “It is 

evident both parents love their children very much. However, it is also evident that 

parents do not have an amicable relationship with one another. . . . [Department social 

worker] has spoken with each parent about setting aside any ongoing resentment issues 

due to [this] ‘previous’ history. [Department social worker] has asked parents to focus 

and learn to communicate their wants and needs in a healthy and positive manner for the 

children’s well being.” At the hearing on March 9, 2015 Mother requested a contest on 

the issue of legal custody. A hearing was set for May 28, 2015. 

The May 28, 2015 hearing was continued until June 10, 2015 due to court 

congestion. Although Mother had attended all prior hearings, she was not present for the 

June 10, 2015 hearing. Her attorney argued Mother wanted to be involved in all aspects 

of the children’s lives and “[t]he fact that the parents may have difficulties 

communicating is not an issue that . . . should prohibit the mother from being involved in 

legal decisions.” In response to the court’s question how the parents, as a practical 

matter, would be able to do that given their history, counsel suggested another family 

member could “mak[e] the final call” if they could not agree. Father responded he did 

believe any of his family members would want to “deal” with Mother. In response to the 

court’s question whether Father was making decisions about the children’s education 

with Mother or by himself, Father said Mother had been uncooperative providing him 

with birth certificates and other materials required to enroll them in school when he 

initially obtained custody and had made things difficult, so Father ended up doing it 

without her assistance. 

Counsel for the children asserted Carlos and Alexa, to the extent they could 

understand, wanted Father to have sole legal custody, and contended Mother did not 

demonstrate she was responsible when it came to simple things like dropping the children 

off or picking them up and had not been “a presence in their school in terms of 
5

participating.” In supporting the Department’s recommendation legal custody remain 

with Father, who had been making the “important decisions regarding the children,” 

counsel argued, “When an important decision does need to be made, you do need a parent 

that has shown responsibility and is going to be active in making that decision.” 

The court awarded Father sole legal custody of the children, basing the decision on 

the fact Mother, in addition to not participating, “has apparently even been an 

impediment and unhelpful as to some of these aspects.” After additional argument, the 

court stated, “Another reason that I’m making the decision . . . on sole legal custody, the 

mother isn’t even here today.” The court further ordered Mother and Father have joint 

physical custody with the primary residence at Father’s home. 

DISCUSSION

Section 362.4 authorizes the court to issue a custody and visitation order when it 

terminates dependency jurisdiction. “When making a custody determination in any 

dependency case, the court’s focus and primary consideration must always be the best 

interests of the child.” (In re Nicholas H. (2003) 112 Cal.App.4th 251, 268.)

We review a custody (or “exit”) order for abuse of discretion. “[R]eversal is warranted 

only if there is no reasonable basis upon which the trial court could conclude that its 

decision advanced the best interests of the child.” (In re Marriage of Melville (2004) 

122 Cal.App.4th 601, 610; see Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 

300-301 [we “may not disturb the order unless the court ‘“‘exceeded the limits of legal 

discretion by making an arbitrary, capricious, or patently absurd determination 

[citations]’”’”].)

“‘Sole legal custody’ means that one parent shall have the right and the 

responsibility to make the decisions relating to the health, education, and welfare of a 

child.” (Fam. Code, § 3006.) “‘Joint legal custody’ means that both parents shall share 

the right and the responsibility to make” those decisions. (Fam. Code, § 3003.) To be 

workable, joint legal custody requires the parents’ willingness to cooperate in making 

medical, educational, and psychological decisions. (See In re Marriage of McLoren

(1988) 202 Cal.App.3d 108, 115-116 [in most circumstances, children’s best interests are 
6

served by joint legal custody, but where there is acrimony “the reality of their parents’

conflicts unavoidably hampers the realization of that goal”].)

Mother argues the juvenile court abused its discretion in awarding Father sole 

legal custody because, although the case may have started out a “high-conflict case,” by 

June 2015 there had been no incidents of conflict for at least a year and Father’s most 

significant complaint was that Mother would drop the children off late. Mother also 

contends her absence from the contested hearing was not a basis to deny her legal 

custody because she had appeared at every other hearing and there was no evidence in the 

record she had been notified the May 28, 2015 hearing had been continued until June 10, 

2015. 

To be sure, Mother and Father’s relationship had improved, and Mother was 

making progress with her case plan. However, as of the date of the March 9, 2015 status 

review report, the Department had not yet received a parenting education progress report 

or certificate of completion from Mother; and she had only begun individual therapy in 

November 2014 as recommended by the Department. (Mother had been receiving 

counseling from her church pastor.) Additionally, although the conflict between Mother 

and Father had abated, by no means had they demonstrated the kind of cooperative 

relationship necessary for joint legal custody. According to the Department’s submission

for the March 9, 2015 status review hearing, Father reported he did not have an amicable 

relationship with Mother. Mother complained Father had raised his voice at her on 

several occasions, and she had concerns about his temper. 

Conflict between the parents is not the only criterion by which legal custody is 

determined; the best interest of the children is a much broader standard. In that respect,

both Alexa and Carlos reported Mother was not a responsible parent. For example, 

Alexa, who indicated she had a good relationship with Mother and enjoyed spending 

weekends with her, stated there were times when the children were late to school because 

Mother would not wake up on time. She told the Department she “need[ed] consistency 

in her life.” The record amply supports the implied finding Father was providing that 

kind of consistency for the children and they were thriving.
7

Finally, the court’s observation that Mother’s absence from the hearing lent some 

additional support to its conclusion she had failed to demonstrate sufficient responsibility 

to warrant shared legal custody was not arbitrary or irrational. Although Mother argues 

there is no evidence she received notice of the continued hearing, the May 28, 2015 

submitted case form indicating the hearing had been changed was signed by Mother’s 

attorney. Additionally, although Mother may have attended every other hearing, this by 

far was the most significant one; and there was no suggestion from her attorney that an 

emergency, illness, conflict with work or other legitimate excuse existed that would 

justify her absence. Although we commend Mother for the progress she has made, the 

juvenile court’s finding it was in the best interest of the children to award Father sole 

legal custody at this juncture was well within its discretion. If there is a significant 

change in circumstances and it is in the children’s best interest, Mother may obtain a 

modification of the custody order in family law proceedings. (§§ 302, subd. (d), 362.4.)

DISPOSITION

The order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

BLUMENFELD, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.