Opinion
H048035
10-30-2020
In re J.P., a Person Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. M.D., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 17JD024630)
M.D. (mother) appeals from the juvenile court's order terminating dependency jurisdiction over her son J.P. Mother argues that the juvenile court exceeded its authority when it required that modifications to its exit orders made prior to February 25, 2021, be returned to the juvenile court judge who presided over the dependency action. We disagree and affirm the order.
BACKGROUND
Mother appealed from the juvenile court's 2018 visitation order granting her ex-boyfriend (Albert) visitation with J.P. We affirmed the visitation order in a published decision, which contains a detailed recitation of the events of the underlying dependency proceedings and the events preceding the visitation order. (In re J.P. (2019) 37 Cal.App.5th 1111 (J.P.).) Mother later appealed the juvenile court's order granting Albert presumed parent status for J.P. We recently affirmed the juvenile court's order in another published decision. (In re J.P. (Oct. 1, 2020, H047586) ___ Cal.App.5th ___ (J.P. II).) On our own motion, we take judicial notice of the record in these appeals. (Evid. Code, §§ 452, 459.) We briefly review the facts of the underlying dependency petition and focus our recitation of the facts on those that are relevant to the issues raised in this appeal.
1. The Dependency Proceedings and the 2018 Visitation Order
J.P. and his younger half-brother, A.A., were found to be dependents of the court after the Department of Family and Children's Services (Department) filed a dependency petition under Welfare and Institutions Code section 300, subdivision (b)(1). (J.P., supra, 37 Cal.App.5th at p. 1114.) Albert, mother's ex-boyfriend, is A.A.'s biological father. He is not J.P.'s biological father. At the initial hearing on the dependency petition, the juvenile court found Albert to be A.A.'s presumed father and found L.P. to be J.P.'s presumed father. (Ibid.)
Unspecified statutory references are to the Welfare and Institutions Code.
Later, Albert asked that the juvenile court recognize him as J.P.'s presumed parent. The juvenile court held a contested hearing on Albert's request. On October 25, 2018, the juvenile court determined that Albert did not qualify as J.P.'s presumed parent under Family Code section 7611, subdivision (d). (J.P., supra, 37 Cal.App.5th at p. 1116.) The court, however, noted that the case was close, and Albert and J.P. had a positive relationship. (Id. at p. 1117.) The court thereafter ordered visitation between J.P. and Albert over mother's objection. (Ibid.)
Mother appealed the visitation order, which this court affirmed in a published decision. (J.P., supra, 37 Cal.App.5th 1111.)
2. Events Leading to the October 2019 Order
At a March 18, 2019 family maintenance review hearing, mother requested mediation on the issue of visitation between J.P. and Albert upon dismissal of the dependency action. (J.P. II, supra, ___ Cal.App.5th ___ at p. ___ [2020 Cal.App. LEXIS 920 at p. *9].) The mediation was unsuccessful, and the matter was set for a contested hearing. Before the hearing, Albert renewed his request to be considered a de facto parent for J.P. (Ibid.)
Following a hearing on the matter, the juvenile court stated that it now believed that the record supported a finding that Albert qualified as J.P.'s presumed parent. (J.P. II, supra, ___ Cal.App.5th ___ at p. ___ [2020 Cal.App. LEXIS 920 at p. *13].) The court asked the parties to brief whether the court had the authority to reconsider its prior ruling on Albert's presumed parenthood and whether the evidence supported such a finding. (Ibid.)
After considering the parties' briefing and argument, the juvenile court concluded that it had the authority under section 385 to sua sponte reconsider its prior order on Albert's request for presumed parent status. (J.P. II, supra, ___ Cal.App.5th ___ at p. ___ [2020 Cal.App. LEXIS 920 at p. *14].)
Mother appealed this order, which this court recently affirmed in a published decision. (J.P. II, supra, ___ Cal.App.5th ___ .)
3. Events Leading to the February 25, 2020 Order
In an addendum report filed on February 25, 2020, the Department recommended that the juvenile court dismiss the dependency and order joint legal and physical custody between mother and Albert for J.P. and A.A.
On February 25, 2020, the juvenile court dismissed the dependency case, ordered joint and legal physical custody for mother and Albert, and signed a custody order which provided a timeshare of mother having the children from Saturday evening to Wednesday evening and Albert having the children for the rest of the week. At the end of the hearing, the juvenile court made the following statement: "I do just want to let you both know that for the first year if there's—if either of you want to change the custody or the visitation order it will come back to me. Just so you know that. After the year has expired, so starting February 25th of next year, if you have any ongoing changes that you feel you need court intervention for, it will go to family court, but for the first year, it will come back here. . . ."
DISCUSSION
On appeal, mother argues that the juvenile court exceeded its jurisdiction when it ordered that any modification to the exit orders made prior to February 25, 2021, must be brought before the juvenile court.
Briefing in this case was completed before this court issued its opinion in J.P. II, supra, ___ Cal.App.5th ___ . In her opening brief, mother also argued that if this court were to reverse the juvenile court's finding on Albert's presumed parenthood in J.P. II, supra, ___ Cal.App.5th ___ , the juvenile court's exit orders must also be reversed. We need not consider this argument because we affirmed the juvenile court's order in J.P. II, supra, ___ Cal.App.5th ___ .
Mother's argument is one of statutory interpretation. "Issues involving statutory interpretation and application are subject to a de novo standard of review." (In re C.M. (2019) 38 Cal.App.5th 101, 108.)
Section 364 governs juvenile court hearings where the dependent child is under the physical custody of one or both parents. Under section 364, subdivision (c), the juvenile court shall terminate its jurisdiction unless the 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."
When the juvenile court terminates its jurisdiction, it may issue orders determining the custody of or visitation with the dependent child. (§ 362.4, subd. (a).) If there are pending proceedings for the dissolution of marriage, nullity of marriage, or for legal separation of the child's parents, or if there are proceedings to establish the paternity of the child pending with the superior court, the juvenile court's custody and visitation orders will be filed with those pending proceedings. (Id., subd. (b).) If there are no such pending proceedings, the juvenile court order can be "used as the sole basis for opening a file in the superior court of the county in which the parent, who has been given custody, resides." (Id., subd. (c).) A juvenile court's order determining custody or visitation "shall continue until modified or terminated by a subsequent order of the superior court." (§ 362.4, subd. (b), italics added.)
Under section 302, subdivision (d), any custody or visitation order made by the juvenile court under section 362.4 shall remain in effect even after the juvenile court terminates its jurisdiction. The order, which is considered a final judgment, will not be modified unless the family court determines that there has been a significant change of circumstances and modification of the order is in the child's best interests. (§ 302, subd. (d).)
Applying these governing statutes, courts have concluded that although the juvenile court can issue collateral orders and require participation in counseling and other programs in an exit order (In re Chantal S. (1996) 13 Cal.4th 196, 204 (Chantal S.)), modification of the custody and visitation order remains solely within the purview of the family court upon the dismissal of the dependency action (see In re Cole Y. (2015) 233 Cal.App.4th 1444, 1456 [juvenile court did not have authority to make order requiring father to complete counseling programs before family court could modify custody order]; In re John W. (1996) 41 Cal.App.4th 961, 973 [juvenile court could not preclude parents from modifying custody order for one year]).
Santa Clara County has two local rules of court that describe how juvenile court custody orders may be modified the year after the dependency has been dismissed. Santa Clara County Superior Court, Local Juvenile Rules, rule 2(F)(2) states in pertinent part: "Requests to modify the juvenile custody order within one year of the dismissal of the juvenile petition and the issuance of the custodial order on Judicial Council Form JV-200, shall be returned to the issuing juvenile judge for hearing to ensure there is a significant change in circumstances to warrant modification of that order as set forth in Welfare and Institutions Code § 302(d). The juvenile judge shall sit as a family judge for purposes of hearing the motions regarding modification of custody and/or visitation. Thereafter, any future litigation relating to the custody, visitation and control of the child shall be heard in the Family Court."
The same requirements are echoed in Santa Clara County Superior Court, Local Family Rules, rule 2(C)(8), which provides: "Requests to modify the juvenile custody order filed within one year of the date the custodial order was entered shall be returned to the issuing juvenile department for hearing. The juvenile judge shall determine whether there is a significant change in circumstances to warrant modification of that order as set forth in Welfare and Institutions Code § 302(d), and make any orders necessary to promote the child's best interests. The juvenile judge shall sit as a family judge for purposes of hearing the motions regarding modification of custody and/or visitation. Thereafter, any future litigation relating to the custody, visitation and control of the child shall be heard in the Family Court."
On our own motion, we take judicial notice of Santa Clara County Superior Court, Local Juvenile Rules, rule 2(F)(2) and Santa Clara County Superior Court, Local Family Rules, rule 2(C)(8). (Evid. Code, §§ 452, 459.)
Assuming the juvenile court's statement during the February 25, 2020 hearing was tantamount to a court order, it was merely a paraphrase of these local rules. The juvenile court informed the parties that for the first year following the termination of the dependency, requests to modify the custody or visitation order "will come back to me [(the issuing juvenile judge)]."
The juvenile court did not memorialize this statement in a written order.
Mother acknowledges these local rules but argues that they are inconsistent with the governing statutes and the decisional law. We disagree. Although juvenile and family courts serve different functions, to conform with the Welfare and Institutions Code, the local rules specifically require that the juvenile court judge sit as a family court judge and apply the standards described under section 302, subdivision (d) for the purposes of hearing a modification request. Since the juvenile court judge will sit as a family court judge pursuant to the local rules, any modification made before February 25, 2021, will be by "subsequent order of the superior court" as required by the Welfare and Institutions Code. (§ 362.4, subd. (b).) There is no conflict between the local rules and the Welfare and Institutions Code.
"A 'juvenile court' is a superior court exercising limited jurisdiction arising under juvenile law. [Citation.] Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code. [¶] By contrast, 'family court' refers to the activities of one or more superior court judicial officers who handle litigation arising under the Family Code. It is not a separate court with special jurisdiction, but is instead the superior court performing one of its general duties." (Chantal S., supra, 13 Cal.4th at pp. 200-201.)
As a result, the juvenile court did not exceed its authority when it made its exit order and reversal is not required.
DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J. WE CONCUR: /s/_________
Elia, J. /s/_________
Bamattre-Manoukian, J.