Opinion
B317875 B319187
04-30-2024
In re N.B. et al., Persons Coming Under the Juvenile Court Law. v. J.B., Defendant and Appellant; LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff, N.B. et al., Respondents.
John Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff. Suzanne Davidson, under appointment by the Court of Appeal, for Respondents Minors.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County, No. 21LJP00297A-B, Michael C. Kelley and Donald A. Buddle, Jr., Judges.
John Benjamin Ekenes, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff.
Suzanne Davidson, under appointment by the Court of Appeal, for Respondents Minors.
MOOR, J.
In this consolidated appeal, father challenges the juvenile court's March 11, 2022 custody and visitation orders under Welfare and Institutions Code sections 362.4, as well as the December 14, 2021 order summarily denying his petition to change court orders under section 388, seeking to change an order prohibiting paternal grandmother from contacting minors.Respondent minors contend the appealed orders were not an abuse of discretion. We affirm.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Father's January 11, 2022 Notice of Appeal (B317875, lead case) appealed the December 14, 2021 denial of his section 388 petition to change the no contact order pertaining to paternal grandmother. His March 17, 2022 Notice of Appeal (B319187, consolidated case) appealed the March 11, 2022 custody order. This court ordered the two appeals consolidated on November 1, 2022. Neither paternal grandmother nor the children's mother are parties to the current consolidated appeals.
The Los Angeles County Department of Children and Family Services (the Department) filed a letter brief on July 18, 2023 stating it took no position on father's appeal and would not file a respondent's brief. The Department's letter noted that it made no recommendation regarding paternal grandmother's contact with children, and on termination of dependency jurisdiction, it recommended an order granting parents "50/50 custody."
The parties are familiar with the facts and procedural history, and our opinion does not meet the criteria for publication. (Cal. Rules of Court, rule 8.1105(c).) We therefore resolve this appeal by memorandum opinion pursuant to Standard 8.1 of the Standards of Judicial Administration and consistent with constitutional principles (Cal. Const., art. VI, § 14 ["Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated"]; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1263, fn. omitted [three-paragraph discussion of issue on appeal satisfies constitutional requirement because "an opinion is not a brief in reply to counsel's arguments. [Citation.] In order to state the reasons, grounds, or principles upon which a decision is based, [an appellate court] need not discuss every case or fact raised by counsel in support of the parties' positions"].)
DISCUSSION
Seeking reversal of the juvenile court's March 2022 custody and visitation orders under section 362.4, father contends the orders were an abuse of discretion, because the question of custody belonged in family court, not the juvenile court. He argues that the court's orders were in error because there was no evidence that circumstances had changed since December 2019 and December 2020 family court orders granting him primary physical custody of the children, and none of the bases for the juvenile court's March 2022 custody and visitation orders were reasonable. Father has not demonstrated that the juvenile court exceeded its discretionary authority under section 362.4.
Father also contends the court violated the statutory procedures for issuing restraining orders by including a provision that there be no contact with paternal grandmother in the court's custody orders, and by denying without a hearing father's section 388 request to modify the no contact order. We conclude that father's statutory arguments are without basis, as the order at issue here was not a restraining order within the meaning of the relevant statutes. We also conclude that father has failed to show the juvenile court abused its discretion in summarily denying his section 388 modification request.
A. Juvenile Court Custody Orders
Father contends the juvenile court's custody and visitation orders were an abuse of discretion because: (1) the children had not been removed from either parent's custody; (2) there was no substantial evidence that circumstances had changed from December 2020, when the family law court found it was in the children's best interests to award father primary physical custody; and (3) none of the proffered bases for the March 2022 order were reasonable. Father has not shown the court's custody and visitation orders granting mother primary physical custody and ordering monitored visits for father were an abuse of discretion.
Standard of Review
When terminating dependency jurisdiction at a section 364 review hearing, the juvenile court has broad discretion to issue exit orders concerning custody and visitation (§ 362.4, subd. (a)). We review the custody orders for abuse of discretion. (In re C.W. (2019) 33 Cal.App.5th 835, 863.)"' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) "An appealed-from judgment or order is presumed correct" (In re Sade C. (1996) 13 Cal.4th 952, 994), and "all legitimate inferences are indulged in to uphold the juvenile court's determinations" (In re K.S. (2016) 244 Cal.App.4th 327, 337).
Juvenile Court's Authority to Enter Custody Orders
Father contends on appeal that questions of custody were better left to the family court, rather than the juvenile court. We recognize that mother and father had an open family law case at the time the Department initiated the current dependency case, and that the family court's most recent custody orders, in December 2019 and December 2020, granted primary physical custody to father. However, the existence of the family law case does not diminish the juvenile court's statutory authority and obligations under the Welfare and Institutions Code.
Once a dependency petition is filed, the juvenile court has exclusive jurisdiction over child custody and visitation. Section 304 provides in relevant part: "While the child is under the jurisdiction of the juvenile court all issues regarding his or her custody shall be heard by the juvenile court." Similarly, rule 5.620(a) of the California Rules of Court states, "Once 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 sole and exclusive jurisdiction to hear proceedings relating to the custody of the child and visitation with the child ...." (See also section 302, subdivision (c) ["any issues regarding custodial rights between his or her parents shall be determined solely by the juvenile court"]; Cal. Rules of Court, rule 5.510(c).) Thus, by statute, a dependency proceeding takes precedence over any other case involving the custody of the minor(s) involved. (See A.H. v. Superior Court (2013) 219 Cal.App.4th 1379, 1389 ["the Legislature's intent in enacting section 304 was to vest the juvenile court with exclusive jurisdiction over dependent minors"]; In re Marriage of Seaman &Menjou (1991) 1 Cal.App.4th 1489, 1498-1499 ["Juvenile court dependency orders supersede preexisting domestic relations custody orders and domestic relations courts may not enforce orders that conflict with juvenile court orders"].)
As the California Supreme Court has explained, family court and juvenile court serve different purposes. (In re Chantal S. (1996) 13 Cal.4th 196, 201.) In family court, "parents are presumed to be fit and capable of raising their children. (Fam. Code, § 3061.) The juvenile court, by contrast, provides the state a forum to 'restrict parental behavior regarding children, . . . and . . . to remove children from the custody of their parents or guardians.' [Citation.]" (Ibid.)
Father contends there were no changed circumstances warranting a change in the custodial arrangement ordered by the family court in December 2020, but his argument ignores a key change in circumstances: the juvenile court's proper and uncontested exercise of dependency jurisdiction. At the adjudication hearing on July 12, 2021, both parents waived their rights and entered no contest pleas to an amended count of failure to protect under subdivision (c) of section 300 as follows: Mother and father "have a history of engaging in custody disputes, which includes the mother and father making child abuse/neglect accusations against one another. The mother and father subjected the children to numerous interviews with social workers. Due to changes in custody mental health service providers were changed. The conflict between the mother and father has resulted in the children exhibiting severe self-injurious behavior, including suicidal ideation and uncontrolled bowel movements. Such emotional abuse of the children by the mother and father places the children at substantial risk of suffering serious emotional damage." The court ordered the agreed-upon case plans for both parents, directing the parents to attend parenting classes and individual counseling to address case issues, including coparenting, effective communication, and protective parenting; the court further ordered a psychological evaluation under Evidence Code section 730 and parents' participation in conjoint counseling with minors if recommended by minors' therapists. Neither parent appealed the court's assertion of jurisdiction under section 300, subdivision (c).
" 'Dependency proceedings are governed by the Welfare and Institutions Code, rather than the Civil Code or the Family Code.' [Citation.] When a juvenile court makes custody and visitation orders, it does so pursuant to its authority under the Welfare and Institutions Code, guided by the totality of the circumstances in issuing orders that are in the child's best interests. (§§ 304, 362.4; In re Chantal S., supra, 13 Cal.4th at p. 201, ['The juvenile court has a special responsibility to the child as parens patriae and must look to the totality of a child's circumstances when making decisions regarding the child']; In re John W. (1996) 41 Cal.App.4th 961, 973; In re Roger S. (1992) 4 Cal.App.4th 25, 3031.)" (In re C.M. (2019) 38 Cal.App.5th 101, 109 .) As we explain below, the juvenile court's March 2022 custody and visitation orders were well within its discretionary authority under section 362.4.
Section 364 Review Hearings
In cases where a child is not removed from parental custody, the juvenile court must schedule a review hearing at least every six months. (§ 364, subd. (a).) "At the section 364 review 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 [s]ection 300, or that those conditions are likely to exist if supervision is withdrawn.' (§ 364, subd. (c); see In re Shannon M. (2013) 221 Cal.App.4th 282, 290-291 [§ 364, subd. (c), establishes a 'statutory presumption in favor of terminating jurisdiction and returning the children to the parents' care without court supervision'].)" (In re T.S. (2020) 52 Cal.App.5th 503, 512-513.)
Section 362.4 Custody Orders
"When terminating its jurisdiction over a child who has been declared a dependent child of the court, section 362.4 authorizes the juvenile court to issue a custody and visitation order (commonly referred to as an 'exit order') that will become part of the relevant family law file and remain in effect in the family law action 'until modified or terminated by a subsequent order.'" (In re T.S., supra, 52 Cal.App.5th at p. 513.) When the juvenile court makes exit orders under § 362.4, it is not required to make a finding of detriment. (In re J.M. (2023) 89 Cal.App.5th 95, 112-113 [rejecting argument that a custody order made at a section 364 review hearing must include findings equivalent to those required at the disposition stage under section 361].) Instead, its decision-making must be "guided by the totality of the circumstances in issuing orders that are in the child's best interests." (In re C.M., supra, 38 Cal.App.5th at p. 109; see In re J.M., at p. 113; In re T.S., supra, 52 Cal.App.5th at pp. 513-514.) The determination of a child's best interests in a dependency case is by its very nature different than in a family law case, because the juvenile court "has a special responsibility to the child as parens patriae." (In re Chantal S., supra, 13 Cal.4th at p. 201.)
Analysis
Father does not contend that it was error for the court to terminate jurisdiction under section 364, subdivision (c). (Compare In re J.M., supra, 89 Cal.App.5th at pp. 110-112 [rejecting father's contention "that the juvenile court abused its discretion in terminating jurisdiction over [minors] because conditions continued to exist that would justify ongoing supervision"].) Instead, father's key contention on appeal is that the court's exit orders were an abuse of discretion and the matter should be remanded to family court. In essence, father seeks to return to the status quo ante, returning to the family court's December 2020 custody order which gave him primary physical custody, with mother having weekend visits. In light of the nature of the harm suffered by the children as a result of the ongoing high conflict custody dispute between mother and father, which formed the basis for the juvenile court's dependency jurisdiction, we disagree that the juvenile court's exit orders granting mother sole physical custody and father monitored visits were an abuse of discretion.
Unlike a case where one parent's substance use or physical abuse poses a risk of harm to a minor, here it is the custodial dispute itself that is the source of the risk of harm, and the basis for the juvenile court's jurisdiction over the children. The Department's section 364 review report, filed in late December 2021, noted that both parents have shown a tendency to become irate when things do not go as they expect or in their favor, and both parents continually try to pit the children against the other parent. The Department was aware that the children appeared to be coached by mother, reporting that the children appear to parrot mother's concerns and language. However, father had failed to attend parenting classes or individual counseling; he was a strict disciplinarian who found it difficult to show affection. The Department noted that father's knowledge of parenting and child development was limited, he was quick to angry outbursts and yelling if the children did not do as they were told, and he blamed the Department for ruining his family and allowing the children to show him disrespect. When the entire family would be in public together, it usually ended with father yelling at the children and mother. While the children were adamant that they did not want to visit with father due to his outbursts of anger and yelling, the Department also noted the children's statements depended on who they were placed with at the time, because they had each learned to be a kind of chameleon to survive where they were placed.
Mother had completed her case plan and was attending weekly mental health sessions, with the only outstanding item being a section 730 psychological examination. In contrast, father had not provided documentation to show enrollment in individual counseling or parenting classes.
The Department's December 2021 report initially recommended continuing jurisdiction for an additional three months, to give the Department an opportunity to investigate the most recent allegations of abuse and to connect the children with mental health services. However, by February 9, 2022, the Department had changed its position based on new information, and recommended terminating jurisdiction with an order granting parents 50/50 split custody. The most recent referral investigation had been closed as inconclusive, and while the Department had recommended mental health services for the children, referrals made in late December 2021 were closed on January 28, 2022 because neither child met medical necessity for services.
Minor's counsel contested the Department's recommendation to terminate jurisdiction and give the parents 50/50 custody, arguing that a split custody order would create an unworkable situation in light of the children's schooling and the distance between mother and father. Minor's counsel argued that the children's best interests would be served by granting mother primary custody of the children, with some level of visits and conjoint counseling for father, provided he did not allow contact with paternal grandmother. In light of the children's preference to not have visits with father, father's lack of compliance with his case plan, and his repeated violation of the court's no contact order, minors' counsel argued that a split custody order would not be in the children's best interests because it would continue the well-established pattern of recriminatory accusations.
Since they began living with mother in May 2021, the children consistently reported being safe and happy with her. They were participating in mental health counseling as well as extracurricular activities. They were adamant they did not want to visit father. As evidence mother was continuing to involve the children in the custodial dispute, father points to the three investigations into allegations of physical abuse by father and paternal grandmother that took place during the dependency proceeding and that were closed as "inconclusive." However, we draw all reasonable inferences in favor of the court's decision, and father's aggressive attitude towards the social workers, his tendency to yell at the children and mother in public, and his past history of domestic violence, supports a reasonable inference that the children were not coached but were actually fearful of father, and that it was in their best interests for mother to have primary custody.
Father also argues that the evidence before the juvenile court did not provide a reasonable basis for requiring monitored visits because the juvenile court never removed the children from his custody. However, the absence of a prior order removing the children from father's custody is not necessary for the court to properly exercise its discretion under section 362.4. (See In re J.M., supra, 89 Cal.App.5th at pp. 112-113; In re T.S., supra, 52 Cal.App.5th at p. 513.) The court has wide discretion to fashion orders in the children's best interests considering the totality of the circumstances, and so in light of the father's failure to enroll in individual counseling or parenting classes, his reliance on paternal grandmother as a caregiver while he was working as a truck driver, and his past violations of the court's no contact order, we cannot say the court's order for monitored visits was beyond the bounds of reason.
B. Order of No Contact with Paternal Grandmother and Denial of Father's Section 388 Petition Without a Hearing
Father contends the juvenile court lacked authority to include in its exit orders a condition that there be no contact between minors and paternal grandmother. He argues the order was unauthorized by statute and unsupported by substantial evidence. He argues this court should remand the matter so the juvenile court has the opportunity to determine whether a restraining order is warranted, and that the court abused its discretion in denying his petition to change the court's earlier no contact order without a hearing.
Relevant Factual and Procedural Background
As context for our discussion, we briefly recount the evidence relevant to the no contact order and father's section 388 petition. The Department's original dependency petition included allegations under section 300, subdivisions (b) and (j), that the children were at risk of serious physical harm because paternal grandmother physically abused the children, striking S.B.'s finger with an extension cord and leaving a mark, and striking N.B. with a ruler. At the June 1, 2021 initial hearing, the juvenile court ordered minors released to both parents, with specified conditions, including as relevant here, that "[t]here is to be NO CONTACT between minors and paternal grandmother."
At the July 12, 2021 adjudication hearing, parents and the Department reached an agreement that included dismissing without prejudice the counts involving physical abuse by paternal grandmother. Pursuant to no contest pleas entered by mother and father, the court sustained an amended count involving the children's risk of serious emotional damage due to the parents' history of custody disputes. In connection with the disposition, the court ordered both children released to the home of parents, specifying that parents would make minors available for unannounced visits by the Department and that "[a]ll prior orders not in conflict shall remain in full force and effect."
A September 2021 last minute information report included a letter from father asking the court to address the no contact order, calling it a mistake, cruel, and inhumane. The Department reported it was not requesting any modifications. On October 4, 2021, the court reiterated its no contact order concerning paternal grandmother. Despite the order, father permitted contact between paternal grandmother and minors on at least four occasions, one of which occurred on December 6, 2021, only three days after the social worker reminded father of the no contact order.
On December 9, 2021, father filed a petition under section 388, asking the court to lift its prior no contact order, identifying as changed circumstances that paternal grandmother had completed a six-hour online parenting program, and arguing that "[s]ince the completion of the parenting program, the paternal grandfather has sadly passed away and the paternal grandmother is grieving his loss." Father explained the requested relief was in the children's best interests because, "This is an exceptionally difficult period in the life of this family and the children have a fundamental and compelling interest in their familial relationships. Lifting the order will allow the family to strengthen their bond together as they comfort one another through the grief of the paternal grandfather's passing." The petition acknowledged that minor's counsel opposed the request, arguing that modifying the no contact order was not in minors' best interests because minors maintained their initial allegations against paternal grandmother. The juvenile court denied father's petition without a hearing on December 14, 2021, finding both that there had been no change of circumstances and that the proposed change would not promote the children's best interests.
Analysis
Father contends that the court's no contact order was legally unauthorized because the juvenile court did not follow the statutory procedures in section 213.5, subdivision (a), regarding ex parte restraining orders. Presumably, father invokes section 213.5 because it vests the juvenile court with exclusive jurisdiction during the pendency of a dependency case to issue an ex parte order enjoining a person from "contacting" a child subject to such proceedings. Further, in cases involving allegations of domestic violence, as is the case with paternal grandmother here, section 213.5, subdivision (a), incorporates the procedures of the Domestic Violence Protection Act, codified at Family Code section 6300, et seq.
The relevant portion of section 213.5, subdivision (a) provides that during a dependency proceeding, "upon application in the manner provided by [s]ection 527 of the Code of Civil Procedure or in the manner provided by [s]ection 6300 of the Family Code, if related to domestic violence, the juvenile court has exclusive jurisdiction to issue ex parte orders (1) enjoining a person from . . . contacting, . . . or disturbing the peace of the child or any other child in the household; and (2) excluding a person from the dwelling of the person who has care, custody, and control of the child."
Father's contention of legal error is based upon a fundamental mischaracterization of the no contact order. The juvenile court was not asked to, and did not, enter a restraining order within the meaning of section 213.5, and as such the procedures applicable to restraining orders, whether in the Family Code or the Code of Civil Procedure, are wholly inapplicable. The June 1, 2021 no contact order was not directed at paternal grandmother at all, and she was not a party to the dependency proceedings. Rather, the order was directed at father and mother: as a condition to having the children released to their custody, mother and father had to ensure the children not have contact with paternal grandmother. As such, the order was not a "protective order" at all, as defined in Family Code sections 6218 and 6320: the order did not enjoin paternal grandmother (or, indeed any person) from contacting the children. Because the no contact order was not made under section 213.5, the juvenile court was not obliged to hold an evidentiary hearing with notice to paternal grandmother, or follow any other procedures for issuance of a restraining order.
As relevant here, Family Code section 6218 defines a "[p]rotective [o]rder" as "[a]n order described in [Family Code] [s]ection 6320 enjoining specific acts of abuse." Family Code section 6320, in turn, refers to orders "enjoining a party from . . . contacting . . . the other party."
We also reject father's argument that the court's June 1, 2021 no contact order was a temporary order that was superseded by the order made at the jurisdiction and disposition hearing, which he contends did not include a no contact order. We disagree with father's characterization of the record. The juvenile court's July 12, 2021 disposition order expressly provided that all prior orders that were not in conflict would remain in effect. Father has not identified any conflict between June 1, 2021 no contact order and the court's July 12, 2021 dispositional orders that would render the earlier no contact order ineffective. Indeed, the overall record strongly supports that the court, the Department, and the parties all understood that the no contact order continued to remain in force throughout the proceedings by the court. Father himself understood that the order was still operative, as he subsequently argued to the court that it should be eliminated.
Father also contends there was insufficient evidence to support an order of no contact with paternal grandmother for an indefinite period of time or in perpetuity. Father's argument is based upon the statutory limits on the time frame for restraining orders issued under section 213.5; the argument fails again for the reason that the order made here was not a restraining order within the meaning of the relevant statutes.
To the extent father argues that the court implicitly rejected the allegations of abuse by paternal grandmother when it dismissed certain petition allegations without prejudice and declined to include the children in mother's restraining order against father, the court orders father relies on simply do not support such an inference. Regardless, the children's reports of physical abuse by paternal grandmother provide sufficient evidence to support the order preventing contact between paternal grandmother and the children.
Finally, father contends the court erred in denying without a hearing his section 388 motion to lift the no contact order. On receipt of a section 388 petition, the court may either summarily deny the petition or order a hearing. (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.) The court may summarily deny the petition unless the petitioner makes a prima facie showing in his or her favor. (Ibid.; see also In re Marilyn H. (1993) 5 Cal.4th 295, 310.) We review the summary denial of a section 388 petition for abuse of discretion. (In re G.B. (2014) 227 Cal.App.4th 1147, 1158.)
A petition to change or modify a juvenile court order under section 388 must factually allege that there are (1) changed circumstances or new evidence to justify the requested order, and (2) that the requested order would serve the minors' best interests. (In re G.B., supra, 227 Cal.App.4th at p. 1157; Cal. Rules of Court, rule 5.570(d)(1) &(2).)" 'A prima facie case is made if the allegations demonstrate that these two elements are supported by probable cause. [Citations.] It is not made, however, if the allegations would fail to sustain a favorable decision even if they were found to be true at a hearing. [Citations.] While the petition must be liberally construed in favor of its sufficiency [citations], the allegations must nonetheless describe specifically how the petition will advance the child's best interests.' [Citation.] In determining whether the petition makes the required showing, the court may consider the entire factual and procedural history of the case. [Citation.]" (In re K.L. (2016) 248 Cal.App.4th 52, 61-62; see also In re Anthony W. (2001) 87 Cal.App.4th 246, 250 [" '[S]pecific allegations describing the evidence constituting the proffered changed circumstances or new evidence' is required"].)
Father fails to show that the trial court abused its discretion in summarily denying his section 388 petition. Even if we assume that paternal grandmother's participation in a six-hour online parenting class and paternal grandfather's death make out a prima facie case of changed circumstances, father's conclusory explanation for why the children's best interests are served by lifting the no contact order lacks any specific information about how permitting contact with their abusive paternal grandmother would benefit the children. (See In re G.B., supra, 227 Cal.App.4th at p. 1157 [no prima facie case unless petition specifically describes how it will advance the child's best interests, and if allegations are assumed true they would support a favorable decision]; In re Kimberly F. (1997) 56 Cal.App.4th 519, 530 ["best interests is a complex idea" that requires consideration of a variety of factors]; In re Mickel O. (2011) 197 Cal.App.4th 586, 615-617 [even with evidence of a strong, loving relationship, denial of maternal grandfather's section 388 petition for unsupervised visits not an abuse of discretion].) If there was evidence in the record or in the section 388 petition that the children previously had a close relationship with both paternal grandparents, then it might stand to reason that the children would benefit from contact with paternal grandmother to grieve paternal grandfather's passing. Here, in contrast, not only is paternal grandfather never mentioned in our record outside of father's section 388 petition, but the petition acknowledges that minors' counsel opposed the request because minors maintained their initial allegations that paternal grandmother had physically abused them. In light of the express opposition by minor's counsel to father's requested relief and the entire factual and procedural history of the case, we find the court's summary denial was not an abuse of discretion.
DISPOSITION
The December 14, 2021 order summarily denying father's section 388 petition and the March 11, 2022 custody and visitation orders are affirmed.
I concur: KIM, J.
BAKER, Acting P. J., Dissenting
I disagree with the result reached by the majority in its memorandum opinion.
The only reason the majority gives for why the juvenile court could reasonably make a custody order antithetical to the custody order the family court issued a short time before is the juvenile court's exercise of dependency jurisdiction itself; the majority does not find J.B. (Father) was principally at fault for the existing family law custody dispute that was the basis for dependency jurisdiction. The reason the majority gives doesn't cut it on the facts of this case. It offends the strong policy reasons for the otherwise well recognized principle that one superior court judge cannot overrule another and invites ipse dixit adjudication. (See, e.g., People v. Garcia (2006) 147 Cal.App.4th 913, 916-917 ["[T]he general rule is that one superior court judge may not overrule another. 'If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case would lead directly to forum shopping, since if one judge should deny relief, defendants would try another and another judge until finally they found one who would grant what they were seeking. Such a procedure would instantly breed lack of confidence in the integrity of the courts'"].)
Nor could the majority so find. As counsel for the children concedes in her brief, "[t]his case involves a very high conflict family dispute with both parents having unclean hands." The family court judge that issued the earlier custody order would obviously have been well aware of that.
I also disagree with the majority's decision to affirm the summary denial of Father's Welfare and Institutions Code section 388 (section 388) petition seeking to lift the order barring contact with the minors' paternal grandmother. There has never been a finding that the paternal grandmother is abusive, and resolving Father's section 388 petition required a hearing. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310 [section 388 petitions must be "liberally construed in favor of granting a hearing to consider the parent's request" and a "parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing"].)
The errors that the majority countenances today can still be corrected now that dependency jurisdiction has been terminated and the case will return (if necessary) to family court. All that is necessary is for that court to find there has been some change of circumstance. But this bouncing back and forth between superior court judges is, in my view, unseemly.