Opinion
B231105
02-02-2012
In re STEVEN A. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. BRIAN A., Defendant and Appellant.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent Los Angeles County Department of Children and Family Services. Amy Z. Tobin, under appointment by the Court of Appeal, for Mother. Jack A. Love, under appointment by the Court of Appeal, for Minors.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK80734)
APPEAL from an order of the Superior Court of Los Angeles County, David R. Field, Judge. Affirmed.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent Los Angeles County Department of Children and Family Services.
Amy Z. Tobin, under appointment by the Court of Appeal, for Mother.
Jack A. Love, under appointment by the Court of Appeal, for Minors.
INTRODUCTION
Brian A., father of teenagers Steven and Benjamin, appeals from the order of the juvenile court at the six-month review hearing (Welf. & Inst. Code, § 366.21, subd. (e)) returning the children to the home of their mother, Brandi J. Father contends the court exceeded its jurisdiction pursuant to section 364. We conclude that the juvenile court noticed the hearing appealed from under section 364 as to father but under section 366.21, subdivision (e) as to mother. The court proceeded as required by section 366.21, subdivision (e), and the evidence supports that ruling. The court then continued the hearing under section 364 to July 2011. We conclude the juvenile court did not err in its ruling under section 366.21, subdivision (e). Accordingly, we affirm.
All further statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
1. Family Background
This family has appeared before this court in the past. We cull background facts from our previous opinion, DCFS v. Brandi J. (Jan. 27, 2011 (B223339) [nonpub.opn.].). The Department of Children and Family Services (the Department) detained Steven and Benjamin because mother was charged with child cruelty (Pen. Code, § 273a) for sending 38 text messages to Santos L., the father of her infant, threatening to hurt the baby. Mother has a history of suicidal ideations and spent time in a psychiatric hospital. She also has a history of multiple arrests for offenses such as corporal injury to a spouse and assault with a deadly weapon.
Neither the infant nor Santos L. is a party to this appeal.
In mother's divorce from father, the family law court gave mother sole physical custody of Steven and Benjamin, and gave father overnight visits every other weekend and during two weeks in the summer. At the time mother was arrested, she and the children were living with the maternal grandparents.
Father, the boys' presumed father, lived in Nevada with his fiancée, their three sons, and his stepdaughter. The social worker determined that the children could safely reside with father and placed the boys with him.
By order of the court, mother underwent a Evidence Code section 730 evaluation. The psychiatrist diagnosed mother with Borderline Personality Disorder and Depression Not Otherwise Specified. Mother agreed with the doctor that her relationships have been fairly chaotic and unstable. She had an overly reactive mood, was prone to angry outbursts, and was capable of extreme behaviors. Mother has made dramatic attempts to avoid real or imagined abandonment. The doctor found mother was "chronically unable to effectively cope with interpersonal stressors, gets easily overwhelmed, and can quickly decompensate to an enraged and desperate state where she is capable of very impulsive acts without regard for the consequences[.]" The doctor suggested mother undergo dialectical behavior therapy (DBT).
At the jurisdiction and disposition hearing in March 2010, the juvenile court dismissed the allegations as to father and declared the children dependents. (Welf. & Inst. Code, § 300, subds. (a), (b) & (j).) The court removed the boys from mother's custody. Mother argued that the boys did not want to be placed with father. The children's attorney explained that they did not want to go to their father "yet." The court ordered the teens placed with father "immediately." It allowed the boys to have overnight visits with the maternal grandparents, but mother could not reside in the same house.
The juvenile court ordered family reunification services for mother that required her to, among other things, see a psychiatrist and comply with any psychotropic medication regimen, attend individual counseling that addressed anger management, domestic violence and "mental health issues."
Mother and the children filed appeals from the juvenile court's order contending that removal from her custody was error. We affirmed the order.
2. The Reunification Period
The juvenile court scheduled a section 364 hearing for father and a section 366.21, subdivision (e) (six-month review) hearing for mother for September 2010, six months hence.
Section 364, subdivision (c) reads: "After hearing any evidence presented by the social worker, the parent, . . . 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 Section 300, or that those conditions are likely to exist if supervision is withdrawn. Failure of the parent or guardian to participate regularly in any court ordered treatment program shall constitute prima facie evidence that the conditions which justified initial assumption of jurisdiction still exist and that continued supervision is necessary." (Italics added.)
Mother obtained a list of referrals from the Department and commenced therapy at Counseling West in February 2010. She was also evaluated for psychiatric treatment by the Department of Mental Health (DMH). The DMH diagnosed mother with Major Depressive Disorder, recurrent, moderate, and concluded that mother did not need psychiatric treatment as the mental health services she was receiving at Counseling West were sufficient.
Four months into the reunification period, in July 2010, the Department filed a motion to reduce the maternal grandparents' visits to supervised. The Department expressed dissatisfaction with mother's therapy because, in the Department's view, it did not comport with the Evidence Code section 730 recommendations. The Department requested that the juvenile court order mother to seek a licensed therapist with experience in Borderline Personality Disorders. In connection with its motion, the Department asserted that mother's therapist's supervisor at Counseling West, Joni Lavic, told the Department's supervising social worker Isis Jointer that mother was a "very difficult client;" that she was "an extreme case;" had a "high level of paranoia;" was "simmering [and] seething"; and that Borderline Personality Disorder was the correct diagnosis. The Department also attached a letter from supervisor Lavic specifically disputing having said these things about mother to social worker Jointer.
In advance of the hearing on the Department's motion for supervised visits, the Department prepared a report. Attached was a letter from the DMH confirming that mother had undergone a psychiatric evaluation in June 2010, and did not require psychiatric services. The DMH diagnosed mother with Major Depressive Disorder, Recurrent, Moderate, and determined that mother's current therapy was sufficient and that her symptoms indicated that psychiatric treatment was inappropriate. The DMH psychiatrist was in accord with these opinions. Also attached to the Department's report was a letter from mother's individual therapist Ellen Rose, stating that mother had attended therapy for approximately five months, was "highly compliant," and was committed to her therapeutic work. In therapy, mother was addressing domestic violence issues, anger management, coping skills, and parenting issues, and making good progress in each area.
Disagreeing with the DMH assessment that mother did not require psychiatric services or psychotropic medication, the Department recommended mother submit to another psychiatric assessment.
As for the other elements of mother's case plan, she had been cooperating in her drug testing since the juvenile court took jurisdiction and all her tests were negative. Mother also consistently visited with the children, three times per week until the Department stopped visits on July 23, 2010, because of the grandmother's behavior.
The children had been in individual counseling since May 2010, but social worker Jointer had stopped the therapy after determining the type of counselor was inappropriate. Instead, the children were scheduled to change to a different counseling agency in August 2010. Because conditions still existed justifying the initial jurisdiction and continued supervision, the Department recommended the case remain open. The Department also recommended that the court continue family maintenance services for father, and reunification services for mother, after modifying the case plan to require mother to undergo DBT.
The contested hearing in January 2011 lasted five days. The parties disputed whether mother was in the correct kind of therapy. Mother's counselor, Amanda Newaira, a trainee in her last quarter towards her master's degree, testified she has experience with patients diagnosed with Borderline Personality Disorder. Newaira testified that mother was always early and never missed a session. She was very serious about her therapy, and brought up issues related to the Department's concerns. Although the Department never forwarded case-related documents to the therapist, mother was attempting to address in therapy issues about which the Department was concerned, such as mother's inappropriate comments in front of the children, and that mother was not in therapy for Borderline Personality Disorder. Mother told Newaira she was willing to undergo DBT if necessary.
The supervisor for mother's therapist, Lavic, confirmed that Counseling West tested mother for Borderline Personality Disorder and sent the results to be scored by an agency specializing in this DBT. Supervisor Lavic explained mother's therapy was based on mother's diagnosis by the DMH of Major Depression Disorder and so there was no reason for mother to receive therapy for Borderline Personality Disorder. Supervisor Lavic denied telling social worker Jointer that mother was an "extreme case;" had a "high level of paranoia;" was "simmering and seething" in sessions; that the diagnosis of Borderline Personality Disorder was correct; that mother needed to be in therapy with a licensed therapist who can do DBT; or that mother should stop her therapy at Counseling West. Supervisor Lavic also denied using certain language in characterizing mother.
The DMH psychiatric social worker, Sandra Sanchez, testified that she evaluated mother and presented the case to the multi-disciplinary team consisting of psychiatrists, nurses, social workers, and case managers. Mother told the team about this dependency. The DMH diagnosed mother with Major Depressive Disorder, Recurrent, Moderate, and the DMH psychiatrist determined that mother did not need psychotropic medication. Sanchez expressed surprise to learn from social worker Jointer that the Department wanted the DMH to change its diagnosis of mother to Borderline Personality Disorder.
The Department's supervising social worker, Isis Jointer, testified she began working on this case two months after the juvenile court took jurisdiction, in May 2010, and the case was transferred away from her in September 2010. Jointer testified that the Department concluded at the end of July 2010 that mother was in the wrong type of counseling even though mother had been undergoing that counseling for five months and the Department had never given mother referrals for a therapist who specializes in DBT. Jointer explained that the Department no longer approves of Counseling West for mother's mental health services.
The children did not want to live with father. They repeatedly testified they wanted to live with mother and visit father. Benjamin became so upset when asked about the court's order removing him from mother that a recess was taken. Benjamin testified that after he was removed from mother's care, he could remember nothing that occurred with mother that would upset him. He was not afraid of mother, who never physically disciplined him or did anything to cause him to fear her. Steven felt safe with mother and father. Both boys were sad when they had to live with father. Steven described mother as a "great mom."
Mother testified that when she started counseling she was in denial but her therapist has helped her a lot as she became more involved. Mother acknowledged she had problems with father. She addressed those issues in therapy and learned it was more important to tell the boys that their father loved them. Mother never received a copy of her Evidence Code section 730 psychological evaluation, but she was aware of its recommendation. Mother started therapy in February 2010 at Counseling West because she found it on a referral list she received from the Department. The first time she received referrals for DBT was in a letter the Department sent her seven months into the dependency, in August 2010. The letter made referrals to two places, but mother wrote to the Department explaining why those referrals did not work out.
At the close of the January 2011 hearing, the juvenile court found that the children had a good relationship with mother and always wanted to live with her. The court found it was currently in the children's best interest to live with mother and visit father. Acknowledging mother's "run-ins" with the Department, the court found the Department was partly to blame. The court found that social worker Jointer had an agenda and twice stated it found Counseling West's supervisor Lavic to be credible. The court was "disturb[ed]" by the fact the Department waited months after the Evidence Code section 730 evaluation before complaining about mother's mental health services, "chang[ing] course" only when it received a report about the therapy it did not like. Although mother had problems, the court found she was trying her hardest in therapy. The court also found a relationship problem between the parents that required correction. Thus, the court found, the conditions that brought the case to the attention of the court still existed and continued jurisdiction was necessary. The court returned the children to mother with family maintenance, repeating the custody and visitation ordered by the family law court, and reminded mother that the Department would continue to monitor her progress. The court dismissed the Department's motion and scheduled the section 364 hearing for July 2011. Father appealed from the January 2011 order.
CONTENTIONS
Father contends that the juvenile court exceeded its jurisdiction under section 364; and the court's findings and orders are not supported by substantial evidence.
DISCUSSION
1. The juvenile court properly proceeded as directed by sections 366.21, subdivision (e) and 361.2.
Father contends that the juvenile court exceeded its jurisdiction under section 364 when it modified the visitation and placement orders in its January 2011 order. Father argues that under section 364, the court had the authority to issue "exit orders" and terminate jurisdiction only. The Department takes no position on this issue but mother and the children have filed separate briefs in response to father's contention.
Regardless of what section 364 allows the juvenile court to do, the record here shows that at the January 2011 hearing the court did not actually act under section 364. We recognize that the court scheduled that hearing as to father under section 364. But, as the parties understood, it also scheduled the hearing as a six-month status review (§ 366.21, subd. (e)) as to mother, the parent who was in reunification. The parties stipulated that the court could deem the Department's request to modify the grandparents' visitation as a section 388 petition and hear it at the same time as mother's status review hearing because visitation would be an issue at the six-month point in any event. (Ibid.) At the close of the January 2011 hearing from which father appeals, the court scheduled the section 364 hearing for July 20, 2011 and ordered the Department to prepare and submit a section 364 report for that July date. Thus, section 364 was not at issue at the January 2011 hearing.
At the January 2011 hearing, the court followed the directives of section 366.21, subdivision (e). That statute instructs the court at the six-month juncture to return the children to the physical custody of their parents "unless the court finds, by a preponderance of the evidence, that the return of the child[ren] to [their] parent . . . would create a substantial risk of detriment to . . . the child[ren]." (§ 366.21, subd. (e), par. 1.) After taking testimony from numerous witnesses, the court found that return of the children to mother would not "create a substantial risk of detriment" to them. (Ibid.) To the contrary, the court found that leaving the boys with father would cause the detriment. Therefore, paragraph 1 of subdivision (e) required that the court return the children to mother's custody.
Subdivision (e) of section 366.21 further directs, "[i]f the child had been placed under court supervision with a previously noncustodial parent pursuant to Section 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent, as provided for by paragraph (1) of subdivision (b) of Section 361.2." (§ 366.21, subd. (e), par. 6, italics added.) Paragraph 6 of subdivision (e) of section 366.21 was applicable to this case because the boys had been placed under court supervision with father who had been previously noncustodial. (§ 361.2.) Under subdivision (b) of section 361.2, the court determined that supervision was still necessary, and accordingly did not terminate its jurisdiction. Stated otherwise, the juvenile court did not terminate jurisdiction at the January 2011 hearing. Rather, it followed sections 366.21, subdivision (e) and 361.2, subdivision (b), and continued the case to July 20, 2011 for the express purpose of considering termination of jurisdiction under section 364.
Subdivision (b) of section 361.2 reads, "(b) If the court places the child with that parent it may do any of the following: [¶] (1) Order that the parent become legal and physical custodian of the child. The court may also provide reasonable visitation by the noncustodial parent. The court shall then terminate its jurisdiction over the child. The custody order shall continue unless modified by a subsequent order of the superior court. The order of the juvenile court shall be filed in any domestic relation proceeding between the parents."
Notwithstanding the assertion of counsel for the children that we did not apply section 361.2 in our previous opinion, in the section of our previous opinion entitled "Placement with father" we did apply section 361.2 and explained its application to this case.
2. The evidence supports the juvenile court's findings at the January 2011 hearing.
Father contends that substantial evidence does not support the decision to permit mother unmonitored contact and return of the children to her custody. The Department takes no position on this issue but mother and the children have filed separate briefs in response to father's contention.
Under the substantial-evidence rule, "we have no power to pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or determine where the weight of the evidence lies. Rather, we 'accept the evidence most favorable to the order as true and discard the unfavorable evidence as not having sufficient verity to be accepted by the trier of fact. [Citation.]' [Citation.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. [Citation.]" (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1135, disapproved on other grounds, Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) " 'In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact . . . .' [Citations.]" (In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) "If there is substantial evidence supporting the judgment, our duty ends and the judgment must not be disturbed. [Citations.]" (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
Father begins by pointing to mother's psychological problems, and focuses four pages of his brief to argument about mother's behavior before the disposition hearing, i.e., before mother commenced her reunification plan and before our first opinion in this case was filed.
Yet, the issue here is mother's progress during the six months of reunification in addressing the issues that brought about the dependency and whether return of the children to mother's custody would "create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." (§ 366.21, subd. (e).) Subdivision (e) of section 366.21 states further, "The social worker shall have the burden of establishing that detriment. . . . The failure of the parent or legal guardian to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return [of the children to mother] would be detrimental. In making its determination, the court shall review and consider the social worker's report and recommendations and the report and recommendations of any child advocate appointed pursuant to Section 356.5; and shall consider the efforts or progress, or both, demonstrated by the parent . . . and the extent to which he or she availed himself or herself to services provided . . . ." (Italics added.)
Here, the juvenile court found that mother had made progress. The court stated, "I think she's given her all in therapy. She's doing well. She's progressing. The boys want to be with her, obviously, Steven and Benjamin. I do believe they will do better in her care than with [father] at this point." (Italics added.) Additionally, the court found that mother had a job, something the court "appreciate[d]." The evidence showed that mother availed herself of the services provided. Mother contacted the Department for referrals and received a letter in January 2010. She then contacted each and every one of the counseling agencies on the Department's referral list. Mother eventually underwent therapy at Counseling West, an agency included on the Department's own referral list. Mother's therapist and the supervisor at Counseling West both testified that mother attended all her weekly sessions, arriving early, and took them very seriously.
Father argues that mother's therapy was ineffective. Observing that the Evidence Code section 730 evaluator diagnosed mother with Borderline Personality Disorder and Depression Not Otherwise Specified, father argues mother necessarily must undergo DBT only. Father suggests that mother's therapist was fooled by mother into concluding mother did not suffer from Borderline Personality Disorder. Father points to the Department's insistence that mother's therapist change mother's diagnosis to Borderline Personality Disorder, and when the therapist at Counseling West refused, the Department sought to move mother to another therapist.
However, mother's case plan required her to participate in individual counseling to address anger management, domestic violence, and "mental health issues," to see a psychiatrist, and comply with any psychotropic medication regimen. The case plan does not specify DBT or any particular therapy. The evidence shows mother went to Counseling West, an agency recommended by the Department, and saw a psychiatrist who concluded mother did not require medication and who signed off on mother's therapeutic protocol.
Furthermore, the juvenile court heard conflicting testimony over five days about mother's diagnosis and therapy. The court found the Department's social worker was biased and had an agenda. The court stated: "I have to say that was very disturbing to me[.]" In contrast, the court heard from and believed Ms. Lavic at Counseling West who supervised mother's therapist, and who testified about the diagnostic test for Borderline Personality Disorder administered to mother and sent to a DBT specialist to be scored. The results were that mother did not qualify to be referred to a DBT specialist for therapy. Supervisor Lavic explained how the DMH's team reached the conclusion that mother "did not have borderline personality disorder[, and] did not believe D.B.T. was necessary." The court likewise heard from Sanchez, the psychiatric social worker at the DMH, who diagnosed mother with Major Depressive Disorder, recurrent moderate, and not Borderline Personality Disorder. Sanchez found that mother's current therapy was adequate to meet her needs. Sanchez presented her diagnosis to the multidisciplinary team consisting of psychiatrists, nurses, social workers, and case managers. The team concurred in Sanchez's diagnosis. DMH also assessed whether mother required psychotropic medication. Both DMH's Sanchez and supervisor Lavic testified that the Department's social worker, Jointer wanted the diagnosis changed to Personality Disorder despite mother's test results. Yet, the Department had taken no issue with any decision of the DMH or Counseling West for nearly six months and only gave mother the names of DBT specialists in August 2010 after Counseling West refused to change mother's diagnosis. The juvenile court was entitled to find the witnesses from Counseling West and the DMH credible and disbelieve the Department's witness. We may not reweigh that finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 52.) The evidence sufficiently supports the juvenile court's conclusion that mother was making progress in her court-ordered case plan. (§ 366.21, subd. (c).)
Father next argues that mother's visits put the children at risk of harm. But after hearing the testimony, the juvenile court found that the Department never followed up on these allegations and "was trying to find ways to make things difficult for the mother[.]" The court also concluded that some of the blame lay in the fact that both parents had a problem with their relationship that needed to be rectified. The court simply did not believe the testimony of social worker Jointer that mother made inappropriate comments to the boys about the case. In any event, the court determined that continued court supervision was necessary and did not terminate its jurisdiction in January 2011.
In the final analysis, father relies on the Department's reports and testimony to bolster his argument that return of the children to mother would be detrimental to them. However, the juvenile court gave a 26-page recitation of its findings, explaining why it did not believe the Department's witness, social worker Jointer, but did believe and was influenced by the counter testimony of mother's therapists, the therapists' supervisor, the DMH witness, and the reasons for the DMH's conclusions. Where the evidence boils down to the credibility of witnesses, we may not reweigh the result. Suffice it to say that there was evidence to support the juvenile court's findings and no amount of evidence to the contrary will undermine the court's findings. (In re Misako R., supra, 2 Cal.App.4th at p. 545.)
3. We are unable to address the substantive contents about the exit orders because father did not appeal from the July 20, 2011 ruling and so we have no record of what occurred in this case after the January 2011 hearing.
When the juvenile court terminates jurisdiction in a dependency case (§ 364), it may issue an order for custody of, and visitation with, the children. (§ 362.4; In re Chantal S. (1996) 13 Cal.4th 196, 202-203; see also In re John W. (1996) 41 Cal.App.4th 961, 970, fn. 13 [explaining the term "exit order"].) Such orders are commonly referred to as "exit orders" and remain in effect until modified by a family law court. (In re John W., supra, at p. 970, fn. 13.) In making exit orders, the juvenile court's focus is on the best interests of the children (In re Chantal S., supra, at p. 201), in the context of the particular facts and circumstances of the case. (In re John W., supra, at p. 965.) The court has broad discretion to determine what best serves a child's interests and such decision will not be reversed absent a clear abuse of discretion. (In re Tanis H. (1997) 59 Cal.App.4th 1218, 1227.) We may not disturb that order unless the court " ' " 'exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citations].' " ' [Citations.]" (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300-301.)
On July 20, 2011, some seven months after father filed his appeal in this case, the juvenile court held the section 364 hearing and terminated its jurisdiction with exit orders. Father did not file an appeal from that ruling; we only learned of the juvenile court's ruling from a letter submitted by the Department three months after the fact, on October 27, 2011. Because of that letter, we requested the parties submit supplemental briefs addressing the effect on this appeal of the July 2011 ruling terminating jurisdiction (§ 364) and whether the July 2011 ruling renders this appeal moot. In response, mother moved to dismiss this appeal and submitted a supplemental brief arguing that this appeal is moot. In their supplemental brief, the children argue that father's appeal is moot because it raises a procedural challenge under section 364, namely, the juvenile court's jurisdiction, which the court later terminated in July 2011. Alternatively, the children argue, father failed to file a timely appeal from the July 2011 ruling and so he may not raise substantive issues. Father argues in his supplemental brief that the appeal is not moot because any error in the January 2011 ruling infects the outcome of subsequent proceedings.
We conclude that father's appeal from the January 2011 ruling is not rendered moot by virtue of the juvenile court's July 2011 order terminating its jurisdiction and issuing exit orders. (§ 364.) In his appeal from the January 2011 ruling, father argued that the juvenile court exceeded its jurisdiction under section 364 by placing the boys with mother and failing to terminate its jurisdiction then. To the extent that father's appeal raises the contention that the court acted in excess of its authority granted by section 364 in January 2011, the July 2011 ruling pursuant to section 364 would render his contention moot. However, father's appellate brief also raised the substantive challenge to the court's January 2011 order modifying the placement and visitation order and returning the boys to mother's custody because he argued that such order "revived the risk of harm to Steven and Benjamin[.]" Insofar as father's brief touched on this issue, this appeal is not rendered moot by the fact that the juvenile court proceeded under section 364 six months later.
As we conclude that father's appeal was not rendered moot by the juvenile court's ruling of July 2011, we deny mother's October 27, 2011 motion to dismiss father's appeal as moot.
However, because father did not appeal from the July 2011 ruling terminating jurisdiction under section 364, we have no record of what occurred after January 2011. Juvenile courts exercise their discretion in fashioning exit orders based on the best interests of the children in the context of the particular facts and circumstances of the case. (In re Chantal S., supra, 13 Cal.4th at p. 206; In re John W., supra, 41 Cal.App.4th at p. 965.) As explained above, we affirm the juvenile court's decision to return the children to mother's custody based on the record up to January 2011. As we have no record of what occurred after the January 2011 hearing, we have no evidence from which to determine whether there was any change in circumstances after January 2011 related to the children's best interest that would render the juvenile court's ruling of July 2011 an abuse of discretion.
DISPOSITION
The order appealed from is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J. We concur:
KLEIN, P. J.
KITCHING, J.