Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. CK76803, Emily A. Stevens, Judge, and Randolph Hammock, Juvenile Court Referee.
Eva E. Chick, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Denise M. Hippach, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
Appellant Andrea R. is the mother of J.L., a dependent of the juvenile court. Andrea challenges the juvenile court’s judgment terminating its jurisdiction and granting sole legal and physical custody of J. to Jarrod L., J.’s father. Andrea contends that the judgment was improperly issued under Welfare and Institutions Code section 364, which governs the return of a child to a parent who had custody of the child before the dependency proceedings began, rather than under Welfare and Institutions Code section 361.2, which governs the placement of a child with a hitherto noncustodial parent. In addition, she maintains that the placement of J. with Jarrod was detrimental to J., that awarding Jarrod exclusive legal and physical custody of J. was an abuse of discretion, and that her section 388 petition for a modification of the judgment was improperly denied. We reject these contentions, and affirm.
All further statutory citations are to the Welfare and Institutions Code, unless otherwise indicated.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
J. was born in 2003. In October 2003, Jarrod filed a petition in San Bernardino County Family Court, seeking an order awarding him joint legal and physical custody of J. In May 2004, the family court issued a temporary order awarding the parties joint legal custody, but no final order was entered in the action.
On April 6, 2009, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under section 300 regarding J. and another child, M.D., who had been born to Andrea and Mario D. in 2007. The petition alleged, inter alia, that the children faced a substantial risk of harm due to Andrea’s physical abuse of J., that Jarrod’s whereabouts were unknown, and that Jarrod had failed to provide for J.
Neither M.D. nor Mario are parties to this appeal.
The petition also alleged that Mario and Andrea had a history of domestic violence, and that Mario was incarcerated.
In the accompanying detention report, DCFS stated that on April 1, 2009, J. appeared at her kindergarten class displaying facial injuries and other signs of physical abuse. J. told police officers and a social worker that Andrea hit her with a phone cord after she urinated on herself, and then sent her to school without allowing her to change her underwear. Andrea acknowledged that she had disciplined J. with a hand slap to J.’s bottom and thigh, but denied striking J. with a cord. Andrea suggested that J.’s physical injuries occurred at her school. The children were ordered detained and were eventually placed with M.D.’s paternal grandparents.
At the jurisdictional and dispositional hearing on April 29, 2009, Judge Emily A. Stevens sustained the allegations regarding Andrea’s physical abuse and her history of domestic violence with Mario (with amendments not relevant here). Judge Stevens declared the children to be dependents of the court, removed them from Andrea’s custody, and ordered reunification services for Andrea. Andrea’s case plan required her to participate in parenting programs, domestic violence counseling, and drug testing. The allegations regarding Jarrod were held in abeyance pending the completion of DCFS’s investigation into his whereabouts.
In May 2009, DCFS reported that Jarrod had been located in Arizona. Jarrod asserted that J. had lived with him for the first three years of her life. According to Jarrod, he tried to obtain joint legal and physical custody of J. in 2003 when Andrea denied him access to J. His attempt ended after he was unable to locate Andrea, who had custody of J. and had engaged in a “game of hide and seek.” Jarrod stated that “he ha[d] always wanted the child in his life and ha[d] always been willing and able to care for [her].” On May 29, 2009, Judge Stevens dismissed the allegations in the petition regarding Jarrod, and ordered an expedited assessment of Jarrod’s home under the Interstate Compact on the Placement of Children (ICPC) (Fam. Code, § 7900 et seq.).
On July 10, 2009, Jarrod asked Judge Stevens to place J. with him under section 361.2. In response, Judge Stevens appointed a juvenile dependency expert to examine Jarrod’s relationship with J. (Evid. Code, § 730). In early September 2009, the expert reported that J. demonstrated affection and trust toward Jarrod, but displayed concerns regarding her physical safety when Andrea was present. The expert recommended that J. be placed with Jarrod, with visitation for Andrea monitored by an Arizona social services agency.
On September 25, 2009, Judge Stevens conducted a hearing on whether to release J. into Jarrod’s custody. At the hearing, DCFS recommended that the court terminate its jurisdiction with a family law order granting Jarrod full legal and physical custody of J. DCFS noted that although Jarrod’s home had initially been approved under the ICPC, the approval had been rescinded after Arizona authorities found that Jarrod had an arrest record. Nonetheless, as Jarrod had not been convicted of a crime, DCFS stated that it had no concerns regarding J.’s release into Jarrod’s custody.
Pointing to the ICPC approval and the favorable report on Jarrod’s relationship with J., Judge Stevens ordered J. to be placed with Jarrod under DCFS supervision, pending the determination of Andrea’s visitation rights. In ruling, the court remarked that the “only outstanding issue” was Andrea’s visitation, which had been set for mediation. Judge Stevens directed DCFS to facilitate visits for Andrea prior to the mediation.
On November 5, 2009, a hearing occurred before Referee Randolph M. Hammock, who characterized the proceeding as a hearing under section 364. Jarrod was not present. When the referee learned that the mediation on visitation had not occurred due to Jarrod’s absence, he set a contested section 364 hearing on the matter for December 3, 2009, and directed the parties to engage in the meditation before the hearing.
On December 3, 2009, the referee was again informed that no mediation had occurred because Jarrod had failed to appear. The referee directed Andrea, Jarrod, DCFS, and their counsel to confer by phone regarding visitation by the following day. He stated: “[T]omorrow, if you have an agreement, fine. We’ll put it on the record. That will be the end of that particular case. If you don’t have an agreement, be ready, willing and prepared... to submit evidence and argument as to what the details of the visitation orders should be.”
The following day, when Andrea’s and Jarrod’s counsel requested additional time to complete the mediation, the referee continued the hearing, which began on January 4, 2010. Because the parties had not reached an agreement regarding visitation, the referee admitted evidence and heard argument on the matter. On January 8, 2010, the referee found that no existing conditions required continued jurisdiction over J. He announced his intention to terminate the juvenile court’s jurisdiction and issued a family law order awarding sole legal and physical custody of J. to Jarrod, accompanied by a visitation order. Andrea later filed a petition under section 388 for a modification of the rulings. The referee denied the section 388 petition and, on January 26, 2010, entered a final judgment giving Jarrod sole legal and physical custody of J., establishing Andrea’s visitation rights, and terminating the juvenile court’s jurisdiction.
Andrea noticed separate appeals from Judge Stevens’s September 25, 2009 order (B220732) and the final judgment (B222318), which were subsequently consolidated.
DISCUSSION
Andrea contends (1) that the judgment was improperly issued under section 364, (2) that the placement of J. with Jarrod in September 2009 was detrimental to J., (3) that the juvenile court erred in awarding Jarrod exclusive legal and physical custody of J., and (4) that her section 388 petition was improperly denied. For the reasons explained below, we conclude that she has forfeited her first contention, and that the remaining contentions lack merit.
A. Sections 361.2 and 364
As Andrea’s principal contentions concern the juvenile court’s application of section 361.2, we begin by examining this provision and its relationship with section 364. Generally, when a child has been removed from the physical custody of his or her parents, the statutory scheme governing dependency proceedings obliges the juvenile court to place the child “in a safe home or setting, free from abuse or neglect.” (In re Adrianna P. (2008) 166 Cal.App.4th 44, 55.) The child’s placement is subject to several provisions of the statutory scheme, including section 361.2. (In re Adrianna P., at p. 55.)
Section 361.2 governs placement in a specific set of circumstances, namely, when the child has been removed from the home of a “custodial parent” -- that is, a parent who had physical custody of the child -- but has a “noncustodial parent, ” that is, “a parent with whom the child was not residingatthe time that the events or conditions arose that brought the child within the provisions of Section 300.” (In re Adrianna P., supra, 166 Cal.App.4th at p. 55 & fns. 5, 6, italics omitted; § 361.2, subd. (a).) Under subdivision (a) of the provision, when the noncustodial parent requests custody, the juvenile court must place the child with the noncustodial parent unless the placement would be detrimental to the child. If the court places the child with the noncustodial parent, subdivision (b) of section 361.2 accords the court three alternative courses of action. First, the court may enter a family law order awarding the noncustodial parent exclusive legal and physical custody of the child, grant the custodial parent visitation rights (if warranted), and terminate its jurisdiction. (§ 361.2, subd. (b)(1); see In re Austin P. (2004) 118 Cal.App.4th 1124, 1131 (Austin P.).) Second, the court may continue its jurisdiction and require a home visit within three months, after which the court may make orders in accordance with the first course of action, as specified above, or the third course of action, as described below. (§ 361.2, subd. (b)(2).) Third, the court may order reunification services for the parents and then determine at a later review hearing under section 366 whether to give one of the parents custody of the child. (§ 361.2, subd. (b)(3).)
Subdivision (a) of section 361.2 provides in pertinent part: “When a court orders removal of a child pursuant to Section 361, the court shall first determine whether there is a parent of the child, with whom the child was not residing at the time that the events or conditions arose that brought the child within the provisions of Section 300, who desires to assume custody of the child. If that parent requests custody, the court shall place the child with the parent unless it finds that placement with that parent would be detrimental to the safety, protection, or physical or emotional well-being of the child.”
Subdivision (b) of section 361.2 provides in pertinent part: “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. [¶] (2) Order that the parent assume custody subject to the jurisdiction of the juvenile court and require that a home visit be conducted within three months. In determining whether to take the action described in this paragraph, the court shall consider any concerns that have been raised by the child’s current caregiver regarding the parent. After the social worker conducts the home visit and files his or her report with the court, the court may then take the action described in paragraph (1), (3), or this paragraph.... [¶] (3) Order that the parent assume custody subject to the supervision of the juvenile court. In that case the court may order that reunification services be provided to the parent or guardian from whom the child is being removed, or the court may order that services be provided solely to the parent who is assuming physical custody in order to allow that parent to retain later custody without court supervision, or that services be provided to both parents, in which case the court shall determine, at review hearings held pursuant to Section 366, which parent, if either, shall have custody of the child.”
In enacting subdivisions (a) and (b) of section 361.2, “the Legislature envisioned a two-step process: under subdivision (a), the court examines whether it would be detrimental to temporarily place a child with the nonoffending noncustodial parent; under subdivision (b), the court decides whether that placement should be permanent and whether the court’s jurisdiction should be terminated.” (Austin P., supra, 118 Cal.App.4th at p. 1131.) The alternatives established in subdivision (b) of section 361.2 permit the court to terminate its jurisdiction with an order giving the noncustodial parent custody of the child, or to continue its jurisdiction until it decides whether custody of the child should be awarded to either parent. (Austin P., at p. 1131.) In assigning custody of the child to either parent, “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 (Nicholas H.).)
In contrast to section 361.2, section 364 does not govern the placement of a child removed from a custodial parent. (In re Janee W. (2006) 140 Cal.App.4th 1444, 1450-1451.) “Section 364 applies when a... court determines that jurisdiction under section 300 is appropriate, but ‘the child is not removed from the physical custody of his or her parent or guardian....’ (§ 364, subd. (a).)” (Id. at p. 1450.) Under section 364, at six-month intervals following the disposition hearing, the court is obliged to determine “whether continued supervision is necessary, ” and must terminate its jurisdiction unless the social services agency proves “that the conditions still exist which would justify initial assumption of jurisdiction under Section 300....” (§ 364, subdivision (c).)
Ordinarily, the six-month review under section 364 differs from the six-month review under section 361.2. Because section 364 addresses children who remain with their custodial parents, the six-month review for such children is subject to the procedures specified in section 364, rather than the procedures governing six-month reviews for children in foster care and other out-of-home placements, which are conducted under section 366 and the provisions that follow it, including section 366.21, subdivision (e). (Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 303-304.) These provisions oblige the juvenile court to make findings not relevant to children who remain with their custodial parents, such as whether returning the children to their custodial parents would be detrimental to them (§ 366.21, subd. (e)). In contrast, under subdivision (b)(3) of section 361.2, when a child is placed with the noncustodial parent pending a decision regarding which parent is to be awarded custody, review hearings are subject to section 366 and the provisions that follow it. (Nicholas H., supra, 112 Cal.App.4th at p. 264.)
Under the dependency statutes, “[i]f a child has been declared a dependent of the juvenile court and placed under court supervision, the status of the child must be reviewed every six months. [Citations.] That initial six-month review hearing will be held under either section 364 for a child who remains with his or her parent or guardian or section 366.21, subdivision (e), for a child in an out-of-home placement.” (Bridget A. v. Superior Court, supra, 148 Cal.App.4th at p. 303.)
Although sections 361.2 and section 364 address different situations, the need-for-supervision inquiry described in section 364 is also applicable when a child has been placed with a noncustodial parent under section 361.2. Subdivision (e) of section 366.21, which governs six-month review hearings for children removed from their custodial parents, provides: “If the child had been placed under court supervision with a previously noncustodial parent pursuant to [s]ection 361.2, the court shall determine whether supervision is still necessary. The court may terminate supervision and transfer permanent custody to that parent....” This provision imposes “[a] need-for-supervision standard” akin to that found in section 364 on section 361.2 proceedings after a child is temporarily placed with the noncustodial parent. (In re Sarah M. (1991) 233 Cal.App.3d 1486, 1496-1497 (Sarah M.), disapproved on another ground in In re Chantal S. (1996) 13 Cal.4th 196, 204.) The need-for-supervision inquiry gives the juvenile court an opportunity to assess -- and, if necessary, modify -- its course of action under subdivision (b) of section 361.2. (Sarah M., at pp. 1496-1497.)
As explained in Austin P., under subdivision (b) of section 361.2, the juvenile court may not give exclusive custody of the child to the noncustodial parent and terminate its jurisdiction until it undertakes a need-for-supervision inquiry: “[W]hen a nonoffending noncustodial parent requests custody under section 361.2, subdivision (a), he or she is requesting sole legal and physical custody of a child. However, the court may not immediately grant that parent sole legal and physical custody. The court must first determine whether it would be detrimental to the child to temporarily place the child in that parent’s physical custody. If there is no showing of detriment, the court must order the Agency to temporarily place the child with the nonoffending noncustodial parent. The court then decides whether there is a need for ongoing supervision. If there is no such need, the court terminates jurisdiction and grants that parent sole legal and physical custody. If there is a need for ongoing supervision, the court is to continue its jurisdiction.” (Austin P., supra, 118 Cal.App.4th at pp. 1134-1135.)
B. Failure to Issue Judgment Pursuant to Section 361.2
Andrea contends that the juvenile court, in awarding custody of J. to Jarrod and terminating its jurisdiction, failed to apply the procedures required under section 361.2 and related statutes. The crux of her contention is that the juvenile court did not conduct the appropriate form of six-month review before entering judgment under section 361.2, subdivision (b). She maintains that prior to entering the judgment in January 2010, the juvenile court was obliged to conduct a six-month review under sections 366 and 366.21, subdivision (e), at which it should have considered (or reconsidered) the appropriate course of action under section 361.2, subdivision (b). For the reasons described below, we conclude that she has forfeited her contention.
Dependency proceedings are not exempt from the rule that “a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been made but was not made in the trial court.” (In re S.B. (2004) 32 Cal.4th 1287, 1293, quoting People v. Saunders (1993) 5 Cal.4th 580, 589-590.) As our Supreme Court has explained: “[T]he appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue. [Citations.] Although an appellate court’s discretion to consider forfeited claims extends to dependency cases [citations], the discretion must be exercised with special care in such matters. ‘Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.’ [Citation.] Because these proceedings involve the well-being of children, considerations such as permanency and stability are of paramount importance. [Citation.]” (Ibid.)
Under these principles, we conclude that Andrea’s failure to object to the juvenile court’s procedures worked a forfeiture. As explained below, no procedural error occurred during the proceedings before Judge Stevens, which she conducted under section 361.2; error appeared only when the referee invoked section 364 in completing the course of action that Judge Stevens had initiated. As the hearings before the referee focused primarily on the issue of Andrea’s visitation rights -- the key issue Judge Stevens had left unresolved -- and Andrea raised no objection to the referee’s reliance on section 364, we see no basis to excuse her forfeiture.
No procedural error occurred during the proceedings before Judge Stevens. Following Jarrod’s appearance in the proceedings in May 2009, the court conducted proceedings on Jarrod’s request for custody of J. under section 361.2. On September 25, 2009, DCFS recommended that Judge Stevens terminate the juvenile court’s jurisdiction with a family law order granting Jarrod full legal and physical custody of J. After examining the report from the dependency expert and the ICPC approval of Jarrod’s home, Judge Stevens placed J. with Jarrod and indicated her intention to accept DCFS’s recommendation, stating: “I find that it’s in the child’s best interest. There are not any risk factors. The issues of concern have all been addressed. The only outstanding issue is ... visitation, and there’s a mediation set for that.” (Italics added.)
In view of these remarks, it is clear Judge Stevens elected to place J. with Jarrod under section 361.2, subdivision (a), and terminate the juvenile court’s jurisdiction with a custody order under section 361.2, subdivision (b)(1). Because Judge Stevens found no “risk factors” were implicated in placing J. with Jarrod, the rulings comported with section 361.2, subdivision (a). Furthermore, as she found that giving Jarrod exclusive custody of J. was in J.’s “best interests, ” the rulings complied with section 361.2, subdivision (b)(1). (Nicholas H., supra, 112 Cal.App.4th at p. 268.) Because the juvenile court has broad discretion regarding the courses of action specified in subdivision (b) of section 361.2 (Sarah M., supra, 233 Cal.App.3d at p. 1496), we see no error in Judge Stevens’s apparent decision to defer her final order -- including her need-for supervision assessment -- until Jarrod and Andrea agreed on a visitation schedule: no order terminating jurisdiction was appropriate until the issue of visitation had been resolved, and supervision was necessarily required pending its resolution.
We reject Andrea’s suggestion that the withdrawal of the ICPC approval by the Arizona authorities barred Judge Stevens from placing J. with Jarrod, as the ICPC is inapplicable to interstate placements of dependent children with their natural parents (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 459 (Emmanuel R.)).
Procedural error first appears in the record on and after November 5, 2009, when the referee stated that section 364 governed the hearing before him regarding J. However, notwithstanding these remarks, the referee effectively adopted the course of action Judge Stevens had initiated under section 361.2, subdivision (b)(1), as he correctly stated that visitation constituted the key issue to be resolved prior to the termination of jurisdiction. After Andrea and Jarrod failed to reach an agreement on visitation, the referee held what amounted to a contested six-month review under section 364 on the matter in January 2010. Following the hearing, the referee found no reason to continue supervision, and terminated the juvenile court’s jurisdiction with custody and visitation orders.
During the proceedings before the referee, Andrea never raised the procedural contention she asserts on appeal. She never argued that the court was required to conduct a six-month review under sections 366 or 366.21, subdivision (e), at which he was obliged to reconsider Judge Stevens’s decision under section 361.2, subdivision (b). On the contrary, as we elaborate below, Andrea’s counsel agreed with the court that section 364 provided the applicable procedures.
Andrea suggests that her counsel asserted the objections she raises on appeal at the contested hearing before the referee. We disagree. On January 4, 2010, Andrea’s counsel contended that further inquiry was needed into potential “risk factors” regarding to J.’s placement with Jarrod, alleging that Jarrod had disobeyed Judge Stevens’s visitation order and hindered contacts between J. and J.’s counsel. Andrea’s counsel also argued that Andrea had received inadequate reunification services in connection with J., pointing to the December 2009 six-month review for M.D. under section 366.21, subdivision (e), at which the referee found that Andrea had received inadequate services in connection with M.D. The following colloquy occurred:
“[The Court]:... The [section 366].21[, subdivision] (e) contest and the... lack of... reasonable services finding... applied to [M.D.], if I remember correctly.
“[Andrea’s counsel]: Right, but it’s the same period of time, your honor, and she was getting the same services for both kids until the child was returned to [Jarrod] on [September 25]. So the [section 366].21[, subdivision] (e) slash [section] 364 is the same thing. It didn’t become a [section] 364 [proceeding] until [J.L] was returned to [Jarrod]....” (Italics added.)
The record thus establishes that Andrea’s counsel agreed that section 364 controlled the proceedings after Judge Stevens placed J. with Jarrod on September 25, 2009. Andrea’s counsel argued only that a finding made at M.D.’s six-month review was applicable to J., and that the referee should make further inquiries before terminating jurisdiction under section 364.
We conclude that Andrea’s failure to assert her contentions before the court worked a forfeiture, as the record discloses no procedural error “presenting an important legal issue.” (In re S.B., supra, 32 Cal.4th at p. 1293.) Notwithstanding the referee’s error in invoking section 364, he effectively completed the course of action properly initiated by Judge Stevens under section 361.2, subdivision (b)(1). Moreover, as explained in Nicholas H., when a child has been placed with the noncustodial parent, the juvenile court is not obliged to adhere strictly to section 366 and the provisions that follow it, which are primarily aimed at children in foster care or similar out-of-home placements. (Nicholas H., supra, 112 Cal.App.4th at pp. 264-265.) Here, the hearing before the referee fulfilled the main purpose of hearings under sections 366 and 366.21, subdivision (e), as J. received a “meaningful and expeditious” review sufficient to ensure “permanenc[e] and stability.” (Nicholas H., at pp. 264-265.) Accordingly, Andrea failed to preserve her contentions on appeal.
C. Placement With Jarrod
Andrea contends that Judge Stevens erred in placing J. with Jarrod on September 25, 2009. Under subdivision (a) of section 361.2, the juvenile court must place a child with a noncustodial parent who requests custody unless it finds, by clear and convincing evidence, “‘that placement... would be detrimental to the safety, protection, or physical or emotional well-being of the child.’” (In re Luke M. (2003) 107 Cal.App.4th 1412, 1420, italics omitted.) Andrea maintains that J.’s placement with Jarrod was detrimental to J. We reject this contention.
Under section 361.2, subdivision (a), the juvenile court must weigh “all relevant factors” in assessing detriment, including potential emotional harm arising from the child’s separation from siblings. (In re Luke M., supra, 107 Cal.App.4th at p. 1425.) The juvenile court’s finding regarding the absence of detriment is reviewed for the existence of substantial evidence. (See In re Alvin R. (2003) 108 Cal.App.4th 962, 971 [regardless of standard of proof, appellate court examines factual finding under substantial evidence test].) Accordingly, we will affirm the finding if examination of the record, reviewed as a whole and in the light most favorable to the order, discloses evidence that is “‘reasonable, credible and of solid value’” which would allow a reasonable trier of fact to make the pertinent findings. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080, quoting In re Angelia P. (1981) 28 Cal.3d 908, 924.) Upon review for substantial evidence, we do not reweigh the evidence. (In re Spencer W. (1996) 48 Cal.App.4th 1647, 1650.)
Here, Judge Stevens admitted the report from the juvenile dependency expert appointed under Evidence Code section 730. The expert stated that J. generally displayed affection and trust toward Jarrod. Although J. once asserted that she did not “care” for Jarrod and that he told her lies, the expert suspected that these statements were traceable to the influence of J.’s maternal grandmother. Although the expert registered some unresolved concerns regarding Jarrod’s criminal history and parenting skills, she recommended that J. be placed with Jarrod in Arizona. Judge Stevens also admitted the ICPC approval of Jarrod’s home, which was based on a home study by an Arizona social services agency. DCFS informed Judge Stevens that although Arizona had rescinded the approval due to Jarrod’s arrest record, he had suffered no convictions.
In ruling, Judge Stevens correctly noted that the withdrawal of the ICPC approval did not bar her from placing J. with Jarrod (see Emmanuel R., supra, 94 Cal.App.4th at p. 459). She found no “risk factors” in ordering the placement, stating: “[Jarrod] did not abandon his child. [J.] and [Jarrod] have been able to reestablish a positive relationship. The social worker has detailed [Jarrod’s] living situation. It appears to be entirely appropriate. He’s done everything the court has asked him to do.” In view of the expert’s report and ICPC approval, there is ample evidence to support these determinations.
Andrea contends that J. suffered emotional harm as a result of the placement, arguing that the expert’s report disclosed that J. sometimes referred to M.D.’s father Mario as “Dad, ” and that J. “ha[d] an attachment to [M.D.]” In so arguing, she misapprehends our assessment of evidence on appeal. We do not substitute our own judgment for that of the juvenile court if the evidence supports conflicting inferences. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195.) Our review is not de novo. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.) In sum, substantial evidence supported Judge Stevens’s decision to place J. with Jarrod.
Andrea also points to additional evidence of potential emotional harm that was first presented to the referee. As we elaborate below (see pt. D., post), at the contested section 364 hearing, the court accepted an offer of proof that J., who was then living with Jarrod in Arizona, had expressed a desire to reside with M.D.’s paternal grandparents in California. Because this evidence was not submitted to Judge Stevens when she ruled, we disregard it in reviewing her finding. (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.)
For the first time on appeal, Andrea’s reply brief contends that J.’s placement with Jarrod was detrimental because he declined to consent to umbilical hernia surgery for J. in July 2009, shortly after he appeared in the action, on the ground that her recovery would delay her transfer to his custody. Andrea suggests that Jarrod’s conduct shows that he was indifferent to J.’s health. We disagree. Although a doctor apparently recommended that J. undergo the surgery, Andrea opposed it on the ground that it was unnecessary, and Judge Stevens declined to authorize it until she received evidence establishing its necessity. The record does not disclose whether the surgery was ever performed. In view of these facts, Jarrod’s conduct does not establish that he was unconcerned about J.’s health.
D. Termination of Jurisdiction With Exclusive Custody Order
Andre a contends that the juvenile court erred in terminating its jurisdiction and giving exclusive legal and physical custody of J. to Jarrod. We disagree. As explained above (see pt. B., ante), the rulings underlying the judgment were made by Judge Stevens and Referee Hammock. The judge decided to adopt the course of action authorized in section 361.2, subdivision (b)(1), namely, to terminate jurisdiction with an order giving Jarrod exclusive legal and physical custody of J. Following that decision, the referee focused the hearings before him on visitation and the necessity for continuing supervision. The judge’s decision regarding the appropriate course of action is reviewed for an abuse of discretion (Sarah M., supra, 233 Cal.App.3d at p. 1496), as are the referee’s rulings regarding visitation and the need for continuing supervision (Emmanuel R., supra, 94 Cal.App.4th at p. 465 [visitation]; Austin P., supra, 118 Cal.App.4th at p. 135 [need for supervision]). For the reasons explained below, we see no abuse of discretion.
We begin with Judge Stevens’s ruling. At the September 25, 2009 hearing, the evidence established that Jarrod could provide a suitable home for J. (see pt. C., ante). In addition, Andrea had not completed her case plan regarding J., and the expert’s report showed that J. was concerned for her safety in Andrea’s presence. In view of these facts, the judge did not err in deciding to adopt the course of action authorized by section 361.2, subdivision (b)(1).
Nor do we see error in Referee Hammock’s need-for-supervision and visitation determinations, which he made after admitting several DCFS reports and accepting an offer of proof. The DCFS reports were filed in connection with the hearings before the referee. On November 5, 2009, DCFS stated that J. was adjusting well to Jarrod’s home in Arizona. On December 3, 2009, DCFS reported that it had communicated with Jarrod, who said that J. was “doing well” in his home. DCFS nonetheless noted that Andrea had been unable to contact Jarrod by phone, and that he could not attend the hearing. Jarrod stated that his phone had been broken for several days, and that he had undertaken new employment that made traveling to California “a financial hardship.” On January 8, 2010, DFCS reported that Jarrod’s wife, when interviewed by phone, said that J. was happy in her new home. In addition, DCFS stated that Jarrod had not complied with an order requiring him to bring J. to California, and that he was difficult to contact. Jarrod explained that he and his family had recently moved to a new residence, and that his work schedule made him hard to reach by phone.
In addition to the DCFS reports, the referee accepted an offer of proof from J.’s counsel. According to counsel, she had spoken to J. by phone on January 8, 2010. During the conversation, counsel asked J. to step away from any adults who might be near her. When counsel asked whether J. was happy in Arizona, J. whispered that she wanted to live with M.D.’s paternal grandparents, who were then taking care of M.D.; in addition, she indicated that she would like to speak with Andrea. J. then said in a louder voice, “No, I changed my mind. I want to stay here in Arizona.” Notwithstanding this conversation, J.’s counsel argued that the referee should “terminat[e] the case.”
Following the presentation of evidence, the referee found that there was no need for ongoing supervision. In ruling, he stated that although he had initially been inclined to continue supervision, the information contained in the January 8, 2010 DCFS report had resolved his concerns about J.’s placement in Jarrod’s home. To facilitate the enforcement of Andrea’s visitation rights in the family court, the referee issued a detailed visitation order.
We discern no abuse of discretion in these rulings. Because appellate courts accord broad deference to the juvenile court’s exercise of its discretion, we will disturb its decision “only ‘“if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.” [Citations.]’” (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, quoting Smith v. Smith (1969) 1 Cal.App.3d 952, 958.) Here, the DCFS reports uniformly asserted that J. was doing well in Jarrod’s home. As the referee noted, although J.’s conversation with her counsel suggested that she might prefer to live with M.D.’s paternal grandparents, the import of the conversation was ambiguous. Furthermore, at the time of the hearings before the referee, Andrea was unready to assume custody for J., as she had not completed the case plan regarding M.D., which addressed the problems that had required the removal of J. and M.D. from her custody. Because the evidence showed that J.’s placement in Jarrod’s home did not require continued supervision, the referee did not err in terminating the juvenile court’s jurisdiction with a custody order, accompanied by a detailed visitation order crafted to secure Andrea’s rights in the family court. (See Sarah M., supra, 233 Cal.App.3d at p. 1500 [“[I]f parents’ poor communication skills and distrust established a need for [the juvenile court’s] continuing supervision, the... court could assume or continue jurisdiction in virtually every family law case involving custody or visitation issues. It would appear the family law court was better suited to handling the issues relating to visitation.”].)
Andrea contends that the referee’s remarks in connection with his ruling establish that he misunderstood the scope of his discretion regarding the need-for-supervision inquiry. She is mistaken. In announcing the ruling, the referee stated that he had been angered by Jarrod’s failure to travel to California with J., as this had impaired the mediation on visitation and denied Andrea an opportunity to see J. His anger had initially inclined him to “keep the case open almost out of spite.” However, after he “calmed down, ” he realized that he had “an obligation to follow the law, ” and “to look at the facts as they exist.” Nothing in the referee’s remarks suggests that he believed he lacked the authority to make other appropriate orders, if warranted by the evidence before him.
We also reject Andrea’s suggestion that the visitation order was defective because she was provided with inadequate contact information for Jarrod. The final judgment and its accompanying visitation order lists Jarrod’s address, directs him to notify Andrea regarding changes of his address, and requires him to facilitate a detailed schedule of visits in California and Arizona, as well as telephonic contact. In sum, the juvenile court did not err in terminating its jurisdiction and giving exclusive legal and physical custody of J. to Jarrod.
E. Section 388
Andrea contends that the referee erred in summarily denying her section 388 petition, which challenged his decision to terminate jurisdiction with custodial and visitation orders. This contention fails for the reasons explained below.
“Section 388 permits ‘[a]ny parent or other person having an interest in a child who is a dependent child of the juvenile court’ to petition ‘for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court’ on grounds of ‘change of circumstance or new evidence.’ (§ 388, subd. (a).) ‘If it appears that the best interests of the child may be promoted by the proposed change of order, ... the court shall order that a hearing be held and shall give prior notice....’ (Id., subd. (c).) Section 388 thus gives the court two choices: (1) summarily deny the petition or (2) hold a hearing. [Citations.] In order to avoid summary denial, the petitioner must make a ‘prima facie’ showing of ‘facts which will sustain a favorable decision if the evidence submitted in support of the allegations by the petitioner is credited.’ [Citations.] ‘[I]f the petition fails to state a change of circumstances or new evidence that might require a change of order, the court may deny the application ex parte. [Citation.]’ [Citation.] On the other hand, ‘if the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.’ [Citation.]” (In re Lesly G. (2008) 162 Cal.App.4th 904, 912.)
At the contested section 364 hearing, Andrea asked the referee not to “close the case, ” and opposed Jarrod’s request for exclusive legal and physical custody of J. She argued that Jarrod had neither participated in the mediation nor complied with the orders regarding visitation. As noted above (see pt. D., ante), in ruling, the referee assessed the conversation between J. and her counsel on January 8, 2010.
Following the hearing, Andrea filed her section 388 petition, which asserted (1) that she opposed the termination of jurisdiction and the award of exclusive custody regarding J. to Jarrod, (2) that Jarrod had not obeyed the orders regarding the mediation and visitation, (3) that the conversation between J. and her counsel showed that J. wanted to live in California and have contact with her, and (4) that she had lacked contact information for Jarrod due to his change of address. In summarily denying the section 388 petition, the referee stated that “it [was] just relitigating what was previously decided by the court.” We see no error in the ruling, as the referee addressed items (1) through (3) at the contested section 364 hearing, and his final order resolved the matter raised in item (4) (see pt. D., ante).
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J.SUZUKAWA, J.