In re A.T. CA2/4

Filed 10/22/20 In re A.T. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re A.T., A Person Coming Under
Juvenile Court Law.
LOS ANGELES COUNTY B302801
DEPARTMENT OF CHILDREN (Los Angeles County
AND FAMILY SERVICES, Super. Ct. No. 19CCJP06185A)

Plaintiff and Respondent,

v.

K.T. and R.M.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los
Angeles County, Sabina A. Helton, Judge. Affirmed.
Jacques Alexander Love, under appointment by the
Court of Appeal, for Defendant and Appellant K.T.
Linda S. Votaw, under appointment by the Court of
Appeal, for Defendant and Appellant R.M.
 Office of the County Counsel, Mary C. Wickham,
County Counsel, Kristine P. Miles, Assistant County
Counsel and David Michael Miller, Deputy County Counsel,
for Plaintiff and Respondent.

_________________________________________________

INTRODUCTION
Appellants K.T. (father) and R.M. (mother) are the
parents of a son, A.T. (born December 2015). In the
proceedings below, initiated by respondent Los Angeles
County Department of Children and Family Services
(DCFS), the juvenile court found that father had engaged in
a pattern of domestic violence against mother It therefore
found jurisdiction over A.T., removed the boy from father’s
custody, placed him with mother, and granted father
monitored visits for a minimum of three hours per week. On
appeal, father contends substantial evidence does not
support the court’s finding that A.T. was in substantial
danger, or that there were no alternate means of protecting
him short of removal.1 Father argues in the alternative that
the court abused its discretion in limiting him to three hours
of monitored visits. We affirm.

1 While mother also appealed, she makes no affirmative
arguments, instead joining father’s arguments pursuant to
California Rules of Court, rule 8.200, subdivision (a)(5).

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 STATEMENT OF RELEVANT FACTS

A. DCFS Investigates a Report of Domestic
Violence
In the morning of July 18, 2019, the police visited
father’s apartment in response to a report of domestic
violence. Mother and three-year-old A.T. were present, but
father was not. Mother told the police she and father had
been dating for 10 years, and were A.T.’s parents. In the
past four years, she and father had been involved in
approximately four or five unreported domestic violence
incidents, and the incident about which she had called the
police had occurred around 10:00 p.m. the night before.
Mother and A.T. were sitting on the bed in A.T.’s bedroom
watching television, when father came in and began yelling
at mother about a towel she had left on the bathroom floor.
Scared, mother apologized and promised it would not happen
again. Father continued yelling, then lunged at mother,
grabbed her neck with both hands, and applied “tight
pressure” for 10 to 15 seconds, making it difficult to breathe,
while calling her a “bitch” and a “cunt.” Father then
released her and slapped her in the face, leaving a red mark
on her cheek. Father ripped the television cord out of the
wall, grabbed A.T. and locked both himself and the child in
his bedroom. Mother followed and began to pound and kick
on the bedroom door; she could hear A.T. crying. In response
to mother’s efforts, father yelled, “‘I have guns! Don’t try

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me!’”2 Father eventually opened the door, and mother and
A.T. returned to the boy’s bedroom where they spent the
night. When they awoke the next morning, father was gone.
The officer noticed redness on both mother’s right cheek and
the front of her neck. Mother signed a “strangulation form”
and stated she wanted father prosecuted. The incident was
referred to DCFS.
Two weeks later, on July 31, a Children’s Social
Worker (CSW) spoke with mother at her mother’s house,
where she and A.T. were staying. Mother now downplayed
father’s aggression and violence: while stating father was
emotionally abusive and “bullied” her, she claimed he did not
strangle her, but grabbed her by the neck “‘only for a few
seconds’” to get her attention. Contrary to her statement
that there had been four or five unreported incidents of
domestic violence, mother now told the CSW this was the
first such incident with father. The CSW also had a short
conversation with A.T., in which the child shook his head
when asked if he had been hit or spanked, denied seeing his
parents hit each other, stated he missed father “‘sometimes’”
and said he did not like father’s house because father “kicks
him.” The CSW saw no marks or bruises on A.T.
Later that day, the CSW called father and tried to
schedule a date to meet to “discuss allegations of emotional
abuse” of A.T.; father, seemingly agitated, “stated loudly he

2 The police determined there were two firearms registered
to father.

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did not know what [the] CSW . . . was talking about.” When
informed of the police report alleging domestic violence,
father “aggressively stated” there was no domestic violence,
and the allegations were false. The CSW advised father she
was not accusing him of anything, but needed to get his side
of the story; father stated that speaking with the CSW would
“stop him from making money.” When the CSW told father
it was important that they speak, father hung up. In a
future conversation, father promised to call the CSW to
schedule a time to meet, but failed to do so.
Over the next two weeks, the CSW tried repeatedly to
meet with father, but he refused to confirm a date and time.
On August 28, after ignoring or deferring repeated requests
from the CSW, father texted her that he had an attorney and
would send the CSW the attorney’s information. He failed to
do so.
The CSW contacted mother to ask about discrepancies
between what she had told the CSW and what the police
report stated she had told the police. Mother now claimed
the police had “exaggerated and over dramatized the
situation.” In an in-person meeting, mother informed the
CSW that while she was not getting back together with
father and was “looking to file for a custody order,” she was
fearful that such an action would “start a war” with him.
She was afraid he would start threatening her, and accuse
her of keeping A.T. away from him. She also mentioned that
she and her mother had taken A.T. to spend a night with
father, and A.T. told the CSW he had fun during the visit.

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However, as the CSW was preparing to leave and told A.T.
that she too would be visiting father, A.T. responded,
“‘[W]hy? Daddy is mean.’”

B. DCFS Detains A.T. from Father and Files a
Petition
On September 13, the court approved an order
removing A.T. from father, and on September 19, DCFS
placed A.T. with mother. When informed the court had
ordered A.T. removed from father, mother asked if there was
anything she could do “for father not to look like he is the
‘villain.’” She stated she did not want it to appear she was
keeping A.T. away from father. Mother was concerned
father would be upset with her, and told the CSW that
father blamed her for his inability to see A.T.
On September 23, DCFS filed a petition, alleging two
counts under Welfare and Institutions Code section 300,
subdivision (a) (Section 300(a)) and two counts under
Welfare and Institutions Code section 300, subdivision (b)(1)
(Section 300(b)(1)). Counts a-1 and b-1 identically alleged
that: “[A.T.]’s mother . . . and father . . . have a history of
engaging in verbal and physical altercation[s]. On 7/17/19
the father used both of the father’s hands to grab the
mother’s neck and applied tight pressure for approximately
10 to 15 seconds causing the mother to have difficulties
breathing. The father struck the mother on the right side of
the mother’s face. The mother sustained redness on the
mother’s right cheeks and neck. The father ripped the

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television cord out of the wall, grabbed the child [A.T.] and
went into the next bedroom and locked the door. The mother
was concerned for the child’s safety as she heard the child
crying inside the bedroom with the father. The father
threatened the mother stating ‘I have guns! Don’t try me!’
The mother failed to protect the child by allowing the father
to have unlimited access to the child. Such violent conduct
on the part of the father to the mother and the mother’s
failure to protect endangers the child’s physical health and
safety, placing the child at risk of suffering serious physical
harm, damage, danger and failure to protect.” Counts a-2
and b-2 identically alleged that father physically abused
A.T., and that on a prior occasion, father kicked A.T.’s upper
body.
On September 24, the court found prima facie evidence
to detain A.T. from father, released the child to mother on
condition she reside with her mother, and ordered mother
and father to stay away from each other. The court further
ordered DCFS to work with father to develop a written
visitation schedule.

C. DCFS Continues to Investigate; Father Is
Uncooperative
On October 25, a dependency investigator (DI)
interviewed A.T. and mother. A.T. denied seeing his parents
argue or engage in conflict but imitated punching and
kicking and stated that father “does karate.” Mother
contended the allegation of domestic violence was false and

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“‘maximized by law enforcement.’” She emphasized this was
a one-time incident, and said father’s behavior was “‘out of
character,’” but admitted he had been aggressive and called
her a “bitch” because his towel was on the floor. She now
claimed father had put his hands on her chest near her neck
and pushed her back, but denied he had choked her.
On October 4, DCFS sent father a contact letter via
certified mail requesting he contact the DI to schedule an
appointment. The letter was returned. On October 25, the
DI sent father a text message asking him to contact her to
schedule an appointment. They eventually met on
November 5. Father refused to provide any statement about
the allegations, stating that everything was fabricated, and
that he was “pleading the [Fif]th on everything on the
grounds of incrimination and everything that follows.” He
also refused to provide any social history, claiming such
information had nothing to do with A.T. He claimed that
mother was “‘always going to be my woman.’” When the DI
asked father if he wished to set up a visitation schedule with
A.T., he refused, stating he would wait to see the results of
the November hearing. When a CSW also offered to set up a
visitation schedule, father refused to visit with A.T. at the
DCFS office. The CSW provided father with referrals and
encouraged him to enroll in services.

D. The Court Removes A.T. from Father
On November 26, the court held the adjudication and
disposition hearings. Mother and father both testified.

8
Mother denied telling the police father had choked or hit her.
Father denied hitting or abusing mother or A.T. Both
mother and father testified they were no longer in a
relationship.
In closing arguments, A.T.’s counsel asked the court to
sustain counts a-1 and b-1 (alleging that A.T. was in danger
due to his parents’ domestic violence) and dismiss counts a-2
and b-2 (alleging that father had physically abused A.T.).
Father’s counsel asked the court to dismiss the petition in its
entirety because mother had consistently stated the police
report was exaggerated; because even if the July 18 incident
had occurred as described in the report, it was a one-time
incident; and because there was no further risk to A.T. as
the parents were no longer in a relationship. Mother’s
counsel also asked the court to dismiss the petition, pointing
out both that mother had repeatedly told DCFS the police
reports were exaggerated, and that mother had been able to
protect A.T. Counsel for DCFS asked the court to sustain
the petition on all counts, arguing mother’s initial
statements to the police were the most credible.
The court noted that the police report was “the
document that [was] taken most close [in time] to the event”
and therein mother “reported there were four to five
previous unreported domestic violence incidents, which
doesn’t support that this is a one-time event.” The court
stated that to credit mother’s and father’s contrary
testimony, “I would have to completely disregard what is in
this police report, and I can’t think of a motive of why the

9
police would try to make up something like this in such
detail.” The court sustained the petition as to counts a-1 and
b-1, but dismissed counts a-2 and b-2, finding DCFS had not
met its burden to show by a preponderance of the evidence
that father had physically abused A.T.
The court then heard arguments regarding disposition.
Counsel for mother argued she had plenty of familial support
and asked the court not to order family preservation
services; counsel also asked that mother be permitted to
address domestic violence issues through the individual
therapy she was already receiving. Counsel for father asked
the court to return A.T. to him, or at least grant him
unmonitored visits, incorporating the arguments made on
jurisdiction, reminding the court the standard was now
“clear and convincing eviden[ce],” and arguing that there
was no evidence A.T. was at risk. Father’s counsel also
objected to the case plan, “as he still stands here today and
says he did not commit any of these allegations.” A.T.’s
counsel urged the court not to release A.T. to father or to
permit unmonitored visits, but suggested that father be
permitted to have monitored visits at the DCFS office.
DCFS’s counsel argued that both mother and father should
attend counseling specific to domestic violence.
The court removed A.T. from father, finding “by clear
and convincing evidence that there is a substantial risk of
detriment to the child’s physical health, safety, protection,
and/or physical and emotional well-being,” and that there
were no reasonable means to protect A.T. short of removal.

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The court released A.T. to mother and granted father
monitored visits for a minimum of three hours per week,
noting that the visits would be “monitored right now,” but
that there would be “discretion to liberalize those visits”
before the next court hearing. The court maintained its
mutual “stay-away” order and ordered both parents to take
classes and enroll in counseling. Both parents timely
appealed.

DISCUSSION

A. Substantial Evidence Supports the
Dispositional Order3
“Before the court may order a child physically removed
from his or her parents, it must find, by clear and convincing
evidence, the child would be at substantial risk of harm if
returned home and there are no reasonable means by which
the child can be protected without removal.” (In re Hailey T.
(2012) 212 Cal.App.4th 139, 145-146.) When removal orders
are appealed, “the substantial evidence test remains the

3 Preliminarily, DCFS argues that mother has forfeited any
challenge to the disposition order because she failed to raise an
objection in the juvenile court. DCFS acknowledges, however,
that “mother almost exclusively joins in father’s arguments on
appeal without making any independent arguments of her own,
and this Court will nonetheless review the dispositional findings
and orders based on father’s appeal.” Because father’s right to
challenge the disposition order is undisputed, we need not decide
whether mother has forfeited her right to appeal that order.

11
appropriate standard of review, ‘bearing in mind the
heightened burden of proof.’” (Id. at 146.) “Also, we do not
pass on the credibility of witnesses, resolve conflicts in the
evidence or weigh the evidence. Instead, we review the
record in the light most favorable to the juvenile court’s
order to decide whether substantial evidence supports the
order.” (Id. at 146-147.)
Father argues the court erred in removing A.T. from
his custody because there was no evidence A.T. would be at
substantial risk in his custody, and because there were
reasonable means to protect A.T. short of removal.4 We
address each argument in turn.

4 Father also claims the “court did not state the basis for its
decision to remove [A.T.] from father’s custody” in violation of
Welfare and Institutions Code section 361, subdivision (e).
Though it is unclear what significance he attributes to this
alleged error, we note that immediately after finding that father’s
visits with A.T. should be monitored, the court expressly stated it
had reviewed the evidence and found “by clear and convincing
evidence that there is a substantial risk of detriment to the
child’s physical health, safety, protection, and/or physical and
emotional well-being.” As discussed below, substantial evidence
supports this finding. In any case, by failing to object below,
father forfeited any challenge to the court’s failure to state the
specific facts supporting its findings. (See In re S.B. (2004) 32
Cal.4th 1287, 1293 [“a reviewing court ordinarily will not
consider a challenge to a ruling if an objection could have been
but was not made in the trial court. [Citation.] The purpose of
this rule is to encourage parties to bring errors to the attention of
the trial court, so that they may be corrected”].)

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 1. Substantial Evidence Supports the
Finding of a Substantial Risk to A.T.
While father argues A.T. was not at risk because there
was no evidence father ever harmed the child, it is well
established that ongoing domestic violence occurring in the
presence of a minor constitutes substantial evidence
supporting a finding that returning the child to the parents
would pose a substantial risk to the minor. (See, e.g., In re
F.S. (2016) 243 Cal.App.4th 799, 812 [when four incidents of
domestic violence occurred in presence of minor, “the
juvenile court assuredly had before it sufficient evidence to
establish Mother was unable to provide proper care for
[minor] and [minor] would potentially suffer detriment if she
remained in Mother’s custody”]; In re T.V. (2013) 217
Cal.App.4th 126, 136 [when “the court removed [minor] from
[father]’s custody because the evidence showed the parents
engaged in a pattern of domestic violence, some of which
[minor] heard or saw . . . [¶] . . . [a]lthough [minor] had not
been physically injured and was otherwise healthy, the court
could reasonably find she was at substantial risk of harm as
a result of the parents’ ongoing domestic violence and there
were no reasonable means by which she could be protected
without removal”].) Here, the court noted the police report
stated mother had “reported there were four to five previous
unreported domestic violence incidents” and the court found
the police report credible. This pattern of domestic violence
constitutes substantial evidence supporting the court’s
finding of substantial risk. Moreover, while the court found

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DCFS had failed to meet its burden to show father had
physically abused A.T., “the minor need not have been
harmed before removal is appropriate. The focus of the
statute is on averting harm to the child.” (In re T.W. (2013)
214 Cal.App.4th 1154, 1163.)
Father cites In re Basilio T. (1992) 4 Cal.App.4th 155
for the proposition that two incidents of domestic violence
would be insufficient to justify removal of a child from a
parent’s custody. We are unpersuaded. In Basilio T., the
only evidence of danger was “two incidents of domestic
violence in which the police were called . . . [which]
presumably occurred in or near the minors’ presence . . . .”
(Id. at 171.) The instant case involved not just two isolated
incidents of domestic violence, but four or five previous
unreported incidents over the span of four years. Further,
not only did some of the mutual abuse “presumably occur[]
in or near” A.T.’s presence, in the latest incident, father
grabbed A.T. after choking and slapping mother and locked
himself and A.T. in his bedroom. While locked in his room
with the crying child, father yelled, “‘I have guns! Don’t try
me!’” Basilio T. is inapposite.

2. Substantial Evidence Supports the
Finding That There Were No
Reasonable Means to Protect A.T. Short
of Removal
Father argues A.T. would have been sufficiently
protected if, in addition to maintaining the parties’ mutual

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“stay-away” order, the court had also ordered father to
participate in the services prescribed in his case plan, and
provided for unannounced home visits by DCFS. We
disagree.
While both mother and father testified they were no
longer in a relationship, father had previously told DCFS
that mother was “always going to be my woman.” The court
was entitled to consider this statement when deciding
whether a mutual “stay-away” order would actually keep
father away.
Additionally, there is ample evidence of father’s refusal
to participate in services or cooperate with DCFS. During
DCFS’s initial investigation, father was uncooperative
toward DCFS personnel, refusing to meet with them to
discuss the allegations at any point during a four-week
period. Even after the court detained A.T., father refused a
certified letter from DCFS. When he finally met with DCFS,
he refused to discuss the allegations, “pleading the [Fif]th.”
Additionally, while the court found no evidence that father
ever struck A.T., father locked himself and the child in a
room when A.T. was crying, and told mother not to “try
[him]” because he had guns. Mother also expressed fear that
if she filed for custody of A.T., this would “start a war” with
father, and A.T. himself volunteered that father was “mean.”
Additionally, in objecting to the recommended case plan,
father insisted he “did not commit any of these allegations.”
“One cannot correct a problem one fails to acknowledge.” (In
re Gabriel K. (2012) 203 Cal.App.4th 188, 197.) On this

15
record, we conclude substantial evidence supports the court’s
determination that no means short of removal from father
were available to protect A.T. Ordering father to stay away
from mother, coupled with orders to attend classes and
permit unannounced DCFS visits, would have been
insufficient to protect A.T., in light of father’s expressed
belief that mother “was always going to be [his] woman,” his
denial of any incidents of domestic violence, and his history
of refusing to cooperate with DCFS’s efforts to ensure A.T.’s
welfare.

B. The Court Did Not Abuse Its Discretion in
Ordering Monitored Visits for a Minimum of
Three Hours Per Week
While Welfare and Institutions Code section 362.1,
subdivision (a)(1)(A), provides that in any disposition order,
“[v]isitation shall be as frequent as possible, consistent with
the well-being of the child,” “‘[t]he juvenile court has broad
discretion to determine what would best serve and protect
the child’s interest and to fashion a dispositional order in
accordance with this discretion. [Citations.] The court’s
determination in this regard will not be reversed absent a
clear abuse of discretion. [Citation.]’” (In re Neil D. (2007)
155 Cal.App.4th 219, 225.) “A court exceeds the limits of
legal discretion if its determination is arbitrary, capricious
or patently absurd. The appropriate test is whether the
court exceeded the bounds of reason.” (In re L.W. (2019) 32

16
Cal.App.5th 840, 851, citing In re Stephanie M. (1994) 7
Cal.4th 295, 318-319.)
Father argues the court abused its discretion in
permitting him only three hours of monitored visitation per
week, rather than more frequent, unmonitored visits. We
disagree.
In light of the incident in which father grabbed A.T.
and locked them both in a room while threatening mother
with the statement “I have guns! Don’t try me!” it was
reasonable for the court to insist that father’s initial visits
with A.T. be monitored. This is especially so because the
court specifically stated the visits were to be monitored
“right now,” but that there would be “discretion to liberalize”
them before the next court hearing.
Additionally, while father complains that visiting A.T.
for only three hours a week would be insufficient to
“maintain the parental relationship,” we note he made no
effort to see A.T. in the two-and-a-half months leading up to
the adjudication and disposition hearings. Indeed, despite
having been separated from A.T. since at least September
19, when asked in November if he wished to set up a
visitation schedule, he explicitly refused, stating he would
not visit A.T. in DCFS’s offices. Given father’s previous
refusal to visit A.T., we fail to see how the juvenile court
exceeded the bounds of reason in ordering visitation to start
with a minimum -- not maximum -- of three hours per week,
with discretion to liberalize.

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 DISPOSITION
The court’s orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

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