In re O.C. CA2/5

Filed 12/21/20 In re O.C. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re O.C., a Person Coming B304382
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 19CCJP07293A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

E.T.-C.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kim Nguyen, Judge. Affirmed.
Jill Smith, under appointment by the Court of Appeal, for
Defendant and Appellant.
Mary C. Wickham, County Counsel, Kim Nemoy, Acting
Assistant County Counsel, and Peter Ferrera, Principal Deputy
County Counsel, for Plaintiff and Respondent.

________________________
 INTRODUCTION
Mother appeals the juvenile court’s finding of detriment
and the resulting decision not to give mother custody of her six-
year-old daughter at disposition.1 We affirm because mother’s
history of failing to protect daughter supported the court’s
detriment finding.
FACTUAL AND PROCEDURAL BACKGROUND
1. Dependency History
Daughter has three older siblings who were declared
dependents of the juvenile court in 2010 as the result of father’s
history of substance abuse and mental and emotional problems.
Family reunification services were offered to father and the three
other children’s biological mother, N.D., but reunification was
unsuccessful. In November 2012, the juvenile court terminated
father’s and N.D.’s parental rights to the three older siblings, who
were then adopted.
Four months later, in March 2013, daughter was born to
father and N.D. In 2015, the juvenile court declared daughter a
dependent of the court after N.D. failed to comply with court-
ordered treatment.
Father met and married mother in 2015.2 In March 2016,
while father was receiving family reunification services to obtain

1 Mother is daughter’s presumed, not biological, mother. The
biological mother lost custody of daughter in 2017. We use
“mother” to refer to daughter’s presumed mother, the appellant
here. We refer to the biological mother by her initials. N.D.

2 Mother had a prior child welfare history in San Bernardino
County involving her biological children, who are now adults.
December 1993 allegations of physical abuse were deemed
unfounded. May 1996 allegations of general neglect and October
1996 allegations of physical abuse were substantiated. She did
not know father at the time of those events. Due to the passage

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custody of daughter, a referral was generated accusing father of
physical abuse and mother of general neglect. It was reported
that father had slapped daughter’s older half-sibling and that the
half-sibling saw father choke mother. The half-sibling later
denied seeing father assault mother. Allegations against mother
were deemed unfounded, and DCFS deemed the physical abuse
allegations against father to be inconclusive. No petition was
filed.
In 2017, the juvenile court terminated jurisdiction over
daughter, released her to father’s sole custody, and granted N.D.
supervised visitation.
2. Father’s Violence Toward Mother and Daughter
Daughter, father, and mother lived together as a family for
three and a half years. Daughter developed a close relationship
with mother and called her “mom.” During the marriage, father
became physically and emotionally abusive toward mother. On
one occasion when mother permitted her adult daughter’s
boyfriend to visit at the family home, father became angry,
grabbed mother, and threw her down. On other occasions, father
punched mother and attempted to suffocate her. Another time,
father grabbed the steering wheel of the car mother was driving
and tried to veer the car off the road. On another occasion,
shortly after mother had a medical procedure, father pushed
mother. In March 2019, with daughter present, father hit
mother in the back of her head.
Father was also violent toward daughter. He disciplined
her by spanking and hit her with a belt. The abuse caused
bruising. One time, father took a knife from the kitchen and put

of time, the Department of Children and Family Services (DCFS)
had limited information about mother’s prior child welfare
history.

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it near daughter’s head, threatening her. Mother was nearby
when this occurred but did not intervene.
Mother was aware that father was “ ‘bipolar and [had]
borderline schizophrenia,’ ” having gone with him to see his
psychiatrist. Mother knew father took his psychiatric medication
sporadically and was unable to care for daughter when he was
not on his medication. Mother understood that father had anger
management issues, mental health issues, and was unstable.
Father and mother separated in March 2019 due to father’s
mental health problems and domestic violence. After they
separated, daughter was left in mother’s care for a month, until
late March or early April 2019, at which time father took custody
of daughter.
On July 9, 2019, after father slashed mother’s tires and
threatened to blow up her car, mother obtained a one-year
restraining order against him. In August 2019, mother ignored
the restraining order to see daughter.
Over the summer and into the fall of 2019, father and
daughter were homeless, living in father’s car and in motels.
Sometimes, father took daughter to stores and bathed her using
sink water. During this period, mother often brought daughter
clothes, other personal necessities, and shoes.
3. DCFS Investigation
On October 28, 2019, DCFS received a referral that the
previous day father struck an individual with his vehicle while
daughter was with him. According to the report, father and
daughter were homeless, and daughter was hungry. When the
investigating social worker met with father at his motel, father
denied abusing substances but admitted to a history of drug use.
He declined to submit to drug testing. Father said he took
medication for anxiety and depression and soon would be

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obtaining housing. Father later admitted to relapsing and using
methamphetamine.
On November 8, 2019, DCFS received a referral that father
had been arrested for child abuse and resisting an officer. Law
enforcement reported father and daughter had been living in his
vehicle for more than one month. When a welfare check was
conducted, father was charged with resisting an officer.
Daughter reported that father spanked her.
On November 12, 2019, DCFS interviewed mother. She
reported father had hit her when he was having a manic episode
in March 2019, and he left their home. Mother stated father had
been diagnosed with bipolar disorder, attention-deficit
hyperactivity disorder, and schizophrenia. Mother explained that
she did not contact DCFS after father retrieved daughter from
her home because she was able to check on daughter. Her efforts
to provide for daughter included supplying daughter with clean
clothes and other necessities, and contacting relatives for
assistance in caring for daughter, without success.
In December 2019, mother denied knowing father and
daughter were homeless. She explained she did not bring them
food, but provided money to father for McDonald’s. When she
observed daughter in October 2019, mother thought daughter
had gained weight.
That same month, the biological maternal aunt (N.D.’s
sister) told DCFS that she was concerned about mother’s ability
to protect daughter. The aunt said mother had been aware father
and daughter were homeless for eight months as she had
provided food and clothes for daughter during that time. When
the aunt had seen mother in court, mother told her, “ ‘[father]
beat the shit out of me.’ ” Mother told the aunt that she had a
restraining order against father but removed it because she
wanted to see daughter. The aunt felt concerned that mother had

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not called the police or DCFS even though she knew father was
violent. The aunt said daughter had told her that father was
mean and had hit her and mother.
4. Section 300 Petition and Detention
On November 13, 2019, DCFS filed a Welfare and
Institutions Code section 300 petition alleging daughter was at
risk of serious physical harm as the result of father and mother’s
violence, father’s reckless driving with the child in the car which
included striking one or more individuals with his vehicle, and
father’s mental and emotional problems.3 The petition identified
only father as the offending parent.
At the November 14, 2019 detention hearing, the juvenile
court ordered daughter detained from parental custody. On
December 3, 2019, the juvenile court deemed mother to be
daughter’s presumed mother. Daughter was placed in the
biological maternal aunt’s home.4
5. Jurisdiction
Mother was and father was not present at the January 8,
2020 jurisdiction hearing. The juvenile court admitted the DCFS
reports into evidence and heard argument from counsel. The
court sustained an amended version of the section 300 petition,
including counts indicating father had been violent towards
mother in daughter’s presence and that his mental health issues
placed daughter at substantial risk of harm. The daughter’s
attorney reported daughter wanted to be released to mother’s
care. The court continued the disposition hearing to the next
week.

3 All subsequent statutory references are to the Welfare and
Institutions Code.

4 One of daughter’s biological siblings–an adult–lives in the
aunt’s home.

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 The following week mother enrolled in a domestic violence
program. On January 15, 2020, DCFS conducted a home
assessment of mother’s one-bedroom apartment, which appeared
clean and orderly. Mother reported that she last saw father in
juvenile court and prior to that, she had not seen him in “a
while.”
6. Disposition Hearing
At the January 16, 2020 disposition hearing, the juvenile
court received into evidence written confirmation that mother
had enrolled in a domestic violence program two days earlier.
Mother also testified at the hearing. She acknowledged
violating the restraining order in August 2019 because she
missed daughter and wanted to see how she was doing. Mother
testified her relationship with father was not healthy and
admitted to staying in an abusive relationship. She
acknowledged it was not a safe environment for her or daughter.
She testified to father’s violent acts which we have already
summarized. Mother explained that daughter was present only
at the March 2019 incident at which father struck mother in the
back of the head.
Mother testified she had not attended any treatment
programs during the time she was in a relationship with father
but was now enrolled in a domestic violence program. She
needed to heal so she would not enter into another violent
relationship. If father called her today, she would not answer the
phone.
Mother believed it was healthy for daughter to continue to
have a relationship with father. Mother denied knowing that
daughter and father had been homeless or living in father’s car.
She said she would have called child welfare services if she had
known they were homeless.

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 Mother also testified that prior child abuse allegations were
made against her in San Bernardino in 1996, but her children
were never removed from her custody. Mother said she presently
had a one-bedroom apartment where daughter could live with
her. Mother planned for her and daughter to eventually live with
mother’s older children. She would continue to allow daughter to
see the biological maternal aunt as they had an established
relationship.
Daughter’s attorney argued that daughter was conflicted –
she was comfortable living with the biological maternal aunt but
also wanted to be released to mother. Daughter’s attorney
expressed concern about reunification with mother if daughter
was placed with the maternal aunt. She explained the maternal
aunt was very against father having contact with daughter and
considered mother “guilty by association.”
Mother’s counsel argued there was no evidence mother was
having contact with father and urged the court to give greater
weight to mother’s statements than those of the maternal aunt.
DCFS stated it disbelieved mother’s statement that she did not
know father and daughter had been homeless.
The juvenile court declared daughter a dependent child and
ordered her removed from father’s custody. The court denied
mother’s request for custody, made a finding of detriment by
clear and convincing evidence under section 361.2 with respect to
mother, and found there were no alternative measures the court
could implement to avoid removal. The court reasoned:
“There’s ample evidence that there’s been
ongoing domestic violence between [father and
mother]; that [mother] did not take adequate safety
measures to protect [daughter] from this domestic
violence. She indicates that it all happened behind
closed doors, but for the very last incident, which

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 [daughter] clearly witnessed. But simply because it
takes place behind closed doors, I don’t think obviates
the need to protect the child.
“[Mother] went and got a restraining order, but
she herself testified she violated the restraining
order. I also did not find credible the testimony that
she did not know [daughter] was homeless with the
father because the detention report indicates on page
11 that, per [mother], she did not contact [child
welfare services] because she was checking in on the
child with the father, provided the child with clean
clothes and [other necessities], thus indicating she
understood the child was in a dire situation.
“So I do have concerns, serious concerns about
[mother’s] protective capacity, the ability to draw
boundaries with the father at this juncture. Given
her violation of [the] restraining order that she
herself sought. And while I think it is promising
she’s in domestic violence [treatment], I see the
enrollment as early as January of this year, and I
just think, based on the long-standing domestic
violence, [DCFS] has met their burden by clear and
convincing evidence . . . .”
The juvenile court ordered family reunification services for
both parents, and specifically for mother to attend individual
counseling, domestic violence treatment for victims, and
parenting classes. The court stated any concern about the
biological maternal aunt thwarting reunification was a separate
issue from the question of detriment posed by mother and could
be addressed if it became an issue. The court set a progress
hearing to address any reunification concerns, as well as a date
for the six-month review hearing.

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 Mother appealed.
DISCUSSION
Mother contends the evidence does not support the juvenile
court’s order declining to place daughter in her custody. When a
child is removed from parental custody (here, father’s), if a
noncustodial parent (here, presumed mother) requests custody,
the juvenile court must place the child with that parent unless it
finds by clear and convincing evidence that placement with the
parent would be detrimental to the safety, protection, or physical
or emotional well-being of the child. (§ 361.2, subd. (a); In re K.B.
(2015) 239 Cal.App.4th 972, 979.)
“The standard of proof known as clear and convincing
evidence demands a degree of certainty greater than that
involved with the preponderance standard, but less than what is
required by the standard of proof beyond a reasonable doubt.
This intermediate standard ‘requires a finding of high
probability.’ ” (Conservatorship of O.B. (2020) 9 Cal.5th 989,
998.) When “the clear and convincing standard of proof [is]
applied in the trial court, an appellate court should review the
record for sufficient evidence in a manner mindful of the elevated
degree of certainty required by this standard.” (Id. at pp. 1000–
1001.)
Here, substantial evidence supported the juvenile court’s
detriment finding. Mother remained in an abusive relationship
with father for years despite the physical risk posed to daughter.
Although daughter may have only witnessed a single incident of
domestic violence, daughter’s proximity to that violence placed
her in danger. “ ‘[D]omestic violence in the same household
where children are living . . . is a failure to protect [the children]
from the substantial risk of encountering the violence and
suffering serious physical harm or illness from it.’ [Citation.]
Children can be ‘put in a position of physical danger from [adult]

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violence’ because, ‘for example, they could wander into the room
where it was occurring and be accidentally hit by a thrown object,
by a fist, arm, foot or leg. . . .’ ” (In re E.B. (2010) 184 Cal.App.4th
568, 576, disapproved on other grounds in Conservatorship of
O.B., supra, 9 Cal.5th at p. 1003, fn. 4.) Even after obtaining a
restraining order to protect herself from father’s violence, mother
ignored the order and continued to contact father.
Mother also witnessed father’s violence toward daughter
and did not act to protect daughter from it. Father spanked
daughter, hit her with a belt, and threatened her with a knife in
front of mother. Mother also failed to notify DCFS when father
and daughter were homeless, knowing at that time, father was
not taking his psychiatric medications (which mother admitted
were necessary for father to properly parent). Mother argues she
“did the best she could do under the limiting and restrictive
circumstances.” The trial court reasonably found otherwise. The
record shows mother did not protect daughter from father and
that she facilitated his endangering conduct by not alerting
DCFS.
Although mother argues that “the juvenile court’s
supervision was the precise safety measure needed to allow
[daughter] to remain with Presumed Mother,” the record shows
that mother continued to ignore court orders by contacting father.
Even after DCFS became involved, mother maintained contact
with father. DCFS reported that when mother did not have a
visit with daughter around Thanksgiving, father called DCFS
and spoke to a supervisor asking for an explanation. DCFS
expressed concern that father knew what was occurring with
mother and that they were continuing to communicate despite
mother’s active restraining order against father. Substantial
evidence supported the trial court’s conclusion that no measures

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other than placement with maternal aunt would protect
daughter.
DISPOSITION
The court’s dispositional order is affirmed.

RUBIN, P. J.
WE CONCUR:

BAKER, J.

MOOR, J.

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