In re D.H. CA2/4

Filed 2/9/21 In re D.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 D.H., et al., Persons Coming B304553
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. Nos. 19CCJP08271
AND FAMILY SERVICES, 19CCJP08271B, 19CCJP08271C)

Plaintiff and Respondent,

v.

J.H.,

Defendant and Appellant.

In re K.C., a Person Coming Under B305896
the Juvenile Court Law.
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN (Los Angeles County
AND FAMILY SERVICES, Super. Ct. Nos. 19CCJP08271,
19CCJP08271A, 19CCJP08271B
Plaintiff and Appellant, 19CCJP08271C)

v.

J.H. et al.,

Defendants and Respondents.
 APPEAL from orders of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Appellant, Defendant and Respondent, J.H.
Mary C. Wickham, County Counsel, Kim Nemoy, Assistant
County Counsel, and William D. Thetford, Deputy County
Counsel, for Plaintiff, Appellant and Respondent.
Pamela Deavours, under appointment by the Court of
Appeal for Defendant and Respondent, C.V.

INTRODUCTION
Father Jose H. appeals findings of jurisdiction over his two
sons under Welfare and Institutions Code section 300,
subdivision (b)(1),1 and related disposition orders. Father’s 11-
year-old stepdaughter, K., stated that father engaged in
inappropriate behavior that included randomly slapping her
buttocks, and touching her leg and buttock while she slept. The
Los Angeles County Department of Children and Family Services
(DCFS) filed a petition seeking jurisdiction over all three
children on the basis that father sexually abused K., and the
children’s mother failed to protect them. The juvenile court held
that father’s actions did not support a finding of sexual abuse
under section 300, subdivision (d), amended the language of the
petition to state that father made “inappropriate contact and
failed to recognize appropriate boundaries,” and sustained
jurisdiction for all three children under section 300, subdivision
(b)(1). Both father and DCFS appealed, and we consolidated the
appeals.

1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.

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 In his appeal, father does not challenge jurisdiction as to
K., but he asserts that substantial evidence does not support a
finding of jurisdiction over his sons because his treatment of K.
did not place the boys at risk. We find that substantial evidence
supports the jurisdiction order. Father further asserts that the
juvenile court erred in its disposition orders by removing the boys
from his care, requiring monitored visitation, and requiring
father to complete a sexual abuse education program for
offenders. We find no error in the court’s disposition orders.
DCFS asserts in its appeal that the trial court erred in
amending the petition to remove allegations of sexual abuse,
because the evidence supported a finding that father’s treatment
of K. amounted to sexual abuse. In light of the high burden on
such an appeal—requiring a showing that the court was
compelled to make such a finding as a matter of law—we find
that DCFS has not met its burden. We therefore affirm the
jurisdiction and disposition orders.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
On December 5, 2019, DCFS received a referral for general
neglect and sexual abuse. The referral stated that after K.
turned 11 years old in March 2019, father (K.’s stepfather) “has
slapped her on the butt about 5 times” over her clothing.2 About
three months earlier, K. woke up to find that father was rubbing
his hand up her leg. The reporter stated that when K. told
mother about that incident, “her mom said she was just having a
dream.” When K.’s grandmother witnessed one incident, she
“kicked [father] out of the home,” but mother “allowed him to

2Mother reported that she and K. did not have a
relationship with K.’s father. He is not a party to this case.

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move back in the home.” K. stated that she felt safe at home
because her grandmother was there, but “[K.] reported her
grandmother and mother have been fighting so her grandmother
may be moving out of the home, possibly today.”
A children’s social worker (CSW) went to K.’s school and
spoke with the school psychologist and principal. The
psychologist stated that K. was brought into his office on
November 22, 2019 because she had been cutting herself on the
arm with scissors. K. attributed the cutting to problems with
father. K. stated that father makes her do a lot of chores around
the house, and mother always sides with father. K. denied that
anyone touched her inappropriately.
When the psychologist asked K. again on December 4, 2019
if anyone touched her inappropriately, K. said “yes,” and reported
that father had slapped her on the butt five times. K. said she
did not tell the psychologist earlier because she was “scared
about what will happen to her family.” K. said it feels
“inappropriate” when father slaps her, and “the way he ([father])
looks at her is wrong.” K. stated that on one occasion, father
purposely “threw [K.’s] clothes on the floor in order for [K.] to
bend over and he slapped her buttocks.” K. also told the principal
that “3 months ago [father] rubbed her leg up to the buttocks”
while K. was asleep. When K. told her mother about it, mother
asked if she was dreaming. K. said she felt safe in the home
when maternal grandmother was there, but if maternal
grandmother moved out, K. would be alone with father five
nights a week while mother worked. The psychologist told the
CSW that he was concerned father “will continue to do this. I
don’t know how far it has gone. It feels inappropriate thus far.”

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 The CSW spoke with K. on December 10, 2019. K. reported
that she lived with mother, father, and her two half-brothers
(father’s sons), five-year-old D. and one-year-old J. Maternal
grandmother had moved out of the home. K. told the CSW that
father “randomly” spanks her on the buttocks when she walks by
him, which is “uncomfortable.” K. said that father did not spank
her when she was younger, “but now that I’m bigger, he started
doing it.” K. felt that the spanking was done “in a sexual
manner.” K. reported that in August 2019, she had been asleep
when she felt father “rub from the bottom of her leg up to her
buttocks; [K.] stated she was wearing small shorts when this
occurred. [K.] stated she woke up and slapped his hand as he was
rubbing her buttocks.” Father asked why K. had slapped him,
and K. responded that it was because he was touching her. K.
said she began crying because she did not know what to do.
When mother came home and K. told her about the incident,
mother asked K. if she had been dreaming. When mother saw
that father’s hand had red marks from K.’s rings hitting him
when she slapped him, mother kicked father out. Father began
visiting the home again between August and November 2019,
however, and moved back into the home in November 2019.
K. told the CSW that she started cutting herself after
father returned to the home and father “wouldn’t leave me
alone.” K. said father “would continuously tell her to do chores
‘again and again’ while she was doing her homework.” K. said
father did not make sexual comments to her, but three times he
had looked at her “from head to toe” in a way that made K.
uncomfortable. K. said she told mother about it, and mother told
father to stop. K. said she was “scared” that father would
attempt to touch her again.

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 The CSW spoke with five-year-old D. at his school. The
CSW noted that D. had a speech delay, his speech was limited,
and he conveyed some information through gestures. D. said
mother and father discipline him by spanking with an open hand.
D. “stated his father ‘hits’ him ‘hard.’” D. denied being afraid of
mother or father. He also said he never saw father spank K. D.
said he had never been touched inappropriately. The CSW also
observed one-year-old J. and did not note any concerns.
The CSW visited the family’s home and spoke with mother.
Mother said she did not spank the children, but she did not know
how father disciplined the children while she was at work.
Mother said her eight-year relationship with father had its “ups
and downs,” but she denied that they had any physical
altercations in front of the children. Mother said that father
sometimes cursed at the children, and she “needs to work on how
he talks to me and the kids.” Mother was aware of K. cutting
herself, and said K. did it “due to needing ‘attention.’” Mother
was not aware of any other incidents in which K. cut herself.
Mother said K. had just told her that day that father
spanked her buttocks and it made her feel uncomfortable. The
CSW asked mother if K. told her about father touching her leg
and buttocks while she was asleep, and mother initially said, “I
don’t know.” Then mother recalled that K. said something about
father touching her leg, but father had denied it. Mother stated
that father “wouldn’t do that,” and she wanted to know “both
sides” of the story. Mother said K. told her about the incident
two or three weeks after it occurred, and mother said she did not
kick father out of the home based on the incident. Mother said
she told K. not to wear shorts when she sleeps.

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 Two CSWs later spoke with father at the home. Father
told the CSWs it was the first time he was hearing about K.’s
allegations. But he also said that he had already told mother
that he did not touch K. When one CSW “asked how this came
up as [father] previously reported not ever hearing about any
sexual abuse,” father was “evasive but stated that [K.] had
previously accused him of touching her while she was sleeping.”
Father denied any touching, and said that because he never slept
in the bedroom, he could not have touched K. Father also told
the CSWs that “he was sure allegations were coming from
maternal grandmother,” because he is Mexican and she is
prejudiced against Mexicans. Father stated that maternal
grandmother “puts things in [K.’s] head, like that I’m not her
father and things like that.”3 Father also said that K. did not
want him in the home because “he is strict with her and tries to
make her do chores.”
The CSW also spoke with maternal grandmother on
December 10, who “reported that she did have concerns about
inappropriate behavior towards [K.] from” father. Maternal
grandmother said that when she was at the home about a month
earlier, she heard a slap sound from kitchen, where K. and father
were. Maternal grandmother later asked K. about the sound,
and she said father spanked her on the butt. Maternal
grandmother said father did not say anything at the time, and K.
was not misbehaving. K. told maternal grandmother that father
“always does that.” Maternal grandmother told the CSW that
she “felt this was inappropriate as [K.] is a young lady and it is

3Father spoke with the CSW in Spanish; this quote is the
English translation of father’s statement as it is written in the
detention report.

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not okay for her to be spanked on the butt by a man.” When
maternal grandmother spoke with mother about it, mother
accused maternal grandmother of misinterpreting the situation.
The CSWs and the family agreed on a safety plan to have
K. stay with a neighbor and ensure no contact between K. and
father. DCFS stated that the “family can be categorized as being
at ‘High Risk’ for future abuse due to [father] sexually abusing
[K.], [father’s] lack of insight, and the young age of the children.”
The detention report also stated that “there are concerns of at
risk [sic] sibling abuse of children [D.] and [J.] as the children are
at such young and vulnerable ages, where they are unable to
protect themselves from any abuse and/or neglect.” DCFS noted
that father was the only adult at home with the children in the
evenings, and he “has a lack of insight and recognition there is a
problem which places the children [D.] and [J.] at risk of suffering
emotional or physical harm.” DCFS then obtained a removal
order that included D. and J. Father agreed to leave the home,
and maternal grandmother moved into the home to help care for
the children. DCFS noted that mother was “willing to receive
services, comply with court orders and to protect the children.”
DCFS filed a petition under section 300, alleging one count
each under subdivisions (b)(1) (section 300(b)(1)), (d) (section
300(d)), and (j) (section 300(j)). Section 300 states that
jurisdiction over a child is appropriate when the “child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child” (section 300(b)(1)); when the child has been
sexually abused or there is a substantial risk that the child will
be sexually abused (section 300(d)); or if the child’s sibling has

8
been abused or neglected (section 300(j)). The three counts in the
petition—count b-1, d-1, and j-1—each had identical language
alleging that father “sexually abused [K.] by slapping and
fondling the child’s buttocks. On a prior occasion, [father] rubbed
and fondled the child’s leg to the child’s buttocks.” The three
counts further alleged that mother “knew of the sexual abuse” of
K., allowed father unlimited access to K., and failed to protect K.
The petition alleged that father’s sexual abuse of K. and mother’s
failure to protect placed all three children at risk of physical
harm and sexual abuse.
At the detention hearing on December 31, 2019, father
requested a home-of-parent order for D. and J., stating that there
was no risk to them. Minors’ counsel opposed father’s request,
noting that the alleged touching while K. slept “took place in the
room where they were all sleeping together,” which “shows a
disregard to the fact that his younger children were also present
in the room.” Counsel for DCFS agreed “that the sexual abuse
took place in the presence of the other minors,” and requested
that father’s visitation with the younger children be monitored.
The juvenile court found a prima facie case for detention, and
ordered that the children be detained from father and remain in
the home of mother. The court ordered monitored visitation for
father with D. and J., and ordered no contact between father and
K.
B. Jurisdiction and disposition
The jurisdiction/disposition report dated January 31, 2020
stated that the three children were living with mother. K.
confirmed her earlier allegations about father slapping and
touching her. Mother told K. she believed her, which made K.
feel supported and safe. D. stated that he never observed father

9
spank or touch K. D. denied any inappropriate contact involving
him. J. was too young to give a statement. Maternal
grandmother confirmed that she heard father slap K. from the
other room, and said she was not aware of any other
inappropriate conduct by father.
Mother said that K. told her about the incident in which
she awoke to find father touching her just after it happened, and
in response, mother made father leave the house that day.
Mother and father said that they had been separated since March
2019, but father had continued caring for the children while
mother worked in the evenings. Mother said she did not intend
to reunify with father, but she wanted him to maintain a
relationship with D. and J.
Father denied ever touching K.’s legs. He admitted
slapping K. on the butt three times in one day, but said it was
playful, not sexual. Father said he was disappointed that K.
misinterpreted his actions, and suggested that she “made up lies
because she is sad she doesn’t get attention like” D. and J.
DCFS recommended that the petition be sustained and the
children be declared dependents of the court under section
300(b)(1), (d), and (j). It also recommended that mother be
provided family maintenance services, including a parenting
program, individual counseling, and a sexual abuse awareness
program. DCFS further recommended that father be provided
enhancement services including a parenting program, individual
counseling, and a sexual abuse program for perpetrators.
Before the disposition hearing, father submitted a trial
brief asserting that even if the allegations regarding K. were
found true, there was no “nexus between the allegations and
substantial risk to father’s biological children,” D. and J. DCFS

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filed a response, asking the court to find jurisdiction over D. and
J. under section 300, subdivisions “(b), (d) and/or (j) as the court
deems appropriate.”
The jurisdiction and disposition hearing was held on
January 31 and February 3, 2020. K. testified in chambers. K.
said that after she turned 11 years old, father got into “a habit . .
. of slapping me on my butt randomly.” K. recounted an incident
in which father threw K.’s clothing on the floor, and when she
“turned around and bent over” to pick the clothes up, “he slapped
me.” K. said, “I was, like, why? Because there was no reason.” K.
said father never slapped her in front of other family members,
“but my grandma did hear once when we were in the kitchen.” K.
said father told her once not to tell mother that he slapped her
butt; K. said she told mother anyway. K. also testified that she
was always clothed when father slapped her.
K. testified that in another incident, “I was sleeping, and I
woke up to his hand rubbing my leg, like, it was going up my leg.”
K. said father’s hand moved from her ankle to the right side of
her buttocks. K. woke up and hit father, and a ring on her hand
left a mark; father then asked K. why she hit him. K. said she
“was upset because he was touching me,” and told mother when
she came home. Father did not do that again. K. testified that
her brothers were on the bed at the time of the incident.
K. testified that in another incident about a month later,
she had been watching television in the bedroom, and she got up
to use the restroom. When she returned to the bedroom, father
“grabbed me and threw me on the bed. He was on top of me, and I
bit him.” K. testified that father was on his knees over her, and
she bit father on his right shoulder through his t-shirt. Father
began yelling at K. for biting him; J. was asleep on the bed at the

11
time, and he woke up when father began yelling. D. was also in
the bedroom at the time. When mother came home and saw the
mark on father’s shoulder, father told mother that something hit
him at work. K. then told mother that she bit father after he
threw her on the bed.
K. testified that she spoke with the adults at her school
because after father came back to the home, she “was scared he
was going to do something more.” K. stated that she had started
cutting herself on her arm because “I was stressed out, and I was
scared.” K. stated that mother kicked father out of the house
multiple times in 2019. K. said that “there was always times
when [mother] would kick [father] out; he’d come back. So it was
just like that.”
Father testified that at the time of the biting incident,
mother had an emergency relating to her asthma and needed to
go to the hospital; father left work to care for the children while
mother went to the hospital with maternal grandmother. Father
and K. got into a disagreement over which television channel to
watch and whether K. could use father’s phone. Father testified
that K. physically tried to take the remote control from him, and
when she could not get it, she bit him on the left side of his chest
near his shoulder. Father testified that D. and J. were in the
bedroom at the time; J. did not wake up and D. did not react.
Three days later, mother saw the bite mark and asked what
happened; father said he got injured at work. Father said he told
mother this so K. would not get punished. Later, mother
confronted father with K.’s version of the story—that father had
gotten on top of K.—and father said that was not true.
On cross-examination, father admitted that he slapped K.’s
buttocks, but said he was only “playing around.” Father

12
explained that while playing tag, K. “smacked me on the butt. I
thought we were playing around, so I hit her twice. We kept
playing and I think the third time I hit her, she got upset.”
Father said he did not recall hitting K. when maternal
grandmother could hear it. Father also denied touching K. while
she was asleep.
Counsel for DCFS argued that K.’s testimony was credible,
and there was sufficient evidence to sustain the petition as it
related to K. As to the other children, counsel for DCFS asserted
that the boys were present when father acted inappropriately
with K., and asked that the court find jurisdiction under section
300(b)(1), (d), or (j). Minors’ counsel asked the court to sustain
the allegation under section 300(d) based on K.’s testimony.
Minors’ counsel also asked the court to sustain the petition as to
D. and J. because they were in the room at the time the incidents
occurred.
The court noted that the other children were asleep during
the incident in which K. woke up with father touching her leg,
and asked, “How should the court analyze the (j) count?” Minors’
counsel stated that “[f]ather’s behavior is brazen,” and he always
gave an alternative explanation to K.’s story. Minors’ counsel
also stated that the court was not required to wait until father’s
behavior worsened before taking jurisdiction over the children.
Father’s counsel argued, “[T]his is not a (d) case. This is a
story about a child not liking her stepfather.” Father’s counsel
noted that K. said she did not want father in the home, and “the
desire to not have the stepfather in the home is the driving force
in this case.” She asserted that K.’s allegations did not amount to
sexual abuse. Father’s counsel argued that DCFS was required
to show that the Penal Code had been violated before the court

13
could sustain an allegation under section 300(d), and asserted
that there was no indication that father was motivated by sexual
gratification. The court asked father’s counsel, “Well, would it be
anything other than sexual gratification to go into the room at
night, put your hands on the leg all the way up to [the] buttocks?
Is there a legitimate purpose other than that?” Father’s counsel
suggested that perhaps father was simply waking K. by touching
her leg. Father’s counsel also argued that there was insufficient
evidence to sustain the count under section 300(j) as it pertained
to D. and J. Father’s counsel argued that D. and J. “have been
appropriately cared for and have not had any inappropriate
contact, abuse, or even neglect from the father.” Mother’s counsel
asked that mother be stricken from the petition, or that the
petition be amended to state that mother was unable to protect
the children due to her financial reliance on father.
The court took the issue under submission and ordered the
parties back the following court day, Monday, February 3. On
that day the court stated its decision on the record, noting that
there had been “[o]ne touch to the leg and buttocks, five slaps to
the buttocks, [and] the biting incident . . . . [I]s this egregious?
No. Is it appropriate? No.” The court noted that father slapped
K. “so hard” one time that maternal grandmother could hear it in
the other room, and “[t]hat does not sound as if he’s doing this for
sexual arousal, but instead something else is going on in terms of
his conduct, which I can only describe as being inappropriate and
the kind of conduct that suggests that he doesn’t recognize proper
boundaries. But I think it’s a bit of a leap to say this is a (d)
count; it’s not.”
The court then discussed whether there was a risk to D.
and J., stating, “I think that there’s a risk, but not the risk that is

14
referenced in I.J.,[4] which talks about the risk of sexual abuse,
but risk that he does not recognize that there’s a point in the
children’s age when what he may think is appropriate becomes
something inappropriate. So with all of that considered, the
court is going to dismiss the (j) count – I don’t think the totality of
the circumstances supports that – as well as the (d) count. But
the (b) count needs to be amended because I think what we have
here is inappropriate contact with this minor, who is 11, and
father not recognizing appropriate boundaries.” The court
continued by noting that some of father’s inappropriate behavior
occurred in front of D. and/or J., which was “concerning about
whether he recognizes what those boundaries should be. And I
don’t know that he would necessarily recognize it any better
between biological and non-biological.” The court also stated that
it would be appropriate to sustain the (b) count as to mother,
because mother left the children with father even after she knew
father and K. were having issues.
The court therefore sustained the petition under section
300(b)(1), amended to state, “On October 2019 and on prior
occasions [father] made inappropriate contact and failed to
recognize appropriate boundaries of the child [K.] by slapping the
child’s buttocks and touching the child’s leg in an inappropriate
manner. The mother knew of the inappropriate contact and
failure to recognize appropriate boundaries of the child [K.],
mother and [father] failed to protect the child in that mother
allowed [father] to provide child care and have unlimited access
to the child. The inappropriate contact and failure to recognize
appropriate boundaries of the child [K.] by [father] and the
mother’s failure to protect the child endanger the child’s physical

4In re I.J. (2013) 56 Cal.4th 766 (I.J.).

15
health and safety and place the child and the child’s sibling[s],
[D. and J.,] at risk of physical harm, damage, danger and failure
to protect.”
The court proceeded to disposition. Father’s counsel
asserted that father should not have to complete a program
regarding sexual abuse for perpetrators. Father’s counsel also
asked that the court enter a home-of-parent order for father as it
related to D. and J., or that father have unmonitored visitation
with D. and J. The court said, “I’ll tell you what my concern is: I
found inappropriate contact.” The court noted that father’s
behavior “was percolating,” and stated, “My concern is not just
[K.], but the two other children, and understanding what’s in
bounds and what’s not in bounds. . . . I don’t want to ignore the
issue and have it become a situation that years down the road . . .
father engages in similar conduct.”
The court asked DCFS’s counsel for his thoughts, and
counsel stated, “I’m not sure what to make out of the court’s
ruling as far [as] whatever it is [K.] said happened in that
bedroom when he came in; she said he touched her leg all the
way up to the butt. How that can be anything other than sexual
contact[?]” The court interrupted, and stated, “I’ll tell you why.
Because I found disparities in both of their versions that made it
may [sic] hard to reconcile,” and DCFS had not met its burden on
the issues where the parties’ testimony disagreed. Counsel for
DCFS stated that he understood, and said, “[T]he department’s
recommendation for the [sexual abuse] program is, I think,
consistent with the court’s ruling.” The court responded, “I
agree.”
Mother’s counsel stated that she did not oppose the home-
of-parent order for father. Minors’ counsel stated that K. did not

16
want “to keep her brothers separate from their dad,” and counsel
would have no objection to a home-of-parent order for father “as
long as father is participating in the programs that the court is
ordering.” Minors’ counsel also asked that father be ordered to
complete a sexual abuse education program, but “whether that
necessarily has to be labeled ‘for perpetrators,’ I’ll leave that to
the court.”
Father’s counsel again asserted that father should not be
ordered to enroll in a program for sexual abuse perpetrators, and
asserted that father’s issues with “inappropriate boundaries”
could be addressed through parenting classes. Father’s counsel
stated that the court was “wondering is there going to be some
kind of problem with the boys,” and stated that there was “no
evidence” of an issue. The court stated that the biting incident
“happened in front of one of his children. That’s a cause for
concern.” Father’s counsel noted that “the boys are attached to
father,” and the court responded, “That doesn’t allay the concern;
it heightens it in many respects. Because it normalizes behavior
that I found inappropriate.”
The court held that placing D. and J. in father’s home
would be contrary to the children’s welfare. The court found by
clear and convincing evidence that there would be a substantial
danger to the physical health, safety, and well-being of the
children if they were returned to father’s care. The court
therefore ordered that the children remain in mother’s home,
ordered that father’s visits be monitored, and allowed DCFS
discretion to liberalize visitation. The court ordered father’s case
plan to include sex abuse counseling for perpetrators. Father

17
timely appealed. DCFS also timely appealed.5 We granted
DCFS’s request to consolidate the two cases.
DISCUSSION
In his appeal, father does not challenge jurisdiction under
the amended b-1 count as it pertains to K.6 However, he asserts
that the court erred in four respects: (1) by exercising
jurisdiction over D. and J. due to finding of a serious risk of
harm, (2) by removing D. and J. from father’s custody, (3) by
requiring father’s visitation with D. and J. to be monitored, and
(4) by requiring father to participate in sexual abuse counseling
for perpetrators.
In its appeal, DCFS asserts that the trial court erred by
amending the b-1 count and dismissing the d-1 and j-1 counts. It
contends that the court’s questions and statements at the
jurisdiction and disposition hearing made clear that the court
found that father’s treatment of K. constituted sexual abuse, and
therefore that the case issues to be addressed include sexual

5Mother did not appeal. In her respondent’s brief to father’s
appeal, she states that she joins the contentions asserted in DCFS’s
appeal.
6Father makes clear in his opening brief that his appeal

“only concerns [D.] and [J.],” not K. Nonetheless, in his
respondent’s brief filed in DCFS’s appeal, father asserts that he
“maintains that the dependency petitions should have been
dismissed in their entirety,” and argues there was insufficient
evidence to show “that any of the children were at substantial
risk of serious physical harm, as required under section 300,
subdivision (b)(1).” A jurisdictional finding may not be
challenged by way of a respondent’s brief in another party’s
appeal; father forfeited any such argument by failing to raise it in
his opening brief. We therefore treat jurisdiction over K. as
conceded.

18
abuse. DCFS asks that the matter be remanded with directions
to sustain the petition as alleged.
We address father’s contentions first, then DCFS’s. We
find that neither party has demonstrated error, and affirm the
jurisdiction and disposition orders.
A. Father’s appeal
Father asserts that the juvenile court’s jurisdiction and
disposition orders were not supported by substantial evidence.7
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court's determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (I.J.,
supra, 56 Cal.4th at p. 773.)
1. Jurisdiction over D. and J.
Father asserts that there was insufficient evidence to
support the court’s finding that D. and J. were at risk of serious
physical harm. Father contends that “it was not shown that [D.]

7DCFS asserts that father challenges the facial sufficiency
of the amended petition, but that his contention is forfeited
because he did not challenge the petition in the juvenile court. In
his reply brief, father makes clear that his challenge is to the
sufficiency of the evidence supporting the court’s orders, not the
facial sufficiency of the petition.

19
and [J.] were at risk of serious physical harm as a result of any
merely inappropriate behavior between Father and [K.].”
As noted above, jurisdiction under section 300(b)(1) is
appropriate when the “child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of his or her parent
or guardian to adequately supervise or protect the child.”
(§ 300(b)(1).) “[T]he court need not wait until a child is seriously
abused or injured to assume jurisdiction and take steps necessary
to protect the child. [Citation.] The court may consider past
events in deciding whether a child presently needs the court’s
protection. [Citation.] A parent’s ‘“[p]ast conduct may be
probative of current conditions” if there is reason to believe that
the conduct will continue.’” (In re Christopher R. (2014) 225
Cal.App.4th 1210, 1216.)
Father asserts that there was “no evidence whatsoever”
that his “making inappropriate contact and failing to recognize
appropriate boundaries with [K.] caused [D.] and [J.] serious
physical harm, or placed the boys at substantial risk of serious
physical harm.” Father asserts that “[K.] herself did not suffer a
serious physical harm” because father’s spanking her only made
her “uncomfortable,” but did not hurt her.
We disagree that there is no evidence of a serious risk of
harm. First, with respect to K., father ignores the fact that K.
came to the attention of school staff, and ultimately DCFS,
because she was cutting herself with scissors, which she
attributed to the stress of being exposed to father’s inappropriate
touching. K. told the social worker and school staff that she felt
safe in the home when maternal grandmother was there, and
that she did not feel safe with father. K. also told the CSW and

20
court that when she awoke to find father touching her buttocks,
she hit father hard enough for her rings to leave marks on him,
and that she cried and told mother about the incident. K.
testified that when father grabbed her and pinned her to the bed,
she bit his shoulder hard enough to leave a mark. Thus, the
evidence shows that when K. was exposed to father’s
inappropriate behavior, she was distressed enough to harm
herself, to seek help from other adults in her life, and to attempt
to defend herself with force. Moreover, “[i]t may be inferred from
the fact of a lewd touching that the victim suffered serious
physical harm.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 398.)
Although the court found that father’s behavior did not quite rise
to the level of a lewd touching, it was not obligated to wait for
further physical harm to occur before finding that K. was at risk.
As for the younger children, the evidence demonstrated a
risk of harm to them as well. “‘[C]ases finding a substantial
physical danger tend to fall into two factual patterns. One group
involves an identified, specific hazard in the child’s environment
— typically an adult with a proven record of abusiveness.
[Citations.] The second group involves children of such tender
years that the absence of adequate supervision and care poses an
inherent risk to their physical health and safety.’” (In re Drake
M. (2012) 211 Cal.App.4th 754, 766-767.) The evidence here
supports both patterns. The trial court found that father’s
behavior with K. was inappropriate enough to support
jurisdiction as to K., and father has not challenged that finding
on appeal. K. testified that D. and J. were present when father
touched her while she slept and during the biting incident.
Exposing children to a situation in which one sibling is being
touched inappropriately by an adult, causing that child to feel the

21
need to defend herself with physical violence, places small
children at risk of harm.
Furthermore, father’s inconsistent statements to the social
worker about K.’s accusations (for example, saying he had never
heard of the accusations, and then saying he had already denied
them to mother), his failure to acknowledge that he breached
appropriate boundaries with K., and his lie to mother about the
bite mark on his shoulder indicated that father was not able or
willing to address the issues that led to DCFS involvement. In
addition, D. told the social worker that father hits him “hard,”
indicating that father might already be breaching appropriate
boundaries with D. Moreover, D., age five, had a speech delay
that made it difficult for him to communicate in words, and J.,
age one, was too young to report any inappropriate behavior. The
boys were therefore of “tender years,” and unsupervised care by
an adult who failed to recognize appropriate behavioral
boundaries with children placed them at risk of harm. (See, e.g.,
In re Christopher R., supra, 225 Cal.App.4th at p. 1219 [children
six years old or younger are of tender years].)
We therefore find that substantial evidence supported the
juvenile court’s finding of jurisdiction over D. and J.
2. Disposition orders
Father further contends that the juvenile court erred in its
disposition orders by removing D. and J. from his care, requiring
monitored visitation, and requiring father to complete a program
for sexual abuse perpetrators. We find no error.
a. Removal of D. and J. from father’s care
“[A] dependent child may not be taken from the physical
custody of the parent under section 361 unless the court finds
there is clear and convincing evidence there is or would be a

22
substantial danger to the child's physical health, safety,
protection, or physical or emotional well-being if returned home,
and that there are no reasonable means to protect the child’s
physical health without removing the child (detriment finding).
(§ 361, subd. (c)(1).)” (In re D.B. (2018) 26 Cal.App.5th 320, 328.)
“[A] child does not need to be harmed before being removed from
his parents’ custody. One of the goals of dependency is to protect
a child before the harm takes place.” (In re Cole C. (2009) 174
Cal.App.4th 900, 918.) We review the juvenile court’s finding of
detriment for substantial evidence. (In re B.S. (2012) 209
Cal.App.4th 246, 252.)
Father’s challenge to the court’s order removing D. and J.
from his care rests on the argument that there was no
substantial evidence to support a finding that the children were
at risk of harm. He contends that the court’s detriment finding
was “pure speculation,” because there “was absolutely no
evidence that Father had directly harmed or engaged in
inappropriate behavior with his sons.” However, “[t]he
jurisdictional findings are prima facie evidence the minor cannot
safely remain in the home.” (In re T.V. (2013) 217 Cal.App.4th
126, 135.) As discussed above, the jurisdictional findings were
supported by substantial evidence.
In addition, DCFS stated in its disposition report that the
“family can be categorized as being at ‘High Risk’ for future
abuse”; it expressed concerns about father’s lack of insight and
the boys’ “young and vulnerable ages, where they are unable to
protect themselves from any abuse and/or neglect.” The court
found that father did not recognize appropriate boundaries with
K., and stated, “I don’t know that he would recognize it any
better between [his] biological and non-biological” children. In

23
rejecting father’s request for a home-of-parent order, the court
stated that father’s behavior with K. had been “percolating,” and
expressed concern that with respect to the younger children,
father might have trouble “understanding what’s in bounds and
what’s not in bounds.” The court also stated that the biting
incident “happened in front of one of [the younger] children.
That’s a cause for concern.” When father’s counsel noted that
“the boys are attached to father,” the court responded, “That
doesn’t allay the concern; it heightens it in many respects.
Because it normalizes behavior that I found inappropriate.”
Substantial evidence supports the court’s detriment
findings. Jurisdiction was appropriate for all three children,
father failed to recognize inappropriate behavior with K., and
father demonstrated a lack of insight regarding the concerns of
DCFS and the court. (See, e.g., In re Gabriel K. (2012) 203
Cal.App.4th 188, 197 [“One cannot correct a problem one fails to
acknowledge”].) We therefore find no error in the court’s order
that D. and J. be removed from father’s care.
b. Requirement that father’s visitation be
monitored
Father further contends that the juvenile court erred in
requiring his visitation with D. and J. to be monitored. His
argument relies on the same premise as the one above: that there
was no evidence the boys would be at risk in father’s
unsupervised care. “The power to regulate visits between
dependent children and their parents rests with the juvenile
court and its visitation orders will not be disturbed on appeal
absent an abuse of discretion.” (In re D.P. (2020) 44 Cal.App.5th
1058, 1070.) Because the court’s findings regarding a risk to the
children were supported by substantial evidence, we find no

24
abuse of discretion in the court’s order that father’s visitation
with D. and J. be monitored.
c. Order that father participate in sex abuse
counseling for perpetrators
Finally, father contends that the juvenile court erred by
ordering him to participate in sex abuse counseling for
perpetrators, after the court did not sustain the allegations
regarding sexual abuse. Father asserts that “any case concerns
regarding appropriateness and lack of proper boundaries could
more than adequately be addressed in individual counseling
addressing case concerns, coupled with parenting classes.” He
also argues that “a finding that a parent’s conduct necessitates
participation in a sexual abuse class for perpetrators is
pernicious and carries a particular stigma—namely, that the
parent is a sexual predator.”
A disposition order “may include a direction to participate
in a counseling or education program, including, but not limited
to, a parent education and parenting program . . . . The program
in which a parent or guardian is required to participate shall be
designed to eliminate those conditions that led to the court’s
finding that the child is a person described by Section 300.”
(§ 362, subd. (g).) “However, when the court is aware of other
deficiencies that impede the parent’s ability to reunify with his
child, the court may address them in the reunification plan.” (In
re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)
Here, although the court held that father’s inappropriate
behavior with K. did not necessarily rise to the level of sexual
abuse for purposes of finding jurisdiction, it was clearly
concerned that father’s treatment of K. may have included a
sexual component. Those concerns were supported by

25
substantial evidence. K. testified that one night while mother
was away, she awoke to find that father was rubbing his hand up
her leg to her buttock. K. also testified that father threw clothes
on the floor to cause her to bend over to pick them up, and when
she did so, he slapped her buttocks. Father looked at K. “from
head to toe” in a way that made her uncomfortable, and maternal
grandmother found father’s slapping of K.’s buttocks to be
concerning. At least some of this behavior occurred in the
presence of the younger children, including the nighttime
touching incident.
Moreover, father’s concern about the “stigma” that may
arise from his participation in a sexual abuse program for
perpetrators is irrelevant. Father cites this court’s opinion in In
re M.W. (2015) 238 Cal.App.4th 1444, 1455-1456, in which we
found that the evidence did not support a jurisdictional finding
that the children’s mother knew that the children’s father had a
history involving criminal sexual assault, and failed to protect
the children from the father. Although we noted in that case that
the allegations against the mother “carrie[d] a particular stigma”
(id. at p. 1452), nothing in that opinion supports father’s
contention here, that the court should consider the “stigma” of
participating in parental education programs of any type in
fashioning a disposition order.
The juvenile court’s disposition order was therefore
supported by substantial evidence, and the visitation order did
not constitute an abuse of discretion.
B. DCFS’s appeal
DCFS asserts on appeal that the juvenile court erred in
amending the petition to remove allegations of sexual abuse, and
in sustaining the petition as amended. It asks that we reverse

26
the court’s ruling and remand the case with directions to sustain
the petition as originally alleged. Father asserts that the
evidence does not support a finding of sexual abuse. We find that
DCFS has not met the high burden required for a reversal.
In the juvenile court, DCFS had the burden of proof. To
establish a basis for jurisdiction, DCFS was required to prove by
a preponderance of the evidence that the minor at issue was a
person described by section 300. (§ 355, subd. (a).) Here, the
court found that DCFS failed to meet that burden under section
300(d) and (j), and it met the burden under section 300(b)(1) only
when the language in the petition was amended.
“[W]here the trier of fact has expressly or implicitly
concluded that the party with the burden of proof did not carry
the burden and that party appeals,” the “question for a reviewing
court becomes whether the evidence compels a finding in favor of
the appellant as a matter of law. [Citations.] Specifically, the
question becomes whether the appellant’s evidence was (1)
‘uncontradicted and unimpeached’ and (2) ‘of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.’” (In re I.W. (2009) 180
Cal.App.4th 1517, 1528, disapproved of on other grounds by
Conservatorship of O.B. (2020) 9 Cal.5th 989.) Thus, the question
before us is whether the juvenile court was compelled, as a
matter of law, to sustain the petition as alleged under section
300(b)(1), (d), and (j). We find it was not.
When father spoke to the CSWs and when he testified at
the adjudication hearing, he denied slapping K.’s buttocks except
for several slaps on a single occasion while they were playing tag.
Father also denied ever touching K. while she slept. Father
admitted the biting incident, but said that K. bit him during a

27
tussle over the television remote and denied pinning K. down.
The juvenile court noted that the only evidence that was not in
conflict was that there were “three to five slaps of this child’s
bottom,” and the biting incident, for which “[s]ome of the
essential facts are in dispute.”
The court’s identification of the evidence that was not in
conflict appears to be supported by the record. This is the
evidence that is “uncontradicted and unimpeached.” (In re I.W.,
supra, 180 Cal.App.4th at p. 1528.) Although DCFS
acknowledges the correct standard of review for its appeal, it
nonetheless asserts that “father’s conduct as consistently
disclosed by [K.] supported jurisdiction” as alleged in the petition.
However, given the procedural posture of the case before us, we
may not presume that K.’s version of the events was entirely
accurate.
Each of the three counts in the petition initially stated that
father “sexually abused” K. “by slapping and fondling the child’s
buttocks,” and by “rubb[ing] and fondl[ing] the child’s leg to the
child’s buttocks.” The petition further alleged that mother knew
of the sexual abuse and failed to protect K., and that father’s
sexual abuse and mother’s failure to protect endangered all three
children. The uncontradicted and unimpeached evidence does
not compel a finding that father sexually abused K.
Section 300(d) allows for an exercise of jurisdiction when a
“child has been sexually abused, or there is a substantial risk
that the child will be sexually abused, as defined in Section
11165.1 of the Penal Code. . . .” Penal Code section 11165.1
states that “‘sexual abuse’ means sexual assault or sexual
exploitation,” and subdivision (b)(4) of that statute states,
“Conduct described as ‘sexual assault’ includes, but is not limited

28
to . . . [t]he intentional touching of the genitals or intimate parts,
including the breasts, genital area, groin, inner thighs, and
buttocks, or the clothing covering them, of a child, or of the
perpetrator by a child, for purposes of sexual arousal or
gratification . . . .”
Penal Code section 11165.1 also refers to Penal Code
section 288, which bars “any lewd or lascivious act . . . upon or
with the body, or any part or member thereof, of a child who is
under the age of 14 years, with the intent of arousing, appealing
to, or gratifying the lust, passions, or sexual desires of that
person or the child.” (Pen. Code, § 288, subd. (a).) Penal Code
“[s]ection 288 is violated by ‘any touching’ of an underage child
accomplished with the intent of arousing the sexual desires of
either the perpetrator or the child.” (People v. Martinez (1995) 11
Cal.4th 434, 452.) Penal Code section 11165.1 also refers to
Penal Code section 647.6, subdivision (a)(1), which makes it a
crime to “annoy[ ] or molest[ ] any child under 18 years of age.”
Penal Code section 647.6 “does not require a touching [citation]
but does require (1) conduct a ‘“normal person would
unhesitatingly be irritated by’” [citations], and (2) conduct
‘“motivated by an unnatural or abnormal sexual interest”’ in the
victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.)
DCFS asserts that father’s conduct constituted sexual
abuse as defined in Penal Code sections 288 and 647.6. It argues
that father touching K.’s leg and buttocks must have been
sexually motivated because “there could be no other purpose . . .
than for sexual gratification.” It also contends that father
slapped K.’s buttocks, and maintained a culture of secrecy about
his behavior when he told K. not to tell anyone about the slaps
and lied to mother about the bite mark on his shoulder.

29
 We agree that father’s behavior toward K. was concerning;
indeed, it was an appropriate basis for jurisdiction over all three
children. However, the uncontradicted and unimpeached
evidence presented does not compel a finding of sexual abuse as a
matter of law, in part because it does not support a finding that
father had the requisite intent. DCFS has not cited any
authority, and we have found none, to support a holding that
such an inference is compelled as a matter of law based on the
uncontradicted evidence in this case.
DCFS further argues that the trial court’s error is
demonstrated in its contradictory and confusing statements
about its findings. On the one hand, the court seemed to base
jurisdiction only on the evidence it found to be uncontradicted.
When discussing whether disposition orders would address
sexual abuse education in light of the amended petition, the court
said, “I found disparities in both of their versions that made it
may [sic] hard to reconcile, so I looked at the part where there
wasn’t a disparity, where there wasn’t conflicting motives for
their stories, and let’s and [sic] reconcile to say, all right. Where
has the burden been met?” DCFS asserts that this exchange
indicates that “the juvenile court is basically saying it did not
assess father’s and [K.’s] credibility, weigh the evidence, or
resolve conflicts in the evidence. [Citation.] Rather, it simply
disregarded the conflicting evidence and based its jurisdictional
findings on three to five slaps to [K.’s] buttocks that father
admitted to.”
DCFS points out that at other times, the court seemed to
accept K.’s version of events. For example, in considering whether
father’s actions were “prolonged,” the court stated that there had
been “[o]ne touch to the leg and the buttocks, five slaps on the

30
buttocks, a touch – the biting incident and what actually
transpired. I don’t know if that’s what the court had in mind in
I.J. when it talked about prolonged.” DCFS asserts that court’s
disposition order requiring father complete a sexual abuse
program for perpetrators also shows that the court accepted K.’s
version of events. Based on these statements, DCFS contends
that it is “clear the jurisdictional findings do not reflect the
juvenile court’s assessment of the evidence.”
We agree that the court’s statements were contradictory at
times, but confusing statements do not meet the high appellate
burden applicable here. If K.’s statements were the only evidence
before the court, and her version of events was uncontradicted
and unimpeached, a different result might be warrant. But
because father’s testimony contradicted K.’s accounts, we cannot
find that the evidence compelled, as a matter of law, a finding of
jurisdiction under the petition as originally phrased.
DCFS further asserts, “Even if it were true that father’s
proven conduct did not rise to the level of sexual abuse, that
would be no reason to not sustain count j-1.” It contends that the
juvenile court seemed to misunderstand the relevant standard,
because it stated that it would not sustain the count under
section 300(j) because it did not find sexual abuse. In stating its
ruling from the bench, the court said that it did not believe that
father’s actions were sufficiently sexual in nature to warrant
jurisdiction under section 300(d). The court then considered
whether D. and J. were at risk, and said, “I think that there’s a
risk, but not the risk that is referenced in I.J., which talks about
a risk of sexual abuse, but a risk that he does not recognize that
there’s a point in the children’s age when what he may think is

31
appropriate becomes something inappropriate. So with all of that
considered, the court is going to dismiss the (j) count . . . .”
The court’s statement could be read to reflect an incorrect
understanding that a count under section 300(j) requires a
finding that a sibling was sexually abused. But section 300(j) is
not so limited; it states that jurisdiction over a child is
appropriate when the “child’s sibling has been abused or
neglected, as defined in subdivision (a), (b), (d), (e), or (i), and
there is a substantial risk that the child will be abused or
neglected, as defined in those subdivisions.” Thus, the court
could have exercised jurisdiction over D. and J. under section
300(j), because it exercised jurisdiction over K. under section
300(b), and also found a substantial risk to D. and J.
Nevertheless, for the reasons discussed above, we do not
find that the court was compelled as a matter of law to find
jurisdiction over D. and J. under section 300(j) as that count was
originally stated in the petition, which included allegations of
sexual abuse. We therefore decline DCFS’s request to remand
the cause and order the court to find jurisdiction under the
petition as alleged.
DISPOSITION
The juvenile court’s jurisdiction and disposition orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.
We concur:

MANELLA, P. J. WILLHITE, J.

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