In re J.R. CA2/4

Filed 7/22/21 In re J.R. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

In re J.R., a Person Coming B307228
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP04187,
19CCJP04187A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

M.R.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Affirmed.
Megan Turkat-Schirn, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, for Plaintiff and Respondent.

This is the second appeal arising out of the juvenile court’s
jurisdiction over J., the eight-year-old child of mother, M.R., and
father, J.R. Father previously appealed from the court’s
jurisdictional and dispositional orders establishing jurisdiction
over J. pursuant to Welfare and Institutions Code section 300,
based on mother and father’s conduct in repeatedly accusing each
other of abusing J.1 We dismissed the appeal, finding that the
court would maintain jurisdiction over J. regardless of the
outcome of the appeal and father’s dispositional challenge was
rendered moot by subsequent rulings.
Following another incident in which mother reported father
harming J., the court sustained a section 387 supplemental
petition and removed J. from both parents’ custody. Mother now
appeals. She challenges the sufficiency of the evidence to support
the court’s findings of jurisdiction over J. and that J.’s removal
from parental custody was necessary to prevent substantial
danger to him. We affirm.
BACKGROUND
Original Petition, Jurisdiction, and Disposition
Mother and father have one child together, J., born in
2013. In January 2017, the family court granted mother’s
2

petition of annulment of her marriage to father. The court

1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2Father is not a party to this appeal.

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awarded mother primary physical custody of J. and granted
father visitation every other weekend.
On June 28, 2019, the case was referred to the Los Angeles
County Department of Children and Family Services (DCFS)
after father brought J. to the sheriff’s station to report abuse by
mother. Mother had informed father earlier in the day that J.
had fallen and sustained a bruise. However, when the babysitter
dropped J. off for father’s visitation, father noticed that J. had
several fresh scratch marks on his face and body, and bruises on
his thigh.
J. was interviewed by a sheriff’s deputy and by a DCFS
children’s social worker (CSW). J. reported that mother was
upset with him, scratched him, and hit him with her hands and a
belt. According to the deputy, J. was unable to explain why
mother was upset with him, but said that he was afraid of mother
because “she hits him a lot and is mean to him.” J. also stated
that he was “afraid to tell anyone his mother was hurting him.”
J. told the CSW that when he ignored mother’s command to stop
playing, mother grabbed him by the arm and began slapping him
on the face. J. explained the incident by moving “his right hand
up and down in a rapid manner to his face.” He also told the
CSW that he got scratches on his arm or leg when “my mommy
hit me.” The sheriff’s deputy conducted a full body assessment of
J. and noted “numerous fresh deep red scratches on [J.]’s face, a
lightly bruised right eye, scratches behind his neck, bruises on
his left arm, a scratch on the back of his right arm, a fresh red
scratch on the right side of his back, and a bruise on his left
thigh.”
Father told the CSW that he had made several prior
reports about mother regarding her physical abuse and neglect.

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He stated that he did not communicate with mother, because “all
she does is argue.” He also reported a 2018 incident in which he
observed mother driving under the influence of alcohol with J. in
the car.
Mother denied any abuse. She told the CSW that J.’s
babysitter had a 10-year-old autistic son, and that while the
babysitter was transporting both children, the son had a “temper
tantrum episode,” lashing out at J. and scratching him. Mother
stated that since their separation, father had made multiple
reports to DCFS alleging that she had abused the child, but that
J. had attention-deficit/hyperactivity disorder (ADHD) and
sometimes sustained scratches and bruises from rough playing.
Mother also stated that J. informed her that father’s girlfriend’s
children were mean to him and hit him, and that J. returned
from visiting father with bruises. According to mother, father
was “possessive and violent towards her” during their marriage,
including pulling her hair and striking her in the face. She
claimed that father refused to communicate with her directly, so
she used an internet messenger program to discuss overnight
visitation.
DCFS noted a pattern of ongoing physical abuse referrals
by both parents against each other, including nine DCFS
investigations for physical abuse and neglect between 2016 and
2018. Most of the incidents involved scratching or bruising and
many included visits to the hospital for evaluation. In several of
the incidents, J. reported that mother had hit him. The referrals
were ultimately closed, mostly as inconclusive.
DCFS filed a dependency petition on July 2, 2019 on behalf
of J. (then 6 years old) under section 300, subdivisions (a) and
(b)(1). In counts a-1 and b-1, the petition alleged that mother had

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physically abused the child, including on June 28, 2019, when she
grabbed J. by his arm, slapped his face, and repeatedly struck his
body with her hands and belt. The petition further alleged that
mother had physically abused J. on prior occasions and that he
was afraid of her. Count b-2 alleged that on a prior occasion,
mother endangered J. by driving under the influence of alcohol
while J. was in the vehicle. J. was detained from both parents
and placed in shelter care.
In its jurisdiction/disposition report, DCFS reported a
further interview with J. on July 15, 2019. J. denied being hit by
mother or father and stated that only the babysitter’s son
scratched and “hit me too much on my legs and arms.” J.
reported that father, mother, and father’s girlfriend were “nice.”
DCFS also spoke with the babysitter, a longtime family friend of
mother, who confirmed that her son had scratched J. repeatedly
on June 28, 2019. The babysitter also reported that during past
custody exchanges, she heard J. state he did not want to go with
father because father’s girlfriend and her daughters were mean
to him. She also said J. disclosed to her on multiple occasions
that he witnessed father slap his girlfriend on the face. DCFS
interviewed father’s girlfriend, who denied these allegations. She
previously told father she was uncomfortable caring for J. given
mother’s accusations of abuse against her.
In an interview on July 10, 2019, father reported that J.
told him that mother hit him, and demonstrated with his hand.
Mother denied the allegations, stating that she was at work
during the incident and was notified by the babysitter that her
son scratched and pinched J. Mother also denied father’s report
that she had previously driven with J. while intoxicated. Both
parents reported concerns with J.’s safety when he was with the

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other parent.
DCFS noted that J. had made inconsistent statements
during the course of the investigation regarding his injuries, and
further that J.’s “high energy and activity due to his diagnosis of
ADHD” was a possible contributing factor for his past injuries.
DCFS concluded that the injuries J. sustained on June 28, 2019
were caused by the babysitter’s son. DCFS therefore
recommended that the court dismiss counts a-1, b-1, and b-2 from
the petition, as there was no evidence to support the allegations
that mother physically abused J. or endangered him by driving
under the influence.
However, DCFS requested a continuance to amend the
petition to include a count of emotional abuse against father and
mother, stating that in multiple prior referral investigations,
father and mother “recycled prior allegations of abuse and neglect
against each other to gain leverage regarding J[.]’s custody,” and
they “list[ed] significant concerns about each other to sabotage
and demonize the other parent.” DCFS noted a prior statement
by father’s girlfriend regarding an incident where J. had a bruise
near his eye when father picked him up. Father asked J. what
happened and J. stated that someone had hit him. Father called
mother, had J. repeat what he said to mother, mother yelled for
J. to “stop lying” and J. began to tremble. DCFS concluded that
“due to the parents’ strained history and current custody issues,
it appears that the parents have chosen to place [J.] in the middle
of their feud, and firmly ignore each other unless they are
accusing each other of abusing and neglecting” J.
DCFS also noted J.’s behavior listed on his December 2018
individualized educational plan (IEP), including that J.
“struggles in being able to obey classroom rules . . . writes on the

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classroom walls, cries and yells when denied his own way, . . .
and has been observed to destroy his own property.” J. had also
hit his peers and “often bothers other students” during lessons.
DCFS filed a first amended petition on July 23, 2019,
adding allegations under section 300, subdivisions (b)(1) and (c).
As amended, counts b-3 and c-1 alleged that mother and father
“created a detrimental home environment” for J. by “accusing
each other of abusing and neglecting” J. and reporting such abuse
and neglect to law enforcement and child protection services “for
the purpose of gaining and/or maintaining custody” of J. DCFS
noted the incident in which father accused mother of neglecting
J. in front of the child and mother yelled at J. to stop lying. The
petition further alleged that J. showed behaviors indicating
emotional distress, including hitting peers and destroying his
own property, and that the conduct by mother and father placed
J. “at substantial risk of suffering serious emotional damage and
physical harm.”
At the adjudication and disposition hearing on July 24,
2019, the court dismissed counts a-1, b-1, b-2, and c-1. As to the
remaining count, b-3, the court found “substantial evidence of a
pattern of conduct by both parents . . . the overall result has been
to hurt their child.” The court noted that the repeated abuse
allegations by the parents began at the time of their separation
and during the family court proceedings, and that there was an
“obvious” pattern of conduct with mother and father accusing
each other of causing injuries to J. The court continued, “If
someone is going to accuse someone of physical abuse every time
a six-year-old boy has a bruise, this child is going to have so
many interactions with police and social workers that that in and
of itself is going to harm the child. . . . [T]here just seems to be a

7
lot of reaction to things that are kind of normal during childhood
being weaponized against each other, and it has to stop.” The
court further noted that seeing his parents fighting over him
could “cause very serious emotional harm” to J., and “although
the child may have some learning problems, children act out their
distress. And some of the things the child has said to have done,
hitting other people, destroying his own stuff, . . . this is a matter
of common sense that would suggest that the child is feeling some
emotional turmoil and kind of acting it out through his behavior”
and “tend[s] to show that the child is being affected by all of this
conflict that is going on over him.” The court concluded that
DCFS had not established emotional abuse, but rather “a pattern
of behavior that creates a risk of emotional harm to the child,”
which, in turn, created a risk of physical harm to J.
Accordingly, the court declared J. a dependent and
sustained the amended count b-3, finding father’s and mother’s
conduct placed J. at risk of suffering serious emotional damage
and physical harm. Over DCFS’s objection, the court released J.
to the home of both parents, with primary custody to mother and
unmonitored, weekend visitation for father. The court also
ordered mother to use other childcare arrangements “unless and
until the department has investigated the previous babysitter
and determined that that would be a safe childcare
arrangement.”
First appeal
Father appealed from the court’s jurisdictional and
dispositional findings. Mother did not appeal. DCFS filed a
cross-appeal, challenging the court’s dismissal of count c-1. In
our prior, unpublished opinion, In re J.R. (Nov. 2, 2020, No.
B299814) (unpub. opn.), we dismissed father’s appeal, declining

8
to reach the merits of the court’s jurisdictional findings because
mother’s failure to appeal meant that the court would retain
jurisdiction over J. regardless of the outcome of father’s appeal.
Additionally, father conceded that his challenge to the
dispositional order was rendered moot based on subsequent
proceedings, which we discuss further below. We also dismissed
the cross-appeal by DCFS as moot.
Section 342 subsequent petition
In a last-minute information filed on August 20, 2019,
DCFS reported that J. had participated in a forensic interview on
August 5 to obtain “additional information/clarification” about
the physical abuse to J. The evaluator reported that J. had a
“speech delay” that made it difficult for the evaluator to
understand him; J. also seemed to have difficulty understanding
the evaluator and “great difficulty focusing.” When asked about
how he got the bruises on his face, J. first said he forgot, then
said that the babysitter’s son “smacked” him. When asked about
discipline by mother, J. stated, “I no get in trouble . . . I no break
no rules . . . her don’t hit me.” DCFS also reported that mother
continued to participate in parenting and anger management
classes.
DCFS filed a status review report on December 31, 2019. It
recommended continued family maintenance services for mother
and father, noting that both parents had demonstrated positive
changes, but made “little progress” with their case plans. DCFS
assessed both parents as a “moderate” risk of future abuse and
neglect. Both parents expressed a desire to co-parent in a
peaceful manner. J. stated that he liked living with mother and
visiting father. At a status review hearing on January 23, 2020,
the court found continued jurisdiction necessary, and that mother

9
was in compliance with the case plan. The court ordered
continued family maintenance services, with the goal of closing
the case and terminating jurisdiction by April 2020.
On January 24, 2020, DCFS received a call from mother
reporting physical abuse by father. According to mother, on
January 23, 2020, father took J. to the bathroom while the family
was at the courthouse waiting for the status review hearing.
Later that afternoon, J. told mother that while in the bathroom,
father checked J.’s body for marks and bruises. Father then
purposely scratched J. on his back, resulting in two visible
scratches, each several inches long. Mother stated that J. did not
have any scratches when she bathed him that morning. Mother
also brought J. to the police station on January 24, 2020 making
the same allegations. The reporting police officer stated that J.
had visible bruising and two scratches on his back. The police
officers expressed concern that the marks did not appear to be
scratches as mother reported, but rather bruises, and that given
the family’s extensive history, mother and father continued to
blame one another and “it is unknown which if not both parents
are inflicting injuries on the child.”
The CSW assessed J. and reported that he had two “linear
purple and green color marks” on his lower back, which did not
appear to be scratches. The CSW interviewed J. privately. J.
confirmed that father took him to the bathroom and scratched
him with two fingers. When asked why father scratched him, J.
responded, “because he wants my mom to get in trouble.” J.
stated he did not tell mother until they left the courthouse
because he did not want to see his parents arguing. He also said
he did not want “to go with daddy anymore because he’s mean.”
When asked if mother told him to tell DCFS anything, J. said,

10
“tell the worker your daddy did it. Because my dad wants my
mom to go to jail because he wants me all day.” He denied that
mother hurt him in any way. J. denied mother hitting him as a
form of discipline, but stated that father “smacks me
everywhere.”
Given the conflicting information regarding J.’s injuries,
DCFS arranged for a forensic examination. The investigating
police officer asked mother for an explanation if the examination
concluded that the injuries had been sustained several days
earlier, instead of the day before as she claimed. Mother “became
very emotional and defensive,” stated she did not do anything,
but was “unsure” about an explanation. She stated that perhaps
J. could have sustained the injury at school, but could not
elaborate. The forensic examination concluded that the marks
were consistent with scratches, but likely not made with
fingernails, rather may have been caused by an object.
DCFS interviewed father on January 29, 2020. Father
confirmed that he took J. to use the bathroom while in court.
Father denied scratching J. and said that mother manipulated J.
to report that father hit him. Father blamed mother for the
marks and said that he wanted DCFS to remove J. from mother
and father so that J. would not continue to be physically abused
by mother.
DCFS contacted mother on January 30, 2020 to advise her
that the department was seeking a warrant for J.’s removal from
mother and father. Mother stated that J. was with the
babysitter, but admitted that the court had previously told
mother not to leave J. in the babysitter’s care, given the prior
injuries caused by the babysitter’s son. Mother did not have an
explanation for her failure to follow the court’s order. In the

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detention report, DCFS concluded that the marks were not
consistent with the explanation given by mother and J., as they
did not appear to have been made by fingernails, and appeared to
be more than a day old. DCFS also reported that, based on J.’s
statements, “it appears that the child has been coached.” DCFS
noted that it appeared neither parent had benefitted from court
services, as J. “continues to be re-abused, while left with marks
and bruises and explanations for such marks and bruises do not
coincide with the coloration and size of the marks.”
DCFS filed a subsequent petition on February 4, 2020
under section 342,3 alleging dependency jurisdiction under
section 300, subdivisions (a) and (b)(1). Counts a-1 and b-1
alleged that J. was medically examined on January 24 and found
to have a linear bruise on his back, which was “not consistent
with explanations of the manner in which the child sustained the
injuries,” and “would not ordinarily occur except as the result of
deliberate, unreasonable and neglectful acts” by the parents.
At the detention hearing on February 5, 2020, the court
removed J. from the custody of his parents and ordered him
placed into shelter care. The court further ordered monitored
visitation for both parents.
Section 387 supplemental petition
DCFS filed a supplemental petition under section 3874 on

3 In a subsequent petition under section 342, DCFS “alleges
new facts or circumstances, other than those under which the
original petition was sustained, sufficient to state that the minor
is a person described in Section 300.”
4Under section 387, DCFS may file a supplemental petition

seeking an order “changing or modifying a previous order by
removing a child from the physical custody of a parent,” upon a
showing that “the previous disposition has not been effective in

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February 26, 2020. The petition added count s-1, alleging that
the previous disposition was not effective in protecting J., as
mother and father “continued to establish a detrimental and
endangering home environment” for J. by continuing to accuse
each other of abuse and neglect, including blaming each other for
the latest marks found on J.’s back. The petition further alleged
that “[r]emedial services failed to resolve the family problems.”
DCFS filed a jurisdiction/disposition report on February 27,
2020. J. spoke with a CSW at his foster placement on February
14. The CSW reported that J. was “cooperative and friendly,”
free of marks and bruises, and was able to identify the difference
between telling truth and a lie. J. stated that he was living with
the foster family because father scratched him on his back while
they were in the bathroom. J. said he did not know why father
scratched him, father did not say anything at the time, and J. did
not feel it happen and did not cry. J. also said that when mother
saw the scratches, she told J. that “they were going to take me
away from her and my dad,” and that father had scratched J.
“because he wants my mom to go to jail.” DCFS interviewed
mother on February 20. She stated that during their
relationship, father was “very abusive both verbally and
physically.” She claimed that she and father had been “having
problems ever since” their separation, but denied that she had
ever hurt J. DCFS also spoke with father on February 12. He
reported that mother used to hit J. “with shoes and with her
hands” and “has always been aggressive towards” the child.
Father stated that he would never hurt J., and that the judge
saw J. immediately after the alleged scratching incident and J.
was “not in any distress.”

the rehabilitation or protection of the child.”

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 DCFS spoke with J.’s foster mother, who also cared for J.
during his prior detention in June 2019. The foster mother
reported that J. had started to “pound on his legs when
frustrated,” which he had not done before. Additionally, she told
the CSW her concern that mother called J. “all day,” crying while
on the phone, which disrupted J.’s routine and upset him. DCFS
also noted that J. had been diagnosed with ADHD and it had
been recommended that he also be evaluated for autism.
DCFS concluded it was unlikely that father deliberately
injured J. “in a public setting minutes prior to a court hearing.”
The report also noted that the marks did not seem to be
fingernail scratches, and did not appear fresh as mother and J.
claimed. DCFS stated it could not determine who caused the
marks on J.’s back or when they occurred. DCFS therefore
recommended that the section 342 petition be dismissed. With
respect to the remaining count s-1 of the section 387
supplemental petition, DCFS noted that J. was “in the middle of
a custody battle between the parents and as a consequence
appears to be confused as to his feelings and what is going on
between his parents.” DCFS cited J.’s conflicting statements that
father was mean to him and that father was never mean, and J.’s
report that mother told him that father only loved father’s
girlfriend. DCFS opined that mother’s behavior “may be
overbearing and excessive” including calling J. up to 10 times a
day in foster care, which upset the child. DCFS concluded that
the parents “have not benefitted from any services and continue
to blame one another for causing harm to the child,” and that it
was “clear that the child continues to be manipulated and his
emotional wellbeing is being jeopardized by his parents.”

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 J. received individual therapy from November 2019 to
February 2020, ending when he was placed in foster care. He
was diagnosed with ADHD, with symptoms including that he was
easily distracted, had difficulty following directions and sitting
still, had temper tantrums, threw books in class, threw himself
on the floor, and was “always running and climbing on things.”
In a status review report in May 2020, mother and J. both
reported that J. no longer threw objects in the classroom. He was
being assisted at school by an assigned aide, due to his tendency
to run out of the classroom. During the COVID-19 pandemic in
2020, J. received home schooling at his foster placement.
In its May 2020 report, DCFS opined that “[a]t this time, it
is not appropriate to return” J. to mother or father. DCFS noted
that mother had “demonstrated some positive changes during the
last five months, has demonstrated a commitment to caring for
J[.] and participating in Court ordered services.” However,
“despite some positive changes, there has been little progress
made with Mother’s case plan in relation to peaceful co-
parenting. [Mother] would benefit from continuing to participate
in services.” DCFS made the same conclusions regarding father.
DCFS assessed J. as a “high risk” of future abuse and neglect
from mother and father. DCFS noted that the goal of services
following the prior referral in July 2019 was to “provide resources
and support in order for Mother and Father to learn healthy
behaviors around co-parenting and conflict resolution and learn
how to communicate using peaceful co-parenting skills. The goal
was also for the parents to understand the impact that unhealthy
co-parenting behaviors have on a child being that J[.] was
struggling with hyperactivity.”

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 DCFS filed a last-minute information on May 8, 2020. Due
to the pandemic, visitation between J. and his parents was
conducted remotely starting in March 2020. Mother participated
in monitored virtual visits with J. three times per week, with no
significant concerns reported. DCFS filed an additional last-
minute information on August 7, 2020. J.’s foster mother
observed that during father’s visits, he did not greet or engage
with J. She also reported that during mother’s virtual visits,
mother would often make J. show her his body so that mother
could inspect it for marks and bruises. J.’s foster mother stated
this was concerning, as J. became upset about any “mark” he
had, even if caused by normal activities. According to the foster
mother, J. would have panic attacks and start crying
uncontrollably if he had a scratch on his body, saying “I can’t
have a mark! That means I’m going to be here forever!” DCFS
also noted that mother completed another parenting class in July
2020.
At the adjudication and disposition hearing on August 20,
2020, the court dismissed the section 342 petition at the request
of DCFS. Turning to the section 387 supplemental petition, both
counsel for DCFS and J.’s counsel urged the court to sustain the
petition. Mother’s counsel noted that since February when the
section 342 and section 387 petitions were filed, she had
“essentially completed her entire case plan” plus a second
parenting class. Mother’s counsel acknowledged that there was a
“bitter high-tension relationship” between mother and father and
that J. was “understandably confused by family dynamics.” But
he argued that “being merely upset or confused is not really
jurisdictional. There needs to be something more, something that

16
would lead to this child experiencing long term harm.” He
argued that mother was “entitled to inspect the child for injuries”
and was “essentially being punished for investigating her case.”
He also argued that DCFS had not met its burden to justify
removing J. from mother. Father’s counsel argued for dismissal
of the petition as to father, arguing that mother was the one
harming J.’s emotional well-being.
The court noted that it was “an unusual situation where
the case originally came in as a physical abuse case,” but DCFS’s
current position was that “the conflict between the parents is so
severe that the only way to protect the child is to remove him
from both of his parents.” The court stated it was looking at
jurisdiction and disposition together, and found that DCFS had
met its burden “even by clear and convincing evidence as to
mother, [because] even though mother has done her case plan,
she seems to have a complete lack of insight about how her
behavior is harmful to the child. This whole business about her
having the child show his body parts to make sure he doesn’t
have marks and bruises, of course it’s appropriate for a
professional social work investigator to do that . . . but that
doesn’t mean that in this context it’s appropriate for a parent to
engage in this behavior when the case is really about emotional
harm to the child caused by essentially the child being used as a
weapon in a conflict between the parents. And the fact that
mother persists in that exact behavior really shows a lack of
insight as to how she is harming her child by continuing to search
for evidence that the father has abused him.” The court also
cited mother’s multiple daily phone calls to J. and her behavior
“crying while she’s calling on the phone,” concluding that “there
just really doesn’t seem to be any insight as to the serious

17
emotional impact of mother’s behavior on the child.”
The court indicated it thought it was a closer question as to
father, since he had not recently accused mother of abuse, but
ultimately concluded that it “would be unsafe to release the child
to either parent because it appears that the parents are still so
tangled up in their conflict with each other that neither of them
is engaging with the child in a healthy manner.” The court also
found a risk of physical harm to J., noting that J. said that father
was accused of leaving marks on him but “I did it to myself,” and
finding a “history of this child self harming due to emotional
distress, and that does seem to be still happening.” The court
acknowledged that removal was “a drastic outcome, but I just
don’t see any other way to stop the child from being torn apart by
these parents. Doing programs is one thing, but the point of
doing programs is to actually change your behavior. . . . Even
after going through all of these programs, the mother is still
making the child show her his body and causing extreme anxiety
for the child.” Thus, the court concluded that “sadly, removal is
the only way to avoid harm.”
Accordingly, the court sustained count s-1 as to both
mother and father, finding that the prior disposition was not
effective in protecting J. The court also found removal from
mother and father was necessary and ordered monitored
visitation for both parents. Mother timely appealed from the
August 20, 2020 order.
DISCUSSION
Mother appeals from the court’s order sustaining the
section 387 petition and removing J. from her care. She argues
that the court erred in its initial exercise of jurisdiction under
section 300, subdivision (b) and therefore lacked substantial

18
evidence to sustain the section 387 petition on the same basis.
She also contends that the court lacked substantial evidence to
find there were no reasonable alternatives to removal. We find no
error and therefore affirm.
I. Legal Standards
DCFS may file a section 387 supplemental petition when
the juvenile court has already assumed jurisdiction over a minor
but the previous disposition has not been effective in protecting
the child. Thus, a “section 387 supplemental petition is used to
change the placement of a dependent child from the physical
custody of a parent to a more restrictive level of court-ordered
care.” (In re T.W.(2013) 214 Cal.App.4th 1154, 1161, citing § 387;
Cal. Rules of Court, rule 5.560(c).) “In the jurisdictional phase of
a section 387 proceeding, the court determines whether the
factual allegations of the supplemental petition are true and
whether the previous disposition has been ineffective in
protecting the child. [Citations.] If the court finds the
allegations are true, it conducts a dispositional hearing to
determine whether removing custody is appropriate.” (In re T.W.,
supra,214 Cal.App.4th at p. 1161, citing § 387, subd. (b); see also
Cal. Rules of Court, rules 5.565(e)(1) and (e)(2); In re H.G. (2006)
146 Cal.App.4th 1, 11.)
“A section 387 petition need not allege any new
jurisdictional facts, or urge different or additional grounds for
dependency because a basis for juvenile court jurisdiction already
exists.” (In re T.W., supra, 214 Cal.App.4th at p. 1161; see also In
re Joel H. (1993) 19 Cal.App.4th 1185, 1200 [“The law does not
require that a fact necessary to establish jurisdiction under
section 300 be established to warrant a change in placement”].)
The only “jurisdictional fact” necessary to modify a previous

19
placement is that the previous disposition has not been effective
in protecting the child. (§ 387, subd. (b); In re Joel H., supra, 19
Cal.App.4th at p. 1200; see also In re T.W., supra, 214
Cal.App.4th at p. 1161.)
We review challenges to the sufficiency of evidence
supporting the court’s findings on a section 387 petition for
substantial evidence. (See In re T.W., supra, 214 Cal.App.4th at
p. 1161; In re Henry V. (2004) 119 Cal.App.4th 522, 529.) “““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.
[Citations.] ‘“[T]he [appellate] court must review the whole
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence . . . such that
a reasonable trier of fact could find [that the order is
appropriate].”’””” (In re I.J. (2013) 56 Cal.4th 766, 773; see also
In re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.) The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or order.
(In re E.E. (2020) 49 Cal.App.5th 195, 206; In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
II. Jurisdiction
Mother recognizes that the section 387 supplemental
petition did not provide a new basis for jurisdiction; rather, the
court retained jurisdiction established under the initial section

20
300 petition. She argues, however, that the court lacked
substantial evidence to make its original jurisdictional finding
that J. was at risk of serious physical harm under section 300,
subdivision (b).
Mother did not previously appeal from the court’s
jurisdictional and dispositional orders in 2019 and she cannot
challenge those findings in her appeal from the court’s later order
on the supplemental petition. “[A]n unappealed disposition or
postdisposition order is final and binding and may not be
attacked on an appeal from a later appealable order.” (In re
Meranda P. (1997) 56 Cal.App.4th 1143, 1149–1150, citing
section 395; see also In re Edward H. (1996) 43 Cal.App.4th 584,
590-591; Wanda B. v. Superior Court (1996) 41 Cal.App.4th 1391,
1395-1396.)
As such, the only jurisdictional question before the court at
the time of the section 387 petition was whether the previous
disposition was ineffective in protecting J. We conclude that
substantial evidence supports the court’s finding that it was. At
the initial adjudication and disposition in July 2019, the court
found that the parents’ pattern of accusing each other of abuse
could “cause very serious emotional harm” to J., which, in turn
could cause physical harm. The court also noted that J.’s
behavior indicated that he was acting out his distress over the
conflict. However, the court declined to remove J. from his
parents’ custody. In the following six months, despite mother’s
progress with her court-ordered programs, DCFS reported that
she demonstrated little improvement in her ability to co-parent
with father and minimal insight into the harm such conflict could
cause to J. Indeed, in January 2020, mother reported that father
had abused J. in a courthouse bathroom, although the details

21
provided by both mother and J. were neither credible nor
consistent with his wounds. J. also reported that mother had told
him to “tell the worker your daddy did it. Because my dad wants
my mom to go to jail.” Mother also continued to use the same
babysitter for J. despite his prior injuries from her son and
contrary to the court’s express order. After J. was placed in foster
care, mother called him repeatedly, demanding inspection of his
body and resulting in distress to J. over any injury. Under these
circumstances, substantial evidence supported the trial court’s
conclusion that the prior disposition returning J. to mother’s care
was ineffective in protecting the child, as mother’s behavior
persisted despite her participation in services.
III. Removal
Mother also challenges the court’s finding that removal was
necessary. When a section 387 petition seeks to remove a minor
from parental custody, the court applies the procedures and
protections of section 361. (In re T.W., supra, 214 Cal.App.4th at
p. 1163; In re Paul E. (1995) 39 Cal.App.4th 996, 1001–1003.)
Before a minor can be removed from the parent’s custody, the
court must find, by clear and convincing evidence, “[t]here is or
would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the minor if the
minor were returned home, and there are no reasonable means
by which the minor’s physical health can be protected without
removing the minor from the minor’s parent’s . . . physical
custody.” (§ 361, subd. (c)(1); In re Javier G. (2006) 137
Cal.App.4th 453, 462.)
“A removal order is proper if it is based on proof of: (1)
parental inability to provide proper care for the minor; and (2)
potential detriment to the minor if he or she remains with the

22
parent. [Citation.] The parent need not be dangerous and 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., supra, 214 Cal.App.4th at p. 1163, citing In re Jamie M.
(1982) 134 Cal.App.3d 530, 536.) We conclude substantial
evidence supports the court’s removal order.
The record supports a finding that mother was unable to
provide proper care for J. and that he would be at risk of harm if
he remained in her custody. Following four years and multiple
unsubstantiated abuse referrals by both parents, the court
assumed jurisdiction over J. in 2019. Afterward, mother
continued to use J. as a weapon in her custody battle against
father, again accusing father of abuse in January 2020. As a
result of these accusations, J. was subjected to unnecessary
examinations and interviews by police. There was also evidence
supporting the conclusion that mother coached J. to level the
same accusations against father—the child echoed mother’s story
about father scratching him, told DCFS that mother had told him
to do so, and further said that mother told him he would be taken
away from his parents and that father wanted mother to go to
jail. J. also alternately expressed that father was “mean” and
“nice” and stated that mother told him that father only loved
father’s girlfriend. As the trial court found, mother’s persistence
in the same behavior demonstrated a lack of insight into how her
continued conduct was causing emotional harm to J.
Mother continued her harmful behavior after J. was
detained and placed in foster care pending the section 387
hearing, by calling J. repeatedly and insisting on examining his
body. As the foster mother reported, mother’s behavior caused J.
extreme anxiety; she stated that J. would suffer panic attacks,

23
cry uncontrollably, and state, “I can’t have a mark! That means
I’m going to be here forever!” J. had also started hitting his legs
when upset. Additionally, J. denied being injured by father,
stating, “I did it to myself.” As such, substantial evidence
supported the court’s finding that mother’s behavior was causing
serious emotional harm to J. and that emotional distress resulted
in a risk of serious physical harm, including from J. harming
himself.
We are not persuaded otherwise by mother’s contention
that this case is merely a family law custody dispute with
evidence of some emotional distress but no risk of physical harm.
For example, in In re John W. (1996) 41 Cal.App.4th 961, 974,
cited by mother, “neither parent was adjudged to pose any danger
to the child” and the juvenile court had terminated jurisdiction.
Thus, the court found it appropriate to remand the case to the
family law court, remarking that “[t]he juvenile courts must not
become a battleground by which family law war is waged by
other means.” (Id. at p. 975.) Here, by contrast, the juvenile
court found that the parents’ use of J. as a “weapon” in their
ongoing battle was causing a risk of harm to the child, both
emotional and physical.
Substantial evidence also supports the juvenile court’s
finding that reasonable efforts were made to prevent or eliminate
the need for J.’s removal from mother’s custody. (§ 361, subd. (d);
In re D.D. (2019) 32 Cal.App.5th 985, 997 [reasonable efforts
were made to prevent or eliminate the need for removal where
extensive and reasonable services had been provided to mother
and children]; In re Javier G., supra, 137 Cal.App.4th at p. 464
[same].) Mother and J. were provided with extensive services
throughout the pendency of the case and before J. was removed

24
from mother’s custody for the second time. These services
included therapy for both mother and J., and parenting and
anger management classes for mother. J. was returned to
mother’s custody in July 2019. But mother’s conduct continued
despite her participation in services. The social workers and
police officers investigating these claims reported to the court
that because of the extreme conflict between the parents, they
were unable to assess the source of J.’s injuries.
Given mother’s continued lack of insight into the harm
caused by her behavior, the trial court concluded that it had no
means to protect J. absent removal. Mother’s suggestion that the
court could have ordered her to stop checking J. for bruises or not
to make further referrals against father ignores the repeated
warnings given by the court and by DCFS over her conduct.
Further, although mother suggests the court could have required
the parents to attend conjoint counseling, the court did consider
this option, but expressed concern that it was not appropriate
given the level of toxicity between the parents.
“The trial court is in the best position to determine the
degree to which a child is at risk based on an assessment of all
the relevant factors in each case.” (In re Drake M. (2012) 211
Cal.App.4th 754, 766.) On this record, we cannot agree with
mother that there was insufficient evidence to remove J. from her
and father.

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 DISPOSITION
The orders sustaining the supplemental petition under
section 387 and removing J. from his parents’ custody are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

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