In re Daniel V. CA2/1

Filed 8/27/21 In re Daniel V. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 ONE

In re DANIEL V. et al., Persons B309521
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 20CCJP04500)

LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,

Plaintiff and Respondent,

v.

MONICA V.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Jana M. Seng, Judge. Reversed and remanded with
instructions.
 Terence M. Chucas, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Melania Vartanian, Deputy
County Counsel, for Plaintiff and Respondent.
____________________

The Los Angeles County Department of Children and
Family Services (DCFS) asserted dependency jurisdiction over
14-year-old Daniel V. and 12-year-old A.A., alleging, inter alia,
that their mother (mother) failed to provide adequate care and
supervision for Daniel (who had mental and emotional problems)
and protect A.A. adequately from Daniel’s aggressive behavior.
At a subsequent adjudication hearing, the juvenile court
sustained these jurisdictional allegations, removed Daniel and
A.A. from mother’s custody, placed Daniel in foster care,
terminated jurisdiction over A.A., awarded A.A.’s presumed
father (Jose A.) sole physical custody of A.A., and ordered
monitored visitation with A.A. for mother. In its exit order, the
juvenile court also ruled mother may seek unmonitored visitation
from the family law court only upon completion of parenting
classes and counseling.1 Mother appeals the court’s orders

1 “When terminating its jurisdiction over a child who has
been declared a dependent child of the court, [Welfare and
Institutions Code] section 362.4 authorizes the juvenile court to
issue a custody and visitation order (commonly referred to as an
‘exit order’) that will become part of the relevant family law file
and remain in effect in the family law action ‘until modified or
terminated by a subsequent order.’ ” (In re T.S. (2020)
52 Cal.App.5th 503, 513.)

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removing A.A. from her custody, awarding Jose sole physical
custody of A.A., and allowing mother to have only monitored
visits with the child.
We reverse the order removing A.A. from mother’s custody
because under our applicable level of review, the record does not
contain substantial evidence demonstrating there was a high
probability that mother posed a substantial risk of harm to A.A.
justifying the juvenile court’s removal order. We also reverse the
exit orders awarding sole physical custody of A.A. to Jose A. and
restricting mother to monitored visits with the child because the
juvenile court could not make those rulings without first issuing
a valid order removing A.A. from mother’s physical custody. The
matter is remanded for further proceedings consistent with this
opinion.

FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts relevant to this appeal.

1. The dependency petition
On August 27, 2020, DCFS filed a juvenile dependency
petition, alleging jurisdiction over 14-year-old Daniel V. and
12-year-old A.A. under Welfare and Institutions Code
section 300, subdivisions (a), (b)(1), (c), and (j).2 The petition

2 Undesignated statutory citations are to the Welfare and
Institutions Code. Section 300, subdivision (a) provides that
dependency jurisdiction is appropriate if “[t]he child has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm inflicted nonaccidentally upon the child by the
child’s parent or guardian.” (§ 300, subd. (a).) Subdivision (b)(1)
authorizes jurisdiction if “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm

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alleged nine counts: count a-1, count b-1, count b-2, count b-3,
count b-4, count c-1, count j-1, count j-2, and count j-3.
Counts a-1, b-2, and j-2 alleged as follows: “On a prior
occasion . . . Daniel V[.’s] and [A.A.’s] mother . . . physically
abused the child Daniel by throwing a metal container filled with
kitchen utensils at the child, resulting in one of the utensils
striking the child causing a bleeding scratch mark to the child’s
arm. The mother struck the child with a belt resulting in a mark
to the child’s arm. The mother pushed the child. The mother
struck the child’s face resulting in a bruise to the child’s lip. On a
prior occasion, the mother threatened the child with a hammer.
The mother struck the child’s back with a belt and threw a book
at the child. On a prior occasion, the mother struck the child
with a belt in the presence of the child[, A.A.] The mother shoved

or illness, as a result of the failure or inability of his or her parent
or guardian to adequately supervise or protect the child . . . . The
child shall continue to be a dependent child pursuant to this
subdivision only so long as is necessary to protect the child from
risk of suffering serious physical harm or illness.” (§ 300,
subd. (b)(1).) Additionally, subdivision (c) allows a juvenile court
to exercise dependency jurisdiction over “[a] child [who] is
suffering serious emotional damage, or is at substantial risk of
suffering serious emotional damage, evidenced by severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward
self or others, as a result of the conduct of the parent or guardian
or who has no parent or guardian capable of providing
appropriate care.” (See § 300, subd. (c).) Additionally, under
subdivision (j), jurisdiction is proper if “[t]he 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.” (§ 300,
subd. (j).)

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the child. Such physical abuse was excessive and caused the
child unreasonable pain and suffering. Such physical abuse of
the child Daniel by the mother endangers the child’s physical
health and safety, creates a detrimental home environment and
places the child and the child’s sibling[, A.A.], at risk of serious
physical harm, damage, danger and physical abuse.”
Counts b-1 and j-1 averred: “Daniel V[.’s] and [A.A.’s]
mother . . . has a limited ability to provide the child Daniel with
appropriate parental care and supervision due to the child’s
special and unique mental, emotional and behavioral problems
including a diagnosis of Major Depressive Disorder. The child
engages in self-harming behavior and has visual and audio
hallucinations, suicidal ideation, and dangerous, aggressive,
assaultive, and runaway behavior. On 08/12/2020, and on
additional occasions, the child was hospitalized for the evaluation
and treatment of the child’s mental and emotional problems. The
mother’s limited ability to provide the child with appropriate
parental care and supervision[ ] endangers the child’s physical
health and safety, and places the child and the child’s sibling[,
A.A.], at risk of serious physical harm, damage and danger.”
Count b-3 alleged: “On prior occasions, . . . Daniel V[.’s]
and [A.A.’s] mother . . . placed the children in detrimental and
endangering situations, in that the mother left the children home
alone, without appropriate adult supervision, despite the
mother’s knowledge of the child Daniel’s aggressive and
assaultive behavior towards the child[, A.A.] Such detrimental
and endangering situations established for the children by the
mother and the mother’s failure to provide appropriate adult
supervision for the children endangers the children’s physical

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health and safety, and places the children at risk of serious
physical harm, damage and danger.”
Counts b-4 and j-3 asserted: “On prior occasions, . . .
Daniel V[.’s] and [A.A.’s] mother . . . placed the child Daniel in a
detrimental and endangering situation, in that the mother
repeatedly locked the child out of the child’s home. Such
detrimental and endangering situations established for the child
Daniel by the mother endangers the child’s physical health and
safety and places the child and the child’s sibling[, A.A.], at risk
of serious physical harm, damage and danger.”
Lastly, count c-1 claimed: “On prior occasions, the child
Daniel V[.’s] mother . . . emotionally abused the child by
physically abusing the child and speaking to the child in a
demeaning and derogatory manner, including telling the child
that the child has no reason to live. The mother repeatedly locks
the child out of the child’s home. The child displays thoughts of
not wanting to live due to the emotional abuse of the child by the
mother. Such ongoing emotional abuse of the child by the mother
places the child at substantial risk of suffering serious emotional
damage as evidenced by severe anxiety, depression, withdrawal,
and aggressive behavior toward herself [sic] or others.”

2. The non-detain report
DCFS filed a non-detain report on August 27, 2020. As of
August 26, 2020, Daniel V. was hospitalized at Del Amo Hospital
and A.A. was residing with Jose A. On August 12, 2020, DCFS
received a referral “alleging general neglect against . . . Daniel
V[.] by mother,” and on August 19, 2020, DCFS received another
referral “alleging physical abuse and emotional abuse against . . .
Daniel V[.] by mother”; with regard to both referrals, A.A. “was

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considered to be at risk.”3 The non-detain report recommended
“the minors Daniel V[.] and [A.A.] remain in the care of their
mother . . . and . . . [Jose A.], while under the supervision of the
Court and with the support of” DCFS.
On August 13, 2020, mother told the agency that Jose A. is
A.A.’s father, mother had full physical and legal custody of A.A.,
and Daniel V.’s father is Daniel V., Sr., an individual who lived in
Mexico and for whom mother did not have any contact
information. Mother reported that she and Jose lived together
for 14 years; the two “were not involved in physical altercations,
but they had verbal altercations”; Jose “suddenly left the home
without an explanation” in August 2019; and, after “a couple of
months, [Jose A.] started sending her insulting text messages
with derogatory words.” Mother claimed that she obtained a
protective order for herself and A.A. that expired in spring 2020.4
Mother told DCFS that Daniel had been “hospitalized three
times as a result of his mental health issues”—i.e., “depression,
cutting, and suicidal ideations”—and that Daniel “was not given
prescribed medication after his hospitalizations.” Mother
reported that A.A. was “well mannered and did not require much
discipline, but Daniel on the other hand was hard to discipline”;
mother claimed “Daniel’s behavior ha[d] gotten worse over the

3 Although the non-detain report claims that DCFS
received the second referral on “08/19/2002,” this appears to be a
typographical error.
4 Attached to the jurisdiction/disposition report discussed
in Factual and Procedural Background, part 5, post, is a
restraining order against Jose A. that was dated
November 12, 2019 and expired on May 12, 2020; the order
granted mother sole legal and physical custody of A.A.

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past year.” Mother stated that “she did not know what to do or
who to turn to and would like DCFS to assist her with services
for Daniel.”
Mother asserted that Daniel pushed her two times, injured
A.A., and ran away from home three times; she claimed to have
filed a missing person’s report and called law enforcement several
times “due to Daniel’s ruthless behavior.” Mother also claimed
that “a few months ago[,] Daniel took [A.A.’s] phone, broke her
bedroom doorframe, . . . would not let her use the bathroom or
eat[,] . . . . [and] shov[ed A.A.] into her bedroom and onto the floor
and hurt her hand.” Mother reported that “she began to take
Daniel to work with her so he would not be alone with [A.A.] after
that incident.” According to mother, she contacted law
enforcement on one occasion “because Daniel refused to go to
work with her.”
Mother stated she violated the protective order in or
around April 2020 by “inviting [Jose A.] over to her home” to
“help . . . care for [A.A.], due to Daniel’s out of control behavior”—
i.e., she had Jose A. “move in with her as a means of protecting
[A.A.] from Daniel.” Mother said she and Jose later “had a
disagreement and law enforcement was called.” She stated that
Jose left the home on the day of the disagreement, and, upon
A.A.’s request, mother allowed A.A. to leave with Jose. Mother
“reported that she ha[d] not seen or spoken with [A.A.] since
06/26/2020.” Mother indicated she knew that A.A. could not
return home “as long as Daniel continued to be defiant and
aggressive,” and she assured the interviewing social worker that
A.A. would “temporarily remain[ ] with [Jose] until Daniel
received the services he needed.”

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 On August 13, 2020, Daniel V. reported that mother had
thrown a metal container at him, and “ ‘the pointy part’ ” of the
tongs in the container left a one-inch scratch on him that caused
him to bleed. Daniel said that mother threw the metal container
at him because, “ ‘[S]he needed the bathroom and I locked myself
in there. I wanted to eat and she told me to go to the car.’ ”
Daniel also stated, “ ‘[Mother] was wearing a belt, she took
it off, and she hit me on my left arm. It left a mark. She aimed
like three-four times, but only hit me once. Then she threw my
shoes in the trash and called the police. She pushed me outside
so I could leave to the car.’ ”
On August 17, 2020, Jose A. told DCFS that he was with
mother for 14 years, and that “Daniel ‘always had bad behavior,
he was hitting kids. He always behaved badly against [A.A.]’ ”
Conversely, Jose asserted that A.A. “does not like to fight . . . .”
Jose asserted that although he and mother had separated in
August 2019, “she looked for him so he could help her with
[A.A.,]” and Jose returned to the home in April 2020. He “stated
that he did what he could to keep his daughter safe.”
Jose A. stated that mother asked him to take A.A. with
him, and that A.A. came with Jose on the day mother “ ‘kicked
[Jose] out.’ ” Jose claimed that although he told A.A. to call
mother every day, A.A. did not “want to talk to her mother
because she could not do anything to correct Daniel.” Jose
further asserted that A.A. told him she did not want to visit
mother.
On August 17, 2020, A.A. told DCFS that she “had no
current contact with her mother[;] . . . did not recall the last time
she spoke with, or saw, her[; and] . . . was ‘not ready’ to speak
with mother because she ‘didn’t feel like it.’ ” A.A. “reported that

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[Jose A.] encouraged her to speak with mother, but she did not
want to.”
A.A. claimed that neither Jose A. nor mother had subjected
her to corporal punishment. A.A. “denied anyone called her
names or made her feel badly about herself, but reported that
Daniel used to call her ‘fat and four eyes.’ ” She “reported feeling
safe in the home of [Jose A.], but not in the home of mother. . . .
due to Daniel’s behavior.” A.A. stated that “Daniel would
randomly knee her on her groin, [and] has punched her
stomach[ ] and pushed her.” A.A. said that she felt much safer
living with her father because she was “ ‘not worried about [her]
brother coming into [her] room, taking [her] stuff, and hurting
[her].’ ” A.A. claimed that “Daniel’s behavior began to get out of
control when the school shut down,” and “that in school Daniel
would talk a lot, get bad grades, and was distracted.”5
A.A. stated that at an unspecified point in time when she
was still living with mother, Daniel banged on her bedroom door,
and shoved himself onto the door and cracked it.6 A.A. said that
Daniel took A.A.’s cellular telephone to prevent A.A. from
reporting the incident to mother, and that he did not give the
telephone back to A.A. until after he repaired the door with a
glue gun.
When the interviewing social worker asked A.A. whether
Daniel had “shov[ed] yogurt down her throat,” A.A. stated that at
an unspecified point in time, Daniel “grabbed a yogurt[,] . . .

5 The non-detain report does not identify precisely “when
the school shut down.”
6 A.A. claimed Daniel had broken her bedroom doorframe
on prior occasions.

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poured it down her throat, pushed her into her bedroom, . . . told
her to stay there[,] . . . shoved her[,] and punched her on her
stomach.” A.A. claimed that Daniel had hit her before.
On August 19, 2020, a DCFS social worker interviewed
Daniel at Del Amo Hospital.7 Daniel claimed that mother threw
a book at Daniel, and she “ ‘yelled [at] and punched [him]’ ”
during an argument mother and Daniel had on another occasion.
Daniel claimed that mother had locked him out of the house
“ ‘more than a dozen times’ ” because he did not “ ‘do [his] part[,]’
” and, although he “ ‘cook[ed] and clean[ed,] . . . she wanted
[Daniel] to do more.’ ” Additionally, Daniel stated, “ ‘I have
thoughts to kill myself a little, but no plans.’ ”
On August 19, 2020, mother reported to DCFS that law
enforcement told her that “she had the right to lock [Daniel] out
if he left on his own free will and [that she should] call them if he
attempted to break in through a window as that was considered
breaking and entering.” Mother claimed that at an unspecified
point in time, she came home because a “neighbor called her to
inform her that there was an issue at home with Daniel.” Mother
asserted that upon her arrival, she “found Daniel choking [A.A.]
through the porch window because [A.A.] had locked him out.”
On August 21, 2020, Jose A. reported that mother “has not
used physical discipline against [A.A.] or Daniel,” and that, “as a
form of discipline[, mother] would take [a] cell phone, or
electronics away from the children and Daniel would go through

7 The Psychiatric Medical Response Team (PMRT)
informed DCFS that mother had contacted the team on
August 18, 2020 and “reported that Daniel was being aggressive.”
The PMRT informed DCFS that Daniel was hospitalized later
that day.

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the window to attempt to get them back.” Jose stated he “never
heard [mother] talk down to the children or degrade them.”
The agency once again interviewed A.A. on
August 21, 2020. A.A. “stated she was scared of being home with
Daniel [V.]” She also said she was “ ‘still not ready’ to speak to
mother . . . .” A.A. said she felt safe at home with Jose A.
On August 24, 2020, Crystal Rodriguez told DCFS that she
is a therapist who began providing mental health services to
Daniel V. in August 2019 because Daniel reported that he wanted
to cut his wrist and mother had him hospitalized. She also
indicated that she began her therapy sessions with A.A. in
January 2019, and that the sessions ended in March 2020.
Ms. Rodriguez stated that “ ‘Daniel witnessed a lot of
verbal fights between [mother] and [Jose A.,]’ ” and that
“ ‘[s]lowly Daniel started doing things to cause attention.’ ”
Ms. Rodriguez opined that mother is “ ‘very protective over [A.A.]
and it was hard for mother to praise or give Daniel attention
other than bad attention.’ ”
Ms. Rodriguez stated Daniel V. had been diagnosed with
Major Depressive Disorder and was not on medication. She
stated that Daniel never disclosed any physical abuse during
their sessions, and that mother “ ‘would always say that Daniel
would try to hit her.’ ” Ms. Rodriguez stated A.A. did not disclose
being subject to any physical discipline, and she did not observe
any marks or bruises on the minors. Although the non-detain
report is not entirely clear on this point, it seems that
Ms. Rodriguez reported to the agency that her therapy sessions
with Daniel ended in July 2020.

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3. The September 1, 2020 last minute information report
On August 31, 2020, Daniel V. was discharged from
Del Amo Hospital and returned to mother’s home. Later that
day, Daniel told a DCFS social worker that he did not want to
stay in mother’s home because he “ ‘want[ed] to take a break from
[his mother’s] yelling and screaming.’ ” When he was asked what
he would do if the juvenile court ordered him to stay home,
Daniel responded, “ ‘I would try my best to stay home, but I don’t
know what I’d do if she hits me, she yells at me, screams at me,
or takes her anger out on me.’ ” Daniel also stated, “ ‘I don’t
belong here. [Mother] usually tells me she doesn’t want me here
and wants to get rid of me.’ ”
Also on that date, Daniel’s adult sister, L.A., told the
agency “she felt [mother] needed therapy and parenting classes
in order for her to learn how to deal with [L.A.’s] siblings.” L.A.
“stated that [mother], [A.A.], and Daniel needed to work on their
communication ‘because they all have very little patience, which
leads to arguments.’ ” L.A. reported that mother “tends to yell
and she needed to work on how she expressed herself to Daniel.”
L.A. stated that mother did not physically discipline her when
she was a minor, and that she had not witnessed mother
physically discipline her siblings.
In the last minute information report, DCFS stated it
“continue[d] to recommend that . . . Daniel V[.] remain[ ] [in
mother’s home] as there [was] no current safety threat present,
and a non-detention would provide the family with the
opportunity to participate in therapeutic programs.”

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4. The September 1, 2020 detention hearing8
At the September 1, 2020 detention hearing, the juvenile
court declared that Jose A. is A.A.’s presumed father, but
deferred making a paternity finding with respect to Daniel V.
because Daniel V., Sr. had not made an appearance.9 The court
detained Daniel and A.A. from mother, placed Daniel in shelter
care pending the next hearing, and released A.A. to Jose A.’s
custody. The court authorized mother to have monitored visits
with both children and ordered DCFS to provide “all appropriate
referrals to the parents.”

5. The jurisdiction/disposition report filed on
October 8, 2020
As of October 7, 2020 (i.e., the date on which the
jurisdiction/disposition report was drafted), Daniel V. was in
foster care and A.A. was living with Jose A.

8 The appellate record contains only one minute order from
the September 1, 2020 detention hearing—i.e., the order
concerning Daniel V. We, sua sponte, take judicial notice of the
minute order for A.A. (See Evid. Code, §§ 452, subd. (d), 459.)
9 Whereas the reporter’s transcript indicates the juvenile
court declared Jose A. to be A.A.’s presumed father, the minute
order shows the court found Jose to be only A.A.’s alleged father.
We assume the reporter’s transcript is accurate. (See In re
Hannah D. (2017) 9 Cal.App.5th 662, 680 & fn. 14.)
Furthermore, at the October 29, 2020 adjudication hearing, the
juvenile court once again declared that Jose is A.A.’s presumed
father.

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 On August 4, 2020, mother filed a petition in family law
court for a change in child support and visitation vis-à-vis A.A.10
In the declaration accompanying the petition, mother asserted
that on June 24, 2020, she made an arrangement with Jose A. to
care for A.A. because mother was unable to address Daniel V.’s
behavioral problems. She also stated the arrangement was a
safety measure to protect A.A. because Daniel hit her. Mother
further complained in her declaration that Jose had since
prevented her from having contact with A.A.
DCFS interviewed A.A. on October 4, 2020. A.A. stated
that at the beginning of the coronavirus pandemic, mother and
Jose A. left A.A. and Daniel in quarantine at home because the
adults had to go to work. A.A. claimed that she and Daniel were
left alone for the entire week, except Saturdays and Sundays
because those were mother’s days off. A.A. said that mother
“ ‘was watching’ ” Daniel and A.A. with surveillance cameras in
the home.
A.A. claimed that during that timeframe, Daniel V. hit her
every day “ ‘in the side or stomach.’ ” A.A. also asserted Daniel
“ ‘broke [her] door’ ” and “ ‘disconnected [mother’s surveillance]
cameras a lot of times.’ ” A.A. stated that she reported Daniel’s
behavior to mother, and mother replied that mother “ ‘would talk
to’ ” Daniel.
Although A.A. claimed that mother did not punish Daniel,
A.A. suggested mother did not do so because “ ‘[s]he had . . .
already taken away his phone, TV, and a lot of other privileges[;
h]e only had his school computer.’ ” A.A. stated that Daniel and

10 A hearing on this petition was scheduled for
November 17, 2020. The record does not reveal whether the
family law court took any action on this petition.

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mother fought “a lot and [got] into arguments,” and would “ ‘push
and shove each other.’ ” A.A. said she did not want to return to
mother’s home “ ‘[b]ecause usually when [A.A. was] there and
[Daniel was] there it [did]n’t feel safe.’ ” (Boldface omitted.)
A.A. reported that mother locked Daniel V. out of the home
approximately “once a week.” (Boldface omitted.) A.A. stated
mother would “force [Daniel] to go with her [to work] and lock
him out [of] the house if he didn’t want to go because [A.A.] was
in there.” (Boldface & underscoring omitted.)
On September 28, 2020, DCFS interviewed mother.
Mother asserted that although Daniel had “always behaved
badly,” he “started being more aggressive” toward A.A. in
March 2020. (Boldface omitted.) Mother indicated that in
March 2020, she returned home from work and saw A.A. near the
door “crying [and] saying [Daniel] had hit her.” Mother claimed
that A.A. told her Daniel “broke the door[,] . . . slapped her[,] . . .
threw her on the floor[,] . . . took her phone[, and d]idn’t let her
use the restroom or eat.”
The agency interviewed Jose A. on October 4, 2020. Jose
said, “ ‘Daniel has always hit [A.A.] He’s always been like that.
All his life.’ ” (Boldface omitted.) Jose reported that A.A. “ ‘was
scared [Daniel] would hit her again and retaliate for telling’ ”
mother and Jose that Daniel had hurt her.
L.A. was interviewed on October 6, 2020. When the
interviewing social worker asked L.A. about count c-1, she
replied, “ ‘That’s truth [sic], to an extent. . . . My mom loses
her patience. There’s a communication problem from both of
them. . . . My mom can be aggressive and very blunt. She doesn’t
say it to be mean. She’s just very direct. There’s been times
where I have to remind her we are her kids and she can’t call us

16
these names. She doesn’t notice that she is emotionally abusive,
but she does do it.’ ” (Boldface & underscoring omitted.)
DCFS recommended that the juvenile court remove
Daniel V. and A.A. from mother’s custody, provide monitored
visitation to mother, and terminate jurisdiction over A.A. with a
family law order granting Jose A. sole physical custody over A.A.

6. The October 29, 2020 adjudication hearing
At the adjudication hearing, the juvenile court admitted
into evidence (inter alia) the non-detain report, the
September 1, 2020 last minute information report, the
jurisdiction/disposition report, and each report’s respective
attachments.11 The court dismissed counts a-1, b-3, b-4, c-1, j-2,
and j-3, and sustained counts b-1 and j-1, and an amended
version of count b-2.
The amended version of count b-2 that was sustained by
the court read as follows: “On a prior occasion, . . . Daniel V[.’s]
and [A.A.’s] mother . . . inappropriately discipline[d] the child
Daniel. The mother struck the child with a belt resulting in a
mark to the child’s arm. The mother pushed the child. The
mother struck the child’s face resulting in a bruise to the child’s
lip. The mother shoved the child. Such inappropriate discipline
was excessive and caused the child unreasonable pain and
suffering. Inappropriate discipline of the child Daniel by the
mother endangers the child’s physical health and safety, creates
a detrimental home environment and places the child at risk of
serious physical harm, damage, danger and physical abuse.”

11 The exhibit list mistakenly identified the non-detain
report as a detention report.

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 The juvenile court declared Daniel V. and A.A. dependents
of the court, removed Daniel and A.A. from mother’s custody, and
ordered DCFS to provide family reunification services regarding
Daniel’s case. The court terminated jurisdiction over A.A. and, in
its “exit order” regarding A.A., (1) awarded Jose A. sole physical
custody; (2) gave Jose A. and mother joint legal custody;
(3) authorized mother to have monitored visits; and (4) stated
“upon proof of parenting classes and individual counseling,
mother may seek a court order for unmonitored visits.”
Mother timely appealed the juvenile court’s
October 29, 2020 rulings.

DISCUSSION

A. The Record Does Not Support the Juvenile Court’s
Removal of A.A. from Mother’s Physical Custody
In the non-detain report, which was filed on the same date
as the dependency petition, DCFS stated that A.A. “reside[d] with
father, Jose A[.,]” at an address that differed from that of
mother’s home. Mother asserts that A.A. “began residing with
Jose in late June 2020.” Because there is no dispute that
pursuant to a family court order, mother had physical custody of
A.A. but that A.A. did not reside with mother at the time the
petition was filed, section 361, subdivision (d) provides the
framework for our review.
Under section 361, subdivision (d), “[a] dependent child
shall not be taken from the physical custody of his or her
parents . . . with whom the child did not reside at the time the
petition was initiated, unless the juvenile court finds clear and
convincing evidence that there would be a substantial danger to
the physical health, safety, protection, or physical or emotional

18
well-being of the child for the parent . . . to live with the child or
otherwise exercise the parent’s . . . right to physical custody, and
there are no reasonable means by which the child’s physical and
emotional health can be protected without removing the child
from the child’s parent’s . . . physical custody.” (§ 361, subd. (d).)
Furthermore, a parent’s right to physical custody “includ[es] the
right to determine [the] placement” of the child, meaning that
mother exercised her right to physical custody when she chose to
allow A.A. to remain with Jose A. prior to the initiation of the
dependency proceedings. (See In re Anthony Q. (2016) 5
Cal.App.5th 336, 354 (Anthony Q.).)
We review the juvenile court’s factual findings for
substantial evidence. (In re Daniela G. (2018) 23 Cal.App.5th
1083, 1090.) Where, as here, the burden of proof below was clear
and convincing evidence, a higher standard governs our review as
well. “ ‘[A]ppellate review of the sufficiency of the evidence in
support of a finding requiring clear and convincing proof must
account for the level of confidence this standard demands. . . .
[W]hen reviewing a finding that a fact has been proved by clear
and convincing evidence, the question before the appellate court
is whether the record as a whole contains substantial evidence
from which a reasonable fact finder could have found it highly
probable that the fact was true. Consistent with well-established
principles governing review for sufficiency of the evidence, in
making this assessment the appellate court must view the record
in the light most favorable to the prevailing party below and give
due deference to how the trier of fact may have evaluated the
credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence.’ [Citation.]”

19
(In re V.L. (2020) 54 Cal.App.5th 147, 155 (V.L.), quoting
Conservatorship of O.B. (2020) 9 Cal.5th 989, 995–996 (O.B.).)
“A finding of parental abuse cannot alone provide the clear
and convincing evidence necessary to justify removing a child.
[Citations.] Rather, the juvenile court must determine whether a
child will be in substantial danger if permitted to remain in the
parent’s physical custody, considering not only the parent’s past
conduct, but also current circumstances, and the parent’s
response to the conditions that gave rise to juvenile court
intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520.)
To support the juvenile court’s order removing A.A. from
mother’s physical custody, DCFS argues primarily that mother
failed adequately to protect A.A. from Daniel V.’s aggressive
behavior when both children were still residing in mother’s home,
and that mother’s physical altercations with Daniel placed A.A.
at a substantial risk of physical harm.
The record demonstrates that before A.A. left mother’s
home to reside with Jose A., mother took several measures in an
attempt to safeguard A.A. from Daniel, including taking Daniel
to therapy sessions, compelling Daniel to come to work with
mother, and locking Daniel out of the home when he refused to go
to work with mother. Indeed, the juvenile court acknowledged at
the adjudication hearing that mother took “reasonable steps” to
attempt to protect A.A., including “taking the child Daniel with
her to work.”
Regardless of whether mother’s initial efforts to protect
A.A. were adequate, she ultimately undertook an undisputable
effective safety measure—she agreed to allow A.A. to live
temporarily with Jose A. to prevent Daniel from harming A.A.
Specifically, in the two months preceding the initiation of the

20
dependency proceedings, mother permitted A.A. to live with Jose
even though she had physical custody over her pursuant to a
family law court order. A.A. reported she felt “ ‘much safer’ ”
after she moved out of mother’s home “ ‘because [she was] not
worried about [Daniel] coming into [her] room, taking [her] stuff,
and hurting [her].’ ” Furthermore, mother “assure[d DCFS that
A.A. would] remain[ ] with [Jose A.] until Daniel received the
services he needed,” and mother indicated she knew A.A.
could not return home “as long as Daniel continued [to] be defiant
and aggressive.”
Under these circumstances, no reasonable factfinder could
have “found it highly probable” there was a substantial danger
that mother would allow Daniel to have access to A.A., or that
Daniel and mother would have had a physical altercation in
A.A.’s presence, if mother retained physical custody over A.A.
(V.L., supra, 54 Cal.App.5th at p. 155, quoting O.B., supra,
9 Cal.5th at p. 996.)
DCFS suggests that mother herself also posed a substantial
danger to A.A.’s well-being. To support this assertion, DCFS
cites an excerpt from the jurisdiction/disposition report that
summarizes a May 13, 2019 referral alleging physical abuse,
which the investigating social worker recommended to close as
“inconclusive” in part because “there [was] no evidence of abuse
or neglect at th[at] time.”12 The report’s summary of A.A.’s prior

12 DCFS also cites an excerpt from the
jurisdiction/disposition report that simply itemizes the
documents the agency relied upon in preparing the report. DCFS
does not explain the relevance of this excerpt to its argument that
mother presented a substantial danger to A.A., nor is it apparent
that the list has any connection to that argument.

21
child welfare history does not show that the agency took any
further action on this referral. This inconclusive referral does not
support the removal order. (See Pen. Code, § 11165.12, subd. (c)
[“ ‘Inconclusive report’ means a report that is determined by the
investigator who conducted the investigation not to be
unfounded, but the findings are inconclusive and there is
insufficient evidence to determine whether child abuse or
neglect . . . has occurred.”].) We also note that although A.A. told
DCFS in August 2020 that she felt that “she was ‘not ready’ to
speak with mother because she ‘didn’t feel like it[,]’ ” A.A.’s
apparent animus towards mother is not determinative of whether
the juvenile court erred in issuing its removal order.13 (See In re
Abram L. (2013) 219 Cal.App.4th 452, 464 [“Although they were
entitled to have their wishes considered, the [children] were not
entitled to decide where they would be placed [at the
dispositional hearing].”].)
DCFS also argues that L.A. “disclosed mother would
engage in name calling and could be ‘aggressive and very blunt’
and was ‘emotionally abusive.’ ” The agency divorces this
quotation from its context. According to the
jurisdiction/disposition report, L.A. made this statement when
she was asked about count c-1, which alleged that mother
subjected Daniel V. to emotional abuse. L.A. did not claim that
mother subjected A.A. to emotional abuse. In fact, A.A. indicated
that Daniel V. was the only family member who had called her

13 Additionally, the jurisdiction/disposition report
indicated that although A.A.’s visits with mother following the
September 1, 2020 detention hearing were “difficult[,] . . .
progress [was] being made as the mother and child [we]re
mending their bond.”

22
names or made her feel bad about herself, and her former
therapist opined that mother was “very protective” of A.A. To
reiterate, the record reveals no reasonable factfinder could have
found a high probability that mother posed a substantial danger
to A.A.
For these reasons, we reverse the juvenile court’s order
removing A.A. from mother’s physical custody pursuant to
section 361, subdivision (d).

B. Because We Reverse the Order Removing A.A. from
Mother’s Physical Custody, We Also Reverse the
Juvenile Court’s Exit Orders Awarding Jose A. Sole
Physical Custody of A.A. and Limiting Mother to
Monitored Visitation
At our request, the parties submitted letter briefs
addressing whether, under section 361.2, subdivisions (a) and (b),
our reversal of the order removing A.A. from mother’s custody
would necessitate the reversal of the exit orders awarding Jose A.
sole physical custody and allowing mother to have only monitored
visits with A.A.14 In its supplemental brief, DCFS does not

14 Section 361.2, subdivision (a) provides in pertinent part:
“If a court orders removal of a child pursuant to Section 361, the
court shall first determine whether there is a parent of the child,
with whom the child was not residing at the time that the events
or conditions arose that brought the child within the provisions of
Section 300, who desires to assume custody of the child.”
(§ 361.2, subd. (a).) In turn, subdivision (b)(1) provides: “If the
court places the child with that parent, the court may do any of
the following: [¶] (1) Order that the parent become legal and
physical custodian of the child. The court may also provide
reasonable visitation by the noncustodial parent. The court shall
then terminate its jurisdiction over the child. The custody order

23
address whether any provision of section 361.2 authorized the
juvenile court to issue these exit orders even if we were to reverse
the order removing A.A. from mother’s physical custody.15
Rather, DCFS suggests that section 362.4, subdivisions (a)
and (b) allow these other rulings to remain intact even if the

shall continue unless modified by a subsequent order of the
superior court.” (Id., subd. (b)(1).)
15 In her supplemental brief, mother claims that
section 361.2, subdivision (a) is inapplicable because “DCFS’[s]
investigation started in mid-August 2020[,] . . . [A.A.’s] petition
was filed on August 25, 2020[,] . . . [t]his is when the events or
conditions arose that brought [A.A.] within section 300[,] . . .
[and] during this period[, A.A.] resided with Jose.” Mother cites a
passage from Anthony Q. to support this proposition. (Citing
Anthony Q., supra, 5 Cal.App.5th at p. 353.)
Mother is mistaken. Anthony Q. construed the statutory
phrase “ ‘with whom the child resides at the time the petition was
initiated’ ” for the purposes of a removal order issued under
section 361, subdivision (c), and concluded that text refers to “the
time the section 300 petition was filed . . . .” (See Anthony Q.,
supra, 5 Cal.App.5th at p. 339, italics added.) In the portion of
the opinion cited by mother, the Court of Appeal distinguished
that statutory language from “the start of the county’s
investigation or ‘the time that the events or conditions arose that
brought the [minor] within the provisions of Section 300,’ . . .
[under] section 361.2, subdivision (a) . . . .” (See Anthony Q.,
at p. 353.) Anthony Q. did not hold that section 361.2,
subdivision (a)’s use of the phrase “the time that the events or
conditions arose that brought the child within the provisions of
Section 300” is synonymous with the date of filing of the petition
or with the start of DCFS’s investigation. (See Anthony Q., at
p. 353.)

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removal order is reversed. For the reasons discussed below,
we reject that argument.
Section 362.4, subdivision (a) provides in pertinent part: “If
the juvenile court terminates its jurisdiction over a minor who
has been adjudged a dependent child of the juvenile court prior to
the minor’s attainment of the age of 18 years, and . . . an order
has been entered with regard to the custody of that minor, the
juvenile court on its own motion, may issue . . . an order
determining the custody of, or visitation with, the child.”
(§ 362.4, subd. (a).) As relevant here, subdivision (b) provides
“[a]ny order issued pursuant to this section shall continue until
modified or terminated by a subsequent order of the superior
court.” (Id., subd. (b).)
As explained in our Discussion part A, ante, section 361,
subdivision (d) serves as a limitation on the juvenile court’s
authority to abridge mother’s right to physical custody of A.A.
(See § 361, subd. (d) [“A dependent child shall not be taken from
the physical custody of his or her parents . . . with whom the child
did not reside at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence that there
would be a substantial danger to the physical health, safety,
protection, or physical or emotional well-being of the child for the
parent . . . to . . . exercise the parent’s . . . right to physical
custody,” italics added].) Nothing in section 362.4, subdivisions
(a) or (b) allows a juvenile court to deprive a parent of his or her
physical custody rights even if clear and convincing evidence
did not support removal under section 361, subdivision (d). (See
§ 362.4, subds. (a)–(b).) Nor does DCFS make any attempt to
explain how a juvenile court could award Jose A. sole physical
custody of A.A. without “tak[ing A.A.] from the physical custody

25
of” mother for the purposes of section 361, subdivision (d).16 (See
§ 361, subd. (d); see also Pack v. Kings County Human Services
Agency (2001) 89 Cal.App.4th 821, 826, fn. 5 [“ ‘Although it is the
appellant’s task to show error, there is a corresponding obligation
on the part of the respondent to aid the appellate court in
sustaining the judgment. “[I]t is as much the duty of the
respondent to assist the [appellate] court upon the appeal as it is
to properly present a case in the first instance, in the court
below.” [Citations.]’ [Citation.]”].)
DCFS intimates that In re Nicholas H. (2003)
112 Cal.App.4th 251, and In re John W. (1996)
41 Cal.App.4th 961, establish that section 362.4, subdivisions (a)
and (b) permitted the juvenile court to grant Jose A. sole physical
custody of A.A. so long as doing so was in “ ‘the best interests of
the child.’ ” (Quoting Nicholas H., at p. 268.) Neither decision
held that section 362.4 supersedes or supplants section 361’s
limitations on the juvenile court’s power to remove a dependent
child from a parent’s physical custody. (See Nicholas H., at
pp. 256–258, 265–268, 270 [the mother challenged exit orders
issued at a review hearing two years after the juvenile court
removed the child from her custody; the validity of the removal
order was not at issue in that appeal]; John W., at pp. 964–965,
968–969, 973–974 [the parents appealed an exit order that did
not remove the child from either parent’s physical custody
because the juvenile court had awarded them joint custody].)
Furthermore, because the order removing A.A. from
mother’s physical custody was invalid and the juvenile court thus

16 As we explained footnote 4, ante, mother had sole legal
and physical custody of A.A. before the juvenile court issued its
dispositional rulings.

26
lacked authority to award sole physical custody of A.A. to Jose,
its order restricting mother to monitored visitation is also invalid.
(See Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 657, 663–665
[holding that a grant of sole or joint physical custody of a child
cannot be characterized as merely an award of visitation].)
Because we reverse the visitation order in its entirety, we need
not address mother’s contention that the court lacked the
authority to condition her right to seek unmonitored visits on her
completion of parenting classes and counseling.
In sum, we conclude that our reversal of the juvenile court’s
order removing A.A. from mother’s custody pursuant to
section 361, subdivision (d) necessitates the reversal of the exit
orders awarding Jose A. sole physical custody of A.A. and
allowing mother to have only monitored visitation with the child.

27
 DISPOSITION
We reverse the juvenile court’s orders removing A.A. from
mother’s physical custody, granting Jose A. sole physical custody
of A.A., and permitting mother to have only monitored visitation
with the child. This matter is remanded to the juvenile court for
further proceedings consistent with this opinion.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CRANDALL, J.*

* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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