Filed 1/14/22 In re C.R. CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re C.R. et al., a Person B310882
Coming Under the Juvenile (Los Angeles County
Court Law. Super. Ct. No. 20CCJP06449A-C)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
C.R.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Tamara E. Hall, Judge. Affirmed.
The Law Office of Richard L. Knight and Richard L.
Knight, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, Stephen Watson, Deputy County
Counsel for Plaintiff and Respondent.
______________________________
C.R. (father) appeals the jurisdictional findings and an
order removing his three minor sons from his parental custody
under Welfare and Institutions Code section 361, subdivision (c).1
Father contends there was insufficient evidence to support the
jurisdictional findings or the removal order. The Department of
Children and Family Services (Department) cross-appeals the
juvenile court’s order striking language from the sustained
petition allegations that father has a history of violent and
assaultive behavior in the presence of the minors. We affirm the
jurisdictional findings as amended by the juvenile court, as well
as the removal order.
FACTUAL AND PROCEDURAL BACKGROUND
Father and A.C. (mother)2 are the parents of minor A (born
November 2011), minor B (born February 2013), and minor C
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Mother is not a party to this appeal.
2
(born June 2014) (collectively the minors).3 Mother and father
separated in 2016. Father lives in Bakersfield, and for a period of
time he had monitored visits with the children for four hours per
week until the family court granted him unmonitored overnight
visits every other weekend. On the minors’ first overnight visit
with father in mid-October 2020, an incident led to a new
Department referral, the fourth one involving father.
Prior Referrals
A June 2015 referral alleged father emotionally abused his
ex-girlfriend’s daughter. The Department closed the referral as
inconclusive. The Department also found inconclusive a
November 2016 referral alleging father physically abused the
same ex-girlfriend in the presence of the ex-girlfriend’s daughter.
In December 2019, the Department investigated and closed a
referral alleging general neglect of the minors by father after
minor B shot himself with a pellet gun while visiting father.
The October 2020 Incident
The minors’ first overnight weekend visit took place in late
October. Father and his girlfriend were going to take the
children to a pumpkin patch when father reportedly told minor A
to brush his hair or “I’m going to beat your fucking ass.” All
three minors separately reported that father was yelling and,
when minor A was crying, father told minor A to “‘shut the fuck
3Because the children’s names and initials are so similar,
and to protect their privacy yet still distinguish between the
children, we refer to them as minors A, B, and C.
3
up’” and “‘be quiet’”. Minor A was afraid that father was going to
hit him with a belt. Minor B told father that father could not hit
them, but father responded, “I can hit you if I want.” Father did
not hit any of the minors because he did not find a belt. Minor A
stated father hit him in the past but could not remember any
details. Minors A and B stated father threw toys at the wall
breaking the toys. Minor C reported that father lifted the table
from the ground, slammed it back down, and everything fell off
the table but the table did not break. Minor C also demonstrated
for the social worker how father lifted and slammed the table.
Minor B was seeing a therapist for depression and anxiety. On
October 27, 2020, minor B informed his therapist of the incident
that occurred at father’s home, disclosing that father threatened
to hit the minors with a belt after the oldest child refused to
brush his hair, and that father threw toys and broke a table.
Father admitted he yelled at minor A when minor A
refused to brush his hair, but denied threatening to hit the
minors, throwing toys, or breaking a table. Father suspected
mother made up the allegations to keep the minors from him, and
he was unwilling to forego his next visit despite the minors
expressing they did not feel safe in his home. Father alleged
mother was telling the minors what to say. Father expressed a
willingness to enroll in a parenting class, so the social worker
sent father an email listing parenting class options; she also
advised against using any type of physical discipline with the
minors.
In interviews with the social worker, minor B stated father
always yells at the minors and says he is going to hit them.
Minor C stated he did not want to visit with father anymore
because father yells at the minors. Mother stated the minors
4
expressed they did not want to visit father anymore because they
were afraid that he might hit them. Mother also claimed that
father is an aggressive person who perpetrated domestic violence
on her during their relationship. She stated father has anger
problems, which he takes out on the minors. She claimed that
father has a history of using cocaine, and when he used cocaine
during their relationship, “he would become very angry.” Mother
was not sure if father was currently using cocaine. Mother also
stated father has a criminal history that includes violent crimes
and convictions for driving under the influence (DUI).
The November 2020 Incident
During a weekend visit in mid-November, father hit minor
B, leaving visible marks. Minor A and minor B had been arguing
over a ball but resolved the dispute before father came over and
told minor B “to get inside the F-ing room.” Father placed minor
B in time out, during which time father spanked minor B on the
buttocks once with an open hand over minor B’s clothes. Later
that day, minor B told mother that father had spanked him;
mother checked minor B and saw a bruise on his buttocks.
Mother stated that minor B told her “‘[father] smacked me so
hard and I wanted to cry but I held it in.’” Mother stated that the
minors continued to express fear of visiting father because they
were afraid father was going to hit them. After the social worker
observed a mark on minor B in the area he indicated that father
spanked him, she requested that minor B undergo a forensic
examination.
Minor B told the social worker, “I don’t want to go to
[father’s] house. He’s always hitting us.” When asked if father
5
had hit him or his brothers before, he responded “No he hasn’t hit
[us] before but he always says he’s going to hit us.” Minor A
expressed he did not want to visit father anymore because he was
afraid that father would hit him too. Minor C stated, “My dad
told me if [I] come next week. I’m going to hit you. He said he
can hit us anytime he wants. He said in 2 weeks that he’s gonna
[sic] hit me two times. I’m scared he’s gonna [sic] hit me because
he hit [minor B].” Minor C also said, “I don’t want to go [visit
father] because he’s doing bad stuff to us.”
The results of minor B’s forensic evaluation stated the
following: “[Minor B] stated that his father grabbed him by his
right upper arm and took him to the closet for time out. . . . and
his father spanked him on his leg. . . . Physical exam today is
significant for a 1 cm non-pattered bruise over left posterolateral
thigh. [Minor B] indicated this is where his father spanked him. .
. . ¶ Evaluation is consistent with history of inappropriate
physical discipline by father as reported by [minor B]. . . .”
Father admitted he spanked minor B but was adamant
that he could not have left a bruise because he “did not hit [minor
B] with full force.” Father also admitted that he should not have
spanked minor B, but stated he was frustrated with minor.
Father claimed the allegations were coming from mother and
stated “she is out to get me.”
On November 18, 2020, the social worker asked father if he
had enrolled in a parenting class. Father acknowledged he had
received her email and was interested in enrolling because it
would benefit him to learn new parenting techniques. On
November 23, 2020, during an in-person visit to father’s home, he
acknowledged that it was important to begin a parenting class to
show effort on his part. On December 1, 2020, father informed
6
the social worker that he had a parenting class enrollment
appointment the following day. On December 3, 2020, father
informed the social worker that he was enrolling in a parenting
class that day after work.
Father alleged mother is vindictive and made false claims
about him because she is unhappy that he was awarded
unsupervised, weekend visits. When asked about his criminal
arrests and allegations of domestic violence and drug use, father
stated he is a different person. He acknowledged his prior use of
cocaine and his past DUI but denied the domestic violence
allegations. Father’s criminal history consists of arrests for
various crimes and a DUI conviction.
Dependency Petition
On December 7, 2020, the Department filed a section 300
petition alleging that the minors come within section 300,
subdivisions (a), (b), and (j). Counts a-1, b-1, and j-1 alleged that
father physically abused minor B on November 15, 2020, by
striking minor B on the buttocks with his hand, and that such
abuse places the minors at-risk of serious physical harm and
abuse. Counts a-2 and b-2 alleged that father “has a history of
violent and assaultive behaviors, in the presence of the children
and in the children’s home. . . . [F]ather picked up a table and
slammed the table to the ground, causing the table to break in
the presence of the children. The father threw toys against the
wall, causing the toys to break. The father’s violent and
assaultive behavior endangers the children’s physical health and
safety, create[s] a detrimental home environment, and places the
children at risk of serious physical harm, damage, and danger.”
7
Detention Hearing
At the detention hearing, father entered a general denial.
The juvenile court found a prima facie showing had been made
that the minors were persons described by section 300, and
ordered the minors detained from father and released to mother
under the Department’s supervision. The court also ordered
monitored visits at a place and with a monitor approved by the
Department.
Jurisdictional/Disposition Report
During a January 14, 2021 interview with a social worker,
minor A again stated father got upset after telling him to brush
his hair. He said, “[father] started getting mad at me and
slammed the table really hard.” Father also threw toys against
the wall breaking some of them. Minor A stated the table was
glass and one of the broken toys was a toy car. He also explained
that father “uses the F word” a lot. Minor B did not see father
slam or break the table, but he saw him slam the door. Minor B
said “[father] gets mad a lot, he’s always mad” and “[father is]
mean and aggressive, he’s always saying bad words (get in the
fucking room).” Minor C stated he saw father slam the glass
table, which resulted in a crack. Father then threw toys, a water
bottle, and markers. All three minors expressed they did not
want to go to father’s home.
During a phone interview with father, he continued to deny
he slammed a table, threw toys, and cursed at the minors. He
said, “it’s like the kids are being coached to say that.”
8
Jurisdiction and Disposition Hearings
On February 4, 2021, the court held a combined jurisdiction
and disposition hearing. The minors’ counsel joined the
Department in requesting that the court sustain the petition
allegations. Father requested that the entire petition be
dismissed. As to counts a-1, b-1, and j-1 concerning the
November spanking incident, father argued that he was
exercising his parental disciplinary privilege. As to counts a-2
and b-2 concerning father’s angry outburst breaking toys and a
table, father argued that his behavior did not rise to the level of
abuse or violence, and that the minors statements in the
detention report and jurisdiction report are conflicting.
The court dismissed allegations a-1, b-1, and j-1 because it
found that father exercised his parental discipline privilege when
he spanked minor B, the mark could have resulted from the
minors play fighting, and that it was an isolated incident. As to
counts a-2 and b-2, the court struck the language that “father []
has a history of violent and assaultive behaviors in the presence
of the children and in the child’s home” because it found no
evidence of such behavior. The court sustained the amended
allegations a-2 and b-2 and stated, “Father did say, ‘shut the fuck
up.’ The father threatened to hit the boys with a belt to quote,
‘whoop their ass,’ end quote, but he could not find a belt. [Minor
B] told the father that he could not hit them. The father said
that he could. All three boys are present during this incident.
The father’s girlfriend corroborates the boys, in part, . . . and the
children also told their mother this and the social worker this as
well. And they corroborated each other. They all stated that on
that date, the father did not hit any of them, although he said
9
that he would. And threaten to hit them. And it was due, in
part, based on [minor A] being aggressive and the way he looked
at him. So it’s for those reasons the petition is sustained.” The
court declared the minors dependents of the court pursuant to
section 300, subdivisions (a) and (b).
Regarding disposition, the Department recommended that
the minors remain with mother with family maintenance services
and that father receive enhancement services. The Department
argued that the case should remain open because of the
contention between father and mother, the minors’ statements
that they are afraid of father, and the family would benefit from
court ordered services. The Department also requested that the
minors be removed from father due to father’s escalating
inappropriate behavior towards the minors, which led to father
physically disciplining minor B. The Department, joined by
minors’ counsel, argued that the minors’ statements that they are
afraid of father and do not want to return to his home, and
father’s insistence that he did not do anything wrong and that
mother is coaching the minors creates a risk that father’s
aggressive behavior will continue. Mother requested that the
court close the case and order sole legal and physical custody to
mother arguing that the Department’s involvement is not
necessary because the minors are safe in mother’s home. Father
requested that the minors be return to father’s custody because
the Department did not meet its burden for removal of the
minors. Father argued he is not a violent father, he has a good
relationship with the minors, and that mother coached the
minors. Father objected to anger management and individual
counseling.
10
The court denied mother’s request for sole legal and
physical custody. Regarding the Department’s request for
removal, the court stated “the children did say that they are
afraid of the father, and they don’t want to visit with the father.
And based on all the statements and the father admitting to
yelling and threatening to [sic] his children, the court finds that
the father has an anger issue and it needs to be addressed. The
father’s request not to have to participate in anger management,
that’s denied.” The court stated that the minors were able to
articulate their feelings about being afraid of father and not
wanting to visit him and found those statements credible. The
court also stated there was no evidence that the minors were
being coached.
The court found “by clear and convincing evidence that
there is substantial danger to the emotional well-being of the
minors if they were returned to father.” The court stated, “There
are no reasonable means at this time by which the children’s
emotional health can be protected without removing the children
from the father’s physical custody.” The court ordered the minors
removed from father and placed with mother, and ordered
monitored visits with father. Father expressed concern regarding
visits because he lives in a different county from mother, and
continued to argue that the minors were being coached. To
address father’s concern, the court ordered the Department to
facilitate the visits.
Father timely appealed.
11
Post-Appeal Developments
On August 24, 2021, the juvenile court terminated
jurisdiction over the children and entered a custody order
granting mother and father joint legal custody, with mother
having physical custody and father having monitored visits. On
October 25, 2021, we invited the parties to submit letter briefs
addressing whether we should take judicial notice of the orders
terminating jurisdiction, granting custody to mother and
monitored visits to father, and father’s appeal of those orders.
We also invited the parties to brief whether this court should
dismiss father’s appeal as moot under In re Rashad (2021) 63
Cal.App.5th 156. Father filed a letter brief arguing this court
should not dismiss his appeal as moot.
DISCUSSION
Because father has appealed the court’s August 24, 2021
custody order, we conclude that his current appeal is not moot
and proceed to consider the substance of his arguments. (In re
Rashad, supra, 63 Cal.App.5th at p. 164.)
Substantial Evidence Supported the Jurisdictional Finding
Father contends that the juvenile court erred in sustaining
the petition allegations pursuant to section 300, subdivision (b),
arguing they were not supported by substantial evidence.4
4We do not address the juvenile court’s decision to sustain
the identical allegation under section 300, subdivision (a). “When
12
“‘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.
[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].”’ [Citation.]” [Citation.]’” (In re I.J. (2013) 56
Cal.4th 766, 773.)
Dependency jurisdiction is warranted when “[t]he 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, subd. (b)(1); In re R.T. (2017) 3
a dependency petition alleges multiple grounds for its assertion
that a minor comes within the dependency court’s jurisdiction, a
reviewing court can affirm the juvenile court’s finding of
jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need
not consider whether any or all of the other alleged statutory
grounds for jurisdiction are supported by the evidence.” (In re
Alexis E. (2009) 171 Cal.App.4th 438, 451.)
13
Cal.5th 622, 625.) To sustain an allegation based on risk of
future harm to the child, that risk must be shown to exist at the
time the court makes the jurisdictional finding, but the court
need not wait until the child is seriously injured to assume
jurisdiction. (In re Yolanda L. (2017) 7 Cal.App.5th 987, 993
(Yolanda L.) “A section 300, subdivision (b) jurisdictional finding
may not be based on a single episode of endangering conduct in
the absence of evidence that such conduct is likely to reoccur.
[Citation.] But evidence of past conduct may be probative of
current conditions. [Citation.] To establish a defined risk of
harm at the time of the hearing, there ‘must be some reason
beyond mere speculation to believe the alleged conduct will recur.
[Citation.]’ [Citation.]” (Ibid.)
Father contends that there was insufficient evidence of
actual or substantial risk of future physical injury to the minors.
But the October incident, when considered with the totality of the
circumstances surrounding the minors’ relationship with their
father, is sufficient evidence to support the court’s determination
that the children were at risk of harm absent court intervention.
A juvenile court need not wait until a child is seriously abused or
injured before taking jurisdiction. (In re Isabella F. (2014) 226
Cal.App.4th 128, 138.) Father’s threats that he was going to hit
the minors with a belt while telling them to “shut the fuck up”,
throwing toys, and slamming a table to the ground placed the
minors at risk of physical injury from father’s explosive anger.
All three minors stated that father did not hit them only because
father did not find a belt; had he found a belt, father would have
hit them. All three also said they did not want to visit father
because they were afraid that he would hit them. Although the
juvenile court found that the evidence supported the conclusion
14
that the spanking was an exercise of reasonable physical
discipline by father, the spanking nevertheless supports that
father’s explosive anger and threatened use of more severe
physical violence placed the minors at risk of serious physical
harm absent court involvement. The father carried out the
spanking only one month after his threats to hit the minors with
a belt; coupled with the minors’ well-grounded fear and the social
worker’s caution that father should not use physical discipline,
the spanking shows father’s inability to control his anger and his
inclination to resort to a physical response.
Father contends there was no evidence that the minors
were at risk at the time of the February 4, 2021 jurisdictional
hearing. However, there is no indication that father took any
steps to change his behavior. (In re J.K. (2009) 174 Cal.App.4th
1426, 1439.) The juvenile court could consider “evidence of the
parent’s current understanding of and attitude toward the past
conduct that endangered a child, or participation in educational
programs, or other steps taken, by the parent to address the
problematic conduct in the interim.” (In re J.N. (2010) 181
Cal.App.4th 1010, 1025–1026.)
The minors consistently reported that father would yell and
curse at them. Father responds by denying he ever threatened to
hit the minors or threw their toys, and instead claims it is the
minors who curse in his home. Rather than acknowledge his
inappropriate behavior, he focuses on mother and claims she
coached the minors because mother is “out to get [him]”. Further,
father’s mixed responses to opportunities to learn more effective
parenting techniques support a finding that the children
remained at risk of harm. The social worker provided father with
parenting class options, he admitted that enrolling in a class
15
would benefit him and show effort on his part, and on two
occasions claimed he would be enrolling the following day or that
same day. However, by the time of the hearing two months after
expressing interest, father had not yet enrolled in a parenting
class. A reasonable inference is that father will continue to give
in to his anger and physically discipline the minors when he gets
frustrated. Because the father will not participate in a parenting
class unless the court orders him to do so, the minors remain at
risk of future physical injury and emotional harm from father’s
outbursts.
Father argues the facts of the current case are similar to In
re A.L. (2017) 18 Cal.App.5th 1044 (A.L.) where the appellate
court reversed a jurisdictional finding based on a single episode
involving a mentally ill mother who threw a shoe that hit her
daughter. In A.L., the mother was previously diagnosed with
schizophrenia and had stopped taking her medication. (Id. at p.
1051.) The children in A.L. were much older (11 and 15 years
old) and familiar with mother’s mental illness, the other parent
was residing in the home with them, and the mother was back on
her medication and living in another state at the time of the
jurisdictional hearing. (Id. at pp. 1047–1049.) Both children in
A.L. expressed they felt safe at home, were not afraid of mother,
and wanted her to get better. (Id. at. p. 1047.) The appellate
court found no current risk, given the children’s ages and their
demonstrated ability to respond to any future changes in
mother’s health. (Id. at pp. 1050–1051.) In contrast, the children
here are much younger, between the ages of six and nine, and
they stated in interviews conducted only three weeks before the
jurisdiction and disposition hearing that they do not feel safe in
father’s home and do not want to visit him because they fear he
16
will hit them. Unlike the parents in A.L. who immediately took
action to address mother’s problems, here, father has failed to
make any effort to address his anger or the parenting techniques
that led to the Department’s involvement. While the court can
consider a parent’s efforts to correct past behavior, here, father
had yet to make any efforts. Father argues that there was only a
single incident of violent and assaultive behavior, but he fails to
acknowledge that the incident occurred on the minors’ first
overnight visit with father. Also, during his interview with the
social worker, he admitted he yelled but denied threatening to hit
the minors or throwing toys and breaking a table. However, in
briefing, father admits to such behavior but argues his violent
and assaultive behavior was directed at objects and therefore the
minors were never at risk. “One cannot correct a problem one
fails to acknowledge.” (In re Gabriel K. (2012) 203 Cal.App.4th
188, 197.)
Substantial Evidence Supported the Order Removing the Minors
from Father’s Custody
Like his jurisdictional challenge, father also contends that
at the time of the dispositional hearing there was insufficient
evidence to support a finding that the minors were at substantial
risk of detriment if they remained in father’s custody. We
disagree.
“To remove a child from parental custody, the court must
make one of five specified findings by clear and convincing
evidence. (§ 361, subd. (c).) One ground for removal is that there
is a substantial risk of injury to the child’s physical health,
safety, protection, or emotional well-being if he or she were
17
returned home, and there are no reasonable means to protect the
child. (§ 361, subd. (c)(1).)” (In re V.L. (2020) 54 Cal.App.5th 147,
154 (V.L.).)
“In determining whether a child may be safely maintained
in the parent’s physical custody, the juvenile court may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.) “‘The
jurisdictional findings are prima facie evidence that the child
cannot safely remain in the home. (§ 361, subd. (c)(1).)’
[Citation.]” (In re John M. (2012) 212 Cal.App.4th 1117, 1126
(John M.).) “‘“The parent need not be dangerous and the minor
need not have been actually harmed before removal is
appropriate. The focus of the statute is on averting harm to the
child.” [Citation.]’” (John M., supra, 212 Cal.App.4th at p. 1126.)
“‘Reasonable apprehension stands as an accepted basis for the
exercise of state power.’ [Citation.]” (V.L., supra, 54 Cal.App.5th
at p. 154.)
“When 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. In conducting its review,
the court must view the record in the light most favorable to the
prevailing party below and give appropriate 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.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012 (O.B.);
see also V.L., supra, 54 Cal.App.5th at p. 155 [“O.B. is controlling
18
in dependency cases”].) We review the entire record to determine
whether the removal order is supported by substantial evidence.
Here, substantial evidence supports the juvenile court’s
order removing the minors from father’s custody. The minors
made consistent statements to different individuals, including
mother, a therapist, and the social worker, that father threw
toys, broke a table inside the home, and threatened to “whoop
[minor’s] fucking ass” with a belt. In addition to denying the
reported behavior, father claimed mother was vindictive and
coaching the minors in an attempt to keep the minors away from
him. However, the court found no evidence of coaching and found
credible the minors’ statements that they were afraid of father.
“‘[D]enial is a factor often relevant to determining whether
persons are likely to modify their behavior in the future without
court supervision.’ [Citation.]” (In re A.F. (2016) 3 Cal.App.5th
283, 293 (A.F.).) A reasonable inference from father’s failure to
acknowledge his actions is that father is unlikely to rectify his
inappropriate parenting techniques without the court’s
involvement, which would place the minors at risk of emotional
and physical harm. Thus, “there was no reason to believe the
conditions would not persist should the minor[s] remain in [his]
home.” (Ibid.)
Father claims the evidence supporting the removal order
was “skimpy”, and the removal order here should be reversed, as
it was in In re Basilio T. (1992) 4 Cal.App.4th 155 (Basilio T.).
We find father’s argument unpersuasive. In Basilio T., a juvenile
court’s removal order was based in part on the statements of
children who were four and six years old that were made to a
social worker. (Basilio T., supra, 4 Cal.App.4th at pp. 160, 170–
171.) At the jurisdictional hearing, the juvenile court found the
19
youngest child unqualified to testify. (Id. at p. 161.) Yet in
issuing the removal order, the juvenile court considered his
statement that he observed his parents fighting. (Id. at pp. 163,
171.) The older child recanted his earlier statements that he saw
his parents fighting and that the father hit the mother. (Basilio
T., supra, 4 Cal.App.4th at pp. 160–161.) The appellate court
held that the juvenile court should not have considered the
youngest child’s statements in issuing the removal order, and
that the older child’s statements along with other “skimpy”
evidence were insufficient to support removal. (Id. at p. 171.) In
contrast, father here has not challenged the evidentiary value of
the minors’ statements, and there is no dispute regarding their
competency. The juvenile court found credible the children’s
statements that father demonstrated violent behavior against the
toys and table and that they feared father. We have no reason to
question the juvenile court’s credibility determination. “Issues of
fact and credibility are the province of the juvenile court and we
neither reweigh the evidence nor exercise our independent
judgment.” (Yolanda L., supra, 7 Cal.App.5th at p. 992.)
Father also argues that rather than removing the children
from his custody, the court should have ordered frequent and
random unannounced visits to father’s home. Unless a social
worker arrives when father is frustrated or upset with the
minors, it would be impossible for the Department to determine
whether father is continuing to threaten, curse at, and physically
discipline the minors. “Unannounced visits can only assess the
situation” “at the time of the visit.” (A.F., supra, 3 Cal.App.5th at
p. 293.) Father’s failure to recognize his actions and take steps to
remedy his inappropriate behavior supports a reasonable
inference that he will continue to inappropriately discipline the
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minors, increasing the potential risk of emotional and physical
harm to the minors.
As for father’s claim that the juvenile court failed to state
sufficient facts supporting removal as mandated by section 361,
subdivision (e), father did not interpose an objection on this
ground. “‘[A] reviewing court ordinarily will not consider a
challenge to a ruling if an objection could have been but was not
made in the trial court. [Citation.] The purpose of this rule is to
encourage parties to bring errors to the attention of the trial
court, so that they may be corrected. [Citation.]’” (In re Rebecca
S. (2010) 181 Cal.App.4th 1310, 1313, quoting In re S.B. (2004)
32 Cal.4th 1287, 1293.) Although we have discretion to consider
father’s argument, we decline to do so because a timely objection
would have easily permitted the court to state the requisite
findings; and as we have determined, removal was necessary to
adequately protected the minors.5
For these reasons and the reasoning supporting the
jurisdictional findings, we conclude that removal of the minors
5 Even if we were to consider father’s argument, the
juvenile court did state the reason for removing the minors,
explaining: “[the minors] are of age to articulate their feelings”
and therefore it was “removing the children from the father based
on the children’s statements of being afraid of the father at this
time.” Although brief, the juvenile court’s statement complied
with section 361, subdivision (e). Moreover, father has not
argued or shown how the shortcoming was prejudicial. (See In re
D.P. (2020) 44 Cal.App.5th 1058, 1068 [holding that a juvenile
court’s failure to state the facts upon which removal was based is
deemed harmless if “‘“it is not reasonably probable such finding,
if made, would have been in favor of continued parental
custody”’”].)
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from father was necessary to protect them from risk of emotional
and physical harm and therefore we affirm the juvenile court’s
removal order.
Department’s Cross-Appeal
In its cross-appeal, the Department contends that the
juvenile court erred when it struck the language in the petition
allegations that stated father “has a history of violent and
assaultive behaviors, in the presence of the children and in the
children’s home.” The Department’s argument relies on an
incorrect view of how a reviewing court considers an appeal
brought by the party bearing the burden of proof. The
substantial evidence test is generally applied “when a defendant
contends that the plaintiff succeeded at trial in spite of
insufficient evidence.” (In re I.W. (2009) 180 Cal.App.4th 1517,
1528, abrogated on other grounds by O.B., supra, 9 Cal.5th 989.)
“In the case where 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, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment. This follows because such a
characterization is conceptually one that allows an attack on (1)
the evidence supporting the party who had no burden of proof,
and (2) the trier of fact’s unassailable conclusion that the party
with the burden did not prove one or more elements of the case.”
(Ibid.) “Thus, where the issue on appeal turns on a failure of
proof at trial, 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
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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.’ [Citation.]” (Ibid.)
Here, the Department contends the court should not have
struck the reference to “a history of violent and assaultive
behaviors” in the petition allegation because there was evidence
that minor A witnessed father’s violent and assaultive behavior
against mother and the children stated father always threatens
to do bad stuff to them. However, that is the only evidence on the
record of violent or assaultive behavior aside from the two
incidents that resulted the Department’s involvement. Father,
on the other hand, claims that he never physically abused
mother, hit the minors, nor threatened to hit the minors.
Although arrested various times, father was never convicted of
domestic abuse or any other violent crimes. Aside from mother’s
statements that she was the victim of domestic abuse by father
and that minor A witnessed such abuse, there is nothing that
supports that allegation. This is not evidence “of such a
character and weight” that would lead us to conclude as a matter
of law that father has a history of violent and assaultive
behavior.
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DISPOSITION
The juvenile court’s amended jurisdictional findings and
the order removing the minors from father’s custody are affirmed.
MOOR, J.
We concur:
RUBIN, P.J.
KIM, J.
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