In re S.D. CA2/8

Filed 7/19/21 In re S.D. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

In re S.D. et al., Persons Coming B308007
Under the Juvenile Court Law.
______________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 20CCJP02650A–C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,
v.

RAFAEL F.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Robin R. Kesler, Juvenile Court Referee.
Affirmed.

Carolyn S. Hurley, under appointment by the Court of
Appeal, for Defendant and Appellant.

Rodrigo Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
______________________________________
 INTRODUCTION
Father contends the evidence is insufficient to support the
juvenile court’s order removing the children from Mother’s care
and custody. We are unpersuaded by his arguments and
conclude substantial evidence supports the juvenile court’s
removal order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother has not appealed. Father proffers no argument
challenging the jurisdictional findings as to both parents or the
dispositional order removing the children from Father’s care and
custody. Accordingly, we provide only the facts relevant to our
limited review.
Mother has three children: S.D., born in 2008 to Mother
and Daniel D., who married in 2006 and divorced in 2016; A.T.,
born in 2016 to Mother and Omar T.; and V.F., born in 2019 to
Mother and Rafael F. (Father). Mother and Father have been
married for two years.
A. Events Leading to Filing of Petition
This family came to the attention of the Los Angeles
County Department of Children and Family Services (DCFS) as a
result of multiple referrals. On April 3, 2020, the reporting party
(RP) said he heard Mother and Father fighting and reported
“ongoing domestic violence for a long time.” RP was worried
Mother “may be physically violent” towards Father. RP indicated
the children were in the apartment when parents engaged in the
domestic violence incident. RP reported V.F. was left unattended
in a stroller on a street sidewalk while Mother and Father fought
in the middle of the street and chased each other.

2
 On April 14, 2020, Mother called law enforcement. Mother
said she was afraid. Father was under the influence of alcohol.
When he discovered she called the police, Father seized Mother
by her shoulder and threw her to the ground. He grabbed and
broke her phone and fled the home. Mother complained of neck
pain and was treated by paramedics. Mother said there were
previous domestic violence incidents and she would “go to the
courthouse to obtain a restraining order.”
On April 15, 2020, RP stated Father attempted to leave the
home in his car but Mother blocked his only exit by standing in
front of the car with V.F. in her arms. RP said A.T. “appeared to
be afraid” and was biting on his fingernails after witnessing the
argument. RP reported “both parents have a history of [domestic
violence] and often times rekindle as if nothing happened.” RP
observed damaged doors and holes in the wall of the home as a
result of the domestic violence between the parents. RP reported
Mother previously pulled a knife on Father and poured bleach on
his clothing. RP “is concerned for the children’s safety.” Finally,
RP stated Mother has a “history of coaching the children” during
a former DCFS investigation.
On April 16, 2020, the CSW received call logs indicating
there had been 14 calls in the last two years to law enforcement
from Mother’s and Father’s home and “all calls pertain to
domestic violence.” For instance, in June 2019, a call was made
reporting Mother and Father hit each other in front of the
children. In December 2019, a call reported Father and Mother
argued about property and children; a child custody investigation
ensued and Mother was advised how to obtain a restraining
order. In February 2020, Mother requested police assistance; a
struggle was heard over the phone before the line disconnected.

3
In March 2020, Father was under the influence of crystal meth
and attempted to choke Mother during a dispute. In April 2020,
Mother was heard screaming for help; the children were also
heard screaming.
DCFS began an investigation. On April 16, 2020, Mother
was interviewed about RP’s allegations. Mother “confirmed the
allegations” and stated she “is a victim of domestic violence.”
Mother confirmed she and Father engaged in an argument on
April 3, 2020 after he attempted to leave their home with the
family car. Mother said she had V.F. with her during the
argument but denied that she positioned herself in front of the
car when Father attempted to drive off. Mother denied Father
had been living at their home since his arrest and former DCFS
investigation in June 2019. Mother said she was afraid of Father
and concerned he might be under the influence of drugs. She
confirmed she had called law enforcement multiple times to have
Father removed from the home, including on April 14, 2020,
when Father physically assaulted her during an argument about
finances, pushed her to the ground, and broke her phone. Mother
said A.T. and V.F. were inside the bedroom during the assault
but were not hurt. She said she does not plan on remaining in a
relationship with Father and intends to file for a restraining
order.
DCFS next interviewed A.T., who stated he has witnessed
arguments between Mother and Father. He witnessed Father
grab Mother’s hair and throw her to the ground; he witnessed
Father break things at home. A.T. once observed Father climb
up a ladder to escape from law enforcement as they arrived to
their home. A.T. said Mother and Father fought often in the

4
room while the children played. A.T. said Father lives at their
house with Mother.
A family neighbor stated there had been multiple incidents
of domestic violence in the home. The neighbor confirmed the
family continued to engage in verbal and physical arguments.
B. Petition and Detention
On May 11, 2020, the juvenile court granted DCFS’s
application requesting authorization to remove all three children
from parental custody.
On May 13, 2020, DCFS filed a Welfare and Institutions
Code1 section 300 petition on behalf of all three children. The
petition alleged the following:
Counts a-1 and b-1: Mother and Father have “a history of
engaging in violent and physical altercations in the children’s
presence.” On April 14, 2020, Father grabbed Mother, pushed
her to the floor, and caused pain to her neck. Father has broken
Mother’s phone and other items in the home. On a prior occasion,
Father grabbed Mother’s hair and threw her to the ground in the
presence of A.T. On prior occasions, Mother threw items at
Father and damaged Father’s clothing. Mother and Father
pushed each other. Father has a criminal conviction for inflicting
corporal injury on a spouse. Violent conduct by Father and
Mother endangers the children’s physical health and safety and
places the children at risk of serious physical harm, damage, and
danger.
Count b-2: Father has “a criminal history of convictions”
for transportation of controlled substances, possession of a

1 All statutory references are to the Welfare and Institutions
Code, unless otherwise stated.

5
controlled substance for sale, possession of a controlled substance
while armed, driving under the influence of alcohol and drugs; he
is a registered controlled substance offender. Father’s criminal
history endangers the children’s physical health and safety and
places the children at risk of serious physical harm, damage, and
danger.
At the detention hearing on May 18, 2020, the juvenile
court ordered the children detained from Mother and Father. It
granted Mother’s request for a continuance and trailed detention
to the following day.
On May 19, 2020, Mother filed a request for a restraining
order against Father. The juvenile court set the matter for
hearing and granted a temporary restraining order (TRO)
protecting Mother from Father. Father was ordered not to
attack, strike, batter Mother, or disturb her peace. He was
ordered to stay at least 100 yards away from Mother.
The court proceeded to detention. It found a prima facie
showing the children are persons described by section 300,
subdivisions (a) and (b), and a “substantial danger exists to their
physical and/or mental health and no reasonable means exist to
protect them without removal from the parents’ custody.
Remaining in the homes of the parents is contrary to their
welfare.” The court found DCFS provided reasonable services to
prevent removal and that no available services existed to prevent
further detention; temporary custody and care of the children
was ordered vested with DCFS. DCFS was ordered to provide
both parents with family reunification services. The court
ordered twice weekly monitored one-hour visitation for both
parents.

6
C. DCFS’s Continued Investigations
On July 22, 2020, DCFS verified Father’s criminal history.
Father registered as a controlled substance offender in June
2009, May 2011, and August 2017. Father was convicted of
inflicting corporal injury on spouse/cohabitant (Pen. Code § 243.5,
subd. (a)) in December 2012 and served two years in prison.
~(CT 196, 225, 261-265)~
DCFS interviewed Mother again on July 23, 2020. Mother
minimized the domestic violence allegations and denied having a
history of domestic violence with Father. She said Father never
grabbed her by her hair in A.T.’s presence; Mother said A.T. has
lied in prior occasions. She said Father never broke things in the
home and has never pushed her. Mother claimed she never
pushed Father and never poured bleach on his clothes. When
asked about her call to the police in June 2019, Mother said she
called “due to an argument” where she felt “afraid” and
“insecure.” The interviewer noted Mother “denied multiple
domestic violence incidents.”
Father was interviewed that same day. Father said he
read the section 300 petition and “believed everything to be
untrue.” He denied having pushed, grabbed or thrown at Mother.
Father could not recall whether he and Mother had put their
hands on each other. Father could not recall whether law
enforcement had ever arrived during any incident. He told the
interviewer Mother exaggerated a lot and “is not aware how her
exaggeration has affected us.”
DCFS interview S.D. on July 29, 2020. S.D. was “brief with
answers” and repeated throughout the interview that she has a
bad memory and did not “recall much from last year.” S.D.
denied any physical domestic violence between the parents.

7
 A neighbor and friend of the family said she has seen law
enforcement respond to incidents at Mother’s and Father’s home.
She said A.T. reported in the past that Father “threw the door” to
Mother’s face or locked Mother in a room. She has seen bruises
on Mother’s arms in the past. She recalled an incident where
Father ran out and Mother followed him, leaving the children
home alone. She also recalled another incident where S.D.
knocked on her door late at night, and said Mother chased after
Father and left home; the neighbor found the children home
alone.
DCFS reported Father had three missed drug tests. Father
presented several documents to DCFS: a certificate of completion
of a 12-Step Program dated February 2016; a certificate of
completion of an anger management program dated January
2016; and a certificate of completion of a parenting education
program dated April 2016.
Father stated he participates in the lives of all three
children, is listed on their emergency cards, provides them with
financial support, and carries them on his health insurance.
D. Adjudication
In anticipation of adjudication, DCFS submitted two last
minute information (LMI) reports to update the juvenile court.
In its LMI filed August 10, 2020, DCFS reported Father was a
“no show” for two more drug tests. The LMI included information
it learned from Father’s case manager at Breaking Barriers. The
case manager reported she had been working with Father for
about two years. She reported Father was in a “very toxic
marriage,” that Mother has yelled and shouted at Father, and
has blocked Father from leaving home and going to work.

8
“Because [Father] has a record and he is a male, he is view[ed] as
the perpetrator.”
In its September 24, 2020 LMI, DCFS reported Mother had
attended 10 sessions at Safety Alliance, a women’s support group
for domestic violence. Father had attended 10 group sessions at
Project Fatherhood. Father had also attended eight classes in a
batterer’s intervention program. DCFS reported Father missed
eight drug test appointments.
The jurisdictional and dispositional hearing took place on
September 24, 2020. The court found Father the presumed
father of S.D. and A.T. It then proceeded to sustain the petition
as pled and made lengthy findings.
The court found Father’s criminal history “very relevant
here. He has a conviction in 2012 for domestic violence which I
believe he served two years prison or jail for it. [¶] Mother
describes his behavior on drugs as erratic, hostile, very relevant
to his prior history as a substance control offender on multiple
occasions from 2009 on. He was convicted of Penal Code violation
243.5(a), inflicting corporal injury on a spouse or cohabitant, two
years prison, and that appears to be 2012. [¶] . . . [¶] Then he
had a recent arrest of June 25 for somewhat the same allegation,
Penal Code 243(e)(1), battery on a spouse. [¶] I’m glad that
[Mother] is starting to make some progress, and as all of these
very experienced attorneys are aware, that just beginning to
make progress does not get you past the problem. You may
understand you’re in a domestic violence relationship, but
understanding that and taking actions to protect yourself and
your children is completely different. [¶] These parents have
been fighting, pushing, grabbing, throwing things at each other.
While by far Father is the aggressor in this area, Mother has also

9
been aggressive on her own. . . . [T]he court finds by a
preponderance of the evidence count (a)(1), (b)(1), (b)(2) all true
as pled, finding that the children are described under . . . sections
300(a) and (b).”
The court commended Mother “for getting started in her
programs, but it is just a start. As indicated earlier, Father
received a two-year prison sentence in 2012 for domestic violence
against the Mother. Then I have two children born to this family
afterwards with domestic violence ongoing. [¶] Mother was
aware of Father’s substance abuse, his transportation of drugs,
and his other criminal behavior, and yet she continued to have
contact with him resulting in another child and the ongoing
domestic violence. This is not a one time thing. This is multiple
times in 2019 and 2020. [¶] Mother’s recent participation in
programs does not give confidence to this court that she actually
has the tools to protect herself from Father.” The court issued a
restraining order protecting Mother against Father for the
duration of one year. Father was ordered not to attack, strike,
stalk, batter, harass Mother, or disturb her peace. Father was
ordered not to contact Mother in any way, directly or indirectly,
in person, by telephone, or in writing. He was ordered to stay
100 yards away from Mother except for the peaceful exchange of
children during visitation.
The juvenile court declared the children dependents of the
court under section 300, subdivisions (a) and (b), and found by
clear and convincing evidence that returning physical custody of
the children to the parents “creates a substantial risk of
detriment to the children’s safety, protection, physical, and
emotional well-being.” It found DCFS made reasonable efforts to
prevent the need for removal, but that there are “no reasonable

10
means today by which to protect them without removing them
from their parents’ care.” The court ordered the children
removed from both parents.
The court ordered family reunification services for both
parents. The court ordered Mother to participate in domestic
violence support group for victims, parenting education, and
individual counseling. Mother’s visits were to be supervised by
any DCFS-approved monitor, except for one hour unmonitored
visits in the caretaker’s home. DCFS was given discretion to
liberalize Mother’s visitation. Mother and Father were ordered
not to visit together. The court ordered Father to participate in a
full drug and alcohol treatment program, individual counseling,
parenting education, and a 52-week-long course for domestic
violence perpetrators. Father’s visits were to be monitored.
Father filed a timely notice of appeal challenging the
court’s jurisdictional findings and dispositional order.
DISCUSSION
We preliminarily note the following.
Father indicated in his notices of appeal for all three
children that he is appealing from both the jurisdictional findings
and dispositional removal order. However, in his briefing, Father
did not actually challenge the jurisdictional findings as to either
parent or the removal order as to him. Because he presented no
argument, we treat those contentions as waived. (Ivanoff v. Bank
of America, N.A. (2017) 9 Cal.App.5th 719, 729, fn. 1; In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [the
absence of cogent legal argument or citation to authority allows
this court to treat the contentions as waived].)

11
 We proceed with our review of Father’s challenge to the
juvenile court’s order removing S.D., A.T., and V.F. from Mother’s
custody.
A. Applicable Law and Standard of Review
Section 361, subdivision (c) authorizes the juvenile court to
remove a child from the physical custody of the parent if the court
finds clear and convincing evidence there is or would be “a
substantial danger to the physical health, safety, protection, or
physical or emotional well-being of the minor” if returned home,
and that there are no reasonable means of protecting the minor’s
physical health without removal from parent’s physical custody.
(§ 361, subd. (c)(1).) Clear and convincing evidence “requires a
finding of high probability. The evidence must be so clear as to
leave no substantial doubt.” (In re David C. (1984)
152 Cal.App.3d 1189, 1208.)
A child need not actually be physically harmed before
removal is appropriate; our goal is to avert any harm befalling
the minor children. (In re N.M. (2011) 197 Cal.App.4th 159,
169-170.)
A juvenile court’s removal order at a disposition hearing
will be affirmed on appeal if it is supported by substantial
evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).)
Substantial evidence is evidence that is “ ‘reasonable in nature,
credible, and of solid value.’ ” (Ibid.) As recently set forth by our
Supreme Court, “[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 probably that the fact was true. In
conducting its review, the court must view the record in the light

12
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.).)2
One parent has standing to challenge the removal of
his/her children from the other parent’s custody. (In re R.V.
(2012) 208 Cal.App.4th 837, 848–849 [“Ordinarily, an appellant
cannot urge errors that affect only another party who does not
appeal. [Citations.] However, ‘[u]ntil parental rights are
terminated, a parent retains a fundamental interest in his or her
child’s companionship, custody, management and care.’
[Citation.] Because [the children’s] placement in out-of-home
care has the potential to adversely affect the father’s own
interests in reunifying with [the children], the father has
standing to challenge the court’s dispositional order removing
custody from the mother and placing [the children] in foster
care.”].)
In reviewing Father’s challenge to the juvenile court’s order
removing the children from Mother’s custody, we search the
record for substantial evidence. (In re Francisco D. (2014)
230 Cal.App.4th 73, 80.)
B. Analysis
Father argues substantial evidence does not support the
court’s order removing the children from Mother’s custody
because “both parents had been respecting [the] restraining order

2 While O.B. is a conservatorship case, it is controlling in
dependency cases. (V.L., supra, 54 Cal.App.5th at p. 155.)

13
for four months, were engaged in services, and had no prior
cases.” He argues the children were not at substantial risk of
harm if returned home because Mother and Father separated and
“both had admitted the relationship was toxic.” Father notes “no
further incidents between the parents had happened since court
involvement.” Father contends “[b]ecause the children also
wanted to return to [Mother], there was no substantial evidence
of a remaining risk to the children.”
We are not persuaded by Father’s arguments, some of
which completely miss the mark. The record is replete with
evidence demonstrating that Mother and Father have a history of
domestic violence, often in the presence of one or more of their
children. In the month preceding the May 13, 2020 filing of the
petition, multiple domestic violence incidents took place between
Mother and Father, on April 3, 14, and 15. Call logs indicated
there were 14 calls in the last two years to law enforcement about
domestic violence between Mother and Father. A.T. stated he
has witnessed Father grab Mother’s hair and throw her to the
ground. A neighbor and family friend reported having seen
bruises on Mother’s arms and recalled an incident where S.D.
knocked on her door late at night when Mother chased after
Father and left the children alone at home. Mother had held V.F.
in her arms while blocking Father from driving out with his car.
There is also evidence in the record indicating Mother was also
violent towards Father. This type of violent conduct between
Father and Mother place their children at risk of serious physical
harm.
Yet despite all of this, Father told DCFS that he never
pushed or grabbed Mother (and could not “recall” whether he ever
put his hands on Mother). Similarly, although Mother first

14
confirmed the allegations and stated she is “a victim of domestic
violence,” she later minimized all domestic violence allegations
and denied having a history of domestic violence with Father.
Mother even suggested to DCFS that A.T.’s statements about
witnessing violence between Mother and Father were untrue.
(See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One
cannot correct a problem one fails to acknowledge”].) The
absence of domestic violence incidents during the four months
preceding the adjudication hearing and removal order does not
mitigate the longstanding history of domestic violence between
the parents—sometimes in the presence of one or more of the
children. Mother’s passivity and failure to realize that Father’s
domestic violence places the children at risk of harm
demonstrates Mother’s inability to provide proper care.
Courts have recognized “less drastic alternatives to
removal may be available in a given case including returning a
minor to parental custody under stringent conditions of
supervision by the agency such as unannounced visits.” (In re
Hailey T. (2012) 212 Cal.App.4th 139, 148.) We conclude,
however, this is not one of those cases. Further, Father failed to
specify exactly what reasonable alternatives could have obviated
removal. In this case, more stringent supervision or
unannounced DCFS visits would not have alleviated the court’s
ongoing concerns as Father and Mother have a history of
reuniting despite repeated domestic violence incidents between
them. DCFS carried its burden to show that at the time of
disposition, there were no reasonable means of protecting the
children’s health and safety without removing them from Mother.
Based on the record, and taking into account the clear and
convincing burden of proof required for removal (see O.B., supra,

15
9 Cal.5th at p. 1005), we conclude substantial evidence supports
the juvenile court’s order removing the children from Mother’s
custody.
Accordingly, we affirm.
DISPOSITION
The juvenile court’s removal order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, Acting P. J.

We concur:

WILEY, J.

OHTA, J.*

* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

16