In re J.R. CA2/4 ( 2021 )

Filed 12/1/21 In re J.R. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re J.R., a Person Coming B308139
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP04187,
19CCJP04187A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
J.R.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Martha A. Matthews, Judge. Affirmed.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel for Plaintiff and Respondent.
This is the third appeal arising out of the juvenile court’s
jurisdiction over J., the eight-year-old child of mother, M.R., and
father, J.R. In the first appeal, father challenged the court’s
jurisdictional and dispositional orders establishing jurisdiction
over J. pursuant to Welfare and Institutions Code section 300,
based on mother and father’s conduct in repeatedly accusing each
other of abusing J.1 We dismissed the appeal, finding that the
court would maintain jurisdiction over J. regardless of the
outcome of the appeal and father’s dispositional challenge was
rendered moot by subsequent rulings.
Following another incident in which mother accused father
of harming J., the court sustained a section 387 supplemental
petition and removed J. from both parents’ custody. Mother
appealed, arguing that there was insufficient evidence to support
the court’s findings of jurisdiction over J. and that J.’s removal
from parental custody was unnecessary to prevent substantial
danger to him. We affirmed.
Father now appeals from the same orders sustaining the
section 387 supplemental petition and removing J. Once again,
we affirm.
BACKGROUND
A detailed recitation of facts is contained in our prior
unpublished opinions, In re J.R. (Nov. 2, 2020, No. B299814)
1All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2
(nonpub. opn.) (J.R. I) and In re J.R. (July 22, 2021, No.
B307228) (nonpub. opn.) (J.R. II). We recite here only a brief
summary relevant to the issues on appeal.
Original Petition, Jurisdiction, and Disposition
Mother and father have one child together, J., born in
2013.2 In January 2017, upon annulment of their marriage, the
family court awarded mother primary physical custody of J., with
visitation for father.
On June 28, 2019, the case was referred to the Los Angeles
County Department of Children and Family Services (DCFS)
based on father’s report of abuse by mother. When the babysitter
dropped J. off for father’s visitation, father noticed that J. had
several fresh scratch marks and bruises.
J. told a DCFS children’s social worker (CSW) that mother
hit and scratched him when she was upset. At the time, J. had
numerous fresh, deep red scratches on his face, neck, back, and
arm, and bruises on his eye and thigh. Father told the CSW that
he had made several prior reports about mother’s physical abuse
and neglect of J. He stated that he did not communicate with
mother, because “all she does is argue.”
Mother reported that J.’s injuries were caused by her
babysitter’s 10-year-old autistic son, who lashed out at J. while
the babysitter was transporting both children. Mother stated
that since their separation, father had made multiple reports to
DCFS alleging that she had abused the child, but that J. had
attention-deficit/hyperactivity disorder (ADHD) and sometimes
sustained scratches and bruises from rough playing. Mother also
stated that J. returned from visiting father with bruises and that
father refused to communicate with her directly.
2 Mother is not a party to this appeal.
3
DCFS noted a pattern of ongoing physical abuse referrals
by both parents against each other, including nine DCFS
investigations for physical abuse and neglect between 2016 and
2018. Most of the incidents involved scratching or bruising, and
many included visits to the hospital for evaluation. The referrals
were ultimately closed, with most being found inconclusive.
DCFS filed a dependency petition on July 2, 2019 under
section 300, subdivisions (a) and (b)(1). Counts a-1 and b-1
alleged that mother had physically abused J. Count b-2 alleged
that on a prior occasion, mother endangered J. by driving under
the influence of alcohol while J. was in the vehicle. J. was
detained from both parents and placed in shelter care.
In subsequent interviews with DCFS, J. denied being hit by
mother or father and stated that the babysitter’s son scratched
and hit him. The babysitter confirmed that her son had
scratched J. repeatedly on June 28, 2019. Both father and
mother reported concerns with J.’s safety when he was with the
other parent. Father told DCFS that J. told him that mother hit
him, which mother denied.
DCFS noted J.’s inconsistent statements regarding his
injuries, and suggested that J.’s “high energy and activity due to
his diagnosis of ADHD” was a possible contributing factor for his
injuries. DCFS concluded that the babysitter’s son caused the
injuries J. sustained on June 28, 2019. DCFS therefore
recommended that the court dismiss all three counts (a-1, b-1,
and b-2) from the petition.
However, DCFS indicated it intended to amend the petition
to include a count of emotional abuse against father and mother,
stating that in multiple prior referral investigations, father and
4
mother “recycled prior allegations of abuse and neglect against
each other to gain leverage regarding J[.]’s custody,” and “list[ed]
significant concerns about each other to sabotage and demonize
the other parent.” DCFS concluded that “due to the parents’
strained history and current custody issues, it appears that the
parents have chosen to place [J.] in the middle of their feud, and
firmly ignore each other unless they are accusing each other of
abusing and neglecting” J.
DCFS filed a first amended petition on July 23, 2019,
adding allegations under section 300, subdivisions (b)(1) and (c).
As amended, counts b-3 and c-1 alleged that mother and father
“created a detrimental home environment” for J. by “accusing
each other of abusing and neglecting” J. and reporting such abuse
and neglect to law enforcement and child protection services “for
the purpose of gaining and/or maintaining custody” of J. DCFS
noted an incident in which father accused mother of neglecting J.
while J. was present and mother yelled at J. to stop lying. The
petition further alleged that J. showed behaviors indicating
emotional distress, including hitting peers and destroying his
own property, and that mother and father’s conduct placed J. “at
substantial risk of suffering serious emotional damage and
physical harm.”
At the adjudication and disposition hearing on July 24,
2019, the court dismissed counts a-1, b-1, b-2, and c-1. As to the
remaining count, b-3, the court found “substantial evidence of a
pattern of conduct by both parents” accusing each other of
causing injuries to J., “the overall result [of which] has been to
hurt their child.” The court continued, “If someone is going to
accuse someone of physical abuse every time a six-year-old boy
has a bruise, this child is going to have so many interactions with
5
police and social workers that in and of itself is going to harm the
child. . . . [T]here just seems to be a lot of reaction to things that
are kind of normal during childhood being weaponized against
each other, and it has to stop.” The court further noted that
seeing his parents fighting over him could “cause very serious
emotional harm” to J., and “although the child may have some
learning problems, children act out their distress. And some of
the things the child has said to have done, hitting other people,
destroying his own stuff, . . . that would suggest that the child is
feeling some emotional turmoil and kind of acting it out through
his behavior” and “tend[s] to show that the child is being affected
by all of this conflict that is going on over him.” The court
concluded that DCFS had not established emotional abuse, but
rather “a pattern of behavior that creates a risk of emotional
harm to the child,” which, in turn, created a risk of physical harm
to J.
Accordingly, the court declared J. a dependent and
sustained the amended count b-3, finding father’s and mother’s
conduct placed J. at risk of suffering serious emotional damage
and physical harm. The court released J. to the home of both
parents, with primary custody to mother and unmonitored,
weekend visitation for father.
First appeal
Father appealed from the court’s jurisdictional and
dispositional findings. In J.R. I, we dismissed father’s appeal,
declining to reach the merits of the court’s jurisdictional findings
because mother’s failure to appeal meant that the court would
retain jurisdiction over J. regardless of the outcome of father’s
appeal. Additionally, father conceded that his challenge to the
dispositional order was rendered moot based on subsequent
6
proceedings. (See J.R. I, supra, B299814.)
Section 342 subsequent petition
In a last minute information filed on August 20, 2019,
DCFS reported that J. had participated in a forensic interview on
August 5. The evaluator reported that J. had a “speech delay”
that made it difficult for the evaluator to understand him; J. also
seemed to have difficulty understanding the evaluator and “great
difficulty focusing.” When asked about how he got the bruises on
his face, J. first said he forgot, then said that the babysitter’s son
“smacked” him.
DCFS filed a status review report on December 31, 2019. It
reported that father cancelled multiple visits with J. from
October to December 2019. J. also stated that when he visited,
father was working and never home. In a visit on December 21,
2019, the CSW heard J. asking father to call mother because he
wanted to go home. DCFS recommended continued family
maintenance services for mother and father, noting that both
parents had demonstrated positive changes, but made “little
progress” with their case plans. Father was participating in
individual therapy but was not enrolled in parenting classes.
DCFS assessed both parents as a “moderate” risk of future abuse
and neglect. Both parents expressed a desire to co-parent in a
peaceful manner. J. stated that he liked living with mother and
visiting father.
On January 24, 2020, mother called DCFS to report
physical abuse by father. According to mother, on January 23,
2020, father took J. to the bathroom while the family was at the
courthouse for a status review hearing. Later that afternoon, J.
told mother that while in the bathroom, father purposely
scratched J. on his back, resulting in two visible scratches, each
7
several inches long. Mother also brought J. to the police station
on January 24, 2020 making the same allegations. The police
officers expressed concern that the marks on J.’s back did not
appear to be scratches as mother reported, but rather bruises,
and that given the family’s extensive history, mother and father
continued to blame one another and “it is unknown which if not
both parents are inflicting injuries on the child.”
The CSW assessed J. and reported that he had two “linear
purple and green color marks” on his lower back, which did not
appear to be scratches. J. told the CSW that father took him to
the bathroom and scratched him with two fingers. When asked
why father scratched him, J. responded, “because he wants my
mom to get in trouble.” J. stated he did not tell mother until they
left the courthouse because he did not want to see his parents
arguing. He also said he did not want “to go with daddy anymore
because he’s mean.” When asked if mother told him to tell DCFS
anything, J. said, “tell the worker your daddy did it. Because my
dad wants my mom to go to jail because he wants me all day.” He
denied that mother hurt him in any way, but said that father
“smacks me everywhere.” Father did not respond to multiple
voicemail and text messages left by CSWs and investigating
police officers on January 24.
Given the conflicting information regarding J.’s injuries,
DCFS arranged for a forensic examination. The forensic
examination concluded that the marks were consistent with
scratches, but more likely were caused by an object rather than
fingernails.
DCFS interviewed father on January 29, 2020. Father
denied scratching J. and said that mother manipulated J. to
report that father hit him. Father blamed mother for the marks
8
and said that he wanted DCFS to remove J. from both parents so
that J. would not continue to be physically abused by mother.
In the detention report, DCFS concluded that the marks
were not consistent with the explanation given by mother and J.,
as they did not appear to have been made by fingernails, and
appeared to be more than a day old. DCFS also reported that,
based on J.’s statements, “it appears that the child has been
coached.” DCFS noted that it appeared neither parent had
benefitted from court services, as J. “continues to be re-abused,
while left with marks and bruises and explanations for such
marks and bruises do not coincide with the coloration and size of
the marks.”
DCFS filed a subsequent petition on February 4, 2020
under section 342,3 alleging that J. sustained a bruise on his
back, which was “not consistent with explanations of the manner
in which the child sustained the injuries,” and “would not
ordinarily occur except as the result of deliberate, unreasonable
and neglectful acts” by the parents. At the detention hearing on
February 5, 2020, the court removed J. from the custody of his
parents and ordered him placed into shelter care. The court
further ordered monitored visitation for both parents.
Section 387 supplemental petition
DCFS filed a supplemental petition under section 3874 on
3 In a subsequent petition under section 342, DCFS “alleges
new facts or circumstances, other than those under which the
original petition was sustained, sufficient to state that the minor
is a person described in Section 300.”
4 Under section 387, DCFS may file a supplemental petition
seeking an order “changing or modifying a previous order by
removing a child from the physical custody of a parent,” upon a
showing that “the previous disposition has not been effective in
9
February 26, 2020. The petition added count s-1, alleging that
the previous disposition was not effective in protecting J., as
mother and father “continued to establish a detrimental and
endangering home environment” for J. by continuing to accuse
each other of abuse and neglect, including blaming each other for
the latest marks found on J.’s back. The petition further alleged
that “[r]emedial services failed to resolve the family problems”
and that the parents’ conduct endangered J.’s physical and
emotional health and safety.
DCFS filed a jurisdiction/disposition report on February 27,
2020. J. spoke with a CSW at his foster placement on February
14. The CSW reported that J. was “cooperative and friendly,”
free of marks and bruises, and was able to identify the difference
between telling truth and a lie. J. stated that he was living with
the foster family because father scratched him on his back while
they were in the bathroom. J. said he did not know why father
scratched him, father did not say anything at the time, and J. did
not feel it happen and did not cry. J. also said that when mother
saw the scratches, she told J. that “they were going to take me
away from her and my dad,” and that father had scratched J.
“because he wants my mom to go to jail.” Mother told DCFS that
during her relationship with father, he was “very abusive both
verbally and physically.” She claimed that she and father had
been “having problems ever since” their separation, but denied
that she had ever hurt J. She also said that father was
inconsistent with visits and that J. “doesn’t want to go with him.”
DCFS spoke with father on February 12. He reported that
mother used to hit J. “with shoes and with her hands” and “has
always been aggressive towards” the child. Father stated that he
the rehabilitation or protection of the child.”
10
would never hurt J. He also stated that during the initial case in
2019, mother had “[s]omehow . . . convinced DCFS that she did
not hurt [J.] and that some kid caused his injuries.”
DCFS spoke with J.’s foster mother, who also cared for J.
during his prior detention in June 2019. The foster mother
reported that J. had started to “pound on his legs when
frustrated,” which he had not done before. Additionally, she told
the CSW her concern that mother called J. “all day,” disrupting
his routine and upsetting him. DCFS also noted that J. had been
diagnosed with ADHD and it had been recommended that he also
be evaluated for autism.
DCFS concluded it was unlikely that father deliberately
injured J. “in a public setting minutes prior to a court hearing.”
DCFS’s report also noted that the marks did not seem to be
fingernail scratches, and did not appear fresh, as mother and J.
had claimed. DCFS stated it could not determine who caused the
marks on J.’s back or when they occurred. DCFS therefore
recommended that the section 342 petition be dismissed. With
respect to the remaining count s-1 of the section 387
supplemental petition, DCFS noted that J. was “in the middle of
a custody battle between the parents and as a consequence
appears to be confused as to his feelings and what is going on
between his parents.” DCFS cited J.’s conflicting statements that
father was mean to him and that father was never mean, and J.’s
report that mother told him that father only loved father’s
girlfriend. DCFS concluded that the parents “have not benefitted
from any services and continue to blame one another for causing
harm to the child,” and that it was “clear that the child continues
to be manipulated and his emotional wellbeing is being
jeopardized by his parents.”
11
In a May 2020 report, DCFS opined that “[a]t this time, it
is not appropriate to return” J. to mother or father. DCFS noted
that father had “demonstrated some positive changes” and had
“demonstrated a commitment to caring for J[.] and participating
in Court ordered services.” However, “[d]espite some positive
changes, there has been little progress made with Father’s case
plan in relation to peaceful co-parenting. Although [father] has
made some progress it appears that he continues to have
difficulty co-parenting in a peaceful manner” with mother. DCFS
made the same conclusions regarding mother and stated that
both parents “would benefit from continuing to participate in
services.” DCFS assessed J. at “high risk” of future abuse and
neglect from mother and father.
DCFS filed a last minute information on May 8, 2020. Due
to the pandemic, visitation between J. and his parents was
conducted remotely starting in March 2020. Father participated
in monitored telephone visits with J. DCFS filed an additional
last minute information on August 7, 2020. J.’s foster mother
observed that during father’s remote visits, he did not speak to J.,
but “stared at the phone for 30 minutes.” She stated that the
interaction was “strange” and J. asked for the video call “to end
almost immediately as the father did not engage with him.” She
acknowledged that there was a language difficulty, as father
primarily spoke Spanish, but noted that father’s girlfriend speaks
English and participated in the video calls, but also failed to
engage with J. The foster mother stated that she tried to
intervene and prompt J. to tell father about his activities, but
father did not reciprocate, and the visits went from lasting 30
minutes to ending after only a few minutes. She also reported
12
that during mother’s virtual visits, mother would often make J.
show her his body so that mother could inspect it for marks and
bruises. According to the foster mother, J. would have panic
attacks and start crying uncontrollably if he had a scratch on his
body, saying “I can’t have a mark! That means I’m going to be
here forever!” She also overheard J. stating that “they say my
dad leaves marks on me, but I did it to myself.”
Mother and father resumed in-person visitation in June
2020. J.’s foster mother stated that she was not acting as the
monitor for J.’s in-person visits with father, but she stayed long
enough to observe their initial interaction and that father did not
“greet the child or acknowledge the child at all.”
At the adjudication and disposition hearing on August 20,
2020, the court dismissed the section 342 petition at the request
of DCFS. Turning to the section 387 supplemental petition, both
counsel for DCFS and J.’s counsel urged the court to sustain the
petition. Mother’s counsel acknowledged that there was a “bitter
high-tension relationship” between mother and father and that J.
was “understandably confused by family dynamics.” But
mother’s counsel argued that “being merely upset or confused is
not really jurisdictional. There needs to be something more,
something that would lead to this child experiencing long term
harm.” Father’s counsel argued for dismissal of the petition as to
father, arguing that mother was harming J.’s emotional
wellbeing and “whatever conflict is going on between the parents
. . . it does not require removal from the father.”
The court noted that it was “an unusual situation where
the case originally came in as a physical abuse case,” but DCFS’s
current position was that “the conflict between the parents is so
severe that the only way to protect the child is to remove him
13
from both of his parents.” The court stated it was looking at
jurisdiction and disposition together, and found that DCFS had
met its burden “even by clear and convincing evidence as to
mother,” because despite completing her case plan, mother
“seems to have a complete lack of insight about how her behavior
is harmful to the child.” The court explained that “the case is
really about emotional harm to the child caused by essentially
the child being used as a weapon in a conflict between the
parents. And the fact that mother persists in that exact behavior
really shows a lack of insight as to how she is harming her child
by continuing to search for evidence that the father has abused
him.”
The court suggested that removal from father based on his
actions was a closer question, noting that father had a pattern in
the past of accusing mother of physically abusing J., but that
father “hasn’t done that recently.” The court asked DCFS to
respond regarding “why the department thinks that [father] is
equally responsible for the emotional harm to the child or that . .
. the child also has to be removed from him to protect the child
from serious emotional harm.” Counsel for DCFS responded that
she understood “what the court is saying regarding father at this
moment does not appear to be accusing mother of any physical
abuse or harm, which he had in the past,” but cited the August 20
last minute information as “representative of what some of the
issues are” regarding father and J. and the impact on J.’s “mental
health and wellbeing.” She cited the statements by J.’s foster
mother that during father’s visitation he “did not interact with
J[.] at all on visits. He stares at the phone. He does not speak to
the child. It’s unclear...why he’s refusing to engage with his
child.” She argued that father’s conduct impacted J.’s mental
14
health and added to the situation “that the parents have created
with their relationship between each other and what they are
putting on the child. . . . With regards to . . . father accusing
mother, I think he’s not doing that right now. He is sort of just
saying he didn’t do what mother accused him of doing. He
doesn’t have anything good to say about mother, but it’s not clear
that he stated anything to J[.] about her at all.” DCFS noted it
would not oppose the court amending the petition to conform to
proof, but it believed it had met its burden. J.’s counsel echoed
these arguments.
The court noted that the “good news is that the court has
considered and rejected allegations that the child is actually
being physically abused by anybody,” and that “the heart of the
case was this ongoing conflict between the parents.” The court
further found that “even though father hasn’t engaged in this
type of behavior recently, I think that county counsel and minor’s
counsel are correct that the child is still suffering the effects of
the father as well as the mother using the child as a weapon to
attack the other parent. The father—his lack of engagement
during visits is really disturbing. It doesn’t seem like the father
is doing anything to try to create a healthy and positive
relationship with the child.” The court concluded that it “would
be unsafe to release the child to either parent because it appears
that the parents are still so tangled up in their conflict with each
other that neither of them is engaging with the child in a healthy
manner.” The court also found a risk of physical harm to J.,
noting that J. said that father was accused of leaving marks on
him but that J. reported that “I did it to myself,” and finding a
“history of this child self harming due to emotional distress, and
that does seem to be still happening.” The court acknowledged
15
that removal was “a drastic outcome, but I just don’t see any
other way to stop the child from being torn apart by these
parents. Doing programs is one thing, but the point of doing
programs is to actually change your behavior.” The court cited
mother’s behavior in checking J.’s body for marks and father’s
“sort of estranged detachment to the child,” and concluded that
“removal is the only way to avoid harm.”
Accordingly, the court sustained count s-1 as to both
mother and father, finding that the prior disposition was not
effective in protecting J. The court also found removal from
mother and father was necessary and ordered monitored
visitation for both parents.
Mother and father separately appealed from the August 20,
2020 order.
Mother’s appeal
In her appeal, mother argued that the court lacked
substantial evidence to sustain the section 387 petition. We
rejected this claim, finding that substantial evidence supported
the trial court’s conclusion that the prior disposition returning J.
to mother’s care was ineffective in protecting the child. We noted
that in the months following the initial disposition and
adjudication, despite her participation in services, mother
demonstrated little improvement in her ability to co-parent with
father and minimal insight into the harm such conflict could
cause to J. We also concluded that substantial evidence
supported the trial court’s finding that there was a risk of harm
to J. absent removal. (See J.R. II, supra, B307228.)
Subsequent hearing
We granted respondent’s request to take judicial notice of
the minute order from a review hearing held on February 24,
16
2021. The court found that mother had made “substantial”
progress “toward alleviating or mitigating the causes
necessitating placement,” and therefore that releasing J. to
mother would not create a substantial risk of detriment to J.’s
safety, protection, or physical or emotional well-being. The court
ordered J. to be placed with mother, with monitored visitation
and enhancement services for father.
DISCUSSION
Father appeals from the court’s order sustaining the
section 387 petition and removing J. from his custody. We find
no error and therefore affirm.
I. Legal Standards
DCFS may file a section 387 supplemental petition when
the juvenile court has already assumed jurisdiction over a minor
but DCFS alleges that the previous disposition has not been
effective in protecting the child. Thus, a “section 387
supplemental petition is used to change the placement of a
dependent child from the physical custody of a parent to a more
restrictive level of court-ordered care.” (In re T.W. (2013) 214
Cal.App.4th 1154, 1161, citing § 387; Cal. Rules of Court, rule
5.560(c).) “In the jurisdictional phase of a section 387 proceeding,
the court determines whether the factual allegations of the
supplemental petition are true and whether the previous
disposition has been ineffective in protecting the child.
[Citations.] If the court finds the allegations are true, it conducts
a dispositional hearing to determine whether removing custody is
appropriate.” (In re T.W., supra, 214 Cal.App.4th at p. 1161,
citing § 387, subd. (b); see also Cal. Rules of Court, rules
5.565(e)(1) and (e)(2); In re H.G. (2006) 146 Cal.App.4th 1, 11.)
“A section 387 petition need not allege any new
17
jurisdictional facts, or urge different or additional grounds for
dependency because a basis for juvenile court jurisdiction already
exists.” (In re T.W., supra, 214 Cal.App.4th at p. 1161; see also In
re Joel H. (1993) 19 Cal.App.4th 1185, 1200 [“The law does not
require that a fact necessary to establish jurisdiction under
section 300 be established to warrant a change in placement”].)
The only “jurisdictional fact” necessary to modify a previous
placement is that the previous disposition has not been effective
in protecting the child. (§ 387, subd. (b); In re Joel H., supra, 19
Cal.App.4th at p. 1200; see also In re T.W., supra, 214
Cal.App.4th at p. 1161.)
We review challenges to the court’s findings on a section
387 petition for substantial evidence. (See In re T.W., supra, 214
Cal.App.4th at p. 1161; In re Henry V. (2004) 119 Cal.App.4th
522, 529.) ““In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court's determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.
[Citations.] “‘[T]he [appellate] court must review the whole
record in the light most favorable to the judgment below to
determine whether it discloses substantial evidence . . . such that
a reasonable trier of fact could find [that the order is
appropriate].”’”” (In re I.J. (2013) 56 Cal.4th 766, 773; see also In
re T.W., supra, 214 Cal.App.4th at pp. 1161-1162.) The appellant
has the burden of showing there is no evidence of a sufficiently
substantial nature to support the findings or order. (In re E.E.
18
(2020) 49 Cal.App.5th 195, 206; In re L.Y.L. (2002) 101
Cal.App.4th 942, 947.)
II. Jurisdiction
DCFS filed its section 387 petition in February 2020,
alleging that mother and father continued to establish a
detrimental and endangering home environment for J. by
continuing to accuse each other of abuse and neglect, including
blaming each other for the latest marks found on J.’s back. The
petition further alleged that [r]emedial services failed to resolve
the family problems and that the parents’ conduct endangered
J.’s physical and emotional health and safety. Father contends
that the juvenile court found that Father had neither physically
abused his son, nor made any accusations about Mother to him,
as the petition alleged. Thus, he argues that the court erred in
finding the allegations of the section 387 petition true and
sustaining the petition as a result.
We are not persuaded. While it is undisputed that the
court concluded that the latest injuries to J. were unlikely to
have been intentionally caused by father, the court remained
concerned that J. continued to sustain injuries, possibly due to
self-harming. As the court had previously found, mother and
father’s pattern of accusing each other of abuse could “cause very
serious emotional harm” to J., and J.’s behavior indicated that he
was acting out his distress over the conflict. This behavior had
not resolved in the months following the court’s assumption of
jurisdiction. Further, despite progress with his court-ordered
programs, father continued to blame mother, suggesting that
mother had previously injured J. but “convinced” DCFS and the
court otherwise. Father further stated that he would rather have
J. in foster care than have him live with mother. Although the
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court noted that father’s accusations against mother had
decreased, the evidence supported the conclusion that both
parents continued to blame each other, creating circumstances
where neither DCFS nor the court could determine what was
causing J.’s injuries and causing continued emotional distress
and confusion for J.
Father also contends that the court sustained the petition
based solely on evidence of “[a]wkward video visitation during the
pandemic, between a diagnosed hyperactive and possibly autistic
6-year-old and his Spanish-speaking father.” He argues that this
evidence is insufficient to establish that the previous disposition
was ineffective in protecting the child. We disagree with father’s
characterization of the record. The court relied on the full
constellation of facts regarding the long history of allegations
between father and mother, as well as its findings regarding J.’s
emotional distress and risk of further harm, which had not
abated despite months of services. Moreover, although father
minimizes the issues with his recent virtual visits, the court
found father’s behavior deeply concerning and indicative of a
continued willingness to put J. in the middle of the conflict
between father and mother. Father argues that his conduct was
due to difficulties with language and with J.’s hyperactivity. But
J.’s foster mother reported that father failed to even attempt to
engage with J. during the visits, despite her attempts to facilitate
conversation, and despite the presence of father’s English-
speaking girlfriend. As a result, J. sought to reduce the time of
the visits to just a few minutes at a time. Notably, there was no
evidence that J.’s ADHD caused similar difficulties in his virtual
visits with mother. J.’s foster mother also testified that father’s
refusal to engage with J. continued once in-person visits
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resumed, based upon her observations while dropping J. off.
Under these circumstances, substantial evidence supported the
trial court’s conclusion that the prior disposition was ineffective
in protecting J.
III. Removal
Father makes similar arguments in challenging the court’s
finding that removal was necessary. When a section 387 petition
seeks to remove a minor from parental custody, the court applies
the procedures and protections of section 361. (In re T.W., supra,
214 Cal.App.4th at p. 1163; In re Paul E. (1995) 39 Cal.App.4th
996, 1001–1003.) Before a minor can be removed from the
parent’s custody, the court must find, by clear and convincing
evidence, “[t]here is or would be a substantial danger to the
physical health, safety, protection, or physical or emotional well-
being of the minor if the minor were returned home, and there
are no reasonable means by which the minor’s physical health
can be protected without removing the minor from the minor's
parent’s . . . physical custody.” (§ 361, subd. (c)(1); In re Javier G.
(2006) 137 Cal.App.4th 453, 462.)
“A removal order is proper if it is based on proof of: (1)
parental inability to provide proper care for the minor; and (2)
potential detriment to the minor if he or she remains with the
parent. [Citation.] The parent need not be dangerous and the
minor need not have been harmed before removal is appropriate.
The focus of the statute is on averting harm to the child.” (In re
T.W., supra, 214 Cal.App.4th at p. 1163, citing In re Jamie M.
(1982) 134 Cal.App.3d 530, 536.) We conclude substantial
evidence supports the court’s removal order.
Father again points to the juvenile court’s finding that he
had not physically abused J. and evidence that he had been
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participating in services. He also argues that there “was no
showing that Father had made any accusations of abuse against
Mother—he had only defended himself against Mother’s
accusations to DCFS.” He argues that the court again relied on
the evidence of “awkward video visits” with J., which was
insufficient to show detriment to J.’s well-being necessitating
removal. Although the court found the evidence supporting
removal from father was not as strong as that regarding mother,
it nevertheless concluded that removal from both parents was
necessary to protect J. We find substantial evidence supports
this conclusion. Despite his claim that he was merely defending
himself against mother’s accusations, the record reveals multiple
statements in which father continued to blame mother for J.’s
injuries. The continuation of this conflict between father and
mother, and both parents’ lack of insight into the damage this
conduct was causing to J., contributed to J.’s emotional distress
and damaged J.’s continuing relationship with father. The court
found this damage evident in the troublesome visits between
father and J., as well as in J.’s inconsistent statements about how
he was injured and whether father was “mean” or “nice.” As
such, substantial evidence supports the court’s conclusion that
both parents’ continued behavior was causing emotional harm to
J., which created a risk of physical harm such that removal was
necessary.
“The trial court is in the best position to determine the
degree to which a child is at risk based on an assessment of all
the relevant factors in each case.” (In re Drake M. (2012) 211
Cal.App.4th 754, 766.) On this record, we find that there was a
sufficient evidentiary basis to remove J. from father.
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DISPOSITION
The orders sustaining the supplemental petition under
section 387 and removing J. from father’s custody are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
MANELLA, P. J.
WILLHITE, J.
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