In re B.R. CA2/5 ( 2021 )

Filed 7/20/21 In re B.R. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re B.R. et al., Persons Coming B307796
Under Juvenile Court Law.
_________________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. 20CCJP03816A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.C.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Marguerite D. Downing, Judge. Affirmed.
Suzanne Davidson, under appointment by the Court of Appeal,
for Objector and Appellant.
No appearance by Plaintiff and Respondent.
________________________
J.C. (mother) appeals an order removing her infant daughter B.R.
(daughter) from parental custody under Welfare and Institutions Code
section 361, subdivision (c), after the juvenile court declared daughter a
dependent based on domestic violence between mother and A.R.
(father).1 Mother contends the removal order is unsupported by
substantial evidence. The Department of Children and Family Services
(Department) did not recommend removing daughter from mother’s
custody and did not file a respondent’s brief in this appeal.2 Finding
sufficient evidence to support the court’s removal order, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts in the
light most favorable to the juvenile court’s findings, resolving all
conflicts and drawing all reasonable inferences to uphold the court’s
order, if possible. (In re R.T. (2017) 3 Cal.5th 622, 633.) Mother and
father both have children from prior relationships, as well as prior
dependency proceedings based on domestic violence with their previous
partners.3 Daughter (born December 2019) is the only child mother
1 All
further undesignated statutory references are to the
Welfare and Institutions Code. Father is not a party to this
appeal.
2 The case is before us on mother’s opening brief only. The
Department submitted a letter indicating that, as it had
recommended daughter remain placed with mother, it “is not the
appropriate respondent.” It took no position on the appeal. No
other party filed a respondent’s brief.
3 The other children were not named in the dependency
petition in this case.
2
and father have in common. The Department began investigating
possible risk to daughter’s safety in June 2020, after both parents were
taken into custody following a domestic violence incident between
them.
1. Half-siblings and prior dependency proceedings
In 2016, mother’s two older sons (born 2013 and 2015) were
declared dependents based on the risk posed by ongoing domestic
violence between mother and the boys’ father. The case was closed in
2018 with a custody order granting mother full custody and the boys’
father monitored visitation.
Father’s oldest son (born 2012) was declared dependent in 2015,
also based on domestic violence. Father’s reunification services were
terminated in 2017, and the child was placed in a legal guardianship
with a maternal relative. The relative reported father maintains
consistent weekend visits with the child, monitored by paternal
grandmother. Father’s younger son (born 2015) remains in the custody
of the son’s mother, with no dependency proceedings involving the
child. Father reported he pays child support and visits regularly.
2. Relationship between mother and father
Mother and father were in a relationship for several years, and
sometime prior to daughter’s birth, father moved into mother’s family
home, where mother and her two sons lived together with maternal
grandmother and two maternal uncles. According to maternal uncle,
father was initially respectful, but became increasingly verbally
aggressive towards mother over time.
3
Father moved out of mother’s family home in April 2020, for
reasons that are unclear from the record. According to maternal uncle,
maternal grandmother evicted father due to his aggressive behavior
and use of foul language. According to mother, father wanted to help
paternal grandmother. According to father, he wanted to save money
by living with his own family, because he was in the process of
relocating to Baltimore.
On April 10, 2020, police investigated a domestic battery radio
call and spoke with father; mother was not present. Father reported
that he and mother had separated approximately a week earlier, and
were having an ongoing custody dispute over daughter, who was four
months old at the time. While daughter was in his custody, he and
mother had a verbal argument. Mother struck his face and her nails
caused visible injuries. The police observed scratch marks and redness
on father’s face, but he refused to be photographed and refused to
provide additional information. Father did not want mother (who was
not present) to be arrested. Describing the incident during a later
interview with a Department investigator, father showed the
investigator a photo with three scratch marks on the right side of
father’s face, extending from his forehead down to the cheek line, and
various small red marks. Father reported daughter was in the
bedroom sleeping when mother assaulted him.
On June 10, 2020, a second incident resulted in both mother and
father being taken into police custody. According to the police report,
mother called for police assistance after father physically assaulted her.
Mother was in front of father’s building when the police arrived. She
told police that she and father became involved in a verbal dispute over
the status of their dating relationship. Mother did not want to argue,
so she asked father if she could pick up daughter and leave. Father
became visibly upset and began to physically assault mother, dragging
4
her by the hair and punching her in the face, causing visible bruising to
her lips. Mother was reluctant to provide any additional information to
police, including whether mother and father have a history of domestic
violence. Mother stated she just wanted to take her daughter and
leave. The officers interviewed father separately. He told them about
his prior police report against mother for domestic battery, and denied
assaulting mother, claiming instead that she had injured herself.
Ultimately, the police took both mother and father into custody.
3. The Department’s Initial Investigation
On June 12, 2020, the Department received a referral concerning
daughter, claiming that father was keeping daughter away from
mother and tried to convince mother to sign a notarized letter allowing
father to take daughter out of state. When mother did not agree, father
claimed that he needed to use “substances” because of mother, and he
physically assaulted mother. Both parents were arrested, and mother
was unable to pick up daughter, who had been left with paternal
grandmother.
A social worker inspected mother’s home and interviewed mother
on June 18, 2020. The home was clean with plenty of food, and
daughter was healthy and clean. Mother stated that father was trying
to move to Baltimore and there was no custody arrangement regarding
daughter. Mother claimed father had made a false report regarding the
April 2020 incident. Mother agreed the June incident occurred, but
minimized it, suggesting father had been trying to shove her out and
his hand ended up hitting her face. She denied any prior history of
domestic violence with father, claiming this was the first time she and
father had ever argued. Mother was willing to participate in an Up
5
Front Assessment. Her boys, daughter’s half-siblings, both said they
had never seen mother and father fight.
In a separate interview, father denied ever hitting or hurting
mother. He claimed he knew not to get involved in domestic violence
due to his past experience. He has anxiety and uses marijuana
occasionally to sleep. Father told the social worker mother had a lot of
jealousy, was indecisive about their relationship, and always brought
up his prior relationship. When asked if he would participate in an Up
Front Assessment and obtain services, father denied needing services
and stated he would think about participating in the assessment.
The social worker met with mother and father separately again
in early July to advise them that the Department would be seeking to
detain daughter from father’s custody. When asked if she would be
willing to cooperate in services in order to keep daughter in her care,
mother agreed. Father told the social worker he “agrees with an open
case in court,” and also wanted a determination of whether child was
truly his. Father initially agreed to drug test, but later said he would
only agree to drug test if mother drug tests as well, claiming that
mother also uses marijuana.
On July 15, 2020, the social worker called maternal grandmother
and asked if she had any concerns regarding the parents’ care of
daughter. Maternal grandmother said father is jealous and possessive
of mother, but he also does not get along with mother. He would come
and take daughter away from mother. Maternal grandmother did not
want him coming back and starting trouble.
4. Detention and petition
In July 2020, the court authorized the Department to remove
daughter from father’s custody. The Department filed a petition
6
alleging under section 300, subdivisions (a) (physical abuse), (b)
(neglect/failure to protect), and (j) (sibling abuse or neglect) that the
parents had a history of violent altercations in the presence of child,
specifically, the June 10 incident in which father struck and shoved
mother. The petition also alleged that child’s half-siblings from both
parents had previously been declared dependents due to domestic
violence. The court released daughter to mother under Department
supervision, with family maintenance services. The court ordered
monitored visitation for Father; the visits were not to occur at mother’s
home, and mother was not to act as the monitor for father’s visits.
At the July 22, 2020 detention hearing, the court ordered the
Department to provide family maintenance services and referrals as
appropriate, and to file a jurisdiction and disposition report in just over
one month, on August 28, 2020.
5. Jurisdiction and disposition report
The social worker met with mother on August 18, 2020. Mother
confirmed she was aware that father’s visits with daughter were to be
monitored by someone other than mother in a neutral setting, but she
had not allowed father to visit daughter, explaining that mother did not
want to mess it up and worried the Department would find an excuse to
take away her children.
Mother minimized the June 10 incident and continued to deny
any history of domestic violence with father. Mother claimed she was
being protective by calling the police on June 10, 2020 when father had
hit her, but then regretted making the call, stating “I knew DCFS
gonna come as soon as the cops showed up. I didn’t want this to
happen. I just wanted to scare him [father] because I was scared too.”
She reported falling, but did not recall whether she tripped or father
7
pushed her. She also waffled on whether father intended to hit her or
was trying to help her up after she tripped, stating “I don’t think he
really tried to hit me. I probably overreacted.” When asked if she
intended to file a restraining order against father, she saw no need to
do so, saying “He doesn’t bother me.” When asked whether father has
ever used the children as leverage to threaten mother, she responded,
“No. He’s too scared to do anything.”
Mother’s relatives undermined mother’s efforts to minimize the
seriousness of domestic violence between the two, explaining that the
parents had a turbulent relationship and yelled at each other
frequently (often within earshot of mother’s boys). Mother’s oldest son
said he had seen mother and father yelling really loud and he “worries
[father] will hit my mommy and mommy will hit him back.” A
maternal uncle described father’s increasing verbal aggression against
mother; maternal uncle also said he had seen bruises on mother’s arms,
which he believed father had caused. Maternal uncle was concerned
about mother resuming her relationship with father, despite the family
having voiced their concerns. When asked what services might help
the parents, the maternal uncle said “they need counseling for sure.
They can’t keep going back and forth. It’s toxic.”
Mother insisted she had a loving relationship with father, and
the only source of their arguments was father’s relationship with the
mother of father’s oldest son. According to mother, she and father were
planning to relocate to Baltimore with mother’s three children to start
a new life. When the social worker asked mother if she has a plan to
address case concerns, mother responded “Yes, I can do co-parenting if
he wants to, but I think we are fine.” She agreed that she could be
helped by counseling. Mother had not enrolled in any services, opting
to wait for a court order because she did not know whether to take
perpetrator or victim classes.
8
In a separate interview on August 18, 2020, father told the social
worker initially that mother was playing games and not letting him see
daughter. Father also reported an increase in relationship problems
over the past year after he learned she cheated on him. He claimed
mother was using the domestic violence accusations to get him
arrested, and showed the social worker text messages supporting his
claim. 4 Father expressed an interest in reunifying with child, but was
unsure whether he wanted a relationship with mother. He believed he
had matured and wanted to move on. He was reluctant to speak more
about his relationship with mother, but acceded to the social worker’s
suggestion that he provide a written statement if he wished.
The following week, father sent the investigator an e-mail which
he wanted included in the Department’s report. In his e-mail, father
accused mother of cheating with her boys’ father and plotting to frame
him (father) for domestic violence. He also explained that, after the
domestic violence incident (which he continued to deny), “we’ve seen
each other a lot and I slept over at her house for two weeks straight,
. . . .”
In a section of the Department’s report titled “Child(ren)’s Safety
In Home,” the Department found significant child safety concerns,
stating “the child[’s] safety cannot be ensured without the
Departmental oversight.” Citing the domestic violence incidents
between the parents and their respective histories in previous
relationships, the Department found that daughter’s “safety cannot be
ensured in the home of parents until they demonstrate substantial
progress towards the recommended case plan,” which would include
parenting, domestic violence classes, and individual counseling.
4 Father showed the investigator an e-mail from mother
dated August 20, 2020, stating, “Can you come please ima stay
alone with the kids.”
9
The Department’s report included the following summary:
“Although the Department does not have any immediate child safety
concerns for the child being released to the mother’s care and custody,
the Department remains concerned as to her ability to protect the child.
Per the maternal uncle, the mother has a history of ‘going back’ to be in
a relationship with the father, despite the family having voiced their
concerns with the mother after he observed the mother had multiple
unexplained bruising on her person. [¶] Further, despite the
[Department]/Court involvement, the father admitted that the mother
had brought the child to his family home and was allowing him to have
unmonitored visit [sic] with the child after the Department had already
detained the child from his care and custody.”
The Department’s report noted that despite being aware of the
conditions for father’s monitored visitation, mother had both refused to
permit visitation and also brought daughter to father’s home after the
court removed her from father’s custody. The Department asked the
court to admonish parents for their violations of the visitation order.
The Department recommended the court find the petition true, bypass
father’s reunification based on his earlier failure to reunify with his
oldest son, and order family maintenance services for mother, keeping
daughter placed with mother. The Department advised, “if the Court
terminates its jurisdiction with a Family Law Order, the mother will
most likely allow the father to return to the home, as she expressed a
strong desire to remain in the relationship. Neither parent has taken
an active role in addressing the case concerns and have failed to enroll
in any services.” The Department recommended co-parenting and
domestic violence classes, with a 52-week certified program to address
mother’s aggression when resolving conflicts.
10
6. The Adjudication/Disposition Hearing
On September 17, 2020, the court conducted a combined
jurisdiction and disposition hearing, admitting the Department’s
reports and two photos from father into evidence. No additional
evidence or testimony was offered, and the parties proceeded to
argument.
Minor’s counsel argued that the petition should be sustained and
sought reunification for both parents. Each parent’s counsel argued for
the petition to be dismissed for insufficient evidence; mother’s counsel
asked that child be placed with mother; father’s counsel asked that
child be placed with father. Mother’s counsel objected to a 52-week
domestic violence program, arguing mother was a victim not a
perpetrator. The Department reviewed evidence from the jurisdiction
report and argued to sustain the petition, based on the toxic
relationship between mother and father, and their failure to learn from
their previous court cases. Regarding disposition, the Department
asked for father to not receive reunification services. The court
responded that if the Department was recommending placing minor
with mother, there was no “bypass” under section 361.5 for
enhancement services.
Before sustaining the petition allegations, the court asked
minor’s counsel, “Did I hear you right, did you say that this child
should be removed from both parents?”5 Minor’s counsel disagreed,
5 According to the reporter’s transcript of the hearing, the
Department interjected to say “The Department’s
recommendation is to stay with father.” Despite the word
“father” appearing in the transcript, we understand from the
balance of the record on appeal that the Department
recommended placing daughter with mother, not father.
11
stating, “No. [¶] I did not have a recommendation for the minor to be
removed from both parents.” The court responded, “Well I’m of a mind
this child should be removed from mother.” After sustaining the
petition, the court found by clear and convincing evidence that there
was substantial danger to child if she remained in mother’s home.
The court reasoned that this was not the first incident, and mother
continued to return to father and to minimize and deny the domestic
violence in her relationship with father. Mother was backpedaling,
initially claiming father had hit her, then saying she might have fallen
and run into father’s hand. Mother had previously been through a
domestic violence victim program, but had not gained any insight,
staying in the relationship and making excuses for father, the same
person she had previously accused of pulling her by the hair. The baby
was young, mother would not comply with a restraining order, and
there were no measures that could be put into place to allow daughter
to remain in the home. As to father, the court also found clear and
convincing evidence that returning daughter to his custody would be
detrimental under section 361, subdivision (c). The court summed up
that both parents were backpedaling, making excuses, and seeking to
cover up their behavior. “Neither parent is protective against the
other, and the court has no confidence, based on their past
performance, that either parent is going to stay away from the other.”
The minute order also stated the court found that the Department
“made reasonable efforts to prevent removal but there are no services
available to prevent further detention.”
The court ordered reunification services and monitored visitation
for both parents, declining the Department’s recommendation to bypass
reunification services for father. Mother’s counsel objected to the
removal order and asked for daughter to be placed with a relative; the
12
court granted the Department discretion to do so. Mother filed a timely
notice of appeal.
DISCUSSION
Mother contends there was insufficient evidence to support the
court’s determination, by clear and convincing evidence, that daughter
was at risk of serious physical harm and there were no reasonable
means to keep daughter safe without removing her from mother’s
custody. We disagree.
1. Governing law and standard of review
“‘At the dispositional hearing, a dependent child may not be
taken from the physical custody of the parent under section 361 unless
the court finds there is clear and convincing evidence there is or would
be a substantial danger to the child’s physical health, safety, protection,
or physical or emotional well-being if returned home, and that there are
no reasonable means to protect the child’s physical health without
removing the child.’” (In re D.P. (2020) 44 Cal.App.5th 1058, 1065;
accord, In re G.C. (2020) 48 Cal.App.5th 257, 265; In re D.C. (2015) 243
Cal.App.4th 41, 51, 54; see § 361, subd. (c)(1).) When determining
whether a child will be in substantial danger if permitted to remain in
the parent’s physical custody, the juvenile court must consider, “not
only the parent’s past conduct, but also current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520 (I.R).) The
juvenile court must determine “whether reasonable efforts were made
to prevent or to eliminate the need for removal of the minor from his or
her home” and “shall state the facts on which the decision to remove
13
the minor is based.” (§ 361, subd. (e).) The California Rules of Court
also require the court to determine and make a finding as to “whether
reasonable efforts to prevent or eliminate the need for removal” were
made by the Department. (Rule 5.695(d).) “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. (2013) 214 Cal.App.4th 1154, 1163.)
“Even if a child suffers no physical harm due to domestic
violence, a ‘cycle of violence between . . . parents constitute[s] a failure
to protect [a child] “from the substantial risk of encountering the
violence and suffering serious physical harm or illness from it.”
[Citations.]’ [Citation.] A parent’s denial of domestic violence increases
the risk of it recurring. [Citations.]” (In re V.L. (2020) 54 Cal.App.5th
147, 156.)
In determining whether substantial evidence supports the
juvenile court’s dispositional findings, we must account for the clear
and convincing standard of proof. (Conservatorship of O.B. (2020) 9
Cal.5th 989, 1011.) The question before us 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.”
(Ibid.) As with our review of the court’s jurisdictional findings, we
“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.” (Id. at pp. 1011–
1012.)
14
2. Evidence Supporting Removal Order
Mother and father’s statements and actions, particularly when
considered against the backdrop of their respective domestic violence
histories, provide substantial evidence that if mother retains custody of
daughter and also maintains contact with father, there is substantial
risk of ongoing domestic violence, placing daughter at risk of harm.
Past violence in a relationship is a good predictor of similar behavior in
the future. (In re V.L., supra, 54 Cal.App.5th at p. 156; In re T.V.
(2013) 217 Cal.App.4th 126, 136.)
Mother argues that the Department found her to be sincere in
her desire to keep daughter in her custody. But that desire does not
undermine the juvenile court’s focus on evidence of the daughter’s
young age and both parents’ actions and statements backpedaling the
seriousness of the prior domestic violence incidents to conclude that
removal was warranted. Here, there is evidence that mother sought to
reestablish her relationship with father, delayed enrolling in a domestic
violence program, declined to obtain a restraining order, and violated
the court order limiting father to monitored visitation with someone
other than mother as the monitor. All of these actions support the
juvenile court’s finding that daughter was at risk of exposure to future
domestic violence.
There is also sufficient evidence to support the court’s
determination that no reasonable means exist to protect child other
than removal. The Department provided both parents with referrals to
services, but neither parent had enrolled. The Department’s report
also documented that parents not only violated the prior court orders
limiting father to monitored visits, but that both initially sought to hide
that fact from the Department and the court.
15
While mother expressed a willingness to engage in services, her
statements evidenced a troubling lack of insight into the dangers posed
by domestic violence. At the same time that mother was confidently
stating that she and father were in a loving relationship and planned to
move to Baltimore as a family, she also acknowledged that father had
failed to comply with court requirements to reunify with his older son,
daughter’s half-sibling, and sought to minimize and excuse father’s
inability or unwillingness to comply with services, stating “it’s just how
he is. He gets frustrated when you [try] to tell him to do things.”
The Department reported that the case issues that brought
daughter to the court’s attention had yet to be resolved, and that her
safety could not be ensured in the parents’ home until they
demonstrated substantial progress in the case plan, including
completing parenting and domestic violence classes and individual
counseling. Despite both parents having prior dependency cases
involving domestic violence with different partners, “mother and father
have failed to apply what they have learned from their previous Court
case and continued engaging in domestic violence in their current
relationship.”
The evidence in the Department’s jurisdiction and disposition
report constitutes substantial evidence supporting the removal order.
The fact that the Department recommended placing daughter with
mother does not overcome the substantial evidence presented to the
trial court supporting its finding, under the clear and convincing
standard, that the requirements for removal under section 361,
subdivision (c), had been met. The record before us amply
demonstrates that there was ongoing tension between mother and
father regarding the future of their relationship and custody of
daughter. Absent persuasive evidence that mother had demonstrated
awareness of the cycle of domestic violence, and absent mother’s
16
willingness to take sufficient steps to prevent such violence, mother’s
continued contact with father would have placed daughter at risk of
harm.
DISPOSITION
The dispositional order removing daughter from mother is
affirmed.
MOOR, J.
I CONCUR:
KIM, J.
17
In re B.R. / Los Angeles County Department of
Children and Family Services v. J.C. - B307796
RUBIN, P. J. – DISSENTING:
I respectfully dissent. I find my answer to the question put
to this court largely compelled by our Supreme Court’s recent
decision in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011
(O.B.).
At the adjudication/disposition hearing, the Department
recommended placing the child with mother. California Rules of
Court, rule 5.690(a)(1)(B) requires the Department to include in
its report a discussion of the reasonable efforts it made to prevent
or eliminate removal, but this is required only if the Department
recommends removal. As the Department did not recommend
removal, it included no such discussion. The record did not
include a formal statement that described services mother had
received in the earlier dependency proceedings involving her
older children and what lessons she may have learned. The
record does reflect that at one point, the Department investigator
“asked the mother if she could identify the cycle of abuse,
Incident, Reconciliation, Calm, and Tension building and she
said, ‘I remember the counselor told me something like that
before.’” This was the sole reference to any counseling mother
received or any domestic violence program she may have
previously attended. In explaining the reasons for removal, the
juvenile court stated that mother “previously had a D.V. victim
program” and had “been through D.V. counseling, as a victim.”
But no detail was forthcoming, and the notion that a domestic
violence victim, who had been in a program before, might again
be the victim of domestic violence without losing custody of her
children is not remarkable. Nor is it a particularly strong reason
for removing a child in the absence of information why
reasonable efforts to avoid removal would not have been
successful.
Echoing the Department, child’s counsel did not
recommend removal. Nor, obviously, did mother’s attorney. In
response to this near stipulation for child to remain with mother,
with services, the trial court instead found removal necessary,
without questioning the Department on a plan it might have to
assure the child’s safety in mother’s home.
The record indicates mother was a good parent to child, and
child was safe in her care. The danger potentially posed to child
was that mother appeared trapped in a cycle of domestic violence
with father, and, like many other victims, was in denial. This is
not to say that a child may never be removed from a domestic
violence victim. But, here, father no longer lived in the home,
and there were several relatives who could help ensure that
mother, father, and child were not together in violation of court
orders. Counseling, parenting, and domestic violence classes
were scheduled. Unannounced visits by the Department could
confirm compliance.
Appellate courts do not typically reverse on the grounds of
insufficiency of the evidence to support a removal order. This is
so because most often the issue is fully litigated with – and again,
typically – the parents and the Department taking conflicting
positions. Each side customarily provides legally sufficient
evidence to support its position, and the juvenile court is within
its authority to accept one version over the other, or some
combination of the two. In such situations, the appellate court
2
will give honored deference to the juvenile court, apply the
substantial evidence standard of review, and affirm.
The underpinning for that deference has been somewhat
altered by our Supreme Court’s decision in O.B. There, the court
addressed the proper application of substantial evidence review
in the appellate court for those cases in which the burden of proof
in the trial court was clear and convincing evidence, as it was
here. In a prior opinion, the Supreme Court had explained why
our legal system employs more than one burden of proof -- most
commonly, preponderance of the evidence, clear and convincing
evidence, or beyond a reasonable doubt. “The function of a
standard of proof is to instruct the fact finder concerning the
degree of confidence our society deems necessary in the
correctness of factual conclusions for a particular type of
adjudication, to allocate the risk of error between the litigants,
and to indicate the relative importance attached to the ultimate
decision.” (Conservatorship of Wendland (2001) 26 Cal.4th 519,
546; see also O.B., supra, 9 Cal.5th at p. 998.) For clear and
convincing evidence, “‘the proponent must convince the jury or
judge, as the case may be, that it is highly probable that the facts
which he asserts are true. He must do more than show that the
facts are probably true.’ (Comment, Evidence: Clear and
Convincing Proof: Appellate Review (1944) 32 Cal. L.Rev. 74,
75.).” (O.B., supra, 9 Cal.5th at pp. 998–999.)
Prior to the high court’s resolution of the issue in O.B.,
appellate courts had disagreed on how to apply substantial
evidence review to findings which had been established by clear
and convincing evidence. Some courts took the position that our
review must determine if there was substantial evidence of the
existence of clear and convincing proof. (E.g., In re Basilio T.
3
(1992) 4 Cal.App.4th 155, 170.) Many courts employed the
“disappearing” standard. “The sufficiency of evidence to establish
a given fact, where the law requires proof of the fact to be clear
and convincing, is primarily a question for the trial court to
determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.
Thus, on appeal from a judgment required to be based upon clear
and convincing evidence, the clear and convincing test disappears
and the usual rule of conflicting evidence is applied, giving full
effect to the respondent’s evidence, however slight, and
disregarding the appellant’s evidence, however strong.” (In re
I.W. (2009) 180 Cal.App.4th 1517, 1525–1526 [internal quotes
and citations omitted].)
After O.B., the “disappearing” standard itself has
disappeared from our appellate jurisprudence. Our Supreme
Court held that, “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 factfinder could
have found it highly probable that the fact was true.” (O.B.,
supra, 9 Cal.5th at pp. 1011–1012; italics added.) The court
expressly rejected the notion that the clear and convincing
burden of proof in the trial court has no effect on appellate review
for sufficiency of the evidence. (Id. at p. 1010 & fn. 7.)
I agree with my Division 2 colleagues who recently
concluded that the proper application of the O.B. standard in a
case where a child was removed from a parent due to domestic
violence is to ask whether “a reasonable trier of fact could have
found it highly probable that placement of [the child] with [the
parent] would pose a substantial risk of [the child] being harmed
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by exposure to future domestic violence, and that there were no
reasonable means to protect [the child] without removal from [the
parent’s] physical custody.” (In re V.L. (2020) 54 Cal.App.5th
147, 156–157 (V.L.); italics added.) The V.L. court applied the
O.B. standard in affirming the order removing the child. In In re
I.R. (2021) 61 Cal.App.5th 510, 521–522, Division 1 of this court
applied the substantial evidence/clear and convincing standard of
review to reverse a removal order. It held that whether
substantial evidence supported the removal order in that case
depended on whether there is substantial evidence domestic
violence will continue if the child is returned home. The analysis
is to be informed by the clear and convincing standard and the
general premise in favor of keeping children with their parents
while proceedings are pending, whenever safely possible.6
The majority opinion points to admittedly troubling
evidence that does not speak well of mother – she was resistant
to terminating her relationship with father, had minimized the
domestic violence between the two, and, like father, had
experienced domestic violence in other relationships. But it was
undisputed that, at the time of removal, mother and father did
not reside in the same home. Instead, each lived with relatives
who could help provide support. I find it also telling that,
between the court’s release of the child to mother at the detention
6 O.B. was a conservatorship case, not a dependency
proceeding. The Supreme Court made it clear, however, that the
principle it announced was broad and applied to dependency
matters. As the court observed in V.L., “In a footnote, O.B.
disapproved of a host of dependency cases to the extent that they
are inconsistent with O.B.’s holding. (O.B., supra, at p. 1010,
fn. 7.)” (V.L., supra, 54 Cal.App.5th 147, 155.)
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hearing on July 22, 2020, and the removal of the child on
September 17, 2020, at the adjudication/disposition hearing, the
Department did not report further incidences of domestic
violence. In recommending release of the child to mother, the
Department reported that mother and child were well bonded.
Mother’s house was clean, with plenty of food.
I suspect appellate courts will be wrestling with the
application of the O.B. standard of review in clear and convincing
cases for some time. The process, although well-articulated, is a
bit abstract. I may very well have agreed to an affirmance if the
order had been governed by the preponderance of the evidence
burden of proof. But I cannot say on this record that the evidence
showed it was highly probable that the child will be exposed to
additional acts of domestic violence and that there are no means
to protect child, if child is placed in mother’s custody.
I would reverse the court’s order removing child from
mother.
RUBIN, P. J.
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