California Court of Appeal Apr 23, 2025 No. E084405Unpublished
Filed 4/23/25 In re Nav. B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re Nav. B. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E084405
Plaintiff and Respondent, (Super.Ct.Nos. J299576-79)
v. OPINION
A.B. et al.,
Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,
Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and
Appellant, A.B.
Emily Uhre, under appointment by the Court of Appeal, for Defendant and
Appellant, L.B.
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Tom Bunton, County Counsel and Landon Villavaso, Deputy County Counsel, for
Plaintiff and Respondent.
L.B. (Mother) and A.B. (Father) challenge the order removing four of their minor
children from their care under subdivision (c)(1) of section 361 of the Welfare and
Institutions Code (§ 361(c)(1)). (Unlabeled statutory references are to this code.) With
respect to all four children, they contend that the juvenile court applied the wrong legal
Nolan, and Nori] at risk of abuse.” With respect to Nia., Nolan, and Nori, the court
additionally found true an allegation under subdivisions (b)(1) and (j) of section 300 that
they were prior dependents of the court on the basis of the parents’ “negligent failure to
protect the children from sexual abuse.” As to Nav., the court found under subdivision (j)
of section 300 that all of her siblings except Anthony had previously been adjudged
dependents because of the parents’ failure to protect them from sexual abuse.
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With respect to Nala, the court noted that there was a warrant to apprehend her, so
the court could not take jurisdiction over her. The court set a further in-progress
jurisdiction and disposition hearing.
C. Contested disposition hearing
The contested disposition hearing was held in late July 2024. The court received
into evidence an addendum report from CFS that was filed on the day of the hearing.
The court summarized evidence that it found relevant from the jurisdiction
hearing. The court found it “greatly disturb[ing]” that Father still denied the allegations
found true in the prior case and thus denied that Anthony sexually abused Niy. and Nala.
The court also described how Mother testified that she was unsure about whether the
sexual abuse occurred and believed that if it did happen then all three children—Niy.,
Nala, and Anthony—were victims and that all three children bore responsibility for any
sexual contact.
The court summarized the evidence that Anthony lived with the family after the
prior case was closed, and the court noted that with respect to the removal determination
it was “faced with allegations that were found true in which the [Mother and Father]
allowed Anthony to have contact with the children in this case, including the two girls
who said they were sexually assaulted, which put the children at risk.” The court
acknowledged that the standard of proof at the jurisdictional phase is preponderance of
the evidence, but the standard for removal is clear and convincing evidence. The court
then quoted the following passage from In re A.F. (2016) 3 Cal.App.5th 283 (A.F.):
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“‘Jurisdictional findings in a dependency case are prima facie evidence that the children
cannot safely remain in the home.’” Relying again on A.F., the court reiterated that it had
to find by clear and convincing evidence that there was a substantial danger to the
physical health, safety, protection, or physical or emotional well-being of Nav., Nia.,
Nolan, and Nori if they were returned to their parents’ custody.
The court then discussed the evidence contained in the addendum report filed by
CFS that day. CFS recommended removal of the four youngest children and
reunification services for the parents. CFS expressed concern about whether the parents
were benefitting from services, the parents’ unwillingness to admit that Anthony was in
the home or around the children, and their continued denial of the sexual abuse.
CFS reported that Nala still lived with the parents and refused to be taken into
custody. The social worker spoke with both parents’ therapists. Mother’s therapist
believed that although Mother was “somewhat difficult” in the beginning, she appeared
to have progressed to the point of being willing to comply with CFS’s requests. But the
therapist reported that Mother did not admit that any sexual abuse occurred. The
therapist believed that Mother had a personality disorder and was strong-willed but not a
liar. The therapist planned to request additional services so that she could continue
working with Mother. Father had one session of therapy remaining, and his therapist did
not recommend additional sessions because he did not believe that Father would “‘budge’
regarding his stance on the Department’s involvement.” Father refused to acknowledge
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CFS’s involvement and insisted that Anthony was never in the home. Father also told the
therapist that Anthony was never arrested or referred to services.
Social workers also met with both parents in late June 2024. They asked Mother
what she had learned from therapy, and she responded, “‘The counselor said he was
confused.’” Father interrupted the conversation and took Mother into another room to
talk; after the parents returned, no additional questions about therapy were asked.
After discussing the newly admitted evidence on the record, the court said:
“[W]hen reviewing some of the testimony, it does concern the Court that this is a second
case presently before the Court dealing with allegations of sexual abuse that the Court
previously found true in the first case, and yet [Father] still does not believe that any such
abuse occurred in the home. Mother and Father have testified they are going to
cooperate; however, their actions speak differently, based on the history of the first
removal, and the history of this case as well, based on the testimony that was presented,
and the reports that were received into evidence.”
The court found that there was clear and convincing evidence that “there is a
substantial danger to the physical health, safety, protection, physical or emotional well-
being of [Nav., Nia., Nolan, and Nori] or would be if the children were returned home.”
The court removed all four children from both parents and ordered reunification services
for both parents.
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DISCUSSION
Both parents argue that the juvenile court applied an erroneous legal standard
when it stated that the jurisdictional findings are prima facie evidence to support removal
of the children from parental custody. Both parents also challenge the sufficiency of the
evidence supporting removal of Nolan and Nav. We find no prejudicial error.2
Section 361(c)(1) provides that in order to remove a child from their parents’
physical custody “the juvenile court must find by clear and convincing evidence that (1)
there ‘would be a substantial danger to the physical health, safety, protection, or physical
or emotional well-being’ of the child in the parents’ home, and (2) ‘there are no
reasonable means by which the [child’s] physical health can be protected without’
removal.” (In re Zoe H. (2024) 104 Cal.App.5th 58, 71 (Zoe H.), quoting § 361(c).)
We review the removal findings for substantial evidence, “taking into account the
level of confidence that the ‘clear and convincing evidence’ standard demands.” (Zoe H.,
supra, 104 Cal.App.5th at p. 71; Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
In analyzing the sufficiency of the evidence, 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.” (Conservatorship of O.B., at
pp. 1011-1012.)
2 Mother also has filed a petition for writ of habeas corpus, In re L.B. (Mar. 25, 2025, E085771). We summarily deny the petition by separate order.
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Ten days after the disposition hearing in the present case, we published Zoe H.
(Zoe H., supra, 104 Cal.App.5th at p. 58.) In that opinion, we explained that section
361(c)(1) provides that jurisdictional findings constitute prima facie evidence for removal
only “if jurisdiction was based on severe physical abuse of a child under age five” under
section 300(e). (Zoe H., at p. 72; § 361(c)(1) [“[t]he fact that a minor has been
adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall
constitute prima facie evidence that the minor cannot be safely left [in the home]”].) If
jurisdiction is “taken under other subdivisions of section 300 but not under section
300(e), the jurisdictional findings do not constitute prima facie evidence that the children
cannot safely remain in the home.” (Zoe H., at p. 72.) Contrary statements in A.F. and
similar cases are not supported by the statutory language. (Zoe H., at pp. 61-62, 72-73; In
re E.E. (2020) 49 Cal.App.5th 195, 218-219; In re M.V. (2022) 78 Cal.App.5th 944, 958.)
The juvenile court repeated A.F.’s misstatement of the law when it said that
“‘[j]urisdictional findings in a dependency case are prima facie evidence that the children
cannot safely remain in the home.’” But the court did not rely on the sustained
jurisdictional allegations as the sole basis for removing the children. Rather, the court
also found that removal was supported by clear and convincing evidence. Thus, although
the court mentioned the A.F. standard for removal, which is not supported by section
361(c)(1), the court also applied the correct standard. Assuming for the sake of argument
that the court’s reference to the A.F. standard constituted error, the error was harmless
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unless it is reasonably probable that the parents would have achieved a more favorable
result absent the error. (In re Celine R. (2003) 31 Cal.4th 45, 60.)
Again, the record shows that the court independently found that removal was
supported by evidence other than the sustained jurisdictional allegations. At the
disposition hearing, the court did not merely rely on the existence of the jurisdictional
findings—that is, that the youngest four children were at risk of abuse because Anthony
lived in the home after the prior dependency case and that he had previously been found
to have sexually abused Nala and Niy. Instead, the court expressly based its findings on
the ample evidence that even now the parents do not believe that Anthony sexually
abused Niy. or Nala, or are equivocal about it, or believe that all of the children,
including Anthony, were victims. The court also considered newly admitted evidence
chronicling the parents’ behavior in the month following the jurisdiction hearing,
including reports from both parents’ therapists that they continued to deny that Anthony
sexually abused Niy. or Nala and that Father’s therapist did not believe there was any
value in continued therapy with Father, given Father’s stubbornness and denial of the
basis for CFS’s involvement (despite the sustained allegations).
Because the record shows that the court independently found removal supported
by clear and convincing evidence other than the sustained jurisdictional allegations, any
error in referring to the A.F. standard is harmless unless the removal findings were not
supported by substantial evidence. But the parents do not argue that removal findings as
to Nori and Nia. were not supported by substantial evidence. Because the parents have
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not carried their burden of showing that the court’s legal error was prejudicial as to Nori
and Nia., we must affirm the disposition as to both of those children. (Conservatorship of
Farrant (2021) 67 Cal.App.5th 370, 378.)
Both parents do argue, however, that there is insufficient evidence to support the
removal findings as to Nav. and Nolan. (§ 361(c)(1).) Relying on In re I.J. (2013) 56
Cal.4th 766 (I.J.), the parents contend that Nav. and Nolan were differently situated from
Nori and Nia. because of Nav.’s age and Nolan’s gender. In particular, the parents argue
that there was no evidence that Nav. or Nolan was at any risk of sexual abuse by Anthony
because Nav. was so young that she would be under constant supervision and there was
no evidence that Anthony would target a male child. We are not persuaded.
With respect to both Nav. and Nolan, the court sustained allegations under
subdivision (b)(1) of section 300 that the parents placed Nav. and Nolan at risk of abuse
by allowing Anthony to reside in the home even though they knew that he sexually
abused Niy. and Nala. The court also found true that Nav. and Nolan were at risk of
abuse under subdivision (j) of section 300 because all of the children other than Nav. had
been adjudged dependents in the prior proceeding on account of the parents’ failure to
protect the children from sexual abuse. The parents do not challenge those sustained
allegations, so it is uncontested that Nav. and Nolan were at risk of abuse on those
grounds. Given the sustained allegations concerning the risk of abuse, we must reject the
parents’ argument that for purposes of removal Nav. and Nolan were not at risk of sexual
abuse by Anthony. Although the sustained allegations do not by themselves constitute
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prima facie evidence to support removal (Zoe H., supra, 104 Cal.App.5th at p. 72), the
parents cannot challenge the removal findings by presupposing that the jurisdictional
allegations are false.
Moreover, Nav.’s age and Nolan’s gender notwithstanding, the magnitude of the
risk of sexual abuse to Nav. and Nolan is greater given the egregiousness of the known
abuse. (I.J., supra, 56 Cal.4th at p. 778 [“‘Some risks may be substantial even if they
carry a low degree of probability because the magnitude of the harm is potentially
great’”]; In re S.R. (2024) 104 Cal.App.5th 44, 53 [“In general, the more egregious the
abuse experienced by the sibling, ‘the more appropriate for the juvenile court to assume
jurisdiction over the siblings’ under section 300(j)”].) Niy.’s disclosures reveal that the
abuse may have started when she was as young as four years old and occurred over the
course of years. Nala’s disclosures reveal that the sexual abuse occurred more than once,
started when she was seven or eight years old, and involved the use of force. In addition,
much remains unknown about the abuse because the parents did not allow CFS to
conduct forensic interviews of either Niy. or Nala in the prior dependency case. (Cf.
S.R., at p. 50 [law enforcement conducted a forensic interview of the daughter concerning
the sexual abuse].) All of that evidence supports removal of both Nav. and Nolan from
the parents.
The juvenile court also could reasonably infer that Nav. was at greater risk
because she was only one year and four months old. Nav. would be unable to protect
herself from any abuse and unable to report any abuse.
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The risk to either Nav. or Nolan is further exacerbated by the parents’ continued
denial and minimization of the sexual abuse and denial that Anthony even lived at the
home. The court could reasonably infer that the parents did not believe that Anthony
posed a risk to any of the children, and the court could likewise infer that the parents
consequently would not adequately protect Nav. and Nolan from any such risk.
Moreover, because Nala remained at home at the time of disposition, there existed a risk
that Nav. or Nolan might witness Anthony sexually abusing Nala. (See I.J., supra, 56
Cal.4th at p. 778 [the possibility that the child could have witnessed the sexual abuse of
the sibling is “relevant to the totality of the circumstances surrounding the sibling abuse,”
which the court should consider in determining whether the child is at risk].)
For all of these reasons, substantial evidence supported the juvenile court’s
removal findings as to Nav. and Nolan. Any error in citing an alternative standard for
removal therefore was harmless as to Nav. and Nolan, so the disposition as to both of
those children must be affirmed.
DISPOSITION
The dispositional findings and orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J. We concur:
FIELDS Acting P. J. RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the juvenile court's order removing the children from parental custody, finding that the parents' persistent denial of the adult sibling's presence in the home and their failure to protect the children from known risks supported the removal order. The court rejected the parents' argument that the juvenile court applied an incorrect legal standard regarding the jurisdictional findings.
Issues
Did the juvenile court apply an incorrect legal standard by relying on jurisdictional findings as prima facie evidence for removal in the absence of section 300(e) allegations?
Was there sufficient evidence to support the removal of the children from parental custody under section 361(c)(1)?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The parents also challenge the sufficiency of the evidence supporting removal of two of the children. We affirm.”
“With respect to all four children, they contend that the juvenile court applied the wrong legal standard in removing the children, because the court stated that the jurisdictional findings were prima facie evidence to support removal”