California Court of Appeal Jan 31, 2024 No. E081377Unpublished
Filed 1/31/24 In re B.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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B.B., et al., Persons Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E081377
Plaintiff and Respondent, (Super.Ct.No. DPSW2300072)
v. OPINION
M.B.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Sean P. Crandell, Judge.
Affirmed.
Marisa L. D. Conroy, under appointment by the Court of Appeal, for Defendant
and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Prabhath Shettigar,
Deputy County Counsel, for Plaintiff and Respondent.
1
M.B. (Father) and N.B. (Mother; collectively Parents)1 are the parents of C.B.
(Male, born January 2014), T.B. (Male, born May 2016), R.B. (female, born November
2017), and B.B. (female, born December 2018; collectively, the children). Father appeals
from the juvenile court’s order removing the children from Father’s custody. For the
reasons set forth post, we affirm the trial court’s findings and orders.
On March 15, 2023, the Riverside County Department of Public Social Services
(the Department) filed a Welfare and Institutions Code2 section 300 petition on behalf of
the children; the children were not detained.
In an out-of-custody initial hearing report filed on March 15, 2023, the social
worker stated that a temporary restraining order (TRO) was issued to protect Mother and
the children from Father due to domestic violence. Father was granted visitation with the
children.
On December 30, 2022, the TRO was amended. The court ordered Father to have
no contact with Mother, except for brief and peaceful contacts to communicate about
court-ordered visits via “Talking Parents.” The hearing on the permanent restraining
order was continued to March 28, 2023.
1 Mother is not a party to this appeal.
2 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2
The report also provided that on February 15, 2023, the Department received a 10-
day referral with allegations of domestic violence and general neglect by Parents. When
law enforcement arrived, Father claimed that Mother “threw a bong to the floor, slapped
him, and punched him on the back of the head.” Father reported that C.B. witnessed the
incident. C.B., however, told law enforcement that Mother did not hit Father.
In the report, the social worker stated that on February 21, 2023, when a social
worker made an unannounced home visit, Mother was upset with Father. Mother stated
that Father had made false allegations to get back at her for the Department’s prior
investigation. Thereafter, in front of the social worker and the children, Parents
exchanged words and argued.
Father told the social worker that the “allegations were true and that he had called
law enforcement himself . . . to protect himself from further allegations against him.”
Father stated that Parents have argued less and the children never witnessed physical
violence.
The social worker reported that Mother “continued to be upset at the father and
told me that she never hit him. She said she was tired of the father and his behavior. She
expressed that all responsibility fell on her (household expenses, work, and care of the
children).” Mother briefly left; Father indicated she was going “for a walk to cool off.”
Additionally, the social worker reported that “[t]he children were present as the
parents argued with one another. . . . The children were friendly and did not appear to be
scared.” When the social worker asked Father if she could talk privately with the
children, Father declined. Father claimed that the social worker “could speak to the
3
children and ask them questions, but only in his presence and stated that he would not
interfere, however wanted to listen in on what the children were being asked.” The social
worker stated that the children “were friendly and appeared comfortable in the presence
of the father.” When Father asked T.B. if the parents had been arguing all day, T.B.
“nodded his head up and down to say yes. The father asked T.B. again, and then [T.B.]
nodded his head side to side to say no.”
After Mother returned, she decided to leave the home with the children and go
with the children to her uncle’s house. Mother told the social worker that “she would
remove herself and the children from the situation as it was clear that the father was not
going to leave.”
After Mother left, Father told the social worker that he was concerned about
Mother’s mental health. The social worker “pointed out that the current environment
between him and the mother was not healthy for the children, regardless of who was at
fault. [The social worker] stressed the importance of adhering to the orders set in the
TRO and advised [Father] to continue services.”
The social worker further reported that on February 22, 2023, Mother informed the
social worker that Mother had received assistance to obtain hotel vouchers so she and the
children could stay in a secure location. Mother left her uncle’s home after one night
“because of the snow and inconvenience as his home was farther from the children’s
school.”
On February 28, 2023, the Department received an immediate response referral
alleging general neglect. It was reported that Mother and the children were homeless and
4
staying in a hotel, and that “the mother had stated that she would be leaving the children
alone while she went to work. There was concern that the children would be left
unattended.”
When a social worker responded, she “found the children to be safe and in the care
of the mother. The mother was reported to be cooperative and she informed [the social
worker] that she had been calling off of work in order to care for the children. The
mother reported that the allegations were a miscommunication and that she would never
leave the children alone.”
When Mother called her social worker the following day, Mother told the social
worker that “she was concerned and worried because . . . someone called [the
Department] on her stating that she had left the children alone in the hotel room while she
went to work. She reiterated that those allegations were absolutely not true and that she
would never leave the children alone.” Mother also informed her social worker that prior
to the Department’s arrival, “law enforcement was there and told her that they were
responding to a 911 call. The officers told the mother that someone had called 911 from
her location and hung up.” Mother stated that no one dialed 911 from the room. “The
police left and then shortly after the father sent her a message telling her that he was
going to call the police on her.” After these events, Mother felt unsafe at the hotel
“because she was worried the father knew where she was staying at.” The next day, after
Mother took the children to school, she made arrangements to stay in Hemet with the
maternal great-grandmother.
5
When the social worker contacted Father, he denied calling law enforcement on
Mother or knowing Mother’s location.
The report also provided that in the evening of March 1, 2023, the social worker
visited the children at maternal great-grandmother’s home. The children were observed
to be clean and well-groomed. The children denied being left alone. During this visit,
Mother told the social worker that she could not find a sitter to watch the children while
she worked. Mother was working to change the TRO to allow Father visitation from
Friday to Sunday. Although Mother had concerns about Father’s behavior toward her,
she denied having concerns about his ability to care for the children.
On March 7, 2023, Mother filed an amended request for a domestic violence
restraining order. Mother alleged that Father (1) had been in constant violation of the
TRO by making unwanted contact via phone and text messages; (2) had harassed her and
called her place of employment; (3) had logged into Mother’s work account without her
consent to check her work schedule; (4) had threatened Mother and told her that he was
going to put something in her car, and that Mother better find it before she got pulled
over; and (5) had threatened to kill himself if Mother was not in his life.
On March 8, 2023, Father called the social worker stating that he was concerned
about a 24-year-old man Mother was dating. Father believed Mother was pregnant with
the man’s child. Moreover, Father was concerned about the supervision of the children
while Mother worked. The social worker told Father to go to family law court to address
custody matters and to refrain from negative interactions with Mother.
6
The next day, Mother called the social worker to report that she was hospitalized
because she was sexually assaulted the previous night. The children were staying with
Father and had not been present. After determining that the family needed more support,
the Department decided to file an out-of-custody petition.
After the sexual assault, Mother and the children moved back in with Father.
Father stated that he would stay in a trailer next to the home.
On March 11, 2023, the Department received a third referral alleging general
neglect by Parents. “It was reported that the family had starting attending church and that
the children were observed to be unkempt. The referral stated that the children looked
like they hadn’t taken a shower in days and their clothes were dirty.” Moreover, the
report alleged that Parents were using drugs. In addition, Mother “was looking for shelter
due to domestic violence.” After receiving shelter from a church member, Mother “was
observed to be drugged up. The mother had informed this individual that she had been
drugged, raped, and left outside a hotel.”
On March 13, 2023, the social worker visited the family. Parents denied using
controlled substances. Parents told the social worker that although they occasionally
smoked marijuana, they never did “in the presence of the children and not at the same
time.” Parents agreed to random drug tests. As to the hygiene of the children, Parents
stated the children showered at the paternal grandmother’s home, which is separate from
the parent’s trailer home, but located on the same properly and it is [within] walking
distance.”
7
The three older children, C.B., T.B., and R.B., each stated that verbal domestic
disputes between Mother and Father continued. C.B. stated that police have been to their
home many times.
In the report, the social worker stated that a review of the Department’s database
uncovered a prior child welfare history for Parents. In that case, on November 14, 2022,
the Department received a referral alleging general neglect and emotional and physical
abuse of the children. Mother contacted law enforcement to report domestic violence by
Father in the presence of the children. Neither Mother nor the children had any visible
marks or bruises.
According to the referral on the prior case, Mother stated that Father “had raped
her a month ago, but she did not report the incident. The mother said father was verbally
and physically abusive to the children.” Moreover, Mother claimed that Father “had
smacked [T.B.].” When law enforcement responded, Father “was arrested and EPO
served.” Father, however, denied the allegations and stated “that he and the mother were
involved in a scuffle over the phone.”
In the prior case, the Department summarized that “it is evident that the parents
engaged in a domestic dispute that was not handled properly. Per the police report, the
children reported witnessing verbal arguments between the parents, however there were
no indications that they had witnessed domestic violence and no disclosures were made.
There was no willful harming or injuring of the children by the parents. There was no
indication that the children had been impacted by the parent’s [sic] actions. The children
8
were observed to be attached to both parents and overall appeared happy.” A no-
negative-contact order was established.
In the out-of-custody report, the Department provided that Father had two
convictions for possession of controlled substances in 2005 and 2006. Moreover, on
November 14, 2023, law enforcement reported that “[F]ather was arrested due to
domestic violence and an EPO was issued.”
The social worker reported that “[t]here is a substantial danger to the physical
health of the children or the children are suffering severe emotional damage, and there
are no reasonable means by which the children’s physical or emotional health may be
protected without Court intervention.”
Furthermore, the social worker expressed concern for Parents’ history of domestic
violence, the escalation of Parents’ arguments, and the children witnessing the ongoing
domestic dispute between Parents. “The children appear un-phased by the altercations
and it appears the domestic disputes between the parents is a very normal occurrence.”
The social worker noted that “[d]espite a TRO in place, the parents are in constant
violation of it and minimize the allegations after the fact through their actions. They have
poor communication, continue to cohabitate in a negative environment, and call law
enforcement frequently.” Thereafter, the social worker expressed its concern “that the
mother and the father will continue to engage in domestic violence, whether verbally or
physically, in the presence of the children, which will undoubtedly result in the children
suffering from further emotional and possibly physical harm.”
9
The Department filed an addendum report on March 27, 2023. In the report, the
social worker stated that Father called her on March 17, 2023. Father reported that B.B.
told Father that Mother’s friend, D., kissed B.B. on the lips and smoked marijuana while
caring for B.B. Mother denied the allegations. Mother “said that [D.] did not provide
care for [B.B.] and that he had never kissed her on the lips. The mother stated that the
father was just making up false allegations because she did not want to be with him. She
expressed concerns that the father was going to continue to make false allegations and
was not going to stop until she returned back home with him.”
On March 20, 2023, Mother reported that Father failed to adhere to the TRO
visitation schedule. Father did not allow Mother to pick up C.B. after a March 19, 2023,
visit with Father. Moreover, Father continued to question the children about how Mother
spent her time and what Mother did. Mother told the social worker that she quit her job
to care for the children. Mother also stated that D. had not cared for the children since
Father’s accusations. Additionally, Mother denied being in a relationship with D. or
being pregnant.
The social worker reported that on March 23, 2023, Father left a message. Father
stated that when B.B., who was with Mother and D., answered Father’s call, Father saw
D. smoking marijuana in the presence of B.B. When the social worker spoke with
Mother, she stated that she and B.B. were at D.’s house while waiting for the older three
children to get out of school. Mother denied Father’s accusation that D. was smoking
marijuana. Mother stated Father was making up allegations because he was angry that
10
Mother was at D.’s house. Mother told the social worker that Mother often stayed at D.’s
house, which was near the children’s school, to save money on gas and time.
At the out-of-custody hearing on March 30, 2023, Parents and the children were
present and counsel were appointed to represent them. The children’s counsel argued
that the children appeared to need services and expressed concerns about Father’s
continued violation of the restraining order. The children’s counsel requested that the
court detain the children from Father’s custody.
Mother’s counsel submitted on the children’s counsel’s request and the
Department’s recommendations. Father’s counsel argued against detention from Father;
he argued that the TRO was a no-negative-contact order.
After reviewing the TRO, the juvenile court found it to be a no-contact order, not a
no-negative-contact order. To avoid confusion regarding the TRO, the court stated that it
would issue a new TRO and continued the hearing. The court stated that “a lot of the
craziness that’s going on, including for some reason a 911 call coming from the hotel
room, the social workers coming to the hotel room, it has the appearance that father is
using the government to stalk the mother.” Father’s counsel argued that Father had not
“willfully” violated the TRO. Instead, Father misunderstood the terms.
The Department’s counsel then stated that “the Department is in agreement with
detaining from the father. There is in the report—even if it was a no-negative contact,
that was already violated even if it was just a no-negative contact.”
The children’s counsel then indicated that “in speaking with the [children], they
were concerned about the violence in the home. They indicated that there is hitting, and I
11
would also indicate that father was arrested for domestic violence in November, and then
there is harassment going on. Father has been calling law enforcement on the mother
reporting concerns about the children’s welfare. So I am concerned about father’s
behaviors. [¶] I know dad is blaming the domestic violence on the mother’s mental
health. It seems as if mother is addressing that right now. But father does have an arrest
history for domestic violence in November.”
Mother’s counsel joined in the comments made by the children’s counsel, and
stated, “Mother did indicate to me she doesn’t feel that the father is necessarily a danger
to the children. She feels that his problems are with the mother, but I do think that carries
over and that there are concerns with regard to father’s ability to separate that.”
Thereafter, the juvenile court allowed Mother to leave the courtroom to care for
the children and took “some time to review the entirety of the DVHE-2206554 case.”
The court proceeded to state, “at this time I am removing the children from their father
and placing the children in the care and custody of the mother.” The court also issued a
“no-contact, 100-yard, stay away restraining order. . . . Dad’s only contact with the
children will be in supervised visitation, supervised by the Department, two times a week,
one hour per visit. . . . [¶] . . . [¶] . . . I’m going to make an order that the children are to
have no contact nor stay at the homes of parties not approved by the Department, nor are
those parties to be in the mother’s home.”
After allowing comments by the attorneys, the court noted: “Okay. So, folks, you
know, dad is crying in the back of the room. I have no idea whether that’s real or
crocodile tears. Frankly, dad comes off in all of these reports as manipulative, seeking to
12
make the mother look like she is crazy, pushing the boundaries on what the restraining
order allows, trying to use the government, including the police and the Department, to
harass mother. It doesn’t seem that any of his allegations have been borne out, that
people are smoking pot around the children, that [D.] has done any of the things that he
said. Of course, I’m concerned about these allegations and thus the reason I’m making
the orders.”
The juvenile court stated, “[i]t seems to me extremely unusual that the police and
CPS would show up back-to-back at the motel when mother was there, and I accept
mother’s representation that dad just keeps contacting her for no reason related to the—
unrelated to the purposes which would be permitted by the restraining order. . . . I mean,
just to the Court[,] it’s a classic coercive control domestic violence situation. . . . [¶]
Frankly, because of dad’s manipulative nature and his inability to abide by court orders,
I’m not comfortable allowing him to have unsupervised contact with the children. I don’t
see why his situation merits anything other that what would be a standard visitation
order.”
On April 19, 2023, the Department filed its jurisdiction/disposition report. In the
report, the Department asked the juvenile court to find the allegations in its petition true,
order family maintenance to Mother, and family reunification services to Father.
The social worker stated that the Department attempted to interview the children
on April 14, 2023. However, C.B., T.B., and R.B. refused to be interviewed. They all
reported that they felt safe at home. Moreover, the Department was unable to interview
13
B.B. because of her inability to pay attention. Furthermore, the Department was unable
to interview Parents “as the Department was denied permission to interview” them.
During the reporting period, Father had two visits with the children. The first visit
became chaotic after 35 minutes when the children ran the halls, jumped on furniture, and
disregarded Father’s directives. The second visit lasted two hours; Father was able to
keep the children occupied.
At the contested jurisdiction/disposition hearing on May 22, 2023, Parents were
present with their counsel. Mother’s counsel requested that the TRO be made permanent
and the children’s counsel submitted on the Department’s recommendations. Father’s
counsel presented Father’s stipulated testimony wherein he disputed the allegation that he
abused marijuana. Father stated he occasionally used marijuana but did not abuse it or
use it while with the children.
The Department’s counsel argued that the report contained information regarding
Father’s issue with marijuana, and that his behavior was concerning. Counsel argued that
“there’s information in the report that would suggest that father does have an issue with
marijuana use. In particular, . . ., father’s behavior in this case is very concerning, . . .
that it’s quite possible that his use of controlled substances, including marijuana, is part
of the reason his behavior is so concerning at this point in time. His behavior is akin to
almost stalking of the mother.” The children’s and Mother’s counsels joined with the
Department’s counsel’s argument.
The juvenile court recognized that “there has been ongoing history of domestic
violence in this relationship” and that both parents admitted to ongoing use of marijuana.
14
When the court asked for further comments, Father’s counsel argued against
removing the children from his care. Counsel for the Department argued that according
to C.B., Father lied about Mother hitting Father, and instead, Father yelled at Mother
because she was talking to someone else. Mother’s counsel joined with the Department’s
counsel, and the children’s counsel joined with counsel for Mother and the Department.
Thereafter, the juvenile court found that on February 15, 2023, C.B. contradicted
Father’s statement that Mother was the aggressor. Moreover, the court stated that “the
children are being used by the parents, in this case the father, to say things to law
enforcement that are not true. And so we have children being dragged into their parents
allegations and being psychologically coerced into taking sides and becoming pawns in
this action, which to me, that is traumatizing to a little person to have to begin taking
sides between mom and dad's dispute. It would cause, in my opinion, a substantial risk of
emotional distress to any children who are put in that situation.”
Furthermore, the juvenile court expressed concern about Father following or
tracking Mother, and noted Mother’s concern for her safety. The court remarked that
Father is “wrapped up in mom’s personal conduct. I think it shows where his focus is”
which is consistent with someone who has “control issues and would be concerned about
losing their significant other.” The juvenile court then noted that Father made statements
that he would harm himself if both parties were not going to be together.
Based on the evidence, the juvenile court found that returning the children to
Father would place the children at serious harm, or risk of physical harm, or serious harm
of emotional or psychological trauma.
15
At the conclusion of the hearing, the juvenile court found the allegations in the
petition true, that the children came within section 300, subdivision (b)(1), and declared
the children dependents of the court. The court then ordered family maintenance services
for Mother; removed physical custody of the children from Father; ordered family
reunification services for Father; and approved the Department’s case plan. The court
also ordered Mother not to allow any unauthorized adults to care for the children; ordered
prior visitation orders to remain in full force and effect; authorized a third party to
supervise Father’s visitation; and authorized the Department to liberalize Father’s
visitation and to terminate the dependency via ex parte application. Moreover, the
juvenile court made the TRO permanent with an expiration date of May 22, 2026,
ordered Father not to contact Mother and to stay at least 100 yards away from Mother’s
home and workplace. (CT 229, 232-233, 243.)
On May 22, 2023, Father filed a notice of appeal from the juvenile court’s orders
at the jurisdiction/disposition hearing.
DISCUSSION
A. THE TRIAL COURT’S ORDER REMOVING THE CHILDREN FROM
FATHER IS SUPPORTED BY SUBSTANTIAL EVIDENCE
Father contends that “substantial evidence did not support the juvenile court’s
dispositional order removing the children from Father’s home and there were reasonable
means of protecting their welfare without removal.”
16
“A dependent child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence . . . [:] [¶] (1) [That] [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 . . . custody.” (§ 361, subd. (c).)
We review a juvenile court’s dispositional order removing a child from parental
custody for substantial evidence, “ ‘bearing in mind the heightened burden of proof.’ ”
(In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “Clear and convincing evidence
requires a high probability, such that the evidence is so clear as to leave no substantial
doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 695 (Isayah C.).) Still, the
appellant bears the burden of showing “ ‘there is no evidence of a sufficiently substantial
nature’ ” to support the dispositional removal order. (In re D.C. (2015) 243 Cal.App.4th
41, 55, superseded by statute on other grounds as stated in In re A.M. (2020) 47
Cal.App.5th 303, 322.)
With the facts mentioned above in mind, we disagree with Father and find that
substantial evidence supports the juvenile court’s finding that removing the children from
Father’s custody was necessary to protect the children’s physical, developmental, and
emotional well-being, and there were no other reasonable means by which the children’s
well-being could be protected without removing them from Father’s custody. (§ 361,
subd. (c)(2).)
17
1. SUBSTANTIAL RISK OF HARM
Father contends that “no evidence was presented of a substantial risk of harm to
the children if returned home.” We disagree.
At the jurisdiction/disposition hearing, before the juvenile court pronounced its
decision, the court found that Father used the children to further his interests. The court
expressed concerns because not only did the children witness domestic violence between
Parents, the children were “being used by the parents, in this case the father, to say things
to law enforcement that are not true. And so we have children being dragged into their
parents allegations and being psychologically coerced into taking sides and becoming
pawns in this action, which to me, that is traumatizing to a little person to have to begin
taking sides between mom and dad’s dispute.” The court then stated such behavior
“would cause, in my opinion, a substantial risk of emotional distress to any children who
are put in that situation.”
The juvenile court went on to state that Father followed and tracked Mother,
which caused Mother to be concerned about her safety. The court stated that Father’s
behavior showed that he is “wrapped up in mom’s personal conduct. I think it shows
where his focus is,” on the mom and not the children. Furthermore, the court noted
Father’s previous statements that he would harm himself if Mother did not return to
Father.
Based on the court’s observation of the parties in the case, including Parents, the
children, and social workers; and the reports filed and evidence presented, the court
found that “it would not be in the [children’s] best interests to be returned to dad at this
18
point.” We agree with the juvenile court and find that substantial evidence supports the
court’s finding.
In this case, as provided in detail ante, on February 15, 2023, Father reported that
Mother hit Father, and C.B. witnessed the incident. C.B., however, denied that Mother
hit Father. Instead, C.B. stated that it was Father who actually hurt Mother. C.B. told
law enforcement that Father yelled at Mother because she was talking to someone else.
C.B. also stated that Mother was trying to sleep and Father hurt her. C.B. stated that law
enforcement had been to their home many times. The first time law enforcement came,
Father went to the police station “to tell things on mom which she did not do.” T.B. also
witnessed Parents arguing and yelling at each other, even when Father left the house.
The older three children also reported ongoing verbal domestic disputes between Parents.
R.B. stated it made her sad.
When Father visited the children, he interrogated the children about Mother’s
personal life instead of interacting and showing interest in the children.
On February 28, 2023, the Department received an immediate response referral
regarding Mother leaving the children in a hotel while she went to work. Both the
Department and law enforcement found the allegation to be untrue. Mother believed
Father made the report because he told her he was going to call the police on Mother.
In March of 2023, Father told the social worker he was concerned about Mother’s
relationship with D.; that D. smoked marijuana in front of B.B. and kissed her. Father’s
accusations were never substantiated.
19
Notwithstanding the substantial evidence that supports the court’s removal order,
Father argues that the removal was inappropriate in the absence of a risk of physical
harm. In support of his argument, Father relies on Isayah C., supra, 118 Cal.App.4th at
698, and contends: “[S]section 361, subdivision (c)(1) requires that there be a ‘threat to
physical safety, not merely emotional well-being, in order to justify removal.’ ” Father’s
contention is without merit.
In Isayah C., the court noted that “case law, while not discussing the issue
explicitly, appears to interpret paragraph (1) of section 361(c) to require a threat to
physical safety, not merely emotional well-being, in order to justify removal. (See In re
Jasmine G. (2000) 82 Cal.App.4th 282, 288-290 . . . )” (In re Isayah C., supra, 118 ca4th
at p. 698.) The court then agreed with the interpretation that a threat of physical harm was
required for removal. (Ibid.)
However, four years later, in In re H.E. (2008) 169 Cal.App.4th 710 (H.E.), the
same court, First District, Division Two, revisited its opinion in Isayah C. and limited its
holding.
In H.E., the mother contended that “after Isayah C., it is never enough to justify
removal unless there is also a risk of physical harm.” (H.E., supra, 169 Cal.App.4th at p.
719.) After analyzing the Isayah C. opinion at length, the court stated: “A close look at
Isayah C. reveals that, notwithstanding its broad pronouncement, the case presented
neither proof, allegations, nor contentions about emotional harm. We therefore limit the
holding to an unremarkable deduction that, where the subdivision requires risk of
emotional or physical harm and there is no risk of emotional harm, there must be risk of
20
physical harm. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, . . . [‘language of
an opinion must be construed with reference to the facts presented by the case; the
positive authority of a decision is coextensive only with such facts’].)” (H.E., supra, 169
Cal.App.4th at pp. 721-722.)
Although H.E. limited Isayah C. and allows a threat of emotional harm to justify
removing a child from their parent, Father fails to address H.E. in his briefs. Instead,
Father cites In re Jasmine G. (2000) 82 Cal.App.4th 282 (Jasmine G.) to further bolster
his contention that “[t]he statutory language of section 361[, subdivision ](c)(1) requires a
threat to physical safety, not merely emotional well-being, in order to justify removal.”
Jasmine G. does not support Father’s argument.
Jasmine G., supra, 82 Cal.App.4th 282, was decided on July 17, 2000—four years
prior to Isayah C. and eight years prior to H.E. In Isayah C., the court cited to Jasmine
G. when stating that section 361, subdivision (c), “require[s] a threat to physical safety,
not merely emotional well-being, in order to justify removal.” (Isayah C., supra, 118
Cal.App.4th at p. 698.) However, as provided above, H.E. limited the holding in Isayah
C.
Although H.E. has expanded the holding in Isayah C. to allow the risk of
emotional harm for removal, Father has failed to analyze the impact of H.E. on either
Isayah C. or Jasmine G. We find Father’s reliance on Isayah C. and Jasmine G. to be
unavailing.
In sum, we find that substantial evidence supports the juvenile court’s finding that
it was in the children’s best interest to be removed from Father’s custody.
21
2. ALTERNATIVES TO REMOVAL
On appeal, Father also contends that “the juvenile court failed to consider
alternatives to removal.”
“The juvenile court has broad discretion to determine what would best serve and
protect the child’s interests and to fashion a dispositional order accordingly. On appeal,
this determination cannot be reversed absent a clear abuse of discretion.” (In re Baby
Boy H. (1998) 63 Cal.App.4th 470, 474.) In reviewing an order for abuse of discretion,
we “ ‘must consider all the evidence, draw all reasonable inferences, and resolve all
evidentiary conflicts, in a light most favorable to the trial court’s ruling. [Citation.] The
precise test is whether any rational trier of fact could conclude that the trial court order
advanced the best interests of the child.’ ” (In re Robert L. (1993) 21 Cal.App.4th 1057,
1067.) “The trial court is accorded wide discretion and its determination will not be
disturbed on appeal absent ‘a manifest of showing of abuse.’ ” (Ibid.)
In this case, Father argues that “there is no indication the court considered less
drastic measures before making the necessary statutory determination that there are no
reasonable means by which the children’s physical health could be protected short of
removal.” In support of his argument, Father relies on In re Henry V. (2004) 119
Cal.App.4th 522 (Henry V.). Henry V., however, is distinguishable.
Henry V. involved a child who was removed from his parents because he had three
burns likely caused by a curling iron. (Henry V., supra, 119 Cal.App.4th at pp. 525,
527.) The juvenile court removed the child from the home, and the appellate court
reversed the removal order. The appellate court held that the juvenile court erred because
22
there were reasonable means to protect the child without depriving his parents of custody.
(Id. at pp. 528-530.) The appellate court found the physical abuse to be a single
occurrence, and neither the child protective services agency nor the juvenile court
considered the incident to be an obstacle to the mother reunifying with the child in the
near future. (Id. at p. 529.) The appellate court found that appropriate services could be
provided to the mother and the child in the family home, including in-home bonding
services, public health nursing services, and unannounced visits. (Ibid.) Moreover, the
court of appeal reversed because it was unclear whether the juvenile court applied the
clear and convincing standard in making its dispositional findings. (Id. at pp. 529-530.)
In this case, unlike Henry V., the juvenile court considered reasonable alternatives
to removal. At the jurisdiction/disposition hearing, the following facts were presented to
the court again: The Department initially placed the children with Mother and Father,
and filed an out-of-custody petition. Father, however, continued to harass Mother and
interrogated the children about Mother’s whereabouts and with whom Mother spent her
time. Because Mother did not want to be with Father, Father became upset, made false
allegations about Mother, and stalked Mother. Father also obtained Mother’s
confidential address from the children and made an unfounded welfare check referral.
Moreover, Father expressed that he would harm himself if his relationship with Mother
ended. The juvenile court noted Father’s behavior and found his actions, which included
violating the TRO, harmful to the children.
Notwithstanding these facts, Father’s counsel requested that Father be given
family maintenance for weekends, instead of removing the children from his custody.
23
“Both parents are in an equal position as far as the restraining order. They’re
separate from their children. They do not live together. They do not live in the same
city. So I think that it’s wholly appropriate at this time for [Father] to be given family
maintenance. And I understand that there’s a domestic violence restraining order in this
case that existed prior. Thus, the family maintenance would cap at the visits in line with
that order which is my request, Your Honor, he be given family maintenance for
weekends in line with the previous restraining order in this case.”
After Father’s counsel presented further argument and other counsel gave follow-
up arguments, the juvenile court summarized the facts presented to the court. The
juvenile court stated: “When you take into consideration my thought that I find it’s a
reasonable inference that dad did make comments he would harm himself in combination
with what I’m hearing today that both parties are not going to be together, I think the
Court, at least at this point, has serious concerns that dad could do something that would
harm himself. Those are further reasons why returning the children back to the father at
this point, unsupervised, as [Father’s counsel] is suggesting, would place the children at
serious harm, or risk of physical harm, or serious harm of emotional or psychological
trauma. It would not be in the [children’s] best interests to be returned to dad at this
point. [¶] I want to just juxtapose those comments. I’m not here making these
comments. I’m here to make a finding if it is the right thing to do as to whether or not
I’m going to grant family maintenance or I’m going to remove and grant family
reunification. One of the things I stated is why I’m going to find that it would not be in
the children’s best interests to go back to dad at this point.”
24
After further discussion from counsels representing the parties, the court stated
“So the Court is going to find that reasonable efforts were made to prevent or eliminate
the need from removal of the children.” Therefore, we find Father’s argument that “there
is no indication the court considered less drastic measures before making the necessary
statutory determination that there are no reasonable means by which the children’s
physical health could be protected short or removal” to be unavailing.
Additionally, unlike Henry V., the juvenile court made its removal order after
finding clear and convincing evidence: “The Court does find clear and convincing
evidence of the circumstances of 361.5[, subdivision ](c) as to father, and the physical
custody of the children is removed from the father.”
Based on the above, we find that substantial evidence supports the court’s order
removing the children from Father.
DISPOSITION
The juvenile court’s jurisdictional findings and dispositional order are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
CODRINGTON J.
FIELDS J.
25
AI Brief
AI-generated · verify before citing
Holding. The court held that substantial evidence supported the juvenile court's order removing the children from the father's custody due to a substantial risk of physical or emotional harm, as the father engaged in coercive control and used the children as pawns in his disputes with the mother.
Issues
Whether substantial evidence supported the juvenile court's dispositional order removing the children from the father's custody under Welfare and Institutions Code section 361, subdivision (c).
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“It doesn’t seem that any of his allegations have been borne out, that people are smoking pot around the children, that [D.] has done any of the things that he said.”