Filed 10/1/21 In re B.P. CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re B.P., a Person Coming Under 

the Juvenile Court Law.

___________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent, 

v.

C. P.,

Defendant and Appellant.

 B307711

 (Los Angeles County

 Super. Ct. No. 

20CCJP01243B)

APPEAL from orders of the Superior Court of Los Angeles 

County, Julie Blackshaw, Judge. Affirmed in part and dismissed 

in part.

Karen B. Stalter, under appointment by the Court of 

Appeal, for Defendant and Appellant.
2

Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and William D. Thetford, Principal 

Deputy County Counsel.

Shaylah Padgett-Weibel, under appointment by the Court 

of Appeal, for B.P.
3

The court assumed dependency jurisdiction over nine-yearold B.P. following the death of her three-week-old half-brother,

Maximus M. (Maximus). The court’s jurisdiction finding was 

made solely pursuant to Welfare and Institutions Code section 

300, subdivision (j),

1 which applies if (1) a dependent child’s 

sibling has been abused or neglected as defined in other specified 

subdivisions of section 300 and (2) there is a substantial risk the 

dependent child will be abused or neglected as defined in those 

subdivisions. (In re I.J. (2013) 56 Cal.4th 766, 774 (I.J.).) C.P. 

(Mother) appeals the jurisdiction finding and associated 

disposition order, asking us to decide whether (1) the juvenile 

court erred by not making an express finding as to the first of 

these two elements and (2) whether there is sufficient evidence of

abuse or neglect of Maximus, a substantial risk to B.P.’s welfare, 

and detriment justifying B.P.’s removal from Mother’s custody.2

I. BACKGROUND

A. Maximus’s Death

On February 18, 2020, at approximately 6:00 p.m., Mother 

and Maximus’s father (Stepfather) drove Maximus to Good 

Samaritan Hospital after he stopped eating, appeared pale, and 

had spasms. Maximus was rushed to the emergency room where 

1 Undesignated statutory references that follow are to the 

Welfare and Institutions Code.

2 Our resolution of these issues makes it unnecessary to 

resolve the Department’s cross-appeal challenging the juvenile 

court’s decision to decline to assume jurisdiction under section 

300, subdivision (b)(1). (See, e.g., I.J., supra, at 773; accord, In re 

I.A. (2011) 201 Cal.App.4th 1484, 1492.)
4

he was found to be “pulseless, apneic, limp, with central cyanosis 

and cool skin.” The doctors performed cardiopulmonary 

resuscitation and revived Maximus. The attending physician 

observed Maximus was “severely hypothermic” and appeared to 

be “severely dehydrated and malnourished.” The doctor also 

observed abrasions along his right jaw and above his right 

eyebrow.

Before transferring Maximus to Children’s Hospital Los 

Angeles (CHLA), the emergency room doctor discussed with 

Mother the events leading up to Maximus’s arrival at the 

hospital. Mother said that in the preceding days Maximus had 

been eating well (two ounces of formula every two hours), but in 

the hours before his cardiac arrest he displayed a decreased 

appetite.

After Maximus’s transfer, CHLA asked the Los Angeles 

Police Department (LAPD) to conduct a child abuse investigation. 

The police separately interviewed Maximus’s parents twice. Both 

parents described the same essential course of events related by 

Mother to an emergency room doctor: decreased appetite and 

then seizure-like movements (Maximus becoming suddenly 

“rigid” and “extend[ing] his legs and clench[ing] his hands” in the 

hours preceding his cardiac arrest). Neither parent could offer 

the police an explanation for Maximus’s condition even though 

they were the child’s only caretakers.3

3 Mother said she believed the abrasions on Maximus’s face 

were caused by a new sweater with a zipper that Maximus wore 

for the first time earlier in the week and by the child scratching 

himself. The doctor who treated Maximus told police detectives 

the abrasions were “superficial” and “could have been caused by 

anything.”
5

While the police took statements from the parents, a Los 

Angeles County Department of Children and Family Services

(Department) social worker interviewed Maximus’s attending 

physician at CHLA. The doctor said that Maximus, when 

admitted to the hospital, had “dilated non-reactive pupils, lack of 

spontaneous movement or respirations” and “bloody stools and 

bloody gastric output.” Initial laboratory tests showed “severe 

metabolic acidosis and severe anemia.” In his intake notes, the 

doctor opined: “It is unclear what precipitated the cardiac arrest, 

but given [the] bloody [gastrointestinal] output, [Maximus] may 

have had a volvulus several days ago resulting in significant 

blood loss and dehydration.”4

Over the course of the next several days, Maximus’s doctors

ordered various consultations and a battery of diagnostic tests, 

including magnetic resonance imaging (MRI) studies of 

Maximus’s brain and cervical spine. The brain MRI study 

showed an “extensive subarachnoid hemorrhage over both 

cerebral hemispheres, intraventricular hemorrhage in both 

ventricles and blood surrounding the cerebellum and brain stem 

extending into the upper cervical spinal canal.” MRI study of 

Maximus’s spine revealed an “extensive subarachnoid 

hemorrhage throughout the spinal canal.” The doctors advised 

Maximus’s parents that based on the diagnostic tests and clinical 

examinations it was “likely that [Maximus] would not walk, talk 

or interact with them in a meaningful way.”

On February 21, 2020, after consulting with Maximus’s 

doctors about his poor neurologic prognosis, Mother and 

4 A volvulus is a twisting of a portion of the gastrointestinal 

tract that can impair blood flow.
6

Stepfather elected to have Maximus compassionately 

disconnected from his ventilator. Fifteen minutes after being 

extubated, Maximus died.

B. The Dependency Petition and Subsequent Proceedings

While Maximus was being treated at CHLA and shortly 

after his death, a Department social worker interviewed Mother, 

Stepfather, and the other members of their household: B.P., 

Mother’s 17-year-old son M.P., her adult son Aldo P. (Aldo), and 

his partner Patricia C. (Patricia).

Mother and Stepfather described for the social worker the 

same course of events leading to Maximus’s hospitalization that 

they described to hospital personnel and the police. The parents’ 

version of the precipitating events was not contradicted by any of 

the other household interviewees. All of the interviewees, 

including B.P.—who was home at the time Maximus was rushed 

to the hospital—denied there had been any abuse of Maximus or 

any other child living in the home. B.P., Mother’s older sons, and 

Patricia said Maximus’s parents were “attentive” to the infant’s 

needs and took “good care” of him. Although Aldo described 

Stepfather as “really calm” generally, he did say that three weeks 

earlier he saw Stepfather become frustrated and slam a door 

when Aldo’s own child was crying. Hospital staff told the social 

worker of similar volatile reactions by Stepfather on other 

occasions: he slammed a door after being advised of CHLA’s 

visitation policy and slammed his hand into a wall after learning 

of Maximus’s poor prognosis.

The social worker interviewed B.P.’s father, Christopher P. 

(Father), who had been divorced from Mother for approximately 

seven years. Father said Stepfather had once used profanity 
7

when discussing B.P. in an angry voicemail message he left on 

Father’s phone.

5

 Father also advised he had seen Stepfather

drinking and smoking marijuana in the front yard of the home 

Stepfather shared with Mother. Stepfather admitted to the social 

worker that he smoked marijuana prior to Maximus’s birth and 

he agreed to complete an on-demand drug test. Later, however, 

stepfather reneged and refused to drug test.

The social worker also separately interviewed an 

emergency room doctor from Good Samaritan Hospital and the 

director of CHLA’s CARES (Child Abuse Reporting Electronic 

System) team. Both reported they suspected Maximus was a 

victim of child abuse due to the extensive brain bleeds, the blood 

around his brain stem, his malnourished state upon admission, 

and the fact that his parents’ statement of events seemingly did 

not match his injuries.

A week after Maximus died, his parents agreed to submit to 

polygraph examinations. Mother’s examination was determined 

to be “negative” for deception. Stepfather’s examination, 

however, was found to indicate deception. After the polygraph, 

Stepfather admitted causing Maximus’s injuries in a statement 

to the polygraph examiner. As recounted in a police report 

obtained by the social worker, Stepfather “explained to the 

polygraph examiner that he became angry with [Maximus] and 

‘lost control’ for approximately five or ten minutes. [Stepfather] 

grabbed [Maximus] by the arms and pulled him forcefully side to 

side, causing injuries. [Stepfather] also grabbed [Maximus] by 

the legs and pulled him forcefully side to side, causing injuries.” 

5 Specifically, Father said Stepfather referred to B.P. as 

Father’s “fuck[ing] daughter.”
8

After the polygraph examination, the police arrested Stepfather

for child abuse resulting in death (Pen. Code, § 273ab, subd. (a)).

Shortly thereafter, the Department filed a multi-count 

petition asking the juvenile court to take dependency jurisdiction 

over B.P.6 The petition alleged six counts under section 300: one 

under subdivision (a) (risk of serious physical harm inflicted nonaccidentally), two under subdivision (b)(1) (substantial risk of 

serious physical harm from a parental failure or inability to 

protect), one under subdivision (f) (parental causation of the 

death of another child through abuse or neglect), and two under 

subdivision (j) (risk of abuse or neglect when a sibling has been 

abused or neglected). All the counts alleged Maximus’s injuries 

were “consistent with inflicted trauma.”

At the detention hearing, Mother denied the allegations. 

The juvenile court ordered B.P. removed from Mother’s custody 

and placed with Father. Mother was granted monitored 

visitation and Stepfather was prohibited from having any contact 

with B.P.

In advance of the jurisdiction hearing, a Department 

investigator interviewed Mother. She said that on the day of 

Maximus’s hospitalization, she took a shower and left B.P. in 

Stepfather’s care. When Mother finished showering, Stepfather

told Mother he had put Maximus on the bed to calm him because

he had become fussy and whiny. Over the course of the next 

several hours, Mother attempted to feed Maximus but he would 

not eat. Then, while changing his diaper, Mother noticed 

6 The petition as originally filed sought jurisdiction over both 

B.P. and M.P. However, when M.P. turned 18 years old, the 

juvenile court dismissed the petition as to him and the 

Department filed an amended petition limited to B.P. alone.
9

Maximus was pale and limp; that’s when she and Stepfather took 

him to the hospital.

Mother said she had no explanation for Maximus’s injuries 

or malnourished condition because, prior to the day of his 

hospitalization, his eating habits, bowel movements, and sleep 

patterns had been normal. Mother denied witnessing any abuse 

of Maximus by Stepfather. She had seen Stepfather playing with 

Maximus’s hands and feet, but she never saw Stepfather do so in 

a rough or forceful manner. Mother did concede Stepfather

would on occasion become impatient with Maximus when the 

child would not stop crying, but she said he would not mistreat 

Maximus and would seek Mother’s assistance with the infant on 

those occasions. Mother also admitted she remained in 

communication with Stepfather even though she knew he had 

been arrested and the police reported he admitted abusing

Maximus.

The dependency investigator also interviewed Stepfather. 

He stated that on the day of the hospitalization, while Mother 

was in the shower, Maximus woke up and began whining. 

Stepfather picked him up, burped him, checked his diaper, and 

tried to feed him. At some point, Maximus “tensed up, balled his 

fists, and started to cry,” before falling back to sleep. Maximus 

also “tensed up” once more after Mother came out of the shower. 

The parents, at first, attributed Maximus’s behavior to him 

trying to have a bowel movement. After noticing that Maximus 

was very pale below the waist, however, the parents decided to 

take him to the hospital. Stepfather admitted to playing with 

Maximus’s arms and legs but he adamantly denied losing control 

and hurting Maximus. Stepfather also disputed he made any 
10

incriminating statements after his polygraph examination; as 

Stepfather put it, the detectives had “chang[ed] his words.”

The Department obtained medical records from Good 

Samaritan Hospital, CHLA, and Monterey Park Hospital (the 

hospital where Maximus was born). The records from Monterey 

Park Hospital showed that while Maximus was born several 

weeks early due to Mother’s elevated blood pressure, there were 

no complications during the cesarean section delivery. 

Maximus’s progress notes over the course of the next several days 

showed he was in stable condition with no respiratory distress

and bonding with Mother. Three days after being born, Maximus 

was discharged home in stable condition.

Shortly before the jurisdiction hearing, the Department 

provided the juvenile court with a copy of Maximus’s autopsy 

report, which concluded the cause and manner of death was 

“undetermined.” The autopsy did not reveal any skeletal 

fractures, a finding that was confirmed by radiographic 

examination and consultation. Although the autopsy revealed,

and a neuropathy consultation confirmed, a subarachnoid 

hemorrhage, the examiner stated the hemorrhage was 

“consistent with reperfusion hemorrhage of respirator brain. 

This means that the subarachnoid hemorrhage [wa]s not 

necessarily due to trauma.” In view of these findings, the 

examiner concluded “non-accidental trauma cannot be ruled in.” 

In the examiner’s opinion, “[t]he possibility of volvulus is a strong

consideration but it cannot be definitively ruled in, since it was 

not found at autopsy.” The examiner, however, further observed 

“that volvulus has been known to resolve before imaging or 

autop[s]y can establish the diagnosis.”
11

C. Jurisdiction and Disposition Hearing

At the combined jurisdiction and disposition hearing, the 

juvenile court admitted the Department’s reports and their 

supporting exhibits (including the medical records and police 

reports) in evidence. The Department elected not to call any 

witnesses, including the deputy medical examiner who performed 

the autopsy.

Mother moved to dismiss the amended petition, arguing the 

Department had not met its burden to prove Maximus’s injuries 

were consistent with inflicted trauma. Mother’s attorney placed 

particular emphasis on the autopsy report and the examiner’s 

finding that he could not rule in non-accidental trauma as the 

cause for the subarachnoid hemorrhage. B.P.’s counsel joined the 

motion to dismiss, but only with respect to the petition counts 

alleged under subdivision (a) and (f). The court granted the 

motion to dismiss in part, finding the Department had not met its 

burden of proof on the subdivision (a) and (f) counts because the 

medical examiner could not determine a cause of death. The 

court also dismissed the b-2 and j-2 counts in the dependency 

petition, which alleged medical neglect by Mother, because the 

medical records showed “Mother went to all of the doctor 

appointments.”

After conferring with counsel off the record, the court 

presented amended versions of the b-1 and j-1 petition counts

with changes intended to conform to the proof presented, 

including the autopsy report. In pertinent part, these amended 

counts alleged: “At the time of his death, Maximus was found to 

have a focal contusion of the right forehead, focal abrasion under 

the right chin, cerebral edema, diffuse subarachnoid 

hemorrhages, severe metabolic acidosis, bloody gastrointestinal 
12

output and possible volvulus. The autopsy report found the cause 

and manner of death to be undetermined. [Stepfather], father of 

the deceased half-sibling Maximus, has admitted that he inflicted 

injuries to the half-sibling by becoming angry and losing control 

while caring for Maximus and pulling him forcefully from side-toside by his arms and legs for five to ten minutes. [B.P.] was in 

the home at the time of [Stepfather’s] infliction of injuries to 

Maximus. By permitting [Stepfather] to live in the home and 

have unrestricted access to [B.P.], [M]other has endangered [B.P.] 

and created a detrimental home environment and place[d] [B.P.]

at risk of serious physical harm, damage[,] and danger.”

The juvenile court explained the rationale for the 

amendments as follows: “The concern expressed in the amended 

b-1 [and] j-1 [counts is] that [Stepfather], the father of the 

deceased half-sibling, Maximus, has admitted to taking actions 

that could very well be considered inappropriate and dangerous 

to [Maximus], whether or not they caused the death, contributed 

to the death. [¶] And the concern of the court is that this person 

was living in the home of [B.P.], and has admitted himself that he 

got angry, lost control, and forcefully pulled the baby side-by-side 

by his arms and legs for five to ten minutes. . . . [¶] . . . [¶] I 

don’t think there is any way in which the forceful pulling side-toside by arms and legs is the appropriate way to treat a child. 

Whether it results in visible injuries or not.” None of the parties

objected to the court’s proposed amendments.

Turning to the presentation of evidence on the remaining 

amended petition counts, Mother presented expert testimony 

from Dr. Perry Lubens (Lubens), a board-certified pediatrician 

and clinical neurophysiologist with a special competence in child 
13

neurology.7 Based on his review of Maximus’s medical records, 

including the MRI studies, Dr. Lubens opined Maximus “most 

likely” suffered from an “intra-abdominal catastrophe,” possibly a 

“mid-gut volvulus,” which resulted in Maximus’s severe anemia. 

The anemia, in turn, caused the cardiac arrest, which deprived 

his brain of blood, leading Maximus to suffer “irreversible brain 

injury.”

Lubens further opined the reperfusion hemorrhaging 

evident on the imaging studies was not the result of nonaccidental trauma. Rather, the hemorrhaging was due to the 

cardiac arrest: “There was [a] lack of blood and oxygen supplied 

to the brain. When that happens neurons die[ ]. In other words, 

the working part of the brain dies. And also the whole blood 

vessel network in the brain, capillaries and blood vessels are 

injured. They don’t hold the blood within the blood vessels 

anymore. They leak. When . . . [Maximus] was resuscitated and 

the heart got going again some of that blood leaked out of these

leaky vessels into the subarachnoid space and that cause[d] the 

subarachnoid hemorrhage.” Based on his review of the medical 

records, Lubens “did not find any evidence that [Maximus] had 

been shaken from five to ten minutes.” In response to a question 

from the court, Lubens stated there was nothing in the autopsy 

report with which he disagreed.

Following oral argument, the juvenile court dismissed the 

amended b-1 count in the petition and sustained the subdivision 

j-1 count because that count, in the court’s view, more closely 

described B.P.’s situation. As the court explained it, B.P.’s half7 Lubens’s curriculum vitae, the only document offered by 

Mother, was admitted in evidence by the juvenile court.
14

sibling Maximus was “abused by [Stepfather]. Whether or not it 

caused the death, we don’t know. But we do have confessions 

made by [Stepfather]. He has recanted. But I do believe that 

[the] confessions made more contemporaneous to the events are

more credible. [¶] And frankly[,] I think the risk continues 

because Mother has not ended her relationship with [Stepfather]

[following his arrest]. And should [Stepfather] be released from 

prison, we don’t have any assurance that he would not move back 

into the home and [Mother] will be appropriately protective of 

[B.P.].” Neither Mother nor any other party objected to the legal 

sufficiency of the court’s finding on the subdivision j-1 count.

After the jurisdiction ruling, Mother opted to testify during 

the disposition phase of the hearing. She agreed she was aware 

of Stepfather’s confession and arrest but she maintained 

Stepfather posed no risk to B.P. Mother claimed she had decided

not to continue her relationship with Stepfather, but she 

admitted she had not yet advised him of her decision. Mother 

also testified she had been in regular telephonic contact with 

Stepfather since his arrest: in the four weeks preceding the 

hearing, she spoke with him on four to five occasions, the last 

time being two days before the hearing.

The juvenile court was “not reassured” by Mother’s 

testimony, highlighting her statement that she “maintained 

contact with [Stepfather] during this period despite the fact 

that . . . he is in custody for possibly having some culpability in 

the death of their shared child.” The court also doubted Mother’s 

honesty in testifying that she would not continue her relationship 

with Stepfather because it appeared to the court that “the only 

reason [Mother] said she would not talk to him again was 

because that was what she thought the court would say.” The 
15

court also was unsure whether Stepfather would remain in 

custody on the arrest charge and for how long. The court found

Mother did not understand the risk Stepfather’s access to B.P.

posed and removed B.P. from Mother’s custody and ordered B.P.

released to the home of Father. Because B.P. was “closely 

connected” to Mother and because Mother did not pose a direct 

risk to B.P., however, the court ordered unmonitored visits for 

Mother provided that Stepfather was not present.

II. DISCUSSION

Mother advances a legal contention—the juvenile court’s

section 300, subdivision (j) jurisdiction finding is infirm because 

the court did not expressly find Maximus was neglected or 

abused under one of the other pertinent section 300 

subdivisions—as well as several sufficiency of the evidence claims 

pertaining to both the jurisdiction and disposition rulings. All 

are meritless. As we go on to explain: the legal contention is 

forfeited and, in any event, wrong on the law; Stepfather’s 

admission that he abused Maximus, plus other evidence of his 

impatience with children and violent outbursts when frustrated,

is substantial evidence of abuse or neglect of Maximus; Mother’s 

continued contact with Stepfather after his admission and 

Stepfather’s hostile remark about B.P. are substantial evidence of 

a substantial risk to B.P.’s welfare; and this same evidence, 

particularly Mother’s continued contact with Stepfather, is 

substantial evidence justifying the court’s decision to remove B.P.

from Mother’s custody.
16

A. Mother’s Failure to Object to the Legal Sufficiency of 

the Jurisdiction Finding Forfeits the Issue and the 

Contention Is Not Well Taken in Any Event 

Section 300, subdivision (j), authorizes a juvenile court to 

assume dependency jurisdiction over a child when the following 

two requirements are met: “The child’s sibling has been abused or 

neglected, as defined in subdivision (a), (b), (d), (e), or (i), and 

there is a substantial risk that the child will be abused or 

neglected, as defined in those subdivisions.”

Mother maintains the juvenile court erred by failing to 

make an express finding that Maximus was abused or neglected 

under any of the predicate subdivisions referenced in subdivision 

(j). Mother, however, never raised this argument in the 

proceedings below. In fact, the record shows Mother never 

objected to the amended subdivision j-1 count on any ground at 

any time (either before or after the count was sustained). That 

forfeits the point on appeal. (In re David H. (2008) 165 

Cal.App.4th 1626, 1640 [“Allowing parties to challenge the facial 

sufficiency of a petition for the first time on appeal conflicts with

the emphasis on expeditious processing of these cases so that 

children can achieve permanence and stability without 

unnecessary delay if reunification efforts fail. [Citation.] 

Enforcing the forfeiture rule requires parties to raise such issues 

in the juvenile court where they can be promptly remedied 

without undue prejudice to the interests of any of the parties 

involved”]; accord, In re Ashley B. (2011) 202 Cal.App.4th 968, 

980, fn. 4 (Ashley B.); In re Christopher C. (2010) 182 Cal.App.4th 

73, 81-83.)

Even if not forfeited, the argument would be unpersuasive. 

“On its face, section 300, subdivision (j) does not require that the 
17

court make an express finding under section 300 as to the subject 

child’s sibling. Where, as here, the abused or neglected sibling is 

deceased, the trial court need not sustain predicate findings on 

behalf of the deceased sibling. Under these circumstances, it is 

sufficient that the juvenile court made an implied finding that 

the deceased sibling was abused or neglected as defined in one of 

the enumerated subdivisions of section 300.” (Ashley B., supra, 

202 Cal.App.4th at 980; see also I.J., supra, 56 Cal.4th at 774

[“‘Subdivision (j) thus allows the court to take into consideration 

factors that might not be determinative if the court were 

adjudicating a petition filed directly under one of those 

subdivisions’”].)

B. Substantial Evidence Supports the Juvenile Court’s 

Jurisdiction Finding Under Section 300, Subdivision 

(j)

Subdivision (j) of section 300 “‘was intended to expand the 

grounds for the exercise of jurisdiction as to children whose 

sibling has been abused or neglected as defined in section 300, 

subdivision (a), (b), (d), (e), or (i). Subdivision (j) does not state 

that its application is limited to the risk that the child will be 

abused or neglected as defined in the same subdivision that 

describes the abuse or neglect of the sibling. Rather, subdivision 

(j) directs the trial court to consider whether there is a 

substantial risk that the child will be harmed under subdivision 

(a), (b), (d), (e) or (i) of section 300, notwithstanding which of 

those subdivisions describes the child’s sibling.’ [Citation.]” (I.J., 

supra, 56 Cal.4th at 774.)

Subdivision (j), in contrast to its predicate subdivisions,

lists factors for the court to consider. It states: “The court shall 
18

consider the circumstances surrounding the abuse or neglect of 

the sibling, the age and gender of each child, the nature of the 

abuse or neglect of the sibling, the mental condition of the parent 

or guardian, and any other factors the court considers probative 

in determining whether there is a substantial risk to the child.” 

(§ 300, subd. (j).) “‘The broad language of subdivision (j) clearly 

indicates that the trial court is to consider the totality of the 

circumstances of the child and his or her sibling in determining 

whether the child is at substantial risk of harm, within the 

meaning of any of the subdivisions enumerated in subdivision (j). 

The provision thus accords the trial court greater latitude to 

exercise jurisdiction as to a child whose sibling has been found to 

have been abused than the court would have in the absence of 

that circumstance.’ [Citation.]” (I.J., supra, 56 Cal.4th at 774.)

Our review of a challenge to the sufficiency of the evidence 

to support a juvenile court’s section 300, subdivision (j) finding is 

for substantial evidence. (In re R.T. (2017) 3 Cal.5th 622, 633

[“‘In reviewing the jurisdictional findings . . . , we look to see if 

substantial evidence, contradicted or uncontradicted, supports 

them’”].) Here, the substantial evidence standard is met with 

respect to both elements of a section 300, subdivision (j) finding.

With regard to the first (proof that one or more of the B.P.’s

siblings was abused or neglected), Stepfather admitted to the 

polygraph examiner that he grew frustrated with Maximus, lost 

control of himself, and pulled the infant’s arms and legs forcefully 

for five to ten minutes. The juvenile court opted to believe

Stepfather’s admission over his subsequent recantation, and 

understandably so. While that alone is adequate evidence of 

predicate abuse of a sibling, there was more: undisputed evidence 

that Stepfather would become inpatient and frustrated when in 
19

the presence of crying children (Mother had to relieve him from 

caring for Maximus when he was crying and Stepfather slammed 

a door when Aldo’s child was crying), evidence that Maximus was 

crying and “fussy” on the day in question when Mother was in the 

shower and unavailable, and evidence that Stepfather would 

occasionally lash out violently (slamming walls and doors) when 

frustrated.

As for the second element of a section 300, subdivision (j) 

showing (establishing B.P. was at substantial risk of abuse or 

neglect at the time of the jurisdiction hearing), that too was 

satisfied by substantial evidence. (I.J., supra, 56 Cal.4th at 773 

[a juvenile court “‘need not wait until a child is seriously abused 

or injured to assume jurisdiction and take the steps necessary to 

protect the child’”].) B.P. was present in the home at the time 

Stepfather confessed to abusing Maximus. Stepfather had made 

a hostile comment about B.P. when leaving a voicemail message 

for Father. Stepfather, as already recounted, would at times 

become frustrated while in the presence of children, including a 

child other than Maximus, and Stepfather at times reacted 

violently when frustrated. Mother also continued to maintain 

contact with Stepfather even after his admission to abusing 

Maximus. There was no guarantee, as the juvenile court

observed, that Stepfather would remain in custody after his 

arrest, and the juvenile court was entitled to disbelieve Mother’s 

professed intention to end her relationship with Stepfather—

particularly since Mother never advised Stepfather of that 

decision and instead continued to talk with him regularly by 

telephone, including as late as two days before the jurisdiction 

hearing.
20

C. Substantial Evidence Supports the Juvenile Court’s 

Order Removing B.P. from Mother’s Custody

“[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.B. (2018) 

26 Cal.App.5th 320, 328.) “A removal order is proper if it is based 

on proof of (1) parental inability to provide proper care for the 

minor and (2) potential detriment to the minor if he or she 

remains with the parent.” (In re T.W. (2013) 214 Cal.App.4th 

1154, 1163.) “‘The parent need not be dangerous and the minor 

need not have been actually harmed before removal is 

appropriate. The focus of the statute is on averting harm to the 

child.’ [Citation.] The court may consider a parent’s past conduct 

as well as present circumstances. [Citation.]” (In re N.M. (2011) 

197 Cal.App.4th 159, 169-170.) We review a removal order for 

substantial evidence. (In re D.G. (2012) 208 Cal.App.4th 1562, 

1574; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 

1005.)

The evidence supporting the juvenile court’s exercise of 

dependency jurisdiction under section 300, subdivision (j) that we 

have already recounted is sufficiently strong to support the order 

removing B.P. from Mother’s custody. Particularly relevant are 

Stepfather’s admission to abusing Maximus, his propensity 

toward frustration around children, and his continued contact 

with Mother. Mother argues, however, that substantial evidence 

did not support the removal order because Stepfather was still 
21

incarcerated at the time of the hearing. The point is 

unpersuasive. (See, e.g., In re Carlos T. (2009) 174 Cal.App.4th 

795, 806 [holding there was a substantial risk of future harm 

because a father who had been convicted of sexually abusing one 

of the children in question had not yet been sentenced or 

exhausted his appeals; consequently, “there [wa]s a possibility 

that [the] father would be released from custody and . . . resume 

his . . . abuse”].) Mother also claims (in just three sentences) that 

the juvenile court “should have considered whether there were 

reasonable means to prevent removal, such as ordering frequent

home visits and offering family preservation services to verify 

[B.P.’s] safety . . . .” Assuming the contention is adequately 

presented, it is not a challenge to the sufficiency of the evidence 

but rather a challenge to what the court assertedly failed to 

consider—and it is forfeited for lack of an objection in the juvenile 

court. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Alexandria 

P. (2014) 228 Cal.App.4th 1322, 1346.)
22

DISPOSITION

The juvenile court’s jurisdiction finding and disposition 

order are affirmed. The Department’s cross-appeal is dismissed

as nonjusticiable.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR, J.

KIM, J.