Filed 2/24/21 ; certified for publication 3/2/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re I.R., a Person Coming Und er the Juvenile Court Law.

_________________________________ LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES

, Plaintiff and Respondent,

v.

E.R.

, Defendant and Appellant ;

I.R.,

Appellant

. B 307093

(Los Angeles County Super. Ct. No. 20CCJP03478 )

APPEAL from an order of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore

. Affirmed in part and reversed in part. Johanna R. Shargel , under appointment by the Court
of Appeal, for Defendant and Appellant E.R

.2 Karen B. Stalter , under appointment by the Court of Appeal, for A ppellant I.R., a Minor. Rodrigo A. Castro

- Silva, Acting County Counsel

, Kim Nemoy, Assistant County Counsel, Jan e Kwon, Principal Deputy County Counsel, for Plaintiff and Respondent.

_____________________________ Following an incident of domestic violence between R.R. (Mother) and E.R. (Father) witnessed by their infant daughter, I.R., and Mother’s son, D.R., the Los Angeles County Department of Children and Family Services (DCFS) instigated dependency proceedings on behalf of both children. After a combined jurisdictional and dispositional hearing

, the juvenile court found jurisdiction over the children under Welfare and Institutions
Code 1 section 300, subdivision (b)(1), and ordered I.R. removed
from Father and released to Mother

. On appeal, both Father
and I.R. challenge the removal of I.R. from Father

. We conclude
the evid ence does not support either of the findings necessary to justify removal under section 361, subdivision (c)(1). Specifically,
the record does not contain substantial evidence that I.R. would be in “substantial danger” in Father’s care, nor does it contain
substantial evidence that there were no “reasonable means”

to protect I.R. other than removing her from Father

. (§ 361,
subd. (c)(1).)
I .R. further challenges the dispositional order to the extent it requires Mother, who is not a party to this appeal, to submit to drug testing only upon reasonable suspicion of drug use. Given the lack of any connection between drug use and the domestic

1 All subsequent unspecified statutory references are to the Welfare and Institutions Code.3

vi olence underlying the petition, we conclude the court was acting within its discretion in denying I.R.’s request that Mother submit to more extensive drug testing. Accordingly, we reverse the dispositional order to the
extent it removes I.R. from Father

.

FACTS AND PROCEEDINGS BELOW

A. Family Circumstances and Incident Leading to Juvenile Court Jurisdiction I.R., born in September 2018, is the daughter of Father and Mother. Mother is not a party to this appeal. I.R. has a maternal half sibling, D.R., born in November 2008, Mother’s son from a previous relationship. 2 Prior to the instant dependency proceedings, Father e ither lived in the family home with Mother, D.R., I.R., and the maternal grandmother, or was a frequent overnight guest there. 3 On May 9, 2020, M other called law enforcement and reported a domest ic violence incident with F ather. I.R. and
D.R.

— then 20 mon ths old and 11 years old, respectively

— were in the home when Mother and Father got into a loud argument. Hearing the yelling, D.R. left his room and saw F ather throw a baby sh oe at Mother’s chest and slap one side of her face. Father
hit Mother with enou gh force to knock her earring off her ear, causing redness and swelling on the side of her face

. Father fled
the home before law enforcement arri ved.

2 The whereabouts of D.R.’s father are unknown

, and he did not participate in the dependency proceedings below.

3 The record contains inconsistent statements by Mother and Father as to whether Father ever lived in the family home.4 Law enforcement instigated a referral with DCFS based

on the incident and on Mother’s statement the night of the incident that Father had physically assaulted her ap proximately eight months earlier as well. The children remained in the family home in Mother and the maternal grandmother’s care.

B. Pre

-

Petition Investigation and Efforts to Locate Father Approx imately two weeks later, social workers visited the children’s home and interviewed Mother. At that time, Mother told DCFS that “more [wa s ] being ma de out of this than needs

to be.” Mother stated that she had anger management issues,
and that Fa ther had slapped her only after she “ said ‘something
terrible’ ” to him. Mother said the previously unreported
domestic violence incident eight months prior had not been physical, and that the more recent incident was the first time
Father had hit her. Social wor kers interviewed D.R. as well.
D.R. said that F ather is “ not nice ” to Mother, that Mother
and Father yell a lot, and that another time in the past F ather told him to go into his room with I.R. and shut the door, after
which D.R. heard a loud slap. D.R. s tated he was scared by both incidents, but that he felt safe around Father and in his home

. D.R. also stated that F ather was nice to him and his sister, and
that Father had never mistreated either of them

. Neither child showed any signs of abuse or neglect, and I.R. appeared healthy and developmentally on target. D.R. reported that he is receiving individual therapy for anger management issues because “sometimes he gets so angry that he just wants

to yell o r hit something.” D.R.’s mental health issues were
the subject of a previous DCFS referral. The social worker who handled that referral indicated D.R.’s aggressive behavior was in5

response to being bullied at school, and that Mother had
addressed these i ssues appropriately and enrol led him in counseling. Both Mother and D.R. reported to social workers that
F ather had come to visit I.R. almost every day since leaving the home the night of the May 9 incident, and that he played with D.R. during these visits as well. D.R. stated that Father spoke with Mother during these visits, and that the two did not fight

. Mother denied being home when Father came for visits. DCFS learned that neither Mother nor Father had any criminal history. M other had a number inco nclusive prior
child welfare referrals with regard to physical a buse and neglect, primarily involving D.R

. For example, a referral from December 2015 alleged that M other hit D.R. with the metal portion of a
belt ; another referral from February 27, 2019 (b y the maternal grandmother) alleged that M other had been using drugs. Father had no history of child welfare referrals. DCFS was unable to make contact with Father during its

pre

- petition investigation despite numerous attempts. The social
worker called Father several times and left detailed messages
with call

- back requests, mailed an “[a]ttempt to [c]ontact” letter
to F ather at the paternal grandmother’s address , visited the paternal grandfather’s home where the paternal grandfather
indicated Father was living, and asked the paternal grandfather to instruct Father to contact DCFS. At DCFS’s request, Mother also gave Father the social worker’s card and asked he contact
DCFS. Father did not contact DCFS in response to any of these
efforts. On June 25, 2020, DCFS obtained a removal warrant, which effectively prohibited Father from having contact with6

I.R. before further proceedings. DCFS informed Father of
the removal warrant via a detailed phone message (which
also requested a call back) an d by mailing him a copy of the removal order and notice of hearing

. According to the maternal grandmother, Father stopped visiting I.R. after the removal
warrant issued.

C. Section 300 Petition and Detention Hearing On June 29, 2020, DCFS filed a p etition pursuant to section 300, subdivisions (a) and (b)(1), alleging that Mother and
F at her have a history of engaging in violent v erbal and physical altercations, including specifically the May 9, 2020 incident

, and
that M other failed to pr otect the children by allowing F ather
unlimited access to the children and their home. The detention hearing took place on July 2, 2020. Father personally participated in the hearing, which participation
constituted his first interaction with DCFS. In the detentio n report provided to the juvenile court that day, DCFS
recommended I.R. continue to be detained from Father
and remain in the M other’s c are during a period of family reunification efforts. The report identified risk factors requiring detention that implic ated both Mother and Father, but also
described M other as having a “history of protective capacity
for her children and [as] ha[ving] addressed DCFS concerns in

a positive way during past referral investigations.” It further
noted that M other took respons ibility for her role in the domestic
violence. The report viewed Father’s avoidance of DCFS and
law enforcement as demonstrating an unwillingness to take responsibility for his role in the domestic violence. DCFS was
also concerned about the effects of t he domestic violence on
D.R.

, who struggled with his own anger management issues.7 T he juvenile court found Father to be I.R.’s presumed father, found prima facie evidence that I.R. was a child described by section 300 , and denied F ather’s request for I.R. ’ s release

to his custody. I.R. was detained from F ather and released

to M other’s custody

, with Father to receive six hours per week
of monitored visitation . N o visits were to occur in the Mother’s home, M other was prohibited from monitoring the visits , a nd
DCFS had discretion to liberalize.

D. Jurisdiction and Disposition Hearing At the July 29, 2020 combined jurisdiction and d isposition hearing, the juvenile court received into evidence DCFS’s
detention and jurisdiction/disposition reports, as well as a letter verifying Father had enrolled in a 36

- week domestic violence
education course on July 13, 2020, 11 days after the detention hearing

.

1. The jurisdiction/disposition report The jurisdiction/disposition r eport described interviews with Father and the maternal grandmother, as well as additional
interviews with D.R. and M other.

a. Father’s statements The report contained Father’s description of the May 9 incident. He recalled Mother “ got loud,” and that he ignored
her and tried to grab I.R. and walk away , but M other already
had the child. Fa ther then started to walk outside, when
Mother pushed him, and “it just happened. I just flipped. ”
Father acknowledged slapping Mother but denied throwing a
shoe at he r

. Father stated Mother is easily triggered and starts screaming, but that he is a very calm person and that “walking8

away” had “always worked” in the past. He denied any prior
domestic violence incidents with M other and stated he felt “really bad” about the situation. He said, “ [ i ] t was only a one

time thing. I don’t get aggravated

. I’m not a bad parent to

my daughter. I have never been a threat.” Father stated h e

no longer has a relationship with M other, because he does

not “want that to happen again,” and wants to “ focus on [I.R.]” Father provides financially for I.R. , and buys her food and
clothes whenever needed. The report reflected F ather had been visiting I.R. consistently, five days per week, for two and one

- half hours per visit, w ithout incident. It further acknowledged that, although Father had avoided contact with DCFS during the detention investigation, he had since been cooperative with the DCFS dependency investigator and was open to receiving services

.

b. Mother’s statements

Mother stated that she and Father fought “a lot,” and
that during the May 9 incident she had “ us[ed] ugly cuss words towards [Father] ” and pushed him. Consistent with Father’s statements, she described him as a person who avoided conflict
and did not oft en yell

. Mother stated Father was a great father and confirmed
he provi ded financially for I.R. Mother stated she knew what
F ather did was wrong

, but she did not consider t he i r relationship
to be one involving domestic violence

. Mother said she had exaggerated the May 9 incident to t he police because she was upset, and that “[i]t was fine the way it was before

. ” Mother
said she was not cu rrently in a relationship with F ather. She acknowledged her prior DCFS referrals, but said t hey were
all false allegations.9 Regarding her substance use, M other said she had started using methamphetamine at age 17 and used it “all day, every day” until she became pregnant with D.R. at 22 years old , at which time she quit “cold turkey.” She said she now smoked marijuana after the children were asleep at night

. Mother had

not enrolled in any programs, but stated she was open to doing

so. Mother reported that, during the period in her life when she was heavily using methamphetamine, she had been a victim of domestic viol ence at the hands of D.R.’s father. On

one occasion (in a pproximately 2008), D.R.’s father physically
assaulted her while she was pregnant with D.R.

, beating her so severely that it resulted in a cracked skull and black eyes.

c. The m aternal grandmother’s statements

The maternal grandmother said she never witnessed the
domest ic violence between Mother and F ather, but that D.R. had
told her “a while back” that “he saw [F] ather hit [M] other before and push her, and that this happened a few times.” She was
scared of F ather because he was always terse, rude to her, and she believed his family member s were gang affiliated.

d. D.R.’s statements D.R. told DCFS he felt safe with Mother, but that she was easily triggered and yelled a lot. D.R. described Father as “the
best

, ” because Father never hit, yelled, or ar gued with him.
D.R. began crying when he told the social worker that he never had contact with his biological father, that this “really hurt s his feelings

, ” and that he was worried about losing Father as well. D.R. reported that he continued to have diff iculty managing his anger and controlling his violent reactions to severe bullying at10

school. He remained in individual therapy to address these
issues

.

2. Parties’ arguments and the juvenile

court’s ruling At the jurisdictional portion of the hearing, t h e juvenile

c ourt sustained the section 300, subdivision (b)(1) failure to protect count in the petition as to both parents, 4 based on their failure to make progress in addressing the domestic violence leading to dependency jurisdiction.
At the disposition portion of the hearing, I.R. ’s counsel argued that clear and convincing evidence did not support
removal from F ather. I.R.’s counsel specifically argued that “the safety plan to allow [I.R.] to remain in Father’s custody is that
the father and the mother are not to be together,” something they had been doing since the removal warrant issued. Counsel noted that two paternal relatives had been approved as monitors, and they could facilitate Mother and Father avoiding contact with one
another whi le transferring I.R. I.R.’s counsel further argued that the evidence did not suggest Father was violent by nature, and that, despite his initial evasion of DCFS, he was now cooperating with DCFS and had enrolled in a domestic violence course. I.R.’s

coun sel also asked that, because of M other’s substance use and
I.R. ’s young age

, M other be ordered to present three consecutive
clean drug tests to assure I.R. was safe in her care

. Counsel noted that even without a sustained drug count in the petition

, Mothe r had a history of drug use that could contribute to
domestic violence issues

.

4 The court dismissed the section 300, subdivision (a) count alleging risk of nonaccidental physical h arm.11 Father’s couns el reiterated the arguments made by I.R.’s counsel in requesting I.R. be placed with him. Counsel further argued that F ather had “ acknowledged the situation” and “moved out of the house

, ” that Mother and Father now had a good coparenting relationship and did not argue , and that it would be in I.R.’s best interests to be placed with Father. Mother joined Father and I.R.’s requests that I.R. not
be removed from Fathe r, noting Father “is a good father to not only [I.R.] but also to [D.R.]” Mother objected to any drug testing, given the lack of any nexus between drug use and the allegations in the petition, and that “there’s no indication [Mother] currently
uses.”
DCFS ’s counsel argued that I.R. should remain removed from Father, noting the multiple prior referrals “on this family” (although none of these involved Father and most predated his involvement with the family by several years), that “Mother
and F ather really can’t stay away from each other, ” and that neither had addressed the underlying domestic violence issues, something Father’s recent enrollment in a program could not alone achieve. Counsel explained DCFS was only comfortable permitting I.R. to remain with Mother “because of the safeguards that were put in place.” Counsel suggested unmonitored visits
for F ather in a neutral setting as a compromise. The juvenile court agreed with DCFS counsel that Father enrolling “very late” in domestic violence training and the “numerous referrals” indicated Father had not addressed the underlying domestic violence issues to the extent that the court would feel comfortable releasing the child to him. The court found by clear and convincing evidence that it was reasonable and necessary to remove I.R. from Father, because there existed12

a substantial danger to I.R. if it did not do so, and there was “no reasonable means by which the child’s physical health can
be protected without removing the child from

. . . Father.”
The c ourt ordered I.R. be removed from F ather and
released to M ot her under a home

- of

- parent

- mother order

, explaining that “t he reason why the child is being placed with

. . . M other is because she is demonstrating that she is cooperating
with [DCFS] and availing herself of the services and showing that she is developing that protective capacity.” The juvenile
court ordered services for both parents

. The court noted that
it “ ap preciate [d] that [F ather’s ] a very devoted father, and that
he has be en staying away from

. . . Mother,” and for that reason
ordered unmonitored visits over DCFS objection. The court ordered the visits not occur in the family home and that Mother
not be p rese nt. The court declined to order the drug testing I.R.’s counsel had requested, instead ordering “ testing upon reasonable suspicion

. . . only because the child is young. I don’t think there’s any evidence of any kind of present use that’s concrete.”
Both I.R. and Father timely appealed.

DISCUSSION Father and I.R. challenge the court’s removal of I.R. from Father. They argue that the record supports neither the court’s finding that I.R. would be in substantial danger in Father’s custody, nor the finding that removing I.R. from F ather’s custody

was t he only reasonable means of protecting her. For the reasons set forth below, we agree. We disagree, however, with I.R.’s additional argument that the trial court abused its discretion by refusing her request that
Mother be ordered to submit to three conse cutive drug tests.13 A. Substantial Evidence Does Not Support the Court’s Removal Order

“ Maintenance of the familial bond between children and parents

— even imperfect or separated parents

— comports with our highest values and usually best serves the interests of parents, children, family, and community. Because we so abhor the involuntary separation of parent and child, the state may disturb an existing parent

- child relationship only for strong reasons and subject to careful procedures. ” ( In re Henry V. (200 4) 119 Cal.App.4th 522, 530

– 531 ( Henry V. ).) Accordingly, “ ‘[i] n dependency proceedings [,] the burden of proof is substantially greater at the dispositional phase than it is at the jurisdictional phase if the minor is to b e removed from his
or her home’ ” or the physical custody of a parent. ( Henry V.,

supra, 119 Cal.App.4 th at pp. 528

– 529 .) The applicable statute, section 361, subdivision (c), “ ‘ is clear and specific: Even though children may be dependents of the juvenile court

, they shall not
be removed

. . . unless there is clear and convincing evidence
of a substantial danger to the chil d’ s physical health, safety, protection, or physical or emotional well

- being and there are no “reasonable means” by which the child can be protected without
removal. ’ ” ( In re Ashly F. (2014) 225 Ca l.App.4th 803, 809 ( Ashly F. ); § 361 , subd. (c)(1) [requi ring “ a substantial danger to the physical health, safety, protection, or physical or emotional
well

- being of the minor ” and “ no reasonable means by which the minor’ s physical health can be protected without removing the
minor from the minor ’ s parent ’ s

. . . physical custody ”].) A finding of parental abuse cannot alone provide the clear and convincing evidence necessary to justify removing a child

. (See In re Kieshia E. (1993) 6 Cal.4th 68, 77 [“ Juvenile Court14

Law restricts judicial power to remove a child from the care
and society of even an ab usive or abuse

- tolerant parent”]; Henry V., supra, 119 Cal.App.4th at p. 531.) Rather, the juvenile
court must determine whether a child will be in substantial danger if permitted to remain in the parent’s physical custody,
consider ing not only the parent’s past conduct

, but also current circumstances, and the parent’s response to the conditions that gave rise to juvenile court interv ention. ( See In re Alexzander C. (2017) 18 Cal.App.5th 438, 451

– 452; In re N.M. (2011) 197 Cal.App.4th 159, 170 .)

“ On appeal from a dispositional order removing a child from a parent we apply the substantial evidence standard
of review, keeping in mind t hat the trial court was required

to make its order based on the higher standard of clear and convincing evidence.” ( Ashly F.

, supra , 225 Ca l.App.4th at

p. 809; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 [“ when presented with a challenge to the suf ficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of h igh probability demanded by this standard of proof ”].) “ ‘ “ The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.” [Citation.] ’ [Citation.] ” ( In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) The sole source of potential danger to I.R. while in Father’s care that is supported in the record derives from his history of domestic violence with Mother, at least one instance of which

was in I.R.’s presence. We recognize the serious threa t domestic violence poses to a child’s physical and emotional well

- being.15

Nevertheless, nothing in the record suggests Father has ever been violent or aggressive outside the context of his relationship with Mother, nor that he is a generally violent, aggr essive,

or abusive person. The nature and frequency of the domestic
violence incidents

— two instances in which Father slapped Mother, the second of which also involved him throwing a baby
shoe at her

— do not support a reasonable inference that he is

a gener ally violent or abusive person. 5 The “numerous [DCFS] referrals in the past” that the court erroneously attributed to
Father were against Mother only and had nothing to do with him; he has no DCFS history, no prior referrals, and no criminal
record. The record thus contains only evidence suggesting danger
to I.R. if the domestic violence between Mother and Father
continues

— not danger resulting from I.R. being in Father’s care. Whether substantial evidence supports the juvenile court’s
removal order thus depends on whether the record contains
substantial evidence that the domestic violence between Mother and Father is likely to continue if I.R. is placed in Father’s care. We conclude it does not. Father does not live in the family home.
The juvenile court recognized that Father has “stay[ed] away
from

. . . Mother,” and the record does not reflect any contact
between Father and Mother since the co urt’s orders at detention
that F ather not visit I.R. in the family home or in M other’s

presence. Father has not even expressed a desire or willingness to reconcile with Mother. Mother has neither expressed nor demonstrated an unwillingness to keep her distance from Father. Nor does the record suggest that the logistics of sharing custody would requ ire Father to have contact with Mother, given that

5 By so concluding, we do not mean to condone slapping one’s partner.16

both parents live with relatives who have been approved as monitors and could assist with handing off the child. There is thus no basis on which the court could reasonably accept DCFS’s argument that “Mot her and F ather really can’t stay away from each other, ” meaning there is no basis for concluding there will
be occasion for the domestic violence between them to continue. Given the lack of any other basis on which the court could conclude Father poses a danger to I.R., substantial evidence
does not support a finding of such danger. 6 In so concluding,

our substantial evidence review is informed by the heightened clear and convincing evidence standard below (see Ashly F.

, supra, 225 Ca l.App.4th at p. 809) , and the general premise of

our dependency system that “ keeping children with their parents while proceedings are pending, whenever safely possible, ser ves not only to protect parents’ rights but also children ’ s and society ’ s best interests.” ( Henry V.

, supra , 119 Cal.App.4th at p. 530 .)

B. The Court Did Not Abuse Its Discretion in Denying I.R.’s Request for M ore Extensive Drug Testing of Mother Section 362, subdivision (d) authorizes the juvenile court to “direct any reasonable orders to the parents” of a dependent child as the court deems necessary and proper to ensure appropriate care, supervision, custody, conduct, maintenance, and support

6 In reaching this conclusion, we do not rely on I.R.’s and Father’s arguments that the risk of danger to I.R. is comparatively higher when in Mother’s care, as opposed to Father’s . The propriety of the juvenile court’s decision not to remove I.R. from Mother is not the subject of this appeal, and even if we were to assume it is true that Mother poses a danger to I.R., that is not a basis for concluding that Father does not.17

of the child (§ 362, subd. (d ) ), and the juvenile court enjoys broad discretion in crafting a dispositional case plan to this end

. ( In re
D.P. (2020) 44 Cal.App.5th 1058, 1071 .) We review the juvenile court’ s disposition case plan for an abuse of discretion. ( In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474 .) The court did not act in excess of that discretion by declining to impose more onerous drug testing requirements

on Mother. In arguing to the contrary, I.R. points to evidence
that Mother abused methamphetamines for several years and
continues to use mari

juana, that she has not participated in any drug treatment programs, and that she was using drugs while in a domestic violence relationship with another man over 10 years ago. Although these facts could potentially have justified an order requiring more e xtensive drug testing for Mother, they
do not establish that the court’s refusal to issue such an order was arbitrary or capricious. The record does not contain evidence supporting any link between any current drug use by Mother
and the incidents of domes tic violence with Father. Nor does
it indicate that Mother’s drug use has ever placed her children

at risk. As such, the court acted well within its discretion in denying I.R.’s request for additional drug testing requirements.18 DISPOSITION The dispositional order of the juvenile court is reversed

to to the extent it removes I.R. from Father. Upon remand, the court shall issue a new order setting forth the terms and extent
of Mother’s and Father’s shared custody and impose whatever
additiona l restrictions or requirements the court deems reasonable and appropriate in order to assure the safety and
well

- being of I.R. while in Father’s care.

R OTHSCHILD, P. J. We concur:

CHANEY, J.

BENDIX, J.Filed 3/2/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re I.R., a Person Coming Under the Juvenile Court Law.

_______________________________ __
LOS ANGELES COUNTY DEPARTMENT O F CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.
E.R.,

Defendant and Appellant;

I.R.,

Appellant. B307093

(Los Angeles County Super. Ct. No. 20CCJP03478)

CERTIFICATION AND ORDER FOR PUBLICATION

THE COUR T: The opinion in the above

- entitled matter filed on February 24,
2021 was not certified for publication in the Of ficial Reports. For good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.

________

______________________________ __ ______________________ ROTHSCHILD, P. J. CHANEY , J. BENDIX , J.