Filed 3/7/14 In re Miley C. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

In re MILEY C., a Person Coming Under 

the Juvenile Court Law.

 B248455

 (Los Angeles County

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent.

v.

MARIO C.,

Defendant and Appellant.

 Super. Ct. No. CK89684)

APPEAL from orders of the Superior Court of Los Angeles County. Terry T. 

Truong, Juvenile Court Referee. Affirmed.

Janette Freeman Cochran, under appointment by the Court of Appeal, for 

Defendant and Appellant.

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and 

Jessica S. Mitchell, Deputy County Counsel for Plaintiff and Respondent.
2

Mario C. (father) appeals from juvenile court jurisdictional orders establishing 

dependency jurisdiction over his infant daughter, Miley, pursuant to Welfare and 

Institutions Code section 300.1 Father also challenges the juvenile court’s dispositional 

order removing Miley from his custody. Father contends that substantial evidence does 

not support the juvenile court’s jurisdictional findings as to him, and that the court erred 

in failing to place Miley in his custody. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Family information

Miley was born in January 2013. Miley’s mother, Michelle C. (mother) lived in 

Pomona, and father lived in Azusa.2 Mother and father married in December 2010 and 

separated in June 2012.

Prepetition events

The Los Angeles County Department of Children and Family Services (DCFS) 

received a referral in January 2013, alleging that mother had given birth to Miley 

the day before and that both mother and the infant had tested positive for 

methamphetamine. Mother admitted to having a history with DCFS and having her older 

children removed from her care and placed with their biological fathers. The reporting 

party had spoken with father, who stated that he was not living with mother because she 

had drug problems and lived in an unhealthy environment. Father indicated he was 

willing and able to have custody of Miley.

A DCFS social worker responded to the referral by traveling to the hospital to 

meet with the parents and the hospital social worker. Mother stated she was legally 

married to father, but they were not currently living together due to domestic violence. 

 

1 All further statutory references are to the Welfare & Institutions Code.

2 Mother is not a party to this appeal.
3

Mother affirmed that she had two other children living with their respective fathers.3

Mother admitted she used methamphetamine not long before giving birth to Miley. She 

also admitted to having tested positive for methamphetamine earlier in January 2013, 

when she was admitted to the hospital for false contractions.

Mother described domestic violence between father and herself. On New Year’s 

Eve 2012, she and father were arrested because of their failure to complete court-ordered 

domestic violence classes. Mother explained that the neighbors had called 911 because 

father hit her on the back. Father was arrested. Although mother sustained injuries, she 

did not press charges against father despite police request.

Mother stated she was currently living in a motel with maternal grandmother 

(MGM) since she no longer lived with father. However, she indicated that MGM did not 

want her to return to the motel and she had nowhere else to live. The social worker 

provided mother with resources for shelters. Throughout the social worker’s hour and a 

half visit, mother did not request to hold the baby. Father held the baby the entire time.

The social worker also interviewed father. Father denied knowledge of mother’s 

use of drugs. He said mother had a history of drug use but he only found out about the 

current use of drugs when he came to the hospital to see mother and Miley. Father stated 

that mother’s drug use was one of the reasons he separated from mother after a couple of 

years of marriage. Father admitted that there had been an allegation of domestic violence 

at a time when he was arrested for “not really hitting” mother. He explained that he and 

mother had been arguing and he slapped her on the back, but the neighbor contacted law 

enforcement alleging that he had hit her on the head. Father denied present drug use but 

admitted to using drugs about five years before. Father denied any mental health issues. 

He expressed a desire to care for his child when she was released from the hospital.

 

3 Mother’s two older children are Noah W., who lives with his father in Barstow, 

California, and R.W., who lives with her father in Lancaster, California. Mother does not 

have contact with Noah. She claimed to be in touch with R. but could not provide the 

social worker with the child’s telephone number.
4

Father told the social worker that he resided in a two bedroom apartment with a 

cousin. He agreed to have the home assessed and to have all adults living in the home 

live-scanned. Father expressed willingness to comply with all the procedures 

implemented by DCFS. He was affectionate and caring towards the baby, and had her in 

his arms the entire time that the social worker was speaking to him.

The following day, the hospital social worker informed the DCFS social worker 

that mother was disengaged from the child. Mother would not change the baby’s diaper 

or feed her. Father did all the diaper changing, feeding, and was affectionate towards the 

baby. The baby was separated from mother due to safety concerns. The social worker 

visited father’s home and completed a home inspection. Father lived in an apartment 

with two other relatives in Azusa. The home was relatively clean but father was sleeping 

in the living room. The social worker concluded that there would be no room for Miley;

therefore the home did not appear suitable.

On January 29, 2013, while Miley was still at the hospital, DCFS filed an 

application requesting authorization for removal. The order authorizing removal was 

signed the same day. The social worker served mother, father, and the hospital with the 

removal order. On January 30, 2013, the baby was placed in a foster home.

Section 300 petition and detention

DCFS filed a section 300 petition on February 1, 2013, containing allegations 

against mother and father pursuant to section 300, subdivisions (b) and (j) regarding

mother’s substance abuse and the domestic violence between mother and father. DCFS 

filed a detention report on the same date.

Attached to the detention report was a police report authored by Pomona Police 

Department Officer T. Ugarte regarding a September 11, 2011 child endangerment 

incident involving R., who was four years old at the time. According to the police report, 

Officer Ugarte was dispatched to the home on September 11, 2011, by a social worker 

who was already at the home. The reporting party told the social worker that mother 

often left R. home alone. Officer Ugarte reported that the condition of the home was 

“very poor,” with trash, miscellaneous bottles, and numerous piles of paperwork strewn 
5

throughout the apartment floor. Additionally, the home did not have a refrigerator or any 

food. When asked how long the home had been in that condition, mother responded “for 

a long time.” Mother stated she had no food in the home and she depended on various 

people to bring food to her.

Mother admitted to smoking methamphetamine every three to four days. Officer 

Ugarte also reported noticing a large hole in the bedroom door. Mother said she made 

this hole when she was angry, and that when father used to stay at the apartment, “they 

would periodically have violent fights and somehow holes would end up in various 

places inside of the apartment.” Officer Ugarte observed the holes in the walls. Mother 

said father did not live at the apartment anymore and denied any current domestic 

violence issues. Officer Ugarte mentioned to another police officer that he did not want 

the child left with mother because the current situation was unsafe. Mother responded, 

“Yeah I don’t think it’s a good idea, it gets really crazy around here.” Officer Ugarte 

opined that R. was a victim of child endangerment and arrested mother, and DCFS took 

R. into protective custody.

At the February 1, 2013 detention hearing the juvenile court found that there 

existed a prima facie case for detaining Miley. Father appeared and was appointed 

counsel. The court found father to be the presumed father of Miley. Father’s counsel 

requested that Miley be released to father. Father’s counsel argued that father was 

unaware of mother’s drug use, lived in a separate location from mother, and had ample 

means to support the child. Father’s counsel informed the court that father intended to 

submit a request for restraining order against mother. Because father’s counsel did not 

bring father’s request for a restraining order to the hearing, the court granted a “stayaway order.” Miley’s counsel requested that the court detain Miley from father, given the 

allegations in the section 300 petition and mother’s statements regarding domestic 

violence. The court made orders detaining Miley from the parents and permitting 

monitored visits for the parents.

On February 8, 2013, the juvenile court conducted an arraignment hearing for 

mother. Mother appeared with counsel. The court ordered the parents to remain at least 
6

100 feet away from one another, and not to contact one another by telephone, email, or 

social media. The court ordered Miley detained in the home of her paternal cousins.

Jurisdiction/disposition report

The jurisdiction/disposition report, filed March 11, 2013, detailed prior DCFS 

referrals regarding the family. There were five allegations of general neglect involving 

mother’s son Noah and daughter R. between 2005 and 2011 which were either 

inconclusive or unfounded. In September 2011, allegations against mother and father of 

physical and emotional abuse as to R. were substantiated and resulted in the filing of a 

section 300 petition. The allegations against mother and father included a history of 

domestic violence in the child’s presence. Specifically, father struck mother’s arm, 

inflicting bruises. The disposition date of the case was January 30, 2011, at which time

R. was released to her father, Leonard W. On May 30, 2012, the juvenile court 

terminated jurisdiction over the case with a family law order granting Leonard W. full 

physical custody.

Both parents had criminal histories. In September 2011 and October 2011, mother 

was charged with kidnapping, possessing controlled substance paraphernalia, and willful 

cruelty to a child. The kidnapping charge arose when mother was arrested after arriving 

at R.’s school under the influence of drugs and attempting to take another child from the 

school, thinking it was her child. Mother was sentenced to 30 days in jail, four years 

probation, and a fine. Mother stated that she was no longer on probation and had no 

further court appearances.

Father’s criminal history included an incident in June 1998 for which father 

received three years’ probation for vandalism and possessing/selling a switchblade knife. 

In January 2012, father was charged with infliction of corporal injury on a spouse. 

According to father, he was placed on summary probation for three years and was 

ordered to complete a 52-week domestic violence class. Father reported that he started 

attending the domestic violence classes in 2012, however, he stopped attending because 

he could not afford to pay for them. Father also claimed that he recently enrolled in 
7

domestic violence classes and had completed three classes so far. Father’s next 

scheduled criminal court appearance was May 2, 2013, for a progress report.

Miley’s caretakers indicated that father was visiting regularly with the baby. 

Mother, however, had no contact with Miley.

On March 8, 2013, DCFS interviewed the parents. Mother acknowledged that she 

had “messed up” by not completing her programs to reunite with R. Regarding the 

physical altercations with father, she stated that they were “nothing but stupidity on both 

parts and it was not right. There were holes in the walls where we lived at that time. We 

both kicked the doors.” Mother denied that the physical altercations were in front of R., 

and claimed she did not recall hitting father. However, mother stated, “I do remember 

the holes in the wall and we both kicked doors. We were going through hard times. He 

was not working. I was injured and on disability. This was a one-time altercation.”

Father admitted punching holes in the walls when he lived with mother, because 

he was “frustrated and angry about her drug use.” However, he claimed that R. was not 

present at the time. He stated: “I would hold [mother’s] arms when we would get into it 

to prevent her from hitting me. She would hit me, bite me, and sock me. If she received 

a bruise, it was from me holding her arms to keep her from attacking me.” Father denied 

ever hitting mother.

Father reported he had known mother for many years, and they were married in 

December 2010. He found out that mother had a drug problem about two years after the 

marriage. She was free from drugs for a time and then started using drugs again when 

she was about six months pregnant with Miley. Father and mother were living together 

from about October 2010 through June 2012, and during that time, they used 

methamphetamines together. The parents stayed together for the first six months of 

mother’s pregnancy. Father stopped using drugs, but mother did not. He moved out of 

the home in June 2012 because of his altercations with mother. Father claimed he no 

longer used drugs.

Father reported that mother came to his home on January 4, 2013, so they could go 

together to her medical appointment. Upon arriving at his home, she began having light 
8

contractions so he called an ambulance. While they were waiting for the ambulance, 

mother admitted that she “got high” the night before. Because of this, father suspected 

that the baby may have problems from the drugs but he did not know what to do. Father 

said that he felt like he was being punished for something mother did. He admitted that 

he “messed up” when he failed to complete his domestic violence classes, but claimed 

that he was in classes at present. Father provided proof of enrollment and attendance at 

three sessions.

DCFS opined that based on its investigative findings to date, continued detention 

from the care of the parents was in the best interests of the child. DCFS cited mother’s 

“unresolved substance abuse issues, limited resources/family support, and a history of 

domestic violence in her relationship with her husband.” As to father, DCFS indicated 

that he had “unresolved criminal issues which is a result of domestic violence with the 

mother and reportedly past substance abuse.” DCFS recommended that the juvenile 

court sustain the petition as alleged, declare Miley a dependent of the court, and order 

family reunification services and monitored visits for the parents.

Last minute information for the court

In a last minute information for the court filed on March 21, 2013, DCFS attached 

a copy of a police report from the Pasadena Police Department regarding a domestic 

violence incident between the parents on January 1, 2012. The report revealed that father 

was arrested for placing mother in a headlock, which caused mother to sustain bruises 

and redness to her left bicep. Officer Lee was dispatched to the home at 2:25 p.m. 

Mother reported that she and father had gotten into a fight. Mother added that the parents 

were going through marital problems because of her methamphetamine addiction. For 

the past two months, mother had been living apart from father because of her addiction. 

However, as of the preceding day, she had voluntarily withdrawn from the drug program

in which she had been participating. Mother had come to the home to remove her 

belongings. Because she had a lot of things, she asked father to help her move to MGM’s 

apartment. As the parents left the building with several bags, father complained that he 
9

did not want to help mother move. Mother responded “I’ll get another guy to help then.” 

Father “snapped” and grabbed her left bicep.

Officer Lee interviewed a witness, Kevin S., who was standing outside his 

residence when he heard the parents arguing. According to Kevin, father placed mother

in a headlock and slapped her face twice. After he shouted “hey” at father, father quickly 

released mother. Based on statements from mother and Kevin, father was arrested,

booked for domestic violence, and transported to jail.

At the jail, Officer Lee asked father what had happened. According to father, the 

argument between him and mother started when father told mother he did not want her to 

leave the drug rehabilitation program. Father acknowledged that he grabbed her right 

bicep in an attempt to get her back into the residence. When mother turned her body 

away from father to get away, father placed her in a headlock with his left arm and then 

rubbed the top of her head with his right knuckles. Father claimed he was “playing 

around.”

The parents were also tested for drugs on March 8, 2013. Mother tested positive 

for methamphetamine. Father tested negative for drugs and alcohol.

Father filed a petition for dissolution of marriage on March 22, 2013. He enrolled 

in a parenting education and support group on March 18, 2013, and had attended 1 out of 

20 sessions.

Adjudication

The juvenile court adjudicated the petition on March 25, 2013. The parents 

appeared with counsel. Father requested the counts against him be dismissed. Father’s 

counsel argued that the alleged events involving altercations in front of R. took place 

over two years before. Additionally, father argued that there was no evidence in any of 

the materials that the physical altercations took place in R.’s presence, that father was not 

in attendance at those hearings, and that he was unaware of the allegations that he had hit 

mother in front of a minor. Father also argued that there was no nexus or risk of harm or 

detriment to Miley from that previous alleged conduct.
10

Mother’s counsel joined with father’s arguments. Mother’s counsel stated: “I do 

agree with father’s counsel in that the parents do not present a current risk of having any 

altercations with each other as they are no longer together and father has filed for 

dissolution of marriage.”

Miley’s counsel asked that the court sustain the three counts against both parents. 

Miley’s counsel stated:

“With regards to the past domestic violence between the parents, 

even though Miley was not born at the time, it doesn’t seem that either 

parent has resolved any of the issues that led to the conflict that they had a 

couple years ago. I do think there is ongoing risk to Miley if she were 

returned to either of the parents’ care.”

County counsel also requested that the court sustain the petition as pled.

The juvenile court sustained counts b-1 and b-2 against mother. Count j-1 was 

sustained against both parents. Count j-1 read:

“The child, [Miley’s] mother [Michelle] and father [Mario] have a 

history of engaging in violent altercations in the presence of the child’s 

sibling, [R.]. On a prior occasion, the father struck the mother’s arm 

inflicting bruises to the mother’s arm. On a prior occasion, the father 

punched a hole in the door of the sibling’s home. On a prior occasion, the 

mother kicked and punched the door in the sibling’s home. The child’s 

sibling, [R.] was a dependent of the Juvenile Court. Such violent conduct 

on the part of the parents places the child at risk of harm.”

The court declared Miley a dependent of the court under section 300, subdivisions 

(b) and (j). Pursuant to section 361, subdivision (b), the court found by clear and 

convincing evidence that there was a substantial danger to the baby if she were returned 

home to the parents and that there were no reasonable means to protect the child without 

removal from the parents’ custody.4

 

4 While the minute order cites section 361, subdivision (b), the juvenile court 

discussed the substantial danger standard set forth in section 361, subdivision (c)(1). We 

therefore assume that the court’s reference to subdivision (b) was a typographical error, 

and that the court meant to cite section 361, subdivision (c)(1).
11

The court then inquired as to whether the child was living with both parents at the 

time of removal. Miley’s counsel informed the court that the child was taken from the 

hospital and placed in suitable placement. The court then stated, “So this is removal from 

the mother.”

The court ordered reunification services for both parents. Father was ordered to 

complete parenting and individual counseling given that he had already been ordered by 

the criminal court to complete a 52-week domestic violence program. The parents’ 

visitation was ordered supervised.

Father’s counsel’s request that the visits could be as often as they could be 

scheduled, was granted. Father’s counsel also requested unmonitored visits for father. 

The court stated: “No. He needs to make some progress in domestic violence in his 

counseling program and individual counseling programs.”

Father’s counsel did not make any objections to the dispositional orders, nor did 

he request custody of Miley on father’s behalf.

On March 25, 2013, father filed a notice of appeal.

DISCUSSION

I. Standard of review

We review the juvenile court’s jurisdictional findings under the substantial 

evidence standard. (In re David M. (2005) 134 Cal.App.4th 822, 829 (David M.); In re 

Heather A. (1996) 52 Cal.App.4th 183, 193.) Under this standard, we review the record 

to determine whether there is any reasonable, credible, and solid evidence to support the 

juvenile court’s conclusions. We resolve all conflicts in the evidence, and make all 

reasonable inferences from the evidence, in support of the court’s orders. (In re 

Savannah M. (2005) 131 Cal.App.4th 1387, 1393 (Savannah M.).)

We also review the juvenile court’s decision to remove a child from a parent’s 

custody under the substantial evidence standard. (In re Amos L. (1981) 124 Cal.App.3d 

1031, 1038 [“The record in the case . . . discloses that Amos was removed from his 

mother’s custody and placed in a foster home. . . . [T]he correct standard of proof to be 

applied at the dispositional hearing in such a case is clear and convincing evidence. 
12

However, on appeal, the substantial evidence test applies to determine the existence of 

the clear and convincing standard of proof, the same as in other cases”].)

II. Justiciability

In this appeal, father does not challenge the sustained allegations as to mother. He 

only challenges the findings and orders as to him. Father acknowledges that some courts, 

including this court, have refused to address specific jurisdictional findings based on 

mootness and non-justiciability grounds in cases such as this where some, but not all, of 

the jurisdictional findings are challenged. (In re Ashley B. (2011) 202 Cal.App.4th 968, 

979 [“As long as there is one unassailable jurisdictional finding, it is immaterial that 

another might be inappropriate”]; In re I.A. (2011) 201 Cal.App.4th 1484, 1491 [“it is 

necessary only for the court to find that one parent’s conduct has created circumstances 

triggering section 300 for the court to assert jurisdiction over the child”].) “[A]n 

appellate court may decline to address the evidentiary support for any remaining 

jurisdictional findings once a single finding has been found to be supported by the 

evidence. [Citations.]” (In re I.A., supra, at p. 1492.)

Father argues that in this case, there are valid reasons for addressing the merits of 

his arguments. In support of his position, father cites In re Drake M. (2012) 211 

Cal.App.4th 754 (Drake M.). In Drake M., the father challenged a single jurisdictional 

finding against him involving his use of medical marijuana. DCFS argued that the 

unchallenged findings as to mother would continue to support jurisdiction, therefore 

father’s appeal was nonjusticiable. (Id. at p. 762.) The Drake M. court decided to 

consider the merits of father’s appeal, stating:

“Here, the outcome of this appeal is the difference between father’s 

being an ‘offending’ parent versus a ‘non-offending’ parent. Such a 

distinction may have far-reaching implications with respect to future 

dependency proceedings in this case and father’s parental rights. Thus, 

although dependency jurisdiction over Drake will remain in place because 

the findings based on mother’s conduct are unchallenged, we will review 

father’s appeal on the merits.”

(Drake M., supra, 211 Cal.App.4th at p. 763.)
13

Father argues that the jurisdictional findings as to him could have an effect on 

current or future dependency proceedings. The outcome of the appeal could mean the 

difference between father being an “offending” versus a “non-offending” parent. In

addition, the findings serve as the basis for dispositional orders that are also challenged 

on appeal. (Drake M., supra, 211 Cal.App.4th at pp. 762-763 [suggesting that the Court 

of Appeal should reach the merits of a challenge to a jurisdictional finding when the 

finding serves as the basis for dispositional orders that are also challenged on appeal].)

Here, as in Drake M., the jurisdictional findings serve as the basis for a challenged 

dispositional order and may be prejudicial in the current or future dependency 

proceedings. We agree with father that the outcome of the appeal could mean the 

difference between father being an “offending” rather than a “non-offending” parent. 

(See Drake M., supra, 211 Cal.App.4th at pp. 762-763.) We therefore address father’s 

contentions on the merits.5

III. Substantial evidence supports the true finding under section 300, subdivision (j)

Section 300, subdivision (j) provides a basis for jurisdiction if the child’s sibling 

has been abused or neglected as defined in subdivisions (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. In making a finding under section 300, subdivision (j), the court is directed 

to “consider the circumstances surrounding the abuse or neglect of the sibling, the age 

 

5 The First Appellate District has taken a different position. In In re I.A., Division 

One wrote: “Father asks us to review the evidentiary support only for the juvenile court’s 

jurisdictional findings involving his conduct. Because he does not challenge the 

jurisdictional findings involving Mother’s drug abuse, however, any decision we might 

render on the allegations involving Father will not result in a reversal of the court’s order 

asserting jurisdiction. The juvenile court will still be entitled to assert jurisdiction over 

the minor on the basis of the unchallenged allegations. Further, the court will still be 

permitted to exercise personal jurisdiction over Father and adjudicate his parental rights, 

if any, since that jurisdiction is derivative of the court’s jurisdiction over the minor and is 

unrelated to Father’s role in creating the conditions justifying the court’s assertion of 

dependency jurisdiction.” (In re I.A., supra, 201 Cal.App.4th at p. 1492.) We choose to 

follow the analysis set forth in Drake M.
14

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 juvenile court had evidence before it that allegations against father arising 

from events in September 2011 had been sustained in a prior dependency proceeding 

involving Miley’s half sister, R. Specifically, the sustained allegations stated that father 

and mother had a history of engaging in violent altercations in the child’s presence, and 

that father had inflicted bruises on mother’s arm and had kicked and punched a door in 

the child’s home. The dependency matter involving R. terminated with a family law 

order that granted R.’s father full physical custody.

In addition, the court had before it a police report dated January 1, 2012, when an 

officer was dispatched to respond to allegations that father had hit mother. Mother 

sustained bruises to her left bicep after father grabbed her. A witness indicated that father 

put mother in a head lock and slapped her twice. Father was arrested for this incident. 

Father also admitted that he had been ordered to complete a 52 week domestic violence 

class as a result of this arrest, but that he failed to do so.

This evidence was sufficient to support the juvenile court’s decision to sustain the 

allegations in count j-1. Miley’s half-sibling had been a victim of abuse, including 

violence between mother and father in the child’s presence. In addition, there was 

evidence that the domestic violence issues that caused the removal of R. from mother and 

father were unresolved. The domestic violence continued, resulting in father’s arrest on 

New Year’s Day 2012. Even after that arrest, father failed to properly address the 

domestic violence issues. Specifically, he failed to complete a court ordered domestic 

violence program. Under the circumstances, the juvenile court had sufficient evidence 

that Miley would be subjected to the same risk of domestic violence that caused R.’s 

removal from the home.

Father sets forth several arguments as to why the evidence before the juvenile 

court was insufficient. Father cites In re Rocco M. (1991) 1 Cal.App.4th 814, 824, for the 

proposition that the circumstances at the time of the hearing must be such that the child 
15

will be at substantial risk of harm. Father argues that physical violence between a child’s 

parents support the exercise of jurisdiction only if the evidence shows that the harm is 

likely to continue and that it places the child directly at risk of harm. (In re Daisy H. 

(2011) 192 Cal.App.4th 713, 717 (Daisy H.).)

In Daisy H., the mother informed the social worker that seven years before the 

petition had been filed, father pulled her hair and choked her. (Daisy H., supra, 192 

Cal.App.4th at p. 717.) The Court of Appeal determined that the evidence was 

insufficient to show that past or present domestic violence between the parents placed the 

children at a current risk of substantial harm. The parents had separated, there was no 

evidence that the children were exposed to past violence and there was no evidence of 

any ongoing violence. The children, who were 9 and 13, indicated that they had never 

witnessed physical violence between their parents. (Ibid.)

Here, in contrast, the parents’ physical violence in the home led DCFS to file a 

dependency petition on behalf of Miley’s sibling, R. The allegations against mother and 

father were sustained, and they were ordered to complete domestic violence programs. 

Neither parent completed the required program, and the domestic violence between them 

continued, as evidenced by the January 1, 2012 incident.

Father also relies on David M. There, the Court of Appeal concluded that the 

Orange County Social Services Agency did not meet its burden of proving failure to 

protect and the abuse of sibling pursuant to section 300, subdivisions (b) and (j) because 

there was no substantial risk of serious harm to the two children at issue at the time of the 

jurisdiction hearing. The court stated that mother’s mental and substance abuse problems 

and father’s mental health problems were never tied to any actual harm to the children or 

a substantial risk of such harm. (David M., supra, 134 Cal.App.4th at p. 830.) Regarding 

a previous petition which had been filed on behalf of an older sibling, the court noted that 

the juvenile court failed to take judicial notice of the record in that case. The court 

queried, “What services were offered, and what were the circumstances of mother’s 

apparent failure to fulfill her case plan and reunify with Aaron? We cannot tell from the 
16

record before us, and we do not see how the juvenile court could have done so, either.” 

(Id. at p. 832.)

Similarly, in In re Ricardo L. (2003) 109 Cal.App.4th 552, 566 (Ricardo L.), the 

Court of Appeal discussed a jurisdictional challenge under section 300, subdivision (j) 

and noted that the record of the prior dependency proceeding involving Ricardo’s older 

siblings was not admitted to evidence. The Court of Appeal noted that the social services 

department was relying on the fact that the siblings had been under the protection of the 

juvenile court for many months without resolution. However, there was no evidence of 

the reasons behind the dependency of the siblings, no evidence of the substance abuse 

histories of the parents, and no history of their neglect or failure to provide medical 

treatment or shelter to those siblings. The court concluded, “Without the history of abuse 

and neglect, it is nearly impossible to determine whether Ricardo, Jr. is at risk of 

suffering from the same abuse and neglect.” (Id. at p. 567.)

Father argues that as in David M. and Ricardo L., R.’s case file was not attached to 

the petition or reports in this case, and the juvenile court did not reference this item. The 

juvenile court never took judicial notice of R.’s case file nor did it state that it had 

considered the file.

Father cites no law mandating that the juvenile court take judicial notice of the 

entire sibling case file as a prerequisite to sustaining a jurisdictional finding under section 

300, subdivision (j). Here, there was ample evidence before the juvenile court of the 

problems which led to R.’s detention and removal from mother and father. There was 

evidence of the specific allegations against mother and father. Mother admitted that she 

had “messed up” by not completing her programs to reunite with R., and father admitted 

to failing to complete a court ordered domestic violence program. In addition, a police 

report revealed the continuing domestic violence between the parents even after R. was 

removed from their custody.6

 

6 Mother has noted that the sustained petition, count j-1, does not refer to the more 

recent incident of domestic violence between mother and father, which occurred January 

1, 2012, prior to Miley’s birth. Mother has also stated that there is no evidence that this 
17

DCFS’s reports, which contained hearsay evidence concerning the previous 

dependency proceeding involving R., constituted sufficient evidence to support a finding 

of jurisdiction under section 300, subdivision (j). (§ 355, subd. (b) [“A social study 

prepared by the petitioning agency, and hearsay contained within it, is admissible and 

constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 

300 may be based”].) The juvenile court was not required to take judicial notice of the 

case file in the matter involving Miley’s sibling.

Finally, father argues that none of the domestic violence incidents discussed in the 

record support jurisdiction of Miley because none of them occurred after Miley was born

on January 27, 2013. Mother and father had separated, and father subsequently filed a 

petition for dissolution of marriage. Thus, father argues, there is no substantial risk that 

Miley will be exposed to domestic violence between the parents.

Father argues for an interpretation of the evidence which is favorable to him. 

However, we are bound to resolve all conflicts in the evidence, and make all reasonable 

inferences from the evidence, in support of the court’s orders. (Savannah M., supra, 131 

Cal.App.4th at p. 1393.) Evidence that the juvenile court sustained allegations of 

domestic violence between mother and father which put R. at risk of harm; that R. was 

ultimately placed with her father and removed from mother’s custody; that father and 

mother continued to engage in violent physical altercations even after their separation; 

and that mother and father failed to complete domestic violence counseling is sufficient 

to support the juvenile court’s conclusion that a substantial risk to Miley remained. 

Furthermore, the interviews with father showed a failure on father’s part to take 

responsibility for his actions. Instead, he minimized the severity of the domestic violence 

which has taken place between the parents. For example, while he admitted being 

arrested for domestic violence, he stated that his offense was “not really hitting” mother. 

 

physical altercation took place in R.’s presence. However, the fact that the incident was 

not specifically mentioned in the petition does not prevent the juvenile court from 

considering the event in determining whether Miley is at current risk of harm. Pursuant 

to section 300, subdivision (j), the juvenile court may consider “any . . . factors the court 

considers probative in determining whether there is a substantial risk to the child.”
18

A parent’s denial is a relevant factor in determining whether the parent is likely to modify 

his behavior. (In re Esmerelda B. (1992) 11 Cal.App.4th 1036, 1044.) Under the 

circumstances, the totality of the evidence before the juvenile court supported the finding 

of substantial risk of harm to Miley under section 300, subdivision (j).

IV. Substantial evidence supported removal from father

Father also challenges the court’s decision not to place Miley with father. 

Initially, the juvenile court indicated that its decision was to remove Miley from the 

custody of both parents pursuant to section 361. Then, upon learning that Miley had been 

taken from the hospital where she was born, the juvenile court stated, “So this is removal 

from the mother.” To the extent the removal was from mother only, the parties argue, the 

appropriate statute for the court to consider in regards to custody for father was section 

361.2, which provides for placement with the noncustodial parent. However, the record 

indicates that the court removed Miley from her parents’ custody pursuant to section 361.

Father argues that no substantial evidence supported removal from father under either 

statute.

To the extent that the juvenile court relied on the wrong statute, i.e., section 361 

rather than 361.2, we find this to be harmless error. Section 361, subdivision (c)(1)

requires a stricter standard for removal from parental custody. Specifically, it requires a 

finding by clear and convincing evidence of a substantial danger to the physical health, 

safety, protection, or physical or emotional well-being of the child if the child is returned 

home. (§ 361, subd. (c)(1).) Section 361.2 permits placement with a noncustodial parent 

unless there is a finding by clear and convincing evidence that such placement would be 

detrimental to the safety, protection, or physical or emotional well-being of the child. 

(§ 361.2, subd. (a).) Thus, if the juvenile court relied on the substantial danger standard 

found in section 361, such finding necessarily encompassed a finding of detriment to the 

child as required by section 361.2.

7

 

7 DCFS agrees that the appropriate statute for the juvenile court’s decision not to 

place Miley with father was section 361.2. However, DCFS argues that father forfeited 

his rights under this statute due to his failure to affirmatively request custody of Miley. 
19

Substantial evidence supported the juvenile court’s findings under either the 

standard set forth in section 361, subdivision (c)(1) or the standard set forth in section 

361.2, subdivision (a). The evidence before the court included evidence that Miley’s 

older sibling had been subjected to domestic violence between father and mother and 

removed from their home for that reason. It showed failure on father’s part to complete a 

domestic violence program ordered by the court, and continued domestic violence 

between the two parents even after they had separated. This evidence supported the 

juvenile court’s decision not to place Miley in father’s custody.

 

As DCFS points out, the relevant language of section 361.2 reads: “When a court orders 

removal of a child pursuant to Section 361, the court shall first determine whether there is 

a parent of the child, with whom the child was not residing at the time that the events or 

conditions arose that brought the child within the provisions of Section 300, who desires 

to assume custody of the child. If that parent requests custody, the court shall place the 

child with the parent unless it finds that placement with that parent would be detrimental 

to the safety, protection, or physical or emotional well-being of the child.” (§ 361.2, 

subd. (a), italics added.)

We note that father did request custody of Miley in court at the detention hearing 

on February 1, 2013. However, DCFS is correct that at the time of the dispositional 

hearing, father did not make an affirmative request for custody of Miley, he merely 

sought unmonitored visits. We find that we need not address the question of whether 

father’s initial request is sufficient to prevent forfeiture of a custody request under section 

361.2. As set forth above, a finding of detriment to the child under section 361.2 was 

necessarily encompassed within the juvenile court’s finding that a substantial danger to 

Miley existed if she were released to the custody of either parent. The juvenile court 

made findings sufficient to support its dispositional order under either statute.

However, to the extent that father complains that the juvenile court did not make 

findings either in writing or on the record pursuant to the mandate in section 361.2, 

subdivision (c), we find that father forfeited this issue on appeal by failing to raise section 

361.2, or its requirement that the court set forth specific findings, at the time of the 

dispositional hearing.
20

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

__________________________, P. J.

BOREN

__________________________, J.

ASHMANN-GERST