Filed 8/18/21 In re O.P. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re O.P. et al., Persons Coming 

Under the Juvenile Court Law.

B309203

Los Angeles County

Super. Ct. Nos.

20CCJP01699A,

20CCJP01699B

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

B.P.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Marguerite D. Downing, Judge. Affirmed in part 

and reversed in part.

Robert McLaughlin, under appointment by the Court 

of Appeal, for Defendant and Appellant.

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

Assistant County Counsel, Christine S. Ton, Deputy County 

Counsel, for Plaintiff and Respondent.

_________________________
2

B.P. (father) appeals the juvenile court’s dispositional 

orders removing his two children from his custody, ordering 

unmonitored weekday visitation, and requiring random drug 

testing. We affirm in part and reverse in part.

BACKGROUND

The Los Angeles County Department of Children and 

Family Services (DCFS) filed a petition on March 25, 2020, 

alleging (under Welfare and Institutions Code section 300,

subdivisions (a) and (b)(1))

1 that the physical health and safety of

four-year-old O.P. and three-year-old M.P. were at risk because of 

their parents’ domestic violence. Father and Chantal H. (mother) 

had a history of engaging in violent physical altercations in the 

presence of the children. On February 10, 2020, father grabbed 

mother by the back of her neck and pushed her to the ground, 

resulting in a contusion to mother’s right eye and abrasions to 

her knee and hand. Father threw an object that shattered the 

window of mother’s car. Father and mother pushed each other, 

and father stomped on mother. Father was arrested for intimate 

partner violence with injury (Pen. Code, § 273.5).

Just before 3:00 a.m. on February 11, 2020, a caller told 

DCFS mother and father lived on and off in a house in North 

Hollywood and were going through a divorce. On February 10, 

mother arrived to exchange the children, and father got upset 

because she was supposed to exchange them a day earlier. 

Father walked up to mother’s parked car and started throwing 

things out of the car, and then broke the passenger window. 

Mother stepped out of the car, and father grabbed her by the back 

1 Unless otherwise noted, all the following statutory 

references are to the Welfare and Institutions Code.
3

of the neck and threw her to the ground, causing visible injuries 

to her face, knees, and hand. One child said she saw father 

step on mother and kick her. Father had been arrested and was 

in jail, while mother was staying in a hotel with the children.

When police arrived at the scene on February 10, they

found mother and father in the middle of the street with things 

strewn around them. Mother told the officers the children had 

been with father for three weeks in Maryland, where he lived 

most of the time. He and the children had returned to California 

the day before, but because she worked she could not pick up the 

children until the next day. When she arrived and texted father 

to walk the children to her car, he stormed outside and yelled 

at her. Father shattered mother’s front passenger window with 

an unknown object. Mother yelled at him to leave her alone, 

and he grabbed her belongings from the car and threw them into 

the street. The children were in the driveway. 

Mother drove around the block and called the police. 

When she returned, she put the children in the back seat. Father 

continued to yell and throw her things out of her car. She drove 

about 10 feet. When she tried to get her purse and belongings 

from father’s hands, he grabbed the back of her neck and pushed 

her to the ground. She sustained a contusion to her right eye 

and abrasions on her right knee and right hand. Mother called 

the police again as father continued to throw her things.

From the back seat of the car, four-year-old O.P. told 

an officer her mom and dad pushed each other. She saw father 

push mother and get onto her. Crying, she said “her dad stomped 

on her mom and he wasn’t being nice.”

Father told the police he and mother had argued in the 

past about divorcing. He had been waiting since the night before 
4

for her to pick up the children. When she arrived, he saw his 

property inside the car, so he grabbed his things and threw them 

out of the car. Mother pushed him to get out of the way, because 

she was angry he was throwing her things as well. Father hurt 

his right middle finger when he reached into the car to grab 

his property through a slightly-open window, which broke 

by accident. He did not push mother or put his hands on her.

Mother told the officer that in the past father had 

threatened to kill her with a firearm and a knife and had 

tried to strangle or suffocate her. She had tried to separate, 

but she did not fear for her safety.

A DCFS social worker went to the North Hollywood house 

on February 12 and saw broken glass on the sidewalk. Mother 

answered the door but did not let the social worker inside. The 

social worker saw bruising on her right eye. Mother explained 

that when she came to pick up the children, father walked out of 

the house toward the car. He was angry and they started to yell 

at each other. The children were walking outside. Father threw 

things out of mother’s car and broke her passenger window. 

Father also hit her. Mother pointed to her right eye and said,

“Yeah this is from him,” and added she had bruises and scratches

on her leg. Father had been arrested after she called the police.

Mother said she and father had a history of domestic 

violence. Asked whether she feared father, she answered:

“ ‘Well yeah.’ ” She planned to get a place of her own, and would 

consider filing for a temporary restraining order. She understood 

DCFS would intervene if there was another violent incident. 

The children appeared clean, unhurt, and well-groomed.

The social worker called father, who said he was “confused” 

and wanted to know more about the allegations. Told it was 
5

domestic violence, father said he would call his lawyer. He 

said he was busy, asked the social worker to call him back, 

and hung up.

Neither mother nor father scheduled an interview with 

DCFS despite numerous attempts. Father later called the social 

worker, denied ever hearing from DFCS, and claimed he did 

not know what was going on and did not hit or assault mother.

On March 16, 2020, Mother returned the social worker’s 

call. She and the children had moved into a new place, but she 

would not give her new address for fear of father (although the 

social worker told her the address would be confidential). Mother 

believed father was in Maryland, and she and the children

had no contact with him. She was unable to get off the lease 

for the North Hollywood home, and had no time to apply for a 

restraining order because she worked as a registered nurse, and 

during the COVID-19 pandemic, the hospital where she worked 

did not allow time off. She would do her best to get to court.

On March 20, 2020, the court authorized removal of 

the children from father, and on March 23, DCFS detained 

the children from father and released them to mother. 

The social worker called father to tell him the children were 

temporarily removed from his care pending the May 26 

detention hearing. Father expressed frustration, and said

he never assaulted mother and the children saw nothing. A 

last-minute information reported mother said she worked from 

7:00 a.m. to 7:30 p.m. Father expressed concern that mother 

was working as an emergency room nurse during the pandemic.

At the March 30, 2020 detention hearing, father’s 

appointed counsel appeared on his behalf; neither mother nor 

the children appeared. The trial court found the Indian Child 
6

Welfare Act did not apply. Father denied the petition. The court 

found a prima facie case the children were persons described by 

section 300, and at the request of DCFS, detained the children 

from father, released them to mother, and awarded father 

monitored visitation.

At the arraignment hearing on April 1, the court appointed 

separate counsel for mother and the children, again made 

findings removing the children from father, and released the 

children to mother with monitored visitation for father. On the 

same day, mother filed a request for a temporary restraining 

order (TRO) against father, protecting her only. The court 

granted the TRO, and after a hearing on June 24, 2020, signed 

a one-year permanent restraining order protecting mother

until May 26, 2021 (over father’s objection).

1. Jurisdiction/disposition report (May 2020)

The May 11 jurisdiction/disposition report stated mother 

grew up in Maryland and moved to California, where she worked 

as a registered nurse. She had an older child, Jaylen, who 

lived with his father in Maryland. Father was a self-employed 

musician with a total of eight children.

Mother still had not provided her correct address to DCFS. 

She told the social worker she and father had agreed to split the 

cost of living, but for the last few months he had not paid. Father 

had agreed to take the children to Maryland so she could work 

and catch up on bills. He brought the children back a few weeks 

later because he was frustrated, leading to the February 2020 

domestic violence (which she described in detail).

Father had thrown her phone a couple of times when the 

children were with the babysitter. Father had also punched her. 

Mother had reported three or four of at least 10 incidents of 
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domestic violence in San Joaquin County. She still had a gash 

on her face from when he pushed her. She never started a fight 

and would hit him back in self-defense. The children were 

present at three incidents. The Christmas before the February 

2020 incident, father threw something at the stove and broke it. 

He also broke her tree and her decorations, and damaged her 

walls.

Father left her after she had a late-term miscarriage

in 2018 (at 20 weeks). Mother did not give him information 

about the miscarriage because he never showed any interest 

in accompanying her to medical appointments during any of 

her pregnancies. They reconciled in 2019, and then he went 

to Maryland and had a car accident. He had used marijuana 

in the past.

Father told the investigator he married mother in 

Maryland in 2015, and they split up in 2018. He was bicoastal. 

The day she told him she was pregnant with M.P., he found out 

she had a son, Jaylen, who lived with her parents in Maryland. 

In 2018, when mother was eight months pregnant, father went 

to a friend’s wedding in Saint Lucia. Mother called to tell him 

the doctors were trying to save the baby, who had been born with 

the cord wrapped around its neck. When father told her he was 

coming home, she wouldn’t tell him the name of the doctor or the 

hospital. When he returned to California four days later, mother

was back at work and not grieving. He called the police and 

they said they couldn’t do anything. He could not live with 

her anymore, not knowing what happened to his baby.

Father said mother was a pathological liar. She lied about 

paying their health insurance after he had a bad car accident in 

Maryland, and lied about where the children were. In January 
8

2020, when he was still in physical therapy, she left the children 

with him in Maryland, saying she had to work long hours to catch 

up on the rent. When father brought them back to California 

in February 2020 she had changed the locks on the house. A 

locksmith let him in, and when she showed up the next day at 

8:00 p.m., they started to argue. The car was full of his things, 

and when he tried to pull his belongings out she “attacked” by 

trying to drive off. The car window broke when he tried to pull 

his hand back out. Mother went inside to get the kids and he 

saw the trunk was also full of his things. When she came back 

out she attacked him in front of the kids, pulling his hair 

and hitting his face, head, and neck. When the police arrived, 

the children were in the car and he and mother were fighting 

behind the car.

Father claimed mother attacked him. He weighed 250 

pounds and was on crutches, so there was no way he could stomp 

on her. If he had hit her she would have had blood on her or 

a busted lip. The police told him that under California law

they had to arrest someone. The blood on his hand was from 

the broken window.

Mother had slapped, hit, and punched father, and once hit 

him with an umbrella, scarring his forehead. She threw things at 

him and jumped on him. This never happened in the children’s 

presence. One Christmas he came home at night. The children 

were not there. Mother refused to tell him where they were and 

broke the stove with a heavy candle holder during an argument. 

Father admitted he broke the tree and decorations, but he did not 

call the police because he trusted the children were safe. There 

was no restraining order against him in San Joaquin County, 

and the police there never responded to the home for domestic 
9

violence. (A search of the San Joaquin Police log showed at least 

20 calls from the family home.)

A high school friend of father’s said he never had issues 

with anger management or substance abuse. The children were 

happy with him in Maryland. Father called the friend during the 

February 2020 incident and told her mother was there “starting

stuff.” The friend heard arguing, but it wasn’t clear. Father

claimed mother gave him the gash on his head. He said mother 

had been far along in a pregnancy, and when he returned from 

out of town, she was no longer pregnant and he still did not know 

what happened to the baby. The children were very happy with 

father, who was definitely a fit parent.

The landlord reported that a neighbor who witnessed 

the incident was surprised father was arrested, because it 

was mother who threw items out of the car.

A woman who had been friends with both mother and 

father for over eight years told DCFS she knew they had 

relationship issues and disagreements, but was not aware of any 

physical altercations. Mother used the children as collateral by 

restricting father’s contact. She knew mother loved the children, 

but they had more stability with father and always preferred 

being with him.

Mother wanted the children to live with her, with 

monitored visitation for father. Father wanted a divorce and 

joint legal and physical custody.

DCFS, concerned about mother’s “semi-cooperative stance,” 

recommended the court order mother to provide the children’s 

current address, sustain the petition, declare the children 

dependents, and provide mother with family maintenance. 

The children should be removed from father, who should receive 
10

monitored visitation. Father should be required to enroll in 

individual counseling and a parenting program, and to engage 

in therapy with the children if their therapist deemed it 

appropriate. DCFS requested authority to release the children 

to both parents.

A last-minute information attached police records from 

San Joaquin County. In July 2017, mother called the police and 

asked to meet at the local high school. She told the officer she 

had a verbal argument with father, but refused to provide more 

detail. Mother had no visible injuries and insisted the police 

not speak to father. In May 2018 mother told the police father 

punched her in the jaw twice during an argument over watching 

the children. Mother said he had been out drinking and she 

was very afraid of him, especially when he was drunk. She had

a small laceration and swelling on her upper lip, and received a 

week-long emergency protective order. In October 2018 father 

called the police to help him find mother, who had called to tell 

him she miscarried. He was afraid she had done something 

to the baby. Mother was at work and had communicated with 

father by text. The officers advised father to call again if he 

thought any suspicious activity had occurred, but he did not 

request further assistance.

2. Subsequent proceedings

Father filed a walk-on request on August 21, 2020, because 

mother had not provided regular visitation and took the children 

to Maryland without notifying the court or DCFS. The court 

ordered DCFS to prepare an update on father’s visitation, 

and ordered mother to comply with the visitation order.

In last-minute informations dated September 11 and 23, 

father stated he now had unmonitored overnight visits three 
11

days a week, and would fly to California to spend the visits in his 

newly-rented apartment. Father said mother was often late to 

the drop-off point at the local police station, but mother denied 

this. The children appeared comfortable in father’s presence, 

the visits went very well, and they were sad to leave. They were 

happy to see mother too. When mother asked O.P. if she had 

a good time with father and she said no, mother then asked O.P.

if she told the social worker. Yet O.P. told the social worker she

had a great time with father. 

Mother would not allow the social worker to visit the 

children inside the home because of the pandemic; they would 

talk to the social worker outside on the stairs. The children 

said mother’s 10-year-old son Jaylen (who reportedly had

developmental delays) had recently moved in, and sometimes she

left the smaller children alone with him when she went to work. 

M.P. had a cut on his leg and said Jaylen stabbed him with 

a knife. Mother said Jaylen had stayed with them for a month 

and had gone back to Maryland.

Mother reported father had cancelled or modified some 

visits, and father said mother was 30 minutes to three hours 

late to exchange the children. Mother reported father had used 

marijuana in the past, usually outside. Although father had 

denied any past or current use of marijuana, the social worker 

smelled marijuana in father’s home. When questioned, father 

said he had a medical marijuana recommendation (for pain 

management after his car accident). He did not smoke when 

the children were under his care or in their presence, kept the 

marijuana out of their reach (the social worker verified this), and 

had no drug-related arrests. He agreed to test the next day, and 

DCFS recommended the court order father drug test and not care 
12

for or drive the children when he was under the influence. The 

social worker noted the children were comfortable with both 

parents (when father and mother were not together). Father’s 

visits had gone very well and DCFS had liberalized the visits 

to unmonitored overnights. Although mother had initially said 

she did not want DCFS to enter her home because of COVID-19 

and clutter, she now stated she would allow DCFS entry. Father 

complained mother cancelled some of his visits, but mother 

explained she requested he quarantine for 14 days after he 

attended a large gathering in New York.

Another last-minute information filed November 17 

changed DCFS’s recommendation. The parents no longer lived 

together and the children disclosed no abuse. Other contacts 

expressed no concerns about their safety in father’s care. When 

the visits were monitored, the social worker observed the children 

were excited, happy, and showed no distress. Father had a 

good support system in his parents and siblings in Maryland. 

DCFS had liberalized father’s visits to unmonitored and then to 

overnight, so that father now picked the children up at 3 p.m. on 

Sundays and returned them to mother at 10 a.m. on Wednesdays. 

For two months, the parents had cooperated and honored the 

visitation schedule, and both allowed DCFS to visit inside their

homes with no issues. Jaylen was back in Maryland and mother 

said she worked only when the children were staying with father. 

Both were seeking programs to address the case-related issues 

and had no intention to reconcile.

DCFS recommended the court release the children to both 

parents in separate households, and offer family maintenance 

services to both. Father should be ordered to enroll and 

participate in individual counseling, parenting classes, 
13

anger management and domestic violence classes. DCFS also 

recommended father participate in random drug tests, show 

decreasing levels of marijuana, and not use marijuana when 

caring for the children. Mother should be ordered to participate 

in individual counseling, parenting classes, anger management 

and domestic violence classes, to enroll the children in ageappropriate counseling and engage in therapy with the children 

if their therapist deemed it appropriate, and not allow the 

children to be alone with Jaylen.

3. Adjudication/disposition hearing

The juvenile court continued the hearing to November 19, 

2020, to allow counsel to review body cam footage supplied by 

the police and order transcription if necessary.

At the hearing, minors’ counsel requested the court sustain 

the allegations. Mother and father told different versions of the 

events in February outside the North Hollywood home, but O.P.

said father stomped on mother. Mother said she had reported 

only three or four of over 10 incidents of father’s domestic 

violence. Father said mother was the aggressor. The February

2020 domestic violence occurred while the parents were 

separated, so the risk of domestic violence continued. Minors’ 

counsel did not ask that the children be detained from father. 

But because father had accepted no responsibility and seemed 

not to have insight into the risk of harm to the children, 

minors’ counsel requested the petition be sustained with 

visitation remaining as DCFS had liberalized it (unmonitored 

and overnight).

Mother pleaded no contest to the petition.

Father’s counsel objected to sustaining the petition, 

arguing there was insufficient evidence of current risk. The 
14

parents lived separately and a restraining order was in place. 

The statements of mother’s witnesses and the police report 

lacked any credibility. Mother had been the instigator (getting 

out of the car and pushing and hitting father), but the police 

had left this out of the report and had treated father differently 

simply because he was male (as had DCFS). Mother’s relatively 

minor injuries were inconsistent with father’s size and strength. 

The body cam footage contradicted the report and showed mother 

was not a passive victim that day. And mother had prevented 

DCFS and minors’ counsel from seeing the children, by lying 

about her location. Father’s counsel objected to removal from 

father and any orders that he participate in domestic violence 

classes. Counsel also objected to individual counseling and 

parenting classes (although father would comply if necessary for 

release of the children to him), and objected insufficient evidence 

supported drug testing or programs.

DCFS asked the court to sustain the petition and joined in

the argument of minors’ counsel. The police report incorporated 

the neighbors’ statements and summarized the body cam 

transcription, in which O.P. reported father stomped on mother.2 

Breaking mother’s car window took a lot of force. This occurred 

2 In the transcription, father denied hitting mother, but 

the police said she had injuries consistent with her account that 

he hit her. Father said he was injured too, but the police said his 

injuries were to his finger, consistent with breaking her window, 

and he was the dominant aggressor. O.P. told the officer she was 

in the car crying and her parents were pushing and hitting each 

other. Father pushed mother and she fell, and then he stomped 

her. Mother told the police there had been three prior reported 

incidents of domestic violence in San Joaquin County.
15

during an exchange of the children while the parents were 

separated, when father was upset that mother was late to pick 

up the children. There had been previous domestic violence, 

and the children were present at the latest incident.

The court sustained the petition as amended to state in a-1 

that only father had a history of engaging in violent physical 

altercations with mother in the children’s presence, and 

sustained b-1 as alleged. The court asked if father was enrolled 

in any programs, and counsel answered he had enrolled in anger 

management a month earlier. The court expressed surprise 

father had delayed for so long after the petition was filed eight 

months earlier. The court removed the children from father’s 

custody and placed them in mother’s home, ruling mother

retained physical custody.

The juvenile court noted father had not accepted any 

responsibility. “Even if mother is somewhat responsible, she 

has resolved the case. She didn’t break a window. She didn’t 

throw items out of the car. But [father] did. The children even 

say Daddy was not nice to Mom . . . . Even if I just look at that, 

I [have] a problem with this man having unmonitored visitation 

because obviously he has an anger management issue he can’t 

control. So his visits will remain unmonitored days. But he 

no longer has overnights and weekends.” When counsel stated 

father wanted to address the court, the court refused: “He is 

the person who did not want to settle this case because he has 

a criminal case. So if he starts talking, now, that can be used 

against him in the criminal court.”

The court ordered enhancement services for father

(domestic violence and parenting classes, individual counseling, 

and joint counseling with children when the children’s therapist 
16

agreed). The court also ordered random drug testing every other 

week (but no program), with father not to use marijuana when 

the children were in his care, and required his tests to show 

declining levels. Father had unmonitored day visitation but 

no overnight and weekend visits. DCFS did not have discretion 

to liberalize, “because I have no way to control whether you’re 

going to make [father] engage in program or just let him have 

unmonitored visitation without doing anything.” Father’s 

counsel objected to the “deliberalization” of visitation to 

unmonitored days only and to joint counseling because father’s

case plan was “very, very full at the moment.” The court 

responded: “[I]t is a cycle. He does not want his daughter[ ] 

to believe she can be kicked when she becomes a grown woman 

and is with a man. So he might want to engage and talk about 

how Daddy made a mistake.” Father “would have done better 

had he gotten into programming in the seven months since this 

case was filed.” Father’s counsel agreed father did not settle 

because of the criminal matter, and the court repeated that 

father could have admitted partial responsibility and participated 

in programs. “I’m just hearing it was not him. He didn’t do 

anything.”

Father filed this timely appeal.

DISCUSSION

1. Substantial evidence supported removal from father3

Under section 361, subdivision (c)(1), the juvenile court 

may remove a child from a parent’s physical custody if the “court 

3 Because DCFS did not recommend removal from father or 

recommend a change to his overnight visits, DCFS does not take 

a position on father’s appellate challenge to the removal and 

visitation orders.
17

finds clear and convincing evidence [that] (1) There is or would be 

a substantial danger to the physical health, safety, protection, or 

physical or emotional well-being of the minor if the minor were 

returned home, and there are no reasonable means by which 

the minor’s physical health can be protected without removing 

the minor from the minor’s [parents]. . . .” Unless the child is 

adjudicated a dependent because of severe abuse under section 

300, subdivision (e) (which is not the case here), a jurisdictional 

finding alone is not prima facie evidence the child cannot 

remain in the parent’s physical custody. (In re E.E. (2020) 

49 Cal.App.5th 195, 218.) In determining whether to remove 

the child, the court may consider the parent’s past conduct and 

current circumstances, as well as the parent’s response to the 

conditions that caused the juvenile court to intervene. (In re 

D.B. (2018) 26 Cal.App.5th 320, 332.) The parent need not 

be dangerous, and the child need not have suffered actual 

harm, before removal is appropriate. (Id. at p. 328.)

The standard is clear and convincing evidence, and the 

juvenile court “ ‘is in the best position to determine the degree 

to which a child is at risk based on an assessment of all the 

relevant factors in each case.’ ” (In re E.E., supra, 49 Cal.App.5th

at p. 217.) The court must determine whether reasonable efforts 

were made to prevent or eliminate the need for removal of the 

child from the home. (§ 361, subd. (e).)

“When reviewing a finding that a fact has been proved by 

clear and convincing evidence, the question before the appellate 

court is whether the record as a whole contains substantial 

evidence from which a reasonable fact finder could have found it 

highly probable that the fact was true. In conducting its review, 

the court must view the record in the light most favorable to the
18

prevailing party below and give appropriate deference to how 

the trier of fact may have evaluated the credibility of witnesses, 

resolved conflicts in the evidence, and drawn reasonable 

inferences from the evidence.” (Conservatorship of O.B. (2020) 

9 Cal.5th 989, 1011-1012.)

Father left mother visibly injured after a physical 

altercation observed by then-four-year-old O.P. and then-threeyear-old M.P. Although father and mother hit and pushed each 

other, father broke mother’s car window and pushed her to the 

ground, and as described by O.P., father “stomped” on mother. 

Mother had reported domestic violence by father at least once

before, and stated there were other incidents she did not report. 

A reasonable fact finder could have concluded it was highly 

probable father repeatedly engaged in domestic violence against 

mother, culminating with father’s arrest in February 2020 and 

the issuance of a restraining order. 

Father argues he and mother “broke the cycle of violence 

and established their ability to successfully share custody of 

[O.P. and M.P.].” But father did not show he addressed his anger 

issues. Instead, he denied hitting mother, asserted she was the 

aggressor, and waited to enroll in anger management classes

until just a month before the disposition hearing. He continued 

to deny any responsibility for the domestic violence. (See In re 

T.V. (2013) 217 Cal.App.4th 126, 136-137.) “The inference from 

his denial is that he is less likely to change his behavior in the 

future.” (In re V.L. (2020) 54 Cal.App.5th 147, 156.) The children 

were exposed to domestic violence in February 2020 (and,

according to mother, during three previous incidents), and “the 

last incident precipitated the current dependency case.” (Ibid.) 

Further, at the time of the adjudication hearing, the one-year 
19

restraining order protecting mother was still in place and 

apparently exchange of the children had been taking place at the 

local police station; under these circumstances, father can hardly 

take credit for not being violent against mother. Viewing the 

evidence in the light most favorable to the order, and deferring 

to the trial court’s evaluation of the record before it and 

its credibility determinations, we hold substantial evidence 

supported the conclusion the children remained at risk 

from domestic violence.

Finally, substantial evidence supports the conclusion

there were no reasonable means of protecting the children 

without removing them from father. As outlined above, father 

was initially evasive and uncooperative with DCFS, failed 

to acknowledge any responsibility for the domestic violence, 

and only belatedly participated in programs meant to address 

the violence. Because (contrary to father’s assertion) substantial 

evidence supports the conclusion the cycle of domestic violence 

between father and mother was unresolved, no reasonable 

means of protecting the children existed other than removal. 

(In re Nathan E. (2021) 61 Cal.App.5th 114, 124.) 

2. The visitation order was not an abuse of discretion

We review for abuse of discretion the court’s order setting 

the terms of visitation, and “will not disturb the order unless 

the trial court made an arbitrary, capricious, or patently absurd 

determination.” (In re Brittany C. (2011) 191 Cal.App.4th 1343, 

1356.)

Father argues the court abused its discretion when it 

ordered unmonitored day visitation during the week, after DCFS

two months earlier had liberalized his visitation to unmonitored 
20

overnight and weekend visitation (Sunday afternoon to 

Wednesday morning). We see no abuse of discretion.

First, father argues the court’s order significantly reduced 

his contact with the children. But the court’s order did not 

reduce the frequency or amount of visitation. Under the order

allowing unmonitored weekday visitation, father could visit with 

the children five days a week, which is more than the previous 

schedule. He does not explain how it was an abuse of discretion 

not to allow overnight visitation. Second, the ordered visitation 

remained unmonitored, consistent with DCFS’s former 

liberalization.

Father argues it was unlawful to delegate to him and to 

mother the frequency and duration of his visitation. He did not 

object to the order on that basis. Even if he did not forfeit this 

objection on appeal, he has not shown the court acted improperly. 

“[T]he juvenile court cannot delegate the decision whether 

visitation will occur to any third party, including the child, the 

social services agency, or the guardian.” (In re Korbin Z. (2016) 

3 Cal.App.5th 511, 516.) “A visitation order may delegate to a 

third party the responsibility for managing the details of visits, 

including their time, place and manner,” but may not “delegate 

discretion to determine whether visitation will occur, as opposed 

to simply the management of the details.” (In re T.H. (2010) 

190 Cal.App.4th 1119, 1123.) Here the court delegated to 

the parents the discretion to determine during which weekdays

the visitation will occur. This is not an unlawful delegation 

of whether visitation will occur at all.

3. The drug testing order was an abuse of discretion

Father argues the trial court abused its discretion when 

it required him to submit to random drug testing. We agree.
21

“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 of the child (§ 362, subd. (d)), and the juvenile court 

enjoys broad discretion in crafting a dispositional case plan to 

this end.” (In re I.R. (2021) 61 Cal.App.5th 510, 522.) But the 

juvenile court “cannot arbitrarily order services that are ‘not 

reasonably designed’ to eliminate the behavior or circumstances 

that led to the court taking jurisdiction of the child.” (In re M.R. 

(2020) 48 Cal.App.5th 412, 424.) 

Father’s use of medical marijuana is entirely unrelated 

to the domestic violence described in the sustained allegations. 

And the use of medical marijuana, without more, does not 

support dependency jurisdiction. (In re Natalie A. (2015) 243 

Cal.App.4th 178, 185; In re Drake M. (2012) 211 Cal.App.4th

754, 764.) The only other evidence of father’s use is mother’s 

statement that father had smoked marijuana in the past, usually 

outside the house. An order for drug testing is called for if 

any rational trier of fact could conclude the order advanced 

the children’s best interests. (Natalie A, at p. 187.) Here there

is no evidence that father abused marijuana or that his use posed 

a substantial risk to the children.4 There was no evidence that 

father used marijuana in front of the children, and DCFS verified 

4 DCFS argues mother reported in 2018 that father hit her 

after he had been drinking and that she was especially afraid 

of him when he was drunk. But no evidence showed father was 

abusing alcohol in 2020 or alcohol played a part in the domestic 

violence giving rise to the petition, and the court did not mention 

father’s use of alcohol.
22

that he stored his medical marijuana out of their reach. On this 

record, the trial court could not reasonably conclude that drug 

testing was necessary to eliminate the conditions that led to 

the children’s dependency status. (Ibid.)

DISPOSITION

The disposition order of the juvenile court is reversed to 

the extent it orders father to participate in random drug testing. 

In all other respects, the disposition order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

EDMON, P. J.

LAVIN. J.