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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re O.P. et al., Persons Coming Under the Juvenile Cour t 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 C ourt of Los Angeles County, Margue rite 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 Count y 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 alterca tions 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 shatte red the window of mother’s car. Father and mother p ushed each other,
and father sto mped on mother. Father was arrested for intimate partner violence with injury (Pen. Code, § 273.5).
J ust before 3:00 a.m. on February 11, 2020 , a caller told
DCFS mother and fathe r lived on and off in a house in North Hollywood and were going through a divorce. On February 10,

m other 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 t he 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 c ould not pick up the
chil dren until the next day. When s he arrived and texted father

to wa lk the children to her car, he stormed o utside and yelled

at her. Father shattered mother’s front passenger window with an unknown objec t . 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 bl ock and called the police.
When she returned, she put the children in the back seat . F ather
conti nued to yell and throw her things o ut 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 a brasions 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 on to her

. Crying, she said “ her dad stomp ed 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 before4

for her to pick up the children . When she arrived, h e saw his property in side 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 thin gs 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 1 2 and saw broke n g lass on the sidewalk . Mother
answered the door but did not let the social worke r ins ide. The social worker saw bruising on her right eye. Mother explained
that whe n she came to pick up the children

, f ather walked out of
the house toward the car. He was angry and they started to yell at each other. The children were walking outside

. F ather threw things out of mother’s car and broke her passenger window. Father also hit her. Mother pointed to her right eye and said

,

“ Y eah 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 understo od
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 was5

domestic violenc e, father said he would call his lawyer. He
said he was busy, asked the social worker to call him back,
and hung up. Neither moth er nor father schedule d 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 s he 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 ho spital where she worked
did not allow time off. She would do her best to get to court. On March 20, 2020, the court authorized remova l 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

t emporarily removed from his care pending the May 26
detention hearing. Fath er expressed frustration , and said
he never assaulted mother and the children saw nothing. A
last

- minute information reported mother said she worke d from
7:00 a.m. to 7:30 p.m. Father expressed concern that m other

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 Child6

Welfare Act did not apply . Father denied the petition. The court fou nd 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 restrai ning
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/dispositio n report (May 2020) The May 11 jurisdic tion/disposition report stated m other grew up in Maryland and moved to California

, where she worked

a s a registered nurse. She had an older child, Jaylen, who
lived with his father in Maryland. Father was a self

- em ployed musician with a total of eight children.
Mother s till 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 t o take the children to Maryland so she could work and catch up on bills . H e brought the children back a few weeks
later bec ause 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 of7

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. T he 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 decoration s, 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 o f
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 d ay she told him she was pregnant with M.P. , he found out she had a son, Ja y len, who lived with her parents in Mar yland.
In 2018 , when m o ther was eight months pregnant, father went

to a friend’s wedding in Saint Lucia . M other called to tell him
the doctor s were trying to save the baby, who had been born with
the cord wrapped around its neck. When father to ld her he was coming home, she wouldn’t tell him the name of the doctor or the hospital. When h e returned to California four days later

, mother
was bac k 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 m other was a pathological liar. She lied about paying their health insuranc e after he had a bad car accident in Maryland, and lied about where the children were. In January8

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 fat her brought them back to California
in February 2020 she had chang ed 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 c ar was full of his things

, and w hen he tried to pull his be longings 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 th e kids, pulling his hair
and hitting his face, head, and neck. When the police arrived,

t he 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. T he police told him that under California law
the y had to arrest someone

. The blood on his hand was from
the bro ken window. Mother had slapped, hit, an d punched father, and once hit
him with an umbrella , scarring his forehead . She threw things at him and jumped on him. This never happene d in the children’s

presence. One Christmas he came home at night

. T he 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 or der agains t him in San Joaquin C ounty, and the police there never responded to the home for domestic9

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 an ger management or substance abuse. The children were happy with him in Maryland. Father called the friend during th e February 2020 incident and told her mother was there “starti ng stuff .” The friend heard arguing, but it wasn’t clear. Father
claimed mo ther 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 h e 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 ye ars told DCFS she knew they had relationship issues and disagreements, but was not aware of any

p hysical altercations. M other 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 receive10

monitored visit ation . 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

- mi nute 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 h ad 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 ha d occurred, but he did not request further assistance.
2. Subse quent proceedings
Father filed a walk

- on request on August 21, 2020, because mother had not provided regular visitation and took the children to Maryland w ithout notifying the court or DCFS. The court ordered DCFS to prepare an update on father’s visitat ion,
and ordered mother to comply with the visitat ion order.
In last

- minute information s dated Septem ber 11 and 23

, father stated he now h ad unmonitored overnight visits three11

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

- rente d apartment. Father said m other w as 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 s ee mother to o. When mother asked O.P. if she had

a good time with father and s h e said no, mother then asked O.P.
if s he tol d 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 m other’s 10

- year

- old son Jaylen (who reportedly had developmental delay s) had recently moved in, and sometimes she
left the smaller children alone with hi m when she went to work

. M.P. had a cut on his leg and said Ja y len stabbed him with

a knife. Mother said Jaylen had stayed with them for a month and had gone back to Maryland

. M other 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 f ather had denied any past or current use of marijuana , the soci al worker smelled marijuana in father’s home

. When questioned

, f ather
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 marij uana 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 care12

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
vi sits had gone very well and DCFS had liberalized the visits

to unmonitored overnights. Although mother had initially said
she did n ot 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 day s after he attended a large gather ing in New York.
Another last

- minute information filed November 17 changed DCFS’s recommendation. The parents no longer lived together and the children disclo sed no abuse. Other contacts

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

t he visits were monitored, the social worker observed th e children
were excited

, happy, and showed no distress. Father had a good support system in his parents and siblings in Maryland

. D CFS had liberalized father’s visits to unmonitored and then to

overn ight, so that father now picked the children up at 3 p.m. on Sunday s and returned them to mother at 10 a.m. on Wednesdays. For two months, t he parents had cooperated and honored the visitation schedule, and both allowed DCFS to visit inside the ir
homes wi th no issues. Jaylen was back in Maryland and mother said she worked only when the chil dren were staying with father.
Both were seeking programs to address the case

- rela ted 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

rec ommended 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 v iolence classes, to enroll the children in age

appropriate 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 co urt continued the hearing to November 19,
202 0
, 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 d ifferent 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. M inors’
counsel did not ask that the children be detained from father.
B ut b ecause father h ad accepted no responsibility and see med not to have insight into the risk of harm to the children

, minors’ counsel requested the petition be sustained with
visitation remain ing as DCFS had liberalized it (unmonitored and overnight)

. Mother pleaded no contest to the petition.
Father ’s couns el objected to sustaining the petition

, arguing t here was insufficient evidence of current risk . The14

parents lived separately and a restraining order was in place.
Th e statements of mother’s witnesses and the police report
lacked any credibility. Mother had been the instigator (getting
out of the ca r and pushing and hitting father) , but t he police
had l eft this out of the report and had treated father differently simply because he was male (as had DCFS)

. Mother’s relatively minor injuries were inconsist ent 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 coun sel 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 o bjected 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 transcripti on, 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 an d 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 c hildren’s presence , and
sustained b

- 1 as alleged

. The court asked if father was enrolled in any programs , and c ounsel answered he had enrolled in anger management a month earlier . T he court expressed surprise father had delayed for so long after the peti tion 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

. “ E ven if mother is somewhat responsible, she
has resolved the case. She didn’t break a window. She didn’t
throw item s out of the car. But [father] did. The children even say Daddy was not nice to M om . . . . 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 overnight s and weekends.” When counsel stated
father wanted to address the cou rt, the cou rt 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 an d parenting classes, individual counseling

, and joint counseling with children when the children’s therapist16

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 visit ation but

no overnight and weekend visits . DCFS did not have discretion to liberalize, “becau s e I have no way to control whether you’re going to make [father] enga ge 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 bec ause father’s case plan was “very, very full at the mo ment.” 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 participa ted in programs. “I’m just hearing it was not him. He didn’t do anything.” Father filed this timely appeal.

DISCUSSION
1. Substanti al evidence support ed removal from father 3 Under section 361, subdivision (c)(1), the juvenile court may remove a child f

rom a parent’s physical custody if the “court

3 Because DCFS did not recommend removal from father or

re commend 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 h ome, 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 c onsider 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 r eviewing 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 the18

prevailing party below and give appropriate deference to how
the trier of fact may have evaluated the credibility of witnesses,
resolved co nflicts 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

- three

yea r

- 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 dome stic violence by father at least once
before , an d 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 20 20 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, h e denied hitting mother, asserted she was the

aggressor , and waited to enr oll 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 “ t he last incident precipitated the current dependency case.” ( Ibid .) Further, at the time of the adjudication hearing, the one

- year19

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 re cord 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 protecti ng 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 addres s 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 arbi trary, capricious, or patently absurd determination.” ( In re Brittany C. (2011) 191 Cal.App.4 th 1343, 1356.) Father argues the court abused its discretion when it
orde red unmonitored day visitation during the week

, after DCFS
two months earlier had liber alized his visitation to unmonitored20

overnight and weekend v isitation (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 ord er 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 t his 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, includin g the child, the social services agency, or the guardian.” ( In re Korbin Z . (2016)
3 Cal.App.5 th 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.4 th 1119 , 1123 .) Here the court delegated to
the pare nts the discretion to determine during w hich 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 discr etion when
it required him to submit t o 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, c onduct, 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.5 th 510, 522.) But t he juvenile court “cannot arbitrarily o rder 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.5 th 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.4 th 178, 185; In re Drake M. (2012) 211 Cal.App.4 th 754, 764.) T he 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 b est interests. ( Natalie A , at p. 187.) Here t here
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 t he 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 .)
DISPO SI TION 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.