Filed 2/10/22 In re M.M. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(a). This opinion has 

not been certified for publication or ordered published for purposes of rule 8.1115(a). 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re M.M., a Person Coming 

Under the Juvenile Court Law.

B312504

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.L. et al.,

Defendants and Appellants.

Los Angeles County

Super. Ct. No.

21CCJP00379

APPEALS from orders of the Superior Court of Los Angeles 

County, Mary E. Kelly, Judge. Affirmed.

Julie E. Braden, under appointment by the Court of 

Appeal, for Defendant and Appellant J.L.

Jack A. Love, under appointment by the Court of Appeal, 

for Defendant and Appellant G.M.
2

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

Assistant County Counsel, Aileen Wong, Deputy County Counsel, 

for Plaintiff and Respondent.

INTRODUCTION

G.M. (father) and J.L. (mother) appeal from an order 

finding dependency jurisdiction under Welfare & Institutions 

Code section 300, subdivisions (a) and (b), over their 18-monthold daughter (the minor).1 Father also challenges the order 

removing the minor from his custody.

Substantial evidence supports the court’s jurisdictional 

finding on the basis of domestic violence between father and 

mother. The incident that brought the family to the attention of 

the Department of Children and Family Services (Department)

was a confrontation between the parents in which father threw a 

large object against the wall, punched a wall, pinned mother up 

against a wall, and then slapped her in the face—all while 

mother was holding their infant daughter. That incident, as well 

as evidence that prior instances of domestic violence had occurred 

between mother and father, support the court’s adjudication and 

removal orders. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Mother and father live together and have one child together 

(the minor). When the family first came to the attention of the 

Department the minor was six months old.

1 All undesignated statutory references are to the Welfare and 

Institutions Code.
3

The Department received multiple referrals about a 

domestic violence incident that took place between mother and 

father on January 3, 2021. On that day, father left the family 

home for approximately one hour to pick up food. Mother stayed 

at home with the minor. While father was gone, mother (who is a 

recovering alcoholic) drank six ounces of wine. Mother disclosed 

her alcohol consumption to father when he returned, and he 

became upset. Father kicked or threw the minor’s plastic walker 

toward a wall, pushed mother toward the wall, and slapped 

mother in the face with his hand. Mother was holding the minor 

during the confrontation.

The following day, law enforcement received a request for a 

wellness check for mother from mother’s adult daughter who 

lives in another state. Officers arrived at the family home and 

arrested father for physically assaulting mother. Mother told 

officers that father had been very angry and had screamed at her, 

pushed her, and hit her in the face. Although mother showed no 

signs of intoxication, she was “acting bizarre” and said she had 

ingested some psychotropic medications prescribed to her to treat 

depression. Mother was transported to the hospital and a friend 

of mother’s was called to care for the minor. Mother’s adult 

daughter subsequently assumed the minor’s care.

During an interview with a Department social worker, 

mother denied that father slapped or hit her and instead stated 

that father was attempting to grab the minor from mother’s arms 

and “his hand accidentally brushed against her and the draw 

string of her hoodie hit her in the face.” Mother admitted that 

father threw the walker against the wall and said that father 

punched a wall after mother refused to give the minor to him.

Although mother denied prior instances of domestic violence, 
4

mother’s adult daughter stated that previous incidents of 

domestic violence had occurred between mother and father. 

Specifically, she said mother told her in the past that father “hits, 

pushes and hold[s] onto her when he gets upset with her.” She 

also confirmed that mother has a long history of alcohol abuse.

For his part, father denied hitting mother and forcibly 

taking the minor from mother. He said he was upset that mother 

was drinking and threw the walker at the wall, away from 

mother and the minor. He also hit the wall in the hallway several 

times but did not hit the wall hard and the social worker 

observed that the wall was undamaged. Father said that when he 

took the minor from mother’s arm, the zipper on mother’s hoodie 

hit her in the face but mother was uninjured. He denied any prior 

incidents of domestic violence in which he was the aggressor but 

stated that “mother does get aggressive when she drinks and she 

has assaulted him in the past.”

Mother agreed to enroll in a residential treatment program 

to address alcohol abuse. She had previously completed three 

outpatient programs and had completed a residential treatment 

program in 2019, after which she had been sober until November 

2020. She entered a 90-day residential program on 

January 15, 2021 and took custody of the minor at the facility on 

January 20, 2021. The minor was subsequently detained from 

both parents and placed with the paternal grandmother.

The Department filed a petition under section 300, 

subdivisions (a) and (b), on January 26, 2021. The petition 

included identical counts (count a-1 and count b-1) under 

subdivisions (a) and (b) relating to the domestic violence incident 

on January 3, 2021. The petition set forth two additional counts 

under section 300, subdivision (b). Count b-2 related to mother’s 
5

alcohol abuse and resultant inability to care for the minor, who 

was then seven months old. Count b-3 related to mother’s 

“history of mental and emotional problems, including depression 

and anxiety[.]”

At the detention hearing on January 29, 2021, the court 

found a prima facie case for dependency jurisdiction existed and 

ordered temporary placement and custody vested in the 

Department. The court ordered the minor placed with mother, 

conditioned on mother’s participation in the residential 

rehabilitation program and testing negative for all substances.

The court further ordered monitored visitation for father three 

times weekly for three hours, with discretion to liberalize to 

unmonitored, overnight, and weekend visitation.

The Department submitted a jurisdiction and disposition 

report on April 6, 2021. At that time, mother had successfully 

completed the first residential program and had moved to a sober

living house with the minor. Mother was actively participating in 

the rehabilitation program, had been testing negative for all 

substances, and was attentive to the minor. No problems were 

noted. Father had enrolled in and was attending parenting and 

anger management classes.2 Mother and father denied all counts 

in the dependency petition and continued to deny a history of 

domestic violence.

2 The District Attorney’s office dropped the assault charge due to “lack 

of sufficient evidence.”
6

The court conducted the adjudication hearing on 

April 26, 2021, and sustained the following jurisdictional 

allegation under section 300, subdivisions (a) and (b):

Counts a-1, b-1: “[Mother and father] have a history of 

engaging in violent altercations in the presence of the child. On 

[01/03/2021], the father pushed the mother while the mother was 

holding the child and restrained the mother against a wall. The 

father struck the mother’s face. On prior occasions, the father has 

struck, pushed, and restrained the mother. The mother failed to 

protect the child in that the mother allowed the father to reside 

in the child’s home and have unlimited access to the child. Such 

violent conduct by the father against the mother and the mother’s 

failure to protect the child, endangers the child’s physical health 

and safety, creates a detrimental home environment, and places 

the child at risk of serious physical harm, damage, danger, and 

failure to protect.”

The court sustained an additional allegation under section 

300, subdivision (b):

Count b-2: “[Mother] has a history of substance abuse and 

is a current abuser of alcohol, which renders the mother 

incapable of providing regular care for the child. On prior 

occasions, the mother was under the influence of alcohol, while 

the child was in the mother’s care and supervision. The child is of 

such a young and tender age as to require constant care and 

supervision[.]”

The court dismissed count b-3, which related to mother’s 

mental health.

As to disposition, the court removed the minor from father 

and ordered the minor placed with mother under the 

Department’s supervision. Mother’s case plan required a full drug 
7

and alcohol recovery program with aftercare, random weekly 

drug and alcohol testing, and participation in a 12-step program. 

Mother was also required to reside in a residential locked 

treatment facility for 90 days and attend individual counseling to 

address case issues including domestic violence. Father’s case 

plan required him to participate in a 26-week domestic violence 

course and to participate in individual counseling. The court 

ordered monitored visitation for father, three times weekly for 

three hours or, if in-person visitation was not possible due to 

restrictions relating to the Covid-19 pandemic, father could visit 

with the minor virtually for 20 minutes daily.

Both father and mother appeal.

DISCUSSION

Father contends that the jurisdictional findings under 

section 300, subdivisions (a) and (b), are not supported by 

substantial evidence. Mother joins in those arguments. Further, 

father argues the court erred in removing the minor from his 

custody. We conclude the court’s finding of dependency

jurisdiction based on domestic violence (count b-1) is supported 

by substantial evidence. The court’s findings on that point also 

support its order removing the minor from father’s custody.

1. Standard of Review

“ ‘In reviewing a challenge to the sufficiency of the evidence 

supporting the jurisdictional findings and disposition, we 

determine if substantial evidence, contradicted or uncontradicted, 

supports them. ... “[W]e draw all reasonable inferences from the 

evidence to support the findings and orders of the dependency 

court; we review the record in the light most favorable to the 

court’s determinations; and we note that issues of fact and 
8

credibility are the province of the trial court.” [Citation.] “We do 

not reweigh the evidence or exercise independent judgment, but 

merely determine if there are sufficient facts to support the 

findings of the trial court. [Citations.] ‘ “[T]he [appellate] court 

must review the whole record in the light most favorable to the 

judgment below to determine whether it discloses substantial 

evidence ... such that a reasonable trier of fact could find [that the 

order is appropriate].” ’ ” ’ ” (In re I.J. (2013) 56 Cal.4th 766, 773.) 

Substantial evidence is “ ‘evidence which is reasonable, credible, 

and of solid value[.]’ ” (In re I.C. (2018) 4 Cal.5th 869, 892.) 

Finally, and with respect to the court’s removal order, which 

requires proof of substantial danger to the physical health, 

safety, protection, or physical or emotional well-being of the 

minors by clear and convincing evidence (§ 361, subd. (c)), we 

“must determine whether the record, viewed as a whole, contains 

substantial evidence from which a reasonable trier of fact could 

have made the finding of high probability demanded by this 

standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 

1005.)

2. Substantial evidence supports the court’s 

jurisdictional finding under section 300, 

subdivision (b), based on domestic violence.

Father contends none of the jurisdictional findings under 

section 300 are supported by substantial evidence. We conclude 

the court’s finding of dependency jurisdiction under section 300, 

subdivision (b), based on domestic violence is supported by 

substantial evidence.3

3 Because we affirm the jurisdiction finding and removal order on the 

basis of domestic violence, we do not address the parties’ challenges to 
9

2.1. Legal Principles

Under section 300, subdivision (a), a juvenile court may 

exercise dependency jurisdiction if the “ ‘child has suffered, or 

there is a substantial risk that the child will suffer, serious 

physical harm or illness, as a result of the failure or inability of 

his or her parent ... to adequately supervise or protect the 

child ... .’ ” (See In re E.E. (2020) 49 Cal.App.5th 195, 205.) 

“Although section 300 generally requires proof the child is subject 

to the defined risk of harm at the time of the jurisdiction hearing 

[citations], the court need not wait until a child is seriously 

abused or injured to assume jurisdiction and take steps necessary 

to protect the child [citation]. The court may consider past events 

in deciding whether a child presently needs the court’s protection. 

[Citation.] A parent’s ‘ “[p]ast conduct may be probative of 

current conditions” if there is reason to believe that the conduct 

will continue.’ [Citation.]” (In re Christopher R. (2014) 225 

Cal.App.4th 1210, 1215–1216.)

the alternative bases for jurisdiction. (See, e.g., In re I.A. (2011) 201 

Cal.App.4th 1484, 1492 [noting that “an 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”].) Although mother expressly challenges the court’s domestic 

violence finding under section 300, subdivision (a), she “acknowledges 

family violence in the child’s household, like that alleged in the instant 

case, may have supported a finding pursuant to subdivision (b)(1) of 

section 300[.]” That is, unlike the parent in In re Drake (2012) 211 

Cal.App.4th 754, 764, mother would still be an “offending parent” even 

if we reversed the court’s alternative bases for jurisdiction. Further,

although mother contends she will be prejudiced unless we reach the 

merits of her challenge to the court’s finding under section 300, 

subdivision (a), the potential adverse consequences mother cites are

speculative.
10

Domestic violence is a valid basis for the assertion of 

dependency jurisdiction over a child. “Domestic violence is always 

a serious concern, and any propensity to it is certainly highly 

relevant as regards children’s welfare.” (Guardianship of 

Simpson (1998) 67 Cal.App.4th 914, 938.) Where, as here, the 

children have not suffered serious physical harm or illness as a 

result of domestic violence, the jurisdictional allegation must be 

supported by evidence that the violence is ongoing, and the 

children are at substantial risk of such harm at the time of the 

jurisdiction finding. (See In re Daisy H. (2011) 192 Cal.App.4th 

713, 717; In re Heather A. (1996) 52 Cal.App.4th 183, 194–195.)

Our courts have all too frequently explained the 

relationship between section 300, subdivision (b), and domestic 

violence: “ ‘[D]omestic violence in the same household where 

children are living ... is a failure to protect [the children] from the 

substantial risk of encountering the violence and suffering 

serious physical harm or illness from it.’ [Citation.] Children can 

be ‘put in a position of physical danger from [spousal] violence’ 

because, ‘for example, they could wander into the room where it 

was occurring and be accidentally hit by a thrown object, by a 

fist, arm, foot or leg ... .’ [Citation.] [¶] ‘Both common sense and 

expert opinion indicate spousal abuse is detrimental to children.’ 

(In re Benjamin D. (1991) 227 Cal.App.3d 1464, 1470, fn. 5; see 

In re Sylvia R. (1997) 55 Cal.App.4th 559, 562; Fields, The Impact 

of Spouse Abuse on Children and Its Relevance in Custody and 

Visitation Decisions in New York State (1994) 3 Cornell J.L. & 

Pub. Pol’y 221, 228 [‘Studies show that violence by one parent 

against another harms children even if they do not witness it.’]; 

Cahn, Civil Images of Battered Women: The Impact of Domestic 

Violence on Child Custody Decisions (1991) 44 Vand. L.Rev. 1041, 
11

1055–1056 [‘First, children of these relationships appear more 

likely to experience physical harm from both parents than 

children of relationships without woman abuse. Second, even if 

they are not physically harmed, children suffer enormously from 

simply witnessing the violence between their parents. ... [¶] 

Third, children of abusive fathers are likely to be physically 

abused themselves.’ (Fns. omitted.)].)” (In re E.B. (2010) 184 

Cal.App.4th 568, 576, disapproved on an unrelated point in 

Conservatorship of O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)

Finally, our courts have frequently observed that “ ‘[p]ast 

violent behavior in a relationship is “the best predictor of future 

violence.” Studies demonstrate that once violence occurs in a 

relationship, the use of force will reoccur in 63% of those 

relationships. ... Even if a batterer moves on to another 

relationship, he will continue to use physical force as a means of 

controlling his new partner.’ (Comment, Beating Again and 

Again and Again: Why Washington Needs a New Rule of Evidence 

Admitting Prior Acts of Domestic Violence (2000) 75 Wash. L.Rev. 

973, 977–978, fns. omitted.)” (In re E.B., supra, 184 Cal.App.4th 

at p. 576; In re R.C. (2012) 210 Cal.App.4th 930, 941–942.)

2.2. Analysis

The parents contend no substantial evidence supports the 

court’s jurisdiction finding based on domestic violence. We 

disagree.

As noted, the minor was not injured during the incident on 

January 3, 2021. Accordingly, to support jurisdiction under 

section 300, subdivision (b), the court had to find that the minor 

was at substantial risk of serious physical harm. Several factors 

support the court’s decision. First, notwithstanding the parents’ 

repeated denials, there was evidence that past incidents of 
12

domestic violence had occurred. Specifically, mother’s adult 

daughter told a Department social worker that mother told her in 

the past that father “hits, pushes and hold[s] onto her when he 

gets upset with her.” Thus, the incident on January 3 was not an 

isolated incident but was rather part of a pattern of domestic 

violence which, as we have said, may be a harbinger of future 

violence in the home.

Second, as discussed, the January 3 incident between 

father and mother occurred while mother was holding the minor 

in her arms and thereby placed the minor directly in harm’s way. 

Such conduct, particularly involving an infant, could easily have

injured the child. The parents attempt to sidestep this issue by 

asserting that they “did not agree father intentionally slapped 

mother’s face at the end of the incident.” In doing so, the parents

invite us to depart from the substantial evidence standard of 

review which, as we have said, requires us to consider whether 

there is any substantial evidence, contradicted or uncontradicted, 

to support the court’s decision. (See, e.g., In re R.T. (2017) 3 

Cal.5th 622, 633.) Mother’s statement to law enforcement, in 

which she said that father slapped her in the face, is sufficient to 

support the court’s domestic violence finding.

Third, the court observed that the parents appeared to 

minimize the seriousness of the domestic violence incident, 

noting that such minimization is a cause for concern because 

“[o]ne cannot correct a problem one fails to acknowledge.” (In re 

Gabriel K. (2012) 203 Cal.App.4th 188, 197.) The parents respond 

that their commitment to participate in programs such as 

parenting and domestic violence courses will ensure that no 

further incidents of domestic violence will occur and 

demonstrates that they are not in denial about the seriousness of 
13

the incident. Certainly, a parent’s willing participation in the 

court’s case plan is a positive sign. But real change takes time. 

The court did not err in concluding that the parents’ efforts had 

not yet ripened into real change. (Cf. In re Kimberly F. (1997) 56 

Cal.App.4th 519, 531, fn. 9 [“It is the nature of addiction that one 

must be ‘clean’ for a much longer period than 120 days to show 

real reform”]; In re Cliffton B. (2000) 81 Cal.App.4th 415, 423–

424 [200 days of sobriety not enough to demonstrate changed 

circumstances].)

3. Substantial evidence supports the removal order.

Father also argues the court erred in removing the minor 

from his custody. We disagree. 

Removing a child from a parent’s custody is a matter of last 

resort. Accordingly, section 361, subdivision (c), limits “ ‘the 

court’s authority to restrict a parent’s rights following the 

exercise of dependency jurisdiction.’ ” (In re S.R. (2020) 48 

Cal.App.5th 204, 218–219.) The provision states in pertinent 

part: “A dependent child shall not be taken from the physical 

custody of his or her parents ... with whom the child resides at 

the time the petition was initiated, unless the juvenile court finds 

clear and convincing evidence of any of the following 

circumstances[:] ... [¶] (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 [was] 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 parent’s ... physical custody. ...” (§ 361,

subd. (c)(1).) As noted, we “must determine whether the record, 

viewed as a whole, contains substantial evidence from which a 

reasonable trier of fact could have made the finding of high 
14

probability demanded by this standard of proof.” 

(Conservatorship of O.B., supra, 9 Cal.5th at p. 1005.)

“A removal order is proper if it is based on proof of 

(1) parental inability to provide proper care for the minor[s] and 

(2) potential detriment to the minor[s] if [they] remain[ ] with the 

parent. [Citation.] The parent need not be dangerous and the 

minor need not have been harmed before removal is appropriate. 

The focus of the statute is on averting harm to the child.” (In re 

T.W. (2013) 214 Cal.App.4th 1154, 1163.) The juvenile court may 

consider the parent’s past conduct as well as the present 

circumstances. (See, e.g., In re John M. (2012) 212 Cal.App.4th 

1117, 1126.)

As discussed ante, father was the aggressor in the domestic 

violence incident on January 3, 2021. Mother also stated that 

father was prone to “fits of rage.” Father’s conduct on

January 3, 2021—when he pushed mother against the wall and 

slapped her in the face while she was holding the infant—

demonstrates that he can be volatile and aggressive, even where 

such actions directly endanger the minor. And the fact that the 

minor is an infant only intensifies the concern that violent 

conduct in her proximity could result in serious injury to her.

Father suggests that less intrusive alternatives exist and 

therefore the court should not have removed the minor from his 

custody. For example, father notes that he was “cooperating with 

the Department, he was already established in programs, and he 

was willing to continue in any additional programs,” and 

therefore conditioning custody on continued compliance with 

those programs was an available alternative to removal.

Similarly, father contends “there could have been an order for 

unannounced home inspections by the social worker and [the 
15

minor’s] attorney.” None of these measures, however, could 

prevent injury to the minor that might result from a sudden, 

violent outburst.

Father analogizes the present case to In re Basilio T. (1992) 

4 Cal.App.4th 155, a case in which the court of appeal reversed a 

removal order for lack of substantial evidence. There, after 

affirming the jurisdictional findings removing two young children 

from parents Basilio and Marianne, the court emphasized the 

heightened burden of proof at the dispositional stage and 

summarized the scant evidence offered by the agency as follows: 

“the September 6, 1990, and October 16, 1990, incidents[4]; the 

couple’s previous history of involvement with child protective 

services and violence; reports by neighbors of Marianne 

screaming at the minors and hitting them; and the social 

worker’s interviews with the minors, who said they observed 

Marianne and Basilio fighting. We have already remarked on the 

skimpy nature of the information in the social study report 

concerning the couple’s previous history of violence. We also note 

the reports by the complaining neighbors were at least double 

hearsay and contradicted by a live witness, whom the trial court 

explicitly found credible. While [one child] was found not 

4 Little evidence is given about the two incidents. The court stated only 

that on September 6, 1990, “police were called to investigate a report of 

an assault with a knife involving Marianne and Basilio. Marianne 

decided not to press charges.” As for the other incident, Marianne told 

officers that “Basilio had struck her and forced her out of their home. 

According to the police report, police found Marianne outside the 

apartment naked; however, a neighbor testified that Marianne was 

wearing clothes and Basilio testified she was wearing a robe.” Again, 

Marianne declined to press charges. (In re Basilio T., supra, 4 

Cal.App.4th at p. 160.)
16

qualified to testify, [the other child] basically recanted much of 

what he told the social worker. That leaves the two incidents of 

domestic violence in which the police were called. While these 

incidents presumably occurred in or near the minors’ presence, it 

is significant that neither incident directly affected either minor 

physically, i.e., the adults were fighting with each other and not 

directing their anger at the minors or abusing them. In fact, no 

evidence whatsoever was presented that the minors were harmed 

physically during the incidents that led to this proceeding. In 

sum, we find there was not substantial evidence to uphold a 

finding under section 361, subdivision (b)(1), under the requisite 

clear and convincing standard.” (Id. at pp. 170–171.) The court 

stated further that in light of the evidence, the case was “simply 

not such an extreme case to warrant removal.” (Id. at p. 171.)

In re Basilio T. is not analogous and is therefore of no 

assistance to father. In that case, the court considered two 

instances of domestic violence but had little information about 

the nature of the incidents because Marianne elected not to press 

charges. In the present case, however, there is substantial 

evidence that father threw or kicked the minor’s walker against a 

wall, punched a wall, pushed mother against the wall, and 

slapped her in the face—all while mother was holding the minor 

in her arms. Further, and unlike In re Basilio T., where it was

unknown whether the children were near the parents while they 

were fighting, here the parents admit that mother was holding 

the minor in her arms during the January 3 incident and that the 

minor began to cry as the situation escalated. Father also notes

that the court in In re Basilio T. emphasized that the children did 

not suffer any physical harm during the parents’ fighting. But as 

we have said, actual harm to a child is not necessary if there is a 
17

substantial risk of serious harm in the future, as there is in the 

present case.5

In sum, and for the reasons stated, substantial evidence 

supports the court’s removal order.

DISPOSITION

The adjudication and disposition orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, Acting P. J.

WE CONCUR:

EGERTON, J.

LIPNER, J.*

5 For this reason, father’s citation to In re Heather A., supra, 52 

Cal.App.4th 183, is also unavailing.

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.