Filed 6/11/24 In re Owen S. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re OWEN S., a Person Coming Under 

the Juvenile Court Law.

ORANGE COUNTY SOCIAL 

SERVICES AGENCY,

 Plaintiff and Respondent,

v.

D.S.,

 Defendant and Appellant.

 G063618

 (Super. Ct. No. 23DP1077)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Daphane 

Grace Sykes, Judge. Affirmed in part and reversed in part with instructions.

Marisa L. D. Conroy, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Leon J. Page, County Counsel, Debbie Torez and Aurelio Torre, Deputy 

County Counsel, for Plaintiff and Respondent.

No appearance for the Minor.

* * *
2

The purpose of juvenile dependency proceedings is to protect “children 

who are currently being physically, sexually, or emotionally abused, being neglected, or 

being exploited, and to ensure the safety, protection, and physical and emotional wellbeing of children who are at risk of that harm.” (Welf. & Inst. Code, § 300.2, subd. (a), 

italics added.)

1

 A juvenile court need not wait until a child is seriously abused or injured 

to assume jurisdiction. (In re Heather A. (1996) 52 Cal.App.4th 183, 193–196.)

Here, the Orange County Social Services Agency (the Agency) filed a 

dependency petition alleging four-month-old Owen S. was at a substantial risk of serious 

physical harm by Daniel S. (Father). (§ 300, subd. (a).) The allegations were based on

Father’s prior incidents of having physically abused and inflicted serious physical injuries 

on two of Owen’s half siblings of a similar age about 13 years earlier, and Father’s 

present day failure to acknowledge his past behavior.

The Orange County Juvenile Court (the court) conducted a combined 

jurisdiction and disposition hearing. As far as its jurisdiction finding, the court sustained 

the petition and declared Owen a dependent. As far as its dispositional orders, the court 

left Owen in the custody of Michelle S. (Mother), and ordered supervised visitation for 

Father, along with other services. Father has filed the instant appeal.

Father argues the court’s jurisdiction finding was not supported by 

substantial evidence. We disagree. The severity of the injuries to Owen’s half siblings

combined with Father’s present day failure to acknowledge his actions constitute 

substantial evidence that supports the court’s finding that Father presented a current and 

substantial risk of serious physical harm to Owen. (See In re Gabriel K. (2012) 203 

Cal.App.4th 188, 197 [“One cannot correct a problem one fails to acknowledge”].)

Father also argues the court’s dispositional orders were not supported by 

1

Further undesignated statutory references are to the Welfare and Institutions Code.
3

substantial evidence and there were reasonable means of protecting the child without 

removing Owen from Father’s custody. County counsel concedes the court failed to state 

facts supporting its dispositional orders (as it is required to do), but argues Father 

forfeited this claim by failing to object on these grounds below. We agree. However, we 

find this an appropriate case to excuse Father’s forfeiture.

Consequently, we affirm the court’s jurisdiction finding, reverse the court’s 

dispositional orders, and remand with instructions to conduct a new disposition hearing.

I

FACTS AND PROCEDURAL BACKGROUND

In 2015, the Court of Appeal affirmed Father’s convictions in San 

Bernardino County for two counts of child abuse likely to cause injury or death. (Pen. 

Code, § 273a, subd. (a).) The jury also found true an allegation Father had personally 

inflicted great bodily injury upon a child under the age of five. (Pen. Code, § 12022.7, 

subd. (d).) The trial court imposed a prison sentence of eight years. Father’s former wife 

Brittany was also convicted of both crimes and was granted probation.

The Court of Appeal’s unpublished opinion was entered into evidence at 

the jurisdiction/disposition hearing.2 We quote from the opinion at length because 

Father’s prior abuse of Owen’s stepsiblings formed the basis of the Agency’s allegations 

in the instant proceeding (in the opinion Father is referred to as Daniel):

“Daniel and Brittany were married and lived on the Army base in Fort 

Irwin, California. Brittany’s son, G.H., was born in October 2008, and had a different 

father who was not Daniel. In June 2010, Brittany gave birth to a daughter, N.S.

“While Daniel worked, Brittany managed the household. Defendants 

2 We are omitting the case citation for privacy reasons. Also included in evidence were 

summaries of the related juvenile dependency proceedings in San Bernardino County.
4

became friends with Heidi R[.] and Keith R[.], who had six children, and Heidi often 

babysat for G.H. and N.S. G.H. was always hungry when he visited the R[.] family.

“Once when the families were together, Heidi watched Daniel become very 

upset with G.H., grab his arm and order him to stand against a wall. Heidi confronted 

Daniel, who admitted he was struggling to control his temper. Heidi also noticed a large

hole in the wall at defendants’ home.

“During the families’ visit to a swimming pool in July 2010, Heidi’s 

teenage daughter, Alisa, heard G.H. complaining to Daniel that he was hungry. In 

response, Daniel picked up G.H. and threw him into the pool, crying and screaming, 

while Daniel continued to dunk him. Daniel held the boy under the water while he 

struggled to reach the surface and gasped for breath. Alisa knew G.H. could not swim. 

She grabbed the child and chastised Daniel, who responded, ‘Don’t tell me what to do. 

He is my child, not yours.’ Another time, Heidi’s son Brice also saw Daniel dunking 

G.H.

“On July 23, 2010, Heidi noticed G.H. had a large bruise around his ear and 

on the side of his head. Brittany claimed he had slipped in the bathtub. G.H. was scared 

of the water until Heidi bathed him together with her daughter of the same age. Heidi 

photographed bruises on G.H.’s legs and back but she did not contact the police.

“On July 28, 2010, Heidi found blood while changing N.S.’s diaper. There 

was bruising in the shape of handprints on the baby’s torso. Keith testified he noticed an 

additional injury on G.H.’s torso in the shape of a boot print, similar to the military boots 

issued at Fort Irwin. Keith’s command unit instructed him to bring both children to the 

hospital. Heidi observed G.H. had different bruising from what she had seen the week 

before. Heidi photographed the fresh bruises with her cell phone. [¶] . . . [¶]

“The children were eventually transferred to Loma Linda University 

Children’s Hospital and treated by Dr. Amy Young. Both children were undersized for 
5

their ages. G.H.’s height was average but his weight was in the lowest fifth percentile for 

his age. During six days in the hospital, G.H. gained two pounds and six ounces, much 

greater than the normal gain of an ounce a day for a child his age. N.S., who was eight 

weeks old, was in the lowest 10th percentile of weight for her age. She had only gained 

about 19 grams a day since her birth. A newborn normally gains about 30 grams per day. 

Her head circumference was in the fifth percentile.

“Dr. Young noted that G.H. had over 40 different injuries to his body. G.H. 

had a torn frenulum—the flap of skin connecting the lip to the gum inside the mouth—

which would cause a large amount of bleeding. A torn frenulum could be caused, either 

accidentally or from abuse, by a blunt impact to the mouth, something forcibly shoved 

into the mouth, or a slap across the face. G.H. also had bruising to his right ear and the

right side of his head, which was not caused by a toddler injuring himself accidentally. 

When a toddler falls down, he usually falls on the chin, nose, forehead, shins, or other 

anatomical protuberances. G.H.’s injuries were multiplanar, meaning the injury could be 

caused by a hand striking the face or by an object that can mold to the face. G.H. also 

had abrasions beneath his nose and on his chin, and an additional bruise on his upper lip, 

consistent with being hit in the face. Dr. Young would have expected a reasonable 

caregiver to have sought medical attention for the visible injuries.

“G.H. had more injuries to his genitals, bruising above his penis, on the tip 

of his penis, and on his inner groin area, and abrasions to his scrotum. This was unusual 

because G.H.’s diaper would have protected these areas of the body. The injuries could 

have been caused by rough diaper changing, or by being pinched, scratched or punched. 

Finally, G.H. had bruising to his right forearm, right thigh, upper thigh, outer portion of 

his knee, hand, back, and abdomen. His blood panel revealed a high level of liver 

enzymes, indicating liver damage and abdominal trauma as a result of blunt impact.

“N.S.’s body bore about 20 bruises located on her left neck, upper left arm, 
6

left abdomen, back, chest, right arm, left scalp, behind her left ear, and right leg. There 

were also some abrasions beneath her left ear. The head and ear injuries could have been 

caused by being hit on the side of the head. N.S.’s blood panel also revealed a high level 

of liver enzymes, indicating liver damage.

“N.S.’s wrists appeared to be slightly fractured, caused by yanking on the 

baby’s arms. The fracture to the distal radius, a wrist bone, was a significant injury.

“Both children’s bruises were readily visible and were not typically caused 

except by physical abuse. Dr. Young’s opinion was that the children were victims of 

physical abuse. [¶] . . . [¶]

“A deputy sheriff, Robin Real, assigned to the Crimes Against Children 

Unit, interviewed Daniel on August 12, 2010, and asked him to explain photographs of 

the children’s injuries. Daniel admitted that he had disciplined G.H. ‘too hard’ and had 

‘slapped [G.H.] upside the head,’ causing the large bruise to the child’s head and ear. 

Daniel said G.H. was afraid of him, and Daniel admitted hitting G.H. in the abdomen and 

the groin in frustration. Daniel also admitted N.S.’s wrist injuries may have occurred 

when Daniel grabbed the baby’s hands and tried to stand her up, although she was less 

than two months old. [¶] . . . [¶]

“A fellow soldier testified that his son played with G.H. and that, when he 

babysat G.H. and N.S. a few times, he never saw any injuries on the children. The 

witness said Daniel never acted improperly with G.H., and G.H. had been playing in a 

bounce house before being taken to the hospital. On cross-examination, the witness 

admitted he had not mentioned the bounce house in previous testimony.

“The prosecution presented rebuttal evidence that, in the earlier trial, Daniel 

testified that G.H. had fallen out of the bathtub and hit the side of his head and ear on the 

toilet, leaving a mark on his ear. In his statement to police, Daniel had said it was him, 

and not Brittany, who fractured N.S.’s wrists.”
7

According to the Agency’s detention report: “On August 11, 2010, the San 

Bernardino County Sheriff’s department administered a polygraph test to [Father] and he 

failed the polygraph test. After failing the polygraph test, he admitted he grabbed [G.H.] 

by the arms hard and puts him in the corner for time outs. [Father] admitted to hitting 

[G.H.] on his legs and back as punishment. [Father] reported he gets frustrated with

[G.H.], and as a result, [Father] will hit him in the diaper. [Father] reported this is how 

[G.H.] received the bruises to his penis and scrotum. [Father] denied he pinched [G.H.]’s 

penis. [Father] admitted he has hit [G.H.] on the abdomen on several different occasions. 

[Father] disclosed to causing the bruises to [G.H.]’s stomach area. [Father] admitted to 

hitting [G.H.] on the side of his head. [Father] reported that he caused the injury to 

[G.H.]’s ear and head. [Father] reported he lifted [N.S.] off the floor by her hands and 

that he holds her up to stand. [Father] admitted he probably twisted [N.S.]’s wrists, 

which probably caused the broken wrists. [Father] denied he did this out of frustration. 

[Father] reported he swaddles [N.S.] in a blanket very tight, and he feels her injuries 

occurred from being swaddled too tight. [Father] admitted to picking up both, [G.H.] and 

[N.S.], and squeezing them in his hands between his fingers and thumbs. [Father] denied 

he hurt [N.S]. During the interview with Detective Real, [Father] began to cry because 

he said [G.H.] was afraid of him. [Father] reported he only tried to make [G.H.] tougher,

but he only made [G.H.] cower in fear.”

In 2011, Father’s paternal rights were terminated as to N.S. The juvenile 

dependency matter as to G.H. came within the jurisdiction of the state of Ohio. In 2012 

and 2014, Father’s paternal rights were terminated as to two additional children that were 

in the home (K.S. and D.S.). During the proceedings, it was reported that Father and 

Brittany “actively engaged in domestic violence with both parents hitting each other at 

various times.” Brittany reported that Father “had once choked her until she was 

unconscious and that while unconscious [Father] punched her in the face.” Father later 
8

reported he has another child, H.S., with whom parental rights have not been terminated; 

however, he has not had any visitations.

In 2020, after serving seven years, four months (88 months) in prison, 

Father was released from prison. In February 2023, Father was released from parole.

The Agency’s Investigation

On September 6, 2023, an Agency social worker conducted an 

unannounced visit at Father’s home in Orange County (the record does not disclose 

precisely what prompted the Agency’s investigation). Living at the home were Father, 

Mother, Owen (15 days old), and two children of Mother by different fathers, A.S (11 

years old) and E.M. (8 years old).

The social worker interviewed Mother who said she and Father had been 

living together since October 2022 and were married in March 2023. Mother said Father 

was not violent with her or the children. Mother said she was currently on disability 

leave and had no history of alcohol or drug abuse. Mother said her children were 

medically insured and had no history of physical, mental, or developmental concerns. 

Mother said she does not physically discipline the children.

Mother told the social worker she was aware Father was incarcerated for 

eight years for child endangerment. Mother said Father shared with her the abuse the 

children involved had endured. Mother said Father told her that he took the blame to 

keep Brittany from being incarcerated. Mother had received an anonymous e-mail 

warning of Father’s abuse history and she believed it to be from Brittany.

Both of the older children (A.S. and E.M.) were interviewed separately at 

their school. Both children appeared clean, well-groomed, calm, and cooperative. Both 

children denied being victims of physical or emotional abuse. Both children said they 

felt safe in the home and safe with Father.
9

Father told the social worker he was discharged from the U.S. Army in 

2013 with a disability and was receiving full benefits. Father said he is currently 

unemployed but was attending college to become a nurse. Father said he was diagnosed 

with posttraumatic stress disorder (PTSD) and attends therapy through a Veteran’s 

Affairs therapist. Father believed Brittany called the Agency to report him as an act of 

revenge. Father denied any history of domestic violence.

Father told the Agency, “in July 2010 he received a call from his sergeant 

requesting he return to the military base as an emergency had occurred. [Father] 

explained that upon his return to the military base he was informed that his children had 

been severely abused and were taken to the hospital by the babysitters [Heidi R. and 

Keith R.] [Father] explained that he and his ex-wife, Brittany, were questioned regarding 

the bruises, marks, and broken wrists that the children, [N.S. and G.H.], had endured. 

[Father] stated he volunteered to take a polygraph test.”

3

Father also told the Agency that, “he and his ex-wife denied hurting the 

children and he believed it was the babysitters who hurt the children. [Father] stated he 

continued to deny the allegations and stated that he was questioned by detectives for 

hours. [Father] stated that the detectives told him that he or his ex-wife were lying, and 

they were going to either arrest the ex-wife or him. [Father] stated that the detective 

asked him, ‘Want us to take your wife (ex-wife) or you’? [Father] stated he was young 

and naïve and could not believe that his ex-wife would ever hurt his children, so he 

decided to respond to the detectives by saying ‘take me’. [Father] stated that the 

detectives stated he needed to confess how he hurt the children and [Father] eventually 

said, it was him that hurt the children and the detectives continued to ask him how. 

[Father] stated he told the detective he might have grabbed [N.S.’s] wrists too hard 

3

The San Bernardino Sheriff’s Department asked Father whether he caused the injuries to 

the two children and he failed the polygraph test.
10

causing them to break. [Father] stated he took the blame as he could not allow for his exwife to be arrested. [Father] stated he believed he was protecting [Brittany] as he 

believed at that time that it was the babysitters who abused the children . . . . [Father] 

stated that before taking the blame for hurting the children he told the detectives multiple 

times that he did not hurt his children and strongly believed it was the babysitters.”

Father said that “he never hurt his children, and many factors ultimately led 

to his arrest. [Father] explained the following factors that led to his arrest were the 

following: number one, he did not believe his ex-wife would hurt the children and 

thought he was protecting her; number two, he was young and naïve; number three, he 

was pressured into confessing to the detectives; number four, he could not afford an 

attorney; number five, his public defender called him ‘stupid’ for not taking the plea deal 

that was offered to him, ultimately not representing him adequately; number six, [Father]

believed the District Attorney (DA) might have been involved in the [jurors’] decision as 

[Father] saw the DA in an office talking to the jurors.”

Court Proceedings

On September 29, 2023, the Agency filed a request for a protective custody 

warrant. The court denied the request. That same day, the Agency filed a noncustody 

application for a petition.

On October 3, 2023, the Agency filed a juvenile dependency petition 

alleging Owen came within the jurisdiction of the juvenile court under three subdivisions 

of section 300. (See §§ 300, subd. (a) [substantial risk of serious physical harm], 300, 

subd. (b)(1) [failure to protect], 300, subd. (j) [abuse of sibling].)

The Agency also filed a detention report alleging Owen “will be at serious 

risk of physical abuse by [Father] if he continues to be in his care. Although, [Father] 

reported he has turned his life around, [Father] has not participated in any type of services 
11

to address the concerns regarding the physical abuse charges against the child’s paternal 

half-siblings. [Father] was not being forthcoming and later indicated he was wrongfully 

convicted . . . . [Father] claimed he did not hurt his children and strongly believed it was 

the babysitters who abused the children.” The Agency stated Father’s “statements show 

he has not taken responsibility for his child abuse charges even though he has completed 

his sentences.” The Agency recommended that “the family would benefit from continued 

Juvenile Court intervention while the child remains in the care of [Mother] with the 

supervision and intervention of the Court.”

On October 4, 2023, the court found a prima facie case and ordered Owen 

detained from Father and released to Mother with several protective orders (e.g., no 

unauthorized contact with Father).

On November 14, 2023, the Agency filed a jurisdiction/disposition report. 

The Agency “recommended [Father] remain out of the family home until [Father] is 

participating in services to address his role in the abuse of the half-siblings and it can be 

determined [Father] has taken measures to ensure said abuse will not happen again.”

On January 12, 2024, the Agency filed an addendum report in which it 

continued to recommend that the court sustain the petition, declare dependency, provided 

family maintenance services to Mother with enhanced services to Father, and schedule a 

six-month review.

On January 18, 2024, the court presided over a jurisdiction/disposition 

hearing. At the conclusion of the hearing, the court declared Owen a ward of the court 

and adopted the Agency’s recommendations (the hearing will be covered in greater detail 

in the discussion section of this opinion).
12

II

DISCUSSION

Father filed an appeal arguing the court’s jurisdictional findings were not 

supported by substantial evidence; county counsel concedes the court’s dispositional 

orders were not supported by findings of fact.

We review challenges to the sufficiency of the evidence underlying 

jurisdiction and disposition findings for substantial evidence. (In re Ma.V. (2021) 

64 Cal.App.5th 11, 22 (Ma. V.).) The appellate court determines whether there is 

substantial evidence, contradicted or uncontradicted, to support those findings and, in so 

doing, “draws all reasonable inferences from the evidence to support the findings and 

orders.” (In re Heather A., supra, 52 Cal.App.4th at p. 193.) The appellate court reviews 

the record in the light most favorable to the juvenile court’s findings and does not 

reweigh the evidence or the court’s credibility determinations. (Ibid.)

If supported by substantial evidence, the judgment or finding must be 

upheld, even though substantial evidence may also exist that would support a contrary 

judgment and the dependency court might have reached a different conclusion had it 

determined the facts and weighed credibility differently. (In re Dakota H. (2005) 132 

Cal.App.4th 212, 228.) Thus, the pertinent inquiry when a finding is challenged on 

sufficiency of the evidence grounds is whether substantial evidence supports the finding, 

not whether a contrary finding might have been made. (Ibid.)

In the remainder of this discussion we shall: A) state relevant principles of 

law; B) summarize the arguments made at the jurisdiction/disposition hearing; and

C) analyze the facts as applied the relevant laws.

A. Relevant Principles of Law

“A child who comes within any of the following descriptions is within the 
13

jurisdiction of the juvenile court which may adjudge that person to be a dependent child 

of the court: [¶] The child has suffered, or there is a substantial risk that the child will 

suffer, serious physical harm inflicted nonaccidentally upon the child by the child’s 

parent or guardian.” (§ 300, subd. (a).) Another ground for jurisdiction is that: “The 

child has suffered, or there is a substantial risk that the child will suffer, serious physical 

harm or illness, as a result of . . . : [¶] (A) The failure or inability of the child’s parent or 

guardian to adequately supervise or protect the child.” (§ 300, subd. (b)(1)(A).) A

further ground is that: “The child’s sibling has been abused or neglected . . . , and there is 

a substantial risk that the child will be abused or neglected . . . .” (§ 300, subd. (j).)

“‘When a dependency petition alleges multiple grounds for its assertion that 

a minor comes within the dependency court’s jurisdiction, a reviewing court can affirm 

the juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases 

for jurisdiction that are enumerated in the petition is supported by substantial evidence. 

In such a case, the reviewing court need not consider whether any or all of the other 

alleged statutory grounds for jurisdiction are supported by the evidence.’” (In re I.J.

(2013) 56 Cal.4th 766, 773.)

“Although section 300 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. [Citations.] The court may consider past events in deciding whether a 

child presently needs the court’s protection. [Citations.] A parent’s ‘“[p]ast conduct may 

be probative of current conditions” if there is reason to believe that the conduct will 

continue.’” (In re Cole L. (2021) 70 Cal.App.5th 591, 601–602.)

“To establish a defined risk of harm at the time of the hearing, there ‘must 

be some reason beyond mere speculation to believe the alleged conduct will recur.’” 

(In re D.L. (2018) 22 Cal.App.5th 1142, 1146; see Ma.V., supra, 64 Cal.App.5th at p. 23 
14

[there must be some reason to believe acts creating a risk of harm to the child may 

continue in the future]; In re J.N. (2021) 62 Cal.App.5th 767, 775 [there must be “a nexus 

between the parent’s past conduct and the current risk of harm”].)

A parent is collaterally estopped to relitigate the abuse of a minor’s sibling 

where the issue has been decided in previous dependency proceeding to which the parent 

was a party. (In re Joshua J. (1995) 39 Cal.App.4th 984, 992.) “Proof that either parent, 

the guardian, or other person who has the care or custody of a minor who is the subject of 

a petition filed under Section 300 has physically abused, neglected, or cruelly treated 

another minor shall be admissible in evidence.” (§ 355.1, subd. (b).)

In making a jurisdiction ruling the juvenile “court shall consider the 

circumstances surrounding the abuse or neglect of the sibling, the age and gender of each 

child, the nature of the abuse or neglect of the sibling, the mental condition of the parent 

or guardian, and any other factors the court considers probative in determining whether 

there is a substantial risk to the child.” (§ 300, subd. (j), italics added.)4

“We recognize that denial is a factor often relevant to determining whether 

persons are likely to modify their behavior in the future without court supervision. This 

most commonly is significant in cases where a person having been adjudicated to have 

perpetrated sexual or physical abuse on a minor in his custody, vigorously denies the 

abuse and, because of this denial, is likely to be resistant to therapy or treatment 

necessary to effect behavioral changes to insure the minor will not be a risk if placed in 

his custody.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044.)

“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 

4

Under section 300, subdivision (j), the term “sibling” includes a child’s half sibling or 

stepsibling. (See, e.g., Los Angeles County Dept. of Children & Family Services v. 

Superior Court (2013) 215 Cal.App.4th 962, 968-969.)
15

the juvenile court finds clear and convincing evidence of any of the following . . .: [¶]

(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 parent’s . . . physical custody.” (§ 361, subd. 

(c)(1).) “The court shall consider, as a reasonable means to protect the minor, each of the 

following: [¶] (A) The option of removing an offending parent . . . from the home. [¶] 

(B) Allowing a nonoffending parent . . . to retain physical custody as long as that parent 

. . . presents a plan acceptable to the court demonstrating that he or she will be able to 

protect the child from future harm.” (§ 361, subd. (c)(1)(A)&(B).)

B. The Jurisdiction/Disposition Hearing

At the jurisdiction/disposition hearing, the Agency called no witnesses and 

submitted into evidence its previously filed reports without objection. County counsel 

summarized Father’s prior acts of child abuse. Counsel argued that “the Agency has 

concerns in this case that [Father] is still not taking responsibility for what happened with 

the other children. And by [Father] not doing that, the child Owen is at risk of serious 

physical harm.” As far as Mother, counsel said that “she is aware of [Father’s] history 

but seems to downplay it as not serious and has said [Father] has told her it was his exwife [Brittany], essentially still not taking the blame for it.”

County counsel noted Mother’s two older children were not subjects of the 

instant petition: “However, the Agency, aside from in the detention report, has been 

unable to interview them to check and see if anything is going on in the home. When 

they do make appointments . . . , the children are not in the home for them to check and 

just see if there’s any violence or anything going on in the home.”

Owen’s appointed counsel argued the petition “can and should be sustained 
16

in whole.” Counsel argued that Owen was of “similar age and vulnerability as” his 

stepsiblings who had been victims of Father’s child abuse.

Father’s counsel argued Father “is now gainfully employed. He just 

informed me that he recently got promoted. Other than the fact that there’s this open case 

and that he can’t go home, overall he’s really changed his life around.”

The court asked, “If your client is still proclaiming his factual innocence, 

how then can he have an appreciation for or how then can he acknowledge any 

wrongdoing? [¶] He’s not acknowledging any wrongdoing; and there were clearly some 

pretty egregious circumstances. So how then could he have changed or improved if he 

didn’t even acknowledge he did anything wrong?” Father’s counsel responded: “The 

social worker in the report says: ‘Father reported he has taken responsibility for what 

happened in the past as he spent eight years in prison.’”

The court interjected: “Well, wait, wait. That’s not taking responsibility. 

If you’re convicted by jury and you are involuntarily committed to prison, that’s not 

taking responsibility; he had no choice in that part. It’s not like he signed up to go --

‘Okay, I’ll go to prison.’ He was ordered to go.

“So I’m wondering -- I mean perhaps there’s no pat answer, but I’m just 

trying to reconcile the two things that are talked about. I’m looking at a pretty serious 

case, yes, 10 years ago and a person that says, ‘Hey, I’m innocent. I’m innocent.’ And at 

the same time, you’re arguing that he’s now better. [¶] Better from what?

“He never said he was . . . guilty of whatever it was. You know, that’s kind 

of the issue I’m having. It’s not as though he . . . acknowledged and admitted, ‘Yes, I did 

that. It was egregious.’ -- I was at such-and-such a place in my mind; I was in such-andsuch-and-such a thing. And now I’ve done A, B and C, and, therefore -- you know -- see 

me now, so to speak. You know, ‘See what I’m doing now; see the person I am now.’ 

[¶] He’s not claiming that he’s . . . any different person from when he was then. He’s 
17

claiming, ‘I was innocent then; I’m innocent now.’”

The court announced that it would be sustaining the petition and declaring 

dependency. The court then heard counsel’s arguments as far as disposition. County 

counsel argued for the visitation by Father “to remain supervised as it currently is, with 

mother not to supervise.” Mother’s counsel argued that “Owen would best be served by 

having [Father] in the home under a family maintenance plan.” Father’s counsel largely 

joined in Mother’s request. Owen’s counsel generally asked that the court adopt the 

recommendation of the Agency.

The court found “by clear and convincing evidence that Section 361 (c)(1) 

applies and to vest custody with Father would be detrimental to the child, and to vest 

custody with mother is required to serve the child’s best interests. The welfare of the 

child requires that custody be taken from [Father] and remain vested with Mother.” The 

court did not state the facts supporting its dispositional orders.

C. Analysis and Application

Father is challenging the court’s jurisdiction ruling and dispositional orders. 

We will analyze these challenges separately.

1. The Court’s Jurisdiction Ruling

“‘A father does not have the privilege of inflicting brutal treatment upon 

each of his children in succession before they may individually obtain protection of the 

state.’” (In re Dorothy I. (1984) 162 Cal.App.3d 1154, 1158.) In Dorothy I., a threeyear-old child was declared a dependent child based on evidence her father had sexually 

molested her half sister over 15 years earlier. (Id. at pp. 1156–1157.) The Court of 

Appeal affirmed. The court reasoned that the father’s prior “specific acts of misconduct” 

were appropriately “being used in helping the [juvenile] court determine his 
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predisposition toward future sexual abuse with the minor Dorothy. This type of character 

evidence is essential, when available, to aid the court in dependency actions, which are 

concerned with the future well-being of a minor.” (Id. at p. 1159.)

Here, Father had a history of anger issues involving two of Owen’s half 

siblings, which resulted in Father inflicting serious injuries on both children over a 

sustained period of time. (See § 300, subd. (j).) Father’s bursts of anger against two 

young children were witnessed by multiple people. Although Father’s acts of child abuse 

had occurred about 13 years earlier (in 2010), Father was either in prison or in 

constructive custody (parole) for most of that intervening period until February 2023.

What was of particular concern to the Agency, and ultimately to the court, 

was that Father was not acknowledging—and was actually denying—having inflicted 

serious injuries on Owens’ half siblings. And largely because Father was not currently 

taking responsibility for his actions, the court ultimately concluded Owen was at risk of 

serious physical harm. As other courts have held, we find Father’s past behavior and 

current denials are relevant factors that the court could consider “in determining whether 

there is a substantial risk to the child.” (§ 300, subd. (j); In re Esmeralda B., supra, 11 

Cal.App.4th at p. 1044 [“denial is a factor often relevant to determining whether persons 

are likely to modify their behavior in the future without court supervision”].)

In sum, we conclude that based on our review of the record, there was 

sufficient evidence to support the court’s conclusion that Owen was at serious risk of 

physical harm. Although this appears to have been a close ruling, and perhaps a different 

court may have made a contrary ruling, we conclude there was substantial evidence to 

support the court’s decision. (See In re Dakota H., supra, 132 Cal.App.4th at p. 228 [the 

pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is 

whether substantial evidence supports the finding, not whether a contrary finding might 

have been made].) Thus, we affirm the court’s jurisdiction ruling.
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Father cites various cases such as Ma. V., supra, 64 Cal.App.5th 11, for the 

proposition: “The Agency’s reliance on facts from a fourteen year old case does not 

establish a substantial risk of serious physical harm. Moreover, the record is silent as to 

any nexus between the past conduct and a current risk of harm.” We disagree.

In Ma. V., a juvenile court sustained a dependency petition, in part, based 

on the mother’s having exposed her children to incidents of domestic violence through 

engaging in abusive relationships, and having mental health problems that were left 

untreated. (Ma.V., supra, 64 Cal.App.5th at p. 22.) However, the Court of Appeal found 

there was insufficient evidence to sustain the jurisdiction order because there had been no 

recent incidents of domestic violence: “Because of the pandemic, Mother had an 

unusually long amount of time before the jurisdiction hearing. In that time, Mother 

resolved the key [mental health] concerns warranting jurisdiction.” (Id. at p. 23.)

What distinguishes the facts in this case from Ma.V., and other cases cited 

by Father, and what provides the nexus between his past conduct and the current risk of 

harm to Owen, is Father’s present day denial of his prior acts of severe child abuse

against Owen’s two half siblings. Again, we find substantial evidence supports the 

court’s ruling. (See In re I.J., supra, 56 Cal.4th at p. 778 [“the more severe the type of 

sibling abuse, the lower the required probability of the child’s experiencing such abuse to 

conclude the child is at a substantial risk of abuse or neglect under section 300. If the 

sibling abuse is relatively minor, the court might reasonably find insubstantial a risk the 

child will be similarly abused; but as the abuse becomes more serious, it becomes more 

necessary to protect the child from even a relatively low probability of that abuse”].)

2. Dispositional Orders

Generally, “[a] child may not be taken from a parent’s physical custody 

during juvenile dependency proceedings . . . unless clear and convincing evidence 
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supports a ground for removal specified by the Legislature. Removal on any ground not 

involving parental rejection, abandonment, or institutionalization requires a finding that 

there are no reasonable means of protecting the child without depriving the parent of 

custody.” (In re Henry V. (2004) 119 Cal.App.4th 522, 525.)

Before a juvenile court removes a dependent child from the custody of his 

or her parents, it must “make a determination as to whether reasonable efforts were made 

to prevent or to eliminate the need for removal . . . . The court shall state the facts on 

which the decision to remove the minor is based.” (§ 361, subd. (e).)

County counsel states that “the juvenile court did not detail the specific 

basis as to the lack of reasonable means by which Father could retain custody. A court 

errs in failing to state facts supporting that conclusion.” However, county counsel argues, 

“Father did not object to any such deficiency below, and the issue could have easily been 

remedied by a timely objection and/or request for such findings; his complaints should be 

deemed forfeited before this Court.”

County counsel is correct that an appellate court will ordinarily not 

consider a challenge to a dependency ruling if that challenge pertains to an objection that 

could have been raised in the juvenile court; however, “application of the forfeiture rule 

is not automatic.” (In re S.B. (2004) 32 Cal.4th 1287, 1293 (S.B.).)

In S.B., supra, 32 Cal.4th at page 1293, the Supreme Court determined that 

the appellate court did not abuse its discretion by entertaining the issue raised by the 

mother on appeal despite her failure to object below. Indeed, the issue in S.B. arose 

during the permanency planning hearing, which is essentially at the end of the juvenile 

dependency process, when the interests shift to focus on the permanency and stability of 

the minors. (See Id. at p. 1292.) By contrast, the matter before us is in a much earlier 

stage, when the parent’s interest in reunification is given precedence over the child’s need 

for stability and permanency. (See In re Marilyn H. (1993) 5 Cal.4th 295, 298, 310.)
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The instant matter seems to present a strong case for the exercise of our 

discretion to excuse Father’s forfeiture. Although we have found there was substantial 

evidence to support the court’s jurisdiction ruling, there was no record of Father having 

inflicted any harm as to Owen, and there is no indication in the record that the court 

considered any options short of removing Owen from Father’s custody. (See, e.g., In re 

Henry V., supra, 119 Cal.App.4th at p. 529 [“unannounced visits and public health 

nursing services [are] potential methods of supervising an in-home placement”].)

Thus, we are reversing the court’s dispositional orders with instructions to 

conduct a new hearing. If the court removes Owen S. from Father’s custody, the court 

shall state the factual basis of its ruling. We are further instructing the court to gather and 

consider any additional addendum reports submitted by the Agency, and to consider any 

orders that may be appropriate given the current circumstances.

III

DISPOSITION

The court’s jurisdiction ruling is affirmed. The court’s dispositional orders 

are reversed. On remand, the court is instructed to conduct a new disposition hearing.

MOORE, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

DELANEY, J.