Filed 12/4/20 In re King R. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

In re King R., a Person Coming Under 

the Juvenile Court Law.

_____________________________________

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

JOSHUA R.,

Defendant and Appellant.

B305513

(Los Angeles County

Super. Ct. No. 19CCJP06575A)

APPEAL from an order of the Superior Court of 

Los Angeles County, Hon. Pete R. Navarro, Commissioner. 

Affirmed in part, reversed in part, with directions. 

Jacques Alexander Love, under appointment by the Court 

of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting 

Assistant County Counsel, Veronica Randazzo, Deputy County 

Counsel, for Plaintiff and Respondent.

_________________________
2

Joshua R. (father) challenges the juvenile court’s 

disposition order, urging that the court erred by (1) removing his 

infant son from his custody, and (2) conditioning visitation 

between father and son on the child’s pediatrician’s approval. We 

find the removal order well within the scope of the juvenile 

court’s discretion, but conclude that the court erred in delegating 

to the pediatrician authority to permit visitation. We thus affirm 

in part and reverse in part with directions.

FACTUAL AND PROCEDURAL BACKGROUND

A. Background

King R. (born in July 2018) is the child of father and 

Yorel B. (mother). When this case was initiated in September 

2019, King was living with father, who was his sole caregiver. 

Father admitted to having a criminal history1 and smoking 

marijuana three times a day, but he denied smoking around 

King. Father and mother, whom father described as a crack 

addict, had never been in a serious relationship. 

On October 9, 2019, the Los Angeles County Department of 

Children and Family Services (DCFS) filed a juvenile dependency 

petition alleging that King was within the court’s jurisdiction 

pursuant to Welfare and Institutions Code2 section 300, 

subdivisions (b) and (j). Specifically, the petition alleged that 

mother had a 17-year history of abusing cocaine, amphetamines, 

and methamphetamines, which resulted in mother’s loss of 

custody of King’s half-siblings (counts b-1, j-1), and father had a 

1 Father has been convicted of driving on a suspended 

license, possessing controlled substances, and misdemeanor theft. 

2 All subsequent statutory references are to the Welfare and 

Institutions Code.
3

history of substance abuse, was a current abuser of marijuana, 

and had been convicted of purchasing and possessing controlled 

substances (count b-2).

On October 10, 2019, the juvenile court ordered King 

detained from mother and released to father under DCFS 

supervision.

B. Jurisdiction and Initial Disposition

In November 2019, father and King were evicted from their 

apartment and reportedly were staying in motels, with friends, or 

in their car. DCFS provided father with information about 

obtaining motel vouchers, but father did not follow up.

In December 2019, DCFS was advised that father and King 

had been living with paternal aunt Jazzmine B. (the wife of 

father’s brother), who had an open dependency case. On 

December 29, 2019, father was arrested, leaving King in 

Jazzmine’s care. Father was released from jail two days later, 

and a children’s social worker (CSW) told him King could not be 

left with Jazzmine because she had an open dependency case and 

DCFS was concerned about her mental health and current and/or 

past substance abuse.

At the January 3, 2020 jurisdictional hearing, father’s 

counsel asked the court to dismiss count b-2 of the petition,

noting that King was well cared for by father, father’s marijuana 

levels were low, and there was no indication King had been 

abused or neglected. DCFS and the child’s counsel asked the 

court to sustain the petition as pled.

The court sustained count b-1 (mother’s drug use), 

dismissed count b-2 (father’s drug use), and struck count j-1

(mother’s drug use/impact on siblings). It declared King a 

juvenile court dependent, and ordered him removed from mother
4

and placed with father under DCFS supervision. Father was 

ordered to drug test every other week, and DCFS was ordered to 

provide father with family preservation services. Mother was 

denied reunification services.

C. King’s Detention from Father; Filing of Subsequent 

Petition

On January 26, 2020, father was arrested and held without 

bail. A CSW went to Jazzmine’s home and found Jazzmine at 

work and King being cared for by a friend, Sheryl W.

3 King was 

detained and placed in foster care.

DCFS filed a subsequent petition (§ 342) on February 

3, 2020. The single count of the petition (count b-1) alleged: 

“[Father] created a detrimental and endangering situation for the 

child by making an inappropriate plan for the child and leaving 

the child with paternal aunt, Jazzmine [B.], who has current 

substance abuse and mental health concerns as well as DCFS 

involvement regarding her children. The father is currently 

incarcerated without bail. The detrimental and endangering 

situation established for the child by the father[,] and the father’s 

inability to provide ongoing care and supervision of the child, 

endangers the child’s physical health and safety and places the 

child at risk of serious physical harm, damage and danger.”

D. Further Adjudication and Disposition 

In March 2020, DCFS submitted a jurisdiction/disposition 

report that attached the police report detailing father’s 

January 26 arrest for felony battery. The victim, a man working 

as a security guard for father’s former employer, said father 

3 Sheryl is also referred to in DCFS’s reports as “Schrell” and 

“Cheryl.”
5

yelled incoherently as he approached, and then punched the 

victim in the face and threw him to the ground. Security camera 

footage showed father approach the victim, pin him against the 

wall, and repeatedly punch him in the face. The victim then 

stumbled toward the store entrance, where father grabbed him 

by the shirt, threw him to the ground, and continued to punch 

him. When the victim exited the store, father shoved him back to 

the ground and hit him with a closed fist. Father then punched 

nearby pedestrians before fleeing in a car.

Father told a CSW that he had been arrested for engaging 

in “mutual combat” with a man who stole from him. He denied 

that King was present during the incident, and he said that when 

he was arrested, he left King with Sheryl, not with Jazzmine. 

Father knew Jazzmine had an open DCFS case, but said she was 

responsible and was not a threat to King.

Jazzmine said she and father helped each other with 

childcare, but she denied that father had left King with her when 

he was arrested. She said father left King with Sheryl, and 

Sheryl “ ‘didn’t know what to do but to come to my house.’ ” 

Jazzmine acknowledged that her own daughter had been 

removed from her care because “ ‘[m]e and her dad had little 

situations’ ” and DCFS “ ‘had an issue with my psych meds and 

my medical marijuana.’ ”

DCFS also spoke with mother, whom DCFS had not 

previously been able to locate. Mother said she had visited King 

regularly at father’s home until July 2019, when father started a 

new relationship and stopped asking mother to babysit. Since 

July, mother saw King only when she stopped by the store where 

father worked.
6

At the March 10, 2020 jurisdiction/disposition hearing, 

father requested dismissal of the subsequent petition, urging that 

father had left King with Sheryl, not with Jazzmine. 

Alternatively, father contended there was insufficient evidence 

that Jazzmine presented a danger to King. Minor’s counsel and 

DCFS asked the court to detain King from father; minor’s counsel 

further stated that she had spoken the night before to the foster 

mother, who reported that King’s pediatrician said King was 

malnourished and showed delays in motor skills and speech. The 

foster mother further reported that when King entered foster 

care, he could not walk, talk, or use a spoon; after a month in 

care, he had gained weight, was learning to walk, could feed 

himself with a spoon, and was starting to make some sounds.

After hearing argument, the court sustained the 

subsequent petition and ordered King placed in foster care. It 

ordered father, upon his release, to engage in individual 

counseling, submit to random drug tests, and take a parenting 

class, and it ordered King to be brought to the jail for visits with 

father if such visits were approved by King’s pediatrician.

Father timely appealed.

DISCUSSION

Father contends the juvenile court erred by entering a 

dispositional order that removed King from his physical custody

and permitted King’s pediatrician to decide whether visitation 

would occur. 

DCFS and King’s counsel urge the court to affirm the 

removal order, contending it was supported by substantial 

evidence. DCFS takes no position as to the visitation order;

King’s counsel concedes it is contrary to established case law.
7

As we discuss, we conclude that the removal order was well 

within the juvenile court’s discretion, but the court erred in 

delegating the visitation order to King’s pediatrician.

I.

The Juvenile Court Did Not Abuse its Discretion by 

Removing King from Father’s Physical Custody

A. Legal Standards 

If the juvenile court finds a child to be within its 

dependency jurisdiction, it conducts a dispositional hearing at 

which it decides, among other things, whether the child will

remain in the parent’s physical custody during the period of the

court’s supervision. (§ 361; In re N.M. (2011) 197 Cal.App.4th 

159, 169.) The court may remove a dependent child from a 

parent’s physical custody if it finds, by clear and convincing 

evidence, that there is a substantial danger to the child’s physical 

or emotional well-being, and there are no reasonable means to 

protect the child without removing him from the parent’s 

physical custody. (§ 361, subd. (c)(1).)

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

inability to provide proper care for the child and proof of a 

potential detriment to the child if he or she remains with the 

parent. (In re Jeannette S. (1979) 94 Cal.App.3d 52, 60.) ‘The 

parent need not be dangerous and the minor need not have been 

actually harmed before removal is appropriate. The focus of the 

statute is on averting harm to the child.’ (In re Diamond H.

[(2000)] 82 Cal.App.4th [1127,] 1136.) The court may consider a 

parent’s past conduct as well as present circumstances. (In re 

Troy D. (1989) 215 Cal.App.3d 889, 900.)” (In re N.M., supra,

197 Cal.App.4th at pp. 169–170.)
8

We review the juvenile court’s dispositional order, 

including a dispositional order removing a child from a parent’s 

physical custody, for an abuse of discretion (In re K.T. (2020) 

49 Cal.App.5th 20, 25; In re Gabriel L. (2009) 172 Cal.App.4th 

644, 652), and we review for substantial evidence the findings of 

fact on which the removal order is based (In re K.T., at p. 25; In 

re Francisco D. (2014) 230 Cal.App.4th 73, 80).

4 “ ‘The juvenile 

court has broad discretion to determine what would best serve 

and protect the child’s interests and to fashion a dispositional 

order accordingly. On appeal, this determination cannot be 

reversed absent a clear abuse of discretion.’ (In re Baby Boy H. 

(1998) 63 Cal.App.4th 470, 474; see also In re Christopher H. 

(1996) 50 Cal.App.4th 1001, 1006.)” (In re D.P. (2020) 

44 Cal.App.5th 1058, 1071.) 

B. Analysis

In the present case, the juvenile court found that allowing 

King to remain in father’s physical custody would pose a 

substantial danger to his physical safety, and there were no 

reasonable means to protect him without removing him from 

father’s custody. Substantial evidence supported that finding. 

As we have described, father engaged in criminal activity 

that led to his arrest (and thus his inability to care for King 

himself) in late December 2019. When he was arrested, he

exhibited poor judgment by leaving King in the care of paternal 

4 Because the facts underlying the juvenile court’s exercise of 

discretion must be established by clear and convincing evidence, 

the question before this court is whether the record as a whole 

contains substantial evidence from which a reasonable factfinder 

could have found it highly probable that the fact was true.

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.)
9

aunt Jazzmine. When father was released from custody, DCFS 

permitted him to retain physical custody of King, but it warned 

father that Jazzmine could not care for King in the future 

because of her dependency history and mental health and 

substance abuse issues. Notwithstanding that warning, father 

again left King with Jazzmine when he was rearrested in 

January 2020. In light of this history—and specifically father’s 

decision to allow Jazzmine to care for King in his absence even 

after being warned not to do so—the juvenile court was well 

within its discretion in concluding that King could not be safely 

left in father’s physical custody.

Father challenges the juvenile court’s conclusion that he 

left King with Jazzmine when he was rearrested in January, 

urging that “[Sheryl] was actually taking care of King after 

father was incarcerated.” Although this assertion is supported by 

some evidence in the record, there was ample evidence to support 

the juvenile court’s conclusion to the contrary. As we have 

described, on January 31, 2020, DCFS received a report that 

father had been arrested and that King was in the care of 

paternal aunt Jazzmine. Father told the CSW that Jazzmine had 

been living with father and King, and Jazzmine said she and 

father “both work and that they were providing childcare for one 

another while the other worked.” Finally, when DCFS detained 

King following father’s second arrest, they located him at 

Jazzmine’s home. In light of this evidence, we are bound by the 

juvenile court’s finding that father left King in Jazzmine’s care, 

not in Sheryl’s. (See Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 

1408 [“[t]he fact that there was substantial evidence in the record 

to support a contrary finding does not compel the conclusion that 
10

there was no substantial evidence to support the judgment”]; 

Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1043 [same].) 

Alternatively, father contends that even if substantial 

evidence supports the juvenile court’s finding that he left King in 

Jazzmine’s care, removing the child from father’s physical 

custody was an abuse of discretion because there were reasonable 

means to protect King “by allowing father to make an appropriate 

plan.” In other words, father suggests, King should not have 

been removed from his custody because he provided the names of 

two people, Sheryl and the paternal great-uncle, who might have 

been able to care for King during his incarceration. We do not 

agree with father that identifying possible caregivers was 

sufficient to undermine the court’s removal order. The essential 

question before the juvenile court was not whether father could 

have identified an appropriate substitute caregiver, but rather 

whether he could have been relied on to leave King with that 

caregiver if he again found himself unable to care for King. In 

view of father’s recent conduct and his statement to the CSW 

that Jazzmine was not a threat to King, the juvenile court did not 

abuse its discretion in concluding that father could not be so 

relied upon.

Maggie S. v. Superior Court (2013) 220 Cal.App.4th 662 

(Maggie S.) and In re S.D. (2002) 99 Cal.App.4th 1068, on which 

father relies, do not compel a different result. As DCFS notes, 

both Maggie S. and In re S.D. addressed jurisdiction under 

section 300, subdivision (g), not removal under section 361, 

subd. (c)(5). More significantly for our purposes, neither of those 

cases concerned a parent, like father, who had endangered his 

child by placing him with an inappropriate caregiver. Thus, 

neither Maggie S. nor In re S.D. guides our decision in this case.
11

For all of these reasons, we conclude the juvenile court did 

not abuse its discretion in ordering King removed from father’s 

physical custody pursuant to section 361, subdivision (c)(5).

II.

The Juvenile Court Erred by Permitting King’s 

Pediatrician to Decide Whether Visits Would Occur

Father contends the juvenile court erred by delegating to 

King’s pediatrician the authority to decide whether visits would 

occur between father and King. King’s counsel concedes that the 

order, although well-intentioned, was contrary to wellestablished case law. We agree. As other appellate courts have 

recognized, “[t]he power to determine the right and extent of 

visitation by a noncustodial parent in a dependency case resides 

with the court and may not be delegated to nonjudicial officials or 

private parties. (In re Donnovan J. (1997) 58 Cal.App.4th 1474, 

1476.)” (In re T.H. (2010) 190 Cal.App.4th 1119, 1123.) Thus, 

although a visitation order “may delegate to a third party the 

responsibility for managing the details of visits, including their 

time, place and manner, . . . ‘the ultimate supervision and control 

over this discretion must remain with the court. . . .’ [Citation.]” 

(Id. at p. 1123.) 

By permitting King’s pediatrician to decide whether visits 

would occur, the juvenile court failed to retain ultimate 

supervision over visitation and, thus, abused its discretion. We 

therefore reverse the dispositional order to the extent it delegated 

to King’s pediatrician the power to decide whether visits would 

occur between father and King. 
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DISPOSITION

The dispositional order is reversed to the extent that it 

delegates to King’s pediatrician the power to decide whether 

visits will occur between father and King, and is otherwise 

affirmed. The matter is remanded to the juvenile court to enter a 

new and different dispositional order that permits visits between 

father and King consistent with section 362.1, subdivision (a)(1). 

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

EGERTON, J.

DHANIDINA, J.