Filed 7/19/21 In re S.D. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT

In re S.D. et al., Persons Coming 

Under the Juvenile Court Law.

______________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

RAFAEL F.,

Defendant and Appellant.

B308007

(Los Angeles County

Super. Ct. No. 20CCJP02650A–C)

APPEAL from an order of the Superior Court of Los 

Angeles County, Robin R. Kesler, Juvenile Court Referee. 

Affirmed.

Carolyn S. Hurley, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rodrigo Castro-Silva, County Counsel, Kim Nemoy, 

Assistant County Counsel, and Kimberly Roura, Deputy County 

Counsel, for Plaintiff and Respondent.

______________________________________
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INTRODUCTION

Father contends the evidence is insufficient to support the 

juvenile court’s order removing the children from Mother’s care 

and custody. We are unpersuaded by his arguments and 

conclude substantial evidence supports the juvenile court’s 

removal order.

FACTUAL AND PROCEDURAL BACKGROUND

Mother has not appealed. Father proffers no argument 

challenging the jurisdictional findings as to both parents or the 

dispositional order removing the children from Father’s care and 

custody. Accordingly, we provide only the facts relevant to our 

limited review.

Mother has three children: S.D., born in 2008 to Mother 

and Daniel D., who married in 2006 and divorced in 2016; A.T.,

born in 2016 to Mother and Omar T.; and V.F., born in 2019 to 

Mother and Rafael F. (Father). Mother and Father have been 

married for two years.

A. Events Leading to Filing of Petition

This family came to the attention of the Los Angeles 

County Department of Children and Family Services (DCFS) as a 

result of multiple referrals. On April 3, 2020, the reporting party 

(RP) said he heard Mother and Father fighting and reported 

“ongoing domestic violence for a long time.” RP was worried 

Mother “may be physically violent” towards Father. RP indicated 

the children were in the apartment when parents engaged in the 

domestic violence incident. RP reported V.F. was left unattended 

in a stroller on a street sidewalk while Mother and Father fought 

in the middle of the street and chased each other.
3

On April 14, 2020, Mother called law enforcement. Mother 

said she was afraid. Father was under the influence of alcohol. 

When he discovered she called the police, Father seized Mother 

by her shoulder and threw her to the ground. He grabbed and 

broke her phone and fled the home. Mother complained of neck 

pain and was treated by paramedics. Mother said there were

previous domestic violence incidents and she would “go to the 

courthouse to obtain a restraining order.”

On April 15, 2020, RP stated Father attempted to leave the 

home in his car but Mother blocked his only exit by standing in 

front of the car with V.F. in her arms. RP said A.T. “appeared to 

be afraid” and was biting on his fingernails after witnessing the 

argument. RP reported “both parents have a history of [domestic 

violence] and often times rekindle as if nothing happened.” RP 

observed damaged doors and holes in the wall of the home as a 

result of the domestic violence between the parents. RP reported 

Mother previously pulled a knife on Father and poured bleach on 

his clothing. RP “is concerned for the children’s safety.” Finally, 

RP stated Mother has a “history of coaching the children” during 

a former DCFS investigation.

On April 16, 2020, the CSW received call logs indicating 

there had been 14 calls in the last two years to law enforcement 

from Mother’s and Father’s home and “all calls pertain to 

domestic violence.” For instance, in June 2019, a call was made 

reporting Mother and Father hit each other in front of the 

children. In December 2019, a call reported Father and Mother 

argued about property and children; a child custody investigation 

ensued and Mother was advised how to obtain a restraining 

order. In February 2020, Mother requested police assistance; a 

struggle was heard over the phone before the line disconnected. 
4

In March 2020, Father was under the influence of crystal meth 

and attempted to choke Mother during a dispute. In April 2020, 

Mother was heard screaming for help; the children were also 

heard screaming.

DCFS began an investigation. On April 16, 2020, Mother 

was interviewed about RP’s allegations. Mother “confirmed the 

allegations” and stated she “is a victim of domestic violence.” 

Mother confirmed she and Father engaged in an argument on 

April 3, 2020 after he attempted to leave their home with the 

family car. Mother said she had V.F. with her during the 

argument but denied that she positioned herself in front of the 

car when Father attempted to drive off. Mother denied Father 

had been living at their home since his arrest and former DCFS 

investigation in June 2019. Mother said she was afraid of Father 

and concerned he might be under the influence of drugs. She 

confirmed she had called law enforcement multiple times to have 

Father removed from the home, including on April 14, 2020,

when Father physically assaulted her during an argument about 

finances, pushed her to the ground, and broke her phone. Mother 

said A.T. and V.F. were inside the bedroom during the assault 

but were not hurt. She said she does not plan on remaining in a 

relationship with Father and intends to file for a restraining 

order.

DCFS next interviewed A.T., who stated he has witnessed 

arguments between Mother and Father. He witnessed Father 

grab Mother’s hair and throw her to the ground; he witnessed 

Father break things at home. A.T. once observed Father climb 

up a ladder to escape from law enforcement as they arrived to 

their home. A.T. said Mother and Father fought often in the 
5

room while the children played. A.T. said Father lives at their 

house with Mother.

A family neighbor stated there had been multiple incidents 

of domestic violence in the home. The neighbor confirmed the 

family continued to engage in verbal and physical arguments.

B. Petition and Detention

On May 11, 2020, the juvenile court granted DCFS’s 

application requesting authorization to remove all three children 

from parental custody.

On May 13, 2020, DCFS filed a Welfare and Institutions 

Code1 section 300 petition on behalf of all three children. The 

petition alleged the following:

Counts a-1 and b-1: Mother and Father have “a history of 

engaging in violent and physical altercations in the children’s 

presence.” On April 14, 2020, Father grabbed Mother, pushed 

her to the floor, and caused pain to her neck. Father has broken 

Mother’s phone and other items in the home. On a prior occasion, 

Father grabbed Mother’s hair and threw her to the ground in the 

presence of A.T. On prior occasions, Mother threw items at 

Father and damaged Father’s clothing. Mother and Father 

pushed each other. Father has a criminal conviction for inflicting 

corporal injury on a spouse. Violent conduct by Father and 

Mother endangers the children’s physical health and safety and 

places the children at risk of serious physical harm, damage, and 

danger.

Count b-2: Father has “a criminal history of convictions” 

for transportation of controlled substances, possession of a

1 All statutory references are to the Welfare and Institutions 

Code, unless otherwise stated.
6

controlled substance for sale, possession of a controlled substance 

while armed, driving under the influence of alcohol and drugs; he 

is a registered controlled substance offender. Father’s criminal 

history endangers the children’s physical health and safety and 

places the children at risk of serious physical harm, damage, and 

danger.

At the detention hearing on May 18, 2020, the juvenile 

court ordered the children detained from Mother and Father. It 

granted Mother’s request for a continuance and trailed detention 

to the following day.

On May 19, 2020, Mother filed a request for a restraining 

order against Father. The juvenile court set the matter for 

hearing and granted a temporary restraining order (TRO) 

protecting Mother from Father. Father was ordered not to 

attack, strike, batter Mother, or disturb her peace. He was 

ordered to stay at least 100 yards away from Mother.

The court proceeded to detention. It found a prima facie 

showing the children are persons described by section 300, 

subdivisions (a) and (b), and a “substantial danger exists to their 

physical and/or mental health and no reasonable means exist to 

protect them without removal from the parents’ custody. 

Remaining in the homes of the parents is contrary to their 

welfare.” The court found DCFS provided reasonable services to 

prevent removal and that no available services existed to prevent 

further detention; temporary custody and care of the children 

was ordered vested with DCFS. DCFS was ordered to provide 

both parents with family reunification services. The court 

ordered twice weekly monitored one-hour visitation for both 

parents.
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C. DCFS’s Continued Investigations

On July 22, 2020, DCFS verified Father’s criminal history. 

Father registered as a controlled substance offender in June 

2009, May 2011, and August 2017. Father was convicted of

inflicting corporal injury on spouse/cohabitant (Pen. Code § 243.5, 

subd. (a)) in December 2012 and served two years in prison. 

~(CT 196, 225, 261-265)~ 

DCFS interviewed Mother again on July 23, 2020. Mother 

minimized the domestic violence allegations and denied having a 

history of domestic violence with Father. She said Father never 

grabbed her by her hair in A.T.’s presence; Mother said A.T. has 

lied in prior occasions. She said Father never broke things in the 

home and has never pushed her. Mother claimed she never 

pushed Father and never poured bleach on his clothes. When 

asked about her call to the police in June 2019, Mother said she 

called “due to an argument” where she felt “afraid” and 

“insecure.” The interviewer noted Mother “denied multiple 

domestic violence incidents.”

Father was interviewed that same day. Father said he 

read the section 300 petition and “believed everything to be 

untrue.” He denied having pushed, grabbed or thrown at Mother. 

Father could not recall whether he and Mother had put their 

hands on each other. Father could not recall whether law 

enforcement had ever arrived during any incident. He told the

interviewer Mother exaggerated a lot and “is not aware how her 

exaggeration has affected us.”

DCFS interview S.D. on July 29, 2020. S.D. was “brief with 

answers” and repeated throughout the interview that she has a 

bad memory and did not “recall much from last year.” S.D. 

denied any physical domestic violence between the parents.
8

A neighbor and friend of the family said she has seen law 

enforcement respond to incidents at Mother’s and Father’s home. 

She said A.T. reported in the past that Father “threw the door” to 

Mother’s face or locked Mother in a room. She has seen bruises 

on Mother’s arms in the past. She recalled an incident where 

Father ran out and Mother followed him, leaving the children 

home alone. She also recalled another incident where S.D. 

knocked on her door late at night, and said Mother chased after 

Father and left home; the neighbor found the children home 

alone.

DCFS reported Father had three missed drug tests. Father 

presented several documents to DCFS: a certificate of completion 

of a 12-Step Program dated February 2016; a certificate of 

completion of an anger management program dated January 

2016; and a certificate of completion of a parenting education 

program dated April 2016.

Father stated he participates in the lives of all three 

children, is listed on their emergency cards, provides them with 

financial support, and carries them on his health insurance.

D. Adjudication

In anticipation of adjudication, DCFS submitted two last 

minute information (LMI) reports to update the juvenile court. 

In its LMI filed August 10, 2020, DCFS reported Father was a 

“no show” for two more drug tests. The LMI included information 

it learned from Father’s case manager at Breaking Barriers. The 

case manager reported she had been working with Father for 

about two years. She reported Father was in a “very toxic 

marriage,” that Mother has yelled and shouted at Father, and 

has blocked Father from leaving home and going to work. 
9

“Because [Father] has a record and he is a male, he is view[ed] as 

the perpetrator.”

In its September 24, 2020 LMI, DCFS reported Mother had 

attended 10 sessions at Safety Alliance, a women’s support group 

for domestic violence. Father had attended 10 group sessions at

Project Fatherhood. Father had also attended eight classes in a

batterer’s intervention program. DCFS reported Father missed 

eight drug test appointments.

The jurisdictional and dispositional hearing took place on 

September 24, 2020. The court found Father the presumed 

father of S.D. and A.T. It then proceeded to sustain the petition 

as pled and made lengthy findings.

The court found Father’s criminal history “very relevant 

here. He has a conviction in 2012 for domestic violence which I 

believe he served two years prison or jail for it. [¶] Mother 

describes his behavior on drugs as erratic, hostile, very relevant 

to his prior history as a substance control offender on multiple 

occasions from 2009 on. He was convicted of Penal Code violation 

243.5(a), inflicting corporal injury on a spouse or cohabitant, two 

years prison, and that appears to be 2012. [¶] . . . [¶] Then he 

had a recent arrest of June 25 for somewhat the same allegation, 

Penal Code 243(e)(1), battery on a spouse. [¶] I’m glad that 

[Mother] is starting to make some progress, and as all of these 

very experienced attorneys are aware, that just beginning to 

make progress does not get you past the problem. You may 

understand you’re in a domestic violence relationship, but 

understanding that and taking actions to protect yourself and 

your children is completely different. [¶] These parents have 

been fighting, pushing, grabbing, throwing things at each other. 

While by far Father is the aggressor in this area, Mother has also 
10

been aggressive on her own. . . . [T]he court finds by a 

preponderance of the evidence count (a)(1), (b)(1), (b)(2) all true 

as pled, finding that the children are described under . . . sections 

300(a) and (b).”

The court commended Mother “for getting started in her 

programs, but it is just a start. As indicated earlier, Father 

received a two-year prison sentence in 2012 for domestic violence 

against the Mother. Then I have two children born to this family 

afterwards with domestic violence ongoing. [¶] Mother was 

aware of Father’s substance abuse, his transportation of drugs, 

and his other criminal behavior, and yet she continued to have 

contact with him resulting in another child and the ongoing 

domestic violence. This is not a one time thing. This is multiple 

times in 2019 and 2020. [¶] Mother’s recent participation in 

programs does not give confidence to this court that she actually 

has the tools to protect herself from Father.” The court issued a

restraining order protecting Mother against Father for the 

duration of one year. Father was ordered not to attack, strike, 

stalk, batter, harass Mother, or disturb her peace. Father was 

ordered not to contact Mother in any way, directly or indirectly, 

in person, by telephone, or in writing. He was ordered to stay 

100 yards away from Mother except for the peaceful exchange of 

children during visitation.

The juvenile court declared the children dependents of the 

court under section 300, subdivisions (a) and (b), and found by 

clear and convincing evidence that returning physical custody of 

the children to the parents “creates a substantial risk of 

detriment to the children’s safety, protection, physical, and 

emotional well-being.” It found DCFS made reasonable efforts to 

prevent the need for removal, but that there are “no reasonable 
11

means today by which to protect them without removing them 

from their parents’ care.” The court ordered the children 

removed from both parents.

The court ordered family reunification services for both 

parents. The court ordered Mother to participate in domestic 

violence support group for victims, parenting education, and 

individual counseling. Mother’s visits were to be supervised by 

any DCFS-approved monitor, except for one hour unmonitored 

visits in the caretaker’s home. DCFS was given discretion to 

liberalize Mother’s visitation. Mother and Father were ordered 

not to visit together. The court ordered Father to participate in a 

full drug and alcohol treatment program, individual counseling, 

parenting education, and a 52-week-long course for domestic 

violence perpetrators. Father’s visits were to be monitored.

Father filed a timely notice of appeal challenging the 

court’s jurisdictional findings and dispositional order.

DISCUSSION

We preliminarily note the following.

Father indicated in his notices of appeal for all three 

children that he is appealing from both the jurisdictional findings 

and dispositional removal order. However, in his briefing, Father 

did not actually challenge the jurisdictional findings as to either 

parent or the removal order as to him. Because he presented no 

argument, we treat those contentions as waived. (Ivanoff v. Bank 

of America, N.A. (2017) 9 Cal.App.5th 719, 729, fn. 1; In re 

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [the 

absence of cogent legal argument or citation to authority allows 

this court to treat the contentions as waived].)
12

We proceed with our review of Father’s challenge to the 

juvenile court’s order removing S.D., A.T., and V.F. from Mother’s

custody.

A. Applicable Law and Standard of Review

Section 361, subdivision (c) authorizes the juvenile court to 

remove a child from the physical custody of the parent if the court 

finds clear and convincing evidence there is or would be “a 

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

physical or emotional well-being of the minor” if returned home, 

and that there are no reasonable means of protecting the minor’s 

physical health without removal from parent’s physical custody. 

(§ 361, subd. (c)(1).) Clear and convincing evidence “requires a 

finding of high probability. The evidence must be so clear as to 

leave no substantial doubt.” (In re David C. (1984) 

152 Cal.App.3d 1189, 1208.)

A child need not actually be physically harmed before 

removal is appropriate; our goal is to avert any harm befalling 

the minor children. (In re N.M. (2011) 197 Cal.App.4th 159, 

169-170.)

A juvenile court’s removal order at a disposition hearing 

will be affirmed on appeal if it is supported by substantial 

evidence. (In re V.L. (2020) 54 Cal.App.5th 147, 154 (V.L.).) 

Substantial evidence is evidence that is “ ‘reasonable in nature, 

credible, and of solid value.’ ” (Ibid.) As recently set forth by our 

Supreme Court, “[w]hen reviewing a finding that a fact has been 

proved by clear and convincing evidence, the question before the 

appellate court is whether the record as a whole contains 

substantial evidence from which a reasonable fact finder could 

have found it highly probably that the fact was true. In 

conducting its review, the court must view the record in the light 
13

most favorable to the prevailing party below and give appropriate 

deference to how the trier of fact may have evaluated the 

credibility of witnesses, resolved conflicts in the evidence, and 

drawn reasonable inferences from the evidence.” 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011–1012 

(O.B.).)2

One parent has standing to challenge the removal of 

his/her children from the other parent’s custody. (In re R.V.

(2012) 208 Cal.App.4th 837, 848–849 [“Ordinarily, an appellant 

cannot urge errors that affect only another party who does not 

appeal. [Citations.] However, ‘[u]ntil parental rights are 

terminated, a parent retains a fundamental interest in his or her

child’s companionship, custody, management and care.’ 

[Citation.] Because [the children’s] placement in out-of-home 

care has the potential to adversely affect the father’s own 

interests in reunifying with [the children], the father has 

standing to challenge the court’s dispositional order removing 

custody from the mother and placing [the children] in foster 

care.”].)

In reviewing Father’s challenge to the juvenile court’s order 

removing the children from Mother’s custody, we search the 

record for substantial evidence. (In re Francisco D. (2014) 

230 Cal.App.4th 73, 80.)

B. Analysis

Father argues substantial evidence does not support the 

court’s order removing the children from Mother’s custody 

because “both parents had been respecting [the] restraining order 

2 While O.B. is a conservatorship case, it is controlling in 

dependency cases. (V.L., supra, 54 Cal.App.5th at p. 155.)
14

for four months, were engaged in services, and had no prior 

cases.” He argues the children were not at substantial risk of 

harm if returned home because Mother and Father separated and 

“both had admitted the relationship was toxic.” Father notes “no 

further incidents between the parents had happened since court 

involvement.” Father contends “[b]ecause the children also 

wanted to return to [Mother], there was no substantial evidence 

of a remaining risk to the children.”

We are not persuaded by Father’s arguments, some of 

which completely miss the mark. The record is replete with 

evidence demonstrating that Mother and Father have a history of 

domestic violence, often in the presence of one or more of their 

children. In the month preceding the May 13, 2020 filing of the 

petition, multiple domestic violence incidents took place between 

Mother and Father, on April 3, 14, and 15. Call logs indicated 

there were 14 calls in the last two years to law enforcement about

domestic violence between Mother and Father. A.T. stated he 

has witnessed Father grab Mother’s hair and throw her to the 

ground. A neighbor and family friend reported having seen 

bruises on Mother’s arms and recalled an incident where S.D. 

knocked on her door late at night when Mother chased after

Father and left the children alone at home. Mother had held V.F. 

in her arms while blocking Father from driving out with his car. 

There is also evidence in the record indicating Mother was also 

violent towards Father. This type of violent conduct between 

Father and Mother place their children at risk of serious physical 

harm.

Yet despite all of this, Father told DCFS that he never 

pushed or grabbed Mother (and could not “recall” whether he ever 

put his hands on Mother). Similarly, although Mother first
15

confirmed the allegations and stated she is “a victim of domestic 

violence,” she later minimized all domestic violence allegations 

and denied having a history of domestic violence with Father. 

Mother even suggested to DCFS that A.T.’s statements about 

witnessing violence between Mother and Father were untrue. 

(See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“One 

cannot correct a problem one fails to acknowledge”].) The 

absence of domestic violence incidents during the four months 

preceding the adjudication hearing and removal order does not 

mitigate the longstanding history of domestic violence between 

the parents—sometimes in the presence of one or more of the 

children. Mother’s passivity and failure to realize that Father’s

domestic violence places the children at risk of harm 

demonstrates Mother’s inability to provide proper care.

Courts have recognized “less drastic alternatives to 

removal may be available in a given case including returning a 

minor to parental custody under stringent conditions of 

supervision by the agency such as unannounced visits.” (In re 

Hailey T. (2012) 212 Cal.App.4th 139, 148.) We conclude, 

however, this is not one of those cases. Further, Father failed to 

specify exactly what reasonable alternatives could have obviated 

removal. In this case, more stringent supervision or 

unannounced DCFS visits would not have alleviated the court’s 

ongoing concerns as Father and Mother have a history of 

reuniting despite repeated domestic violence incidents between 

them. DCFS carried its burden to show that at the time of 

disposition, there were no reasonable means of protecting the 

children’s health and safety without removing them from Mother.

Based on the record, and taking into account the clear and 

convincing burden of proof required for removal (see O.B., supra, 
16

9 Cal.5th at p. 1005), we conclude substantial evidence supports 

the juvenile court’s order removing the children from Mother’s

custody.

Accordingly, we affirm.

DISPOSITION

The juvenile court’s removal order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, Acting P. J.

We concur:

WILEY, J.

OHTA, J.*

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

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.