Filed 2/9/21 In re D.H. CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

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

Under the Juvenile Court Law.

B304553

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.H.,

Defendant and Appellant.

(Los Angeles County

Super. Ct. Nos. 19CCJP08271

19CCJP08271B, 19CCJP08271C)

 

In re K.C., a Person Coming Under 

the Juvenile Court Law.

B305896

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Appellant,

v.

J.H. et al.,

Defendants and Respondents.

(Los Angeles County

Super. Ct. Nos. 19CCJP08271,

19CCJP08271A, 19CCJP08271B

19CCJP08271C)
2

APPEAL from orders of the Superior Court of Los Angeles 

County, Craig S. Barnes, Judge. Affirmed.

Cristina Gabrielidis, under appointment by the Court of 

Appeal, for Appellant, Defendant and Respondent, J.H.

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

County Counsel, and William D. Thetford, Deputy County 

Counsel, for Plaintiff, Appellant and Respondent.

Pamela Deavours, under appointment by the Court of 

Appeal for Defendant and Respondent, C.V.

INTRODUCTION

Father Jose H. appeals findings of jurisdiction over his two 

sons under Welfare and Institutions Code section 300, 

subdivision (b)(1),1 and related disposition orders. Father’s 11-

year-old stepdaughter, K., stated that father engaged in 

inappropriate behavior that included randomly slapping her

buttocks, and touching her leg and buttock while she slept. The 

Los Angeles County Department of Children and Family Services 

(DCFS) filed a petition seeking jurisdiction over all three 

children on the basis that father sexually abused K., and the 

children’s mother failed to protect them. The juvenile court held 

that father’s actions did not support a finding of sexual abuse 

under section 300, subdivision (d), amended the language of the 

petition to state that father made “inappropriate contact and 

failed to recognize appropriate boundaries,” and sustained 

jurisdiction for all three children under section 300, subdivision 

(b)(1). Both father and DCFS appealed, and we consolidated the 

appeals.

1All further statutory references are to the Welfare and 

Institutions Code unless otherwise indicated.
3

In his appeal, father does not challenge jurisdiction as to 

K., but he asserts that substantial evidence does not support a 

finding of jurisdiction over his sons because his treatment of K. 

did not place the boys at risk. We find that substantial evidence 

supports the jurisdiction order. Father further asserts that the 

juvenile court erred in its disposition orders by removing the boys 

from his care, requiring monitored visitation, and requiring 

father to complete a sexual abuse education program for 

offenders. We find no error in the court’s disposition orders. 

DCFS asserts in its appeal that the trial court erred in 

amending the petition to remove allegations of sexual abuse, 

because the evidence supported a finding that father’s treatment 

of K. amounted to sexual abuse. In light of the high burden on 

such an appeal—requiring a showing that the court was 

compelled to make such a finding as a matter of law—we find 

that DCFS has not met its burden. We therefore affirm the 

jurisdiction and disposition orders. 

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention

On December 5, 2019, DCFS received a referral for general 

neglect and sexual abuse. The referral stated that after K. 

turned 11 years old in March 2019, father (K.’s stepfather) “has 

slapped her on the butt about 5 times” over her clothing.2 About 

three months earlier, K. woke up to find that father was rubbing 

his hand up her leg. The reporter stated that when K. told 

mother about that incident, “her mom said she was just having a 

dream.” When K.’s grandmother witnessed one incident, she 

“kicked [father] out of the home,” but mother “allowed him to 

2Mother reported that she and K. did not have a 

relationship with K.’s father. He is not a party to this case. 
4

move back in the home.” K. stated that she felt safe at home 

because her grandmother was there, but “[K.] reported her 

grandmother and mother have been fighting so her grandmother 

may be moving out of the home, possibly today.” 

A children’s social worker (CSW) went to K.’s school and 

spoke with the school psychologist and principal. The 

psychologist stated that K. was brought into his office on 

November 22, 2019 because she had been cutting herself on the

arm with scissors. K. attributed the cutting to problems with 

father. K. stated that father makes her do a lot of chores around 

the house, and mother always sides with father. K. denied that 

anyone touched her inappropriately. 

When the psychologist asked K. again on December 4, 2019 

if anyone touched her inappropriately, K. said “yes,” and reported 

that father had slapped her on the butt five times. K. said she 

did not tell the psychologist earlier because she was “scared 

about what will happen to her family.” K. said it feels

“inappropriate” when father slaps her, and “the way he ([father]) 

looks at her is wrong.” K. stated that on one occasion, father 

purposely “threw [K.’s] clothes on the floor in order for [K.] to 

bend over and he slapped her buttocks.” K. also told the principal 

that “3 months ago [father] rubbed her leg up to the buttocks” 

while K. was asleep. When K. told her mother about it, mother 

asked if she was dreaming. K. said she felt safe in the home 

when maternal grandmother was there, but if maternal 

grandmother moved out, K. would be alone with father five 

nights a week while mother worked. The psychologist told the 

CSW that he was concerned father “will continue to do this. I 

don’t know how far it has gone. It feels inappropriate thus far.” 
5

The CSW spoke with K. on December 10, 2019. K. reported 

that she lived with mother, father, and her two half-brothers

(father’s sons), five-year-old D. and one-year-old J. Maternal 

grandmother had moved out of the home. K. told the CSW that 

father “randomly” spanks her on the buttocks when she walks by 

him, which is “uncomfortable.” K. said that father did not spank 

her when she was younger, “but now that I’m bigger, he started 

doing it.” K. felt that the spanking was done “in a sexual 

manner.” K. reported that in August 2019, she had been asleep 

when she felt father “rub from the bottom of her leg up to her 

buttocks; [K.] stated she was wearing small shorts when this 

occurred. [K.] stated she woke up and slapped his hand as he was 

rubbing her buttocks.” Father asked why K. had slapped him, 

and K. responded that it was because he was touching her. K. 

said she began crying because she did not know what to do. 

When mother came home and K. told her about the incident, 

mother asked K. if she had been dreaming. When mother saw 

that father’s hand had red marks from K.’s rings hitting him 

when she slapped him, mother kicked father out. Father began 

visiting the home again between August and November 2019, 

however, and moved back into the home in November 2019. 

K. told the CSW that she started cutting herself after 

father returned to the home and father “wouldn’t leave me 

alone.” K. said father “would continuously tell her to do chores 

‘again and again’ while she was doing her homework.” K. said 

father did not make sexual comments to her, but three times he 

had looked at her “from head to toe” in a way that made K. 

uncomfortable. K. said she told mother about it, and mother told 

father to stop. K. said she was “scared” that father would 

attempt to touch her again. 
6

The CSW spoke with five-year-old D. at his school. The 

CSW noted that D. had a speech delay, his speech was limited, 

and he conveyed some information through gestures. D. said 

mother and father discipline him by spanking with an open hand. 

D. “stated his father ‘hits’ him ‘hard.’” D. denied being afraid of 

mother or father. He also said he never saw father spank K. D. 

said he had never been touched inappropriately. The CSW also 

observed one-year-old J. and did not note any concerns. 

The CSW visited the family’s home and spoke with mother. 

Mother said she did not spank the children, but she did not know 

how father disciplined the children while she was at work. 

Mother said her eight-year relationship with father had its “ups 

and downs,” but she denied that they had any physical 

altercations in front of the children. Mother said that father 

sometimes cursed at the children, and she “needs to work on how 

he talks to me and the kids.” Mother was aware of K. cutting 

herself, and said K. did it “due to needing ‘attention.’” Mother 

was not aware of any other incidents in which K. cut herself. 

Mother said K. had just told her that day that father 

spanked her buttocks and it made her feel uncomfortable. The 

CSW asked mother if K. told her about father touching her leg 

and buttocks while she was asleep, and mother initially said, “I 

don’t know.” Then mother recalled that K. said something about 

father touching her leg, but father had denied it. Mother stated 

that father “wouldn’t do that,” and she wanted to know “both 

sides” of the story. Mother said K. told her about the incident 

two or three weeks after it occurred, and mother said she did not 

kick father out of the home based on the incident. Mother said 

she told K. not to wear shorts when she sleeps. 
7

Two CSWs later spoke with father at the home. Father 

told the CSWs it was the first time he was hearing about K.’s 

allegations. But he also said that he had already told mother 

that he did not touch K. When one CSW “asked how this came 

up as [father] previously reported not ever hearing about any 

sexual abuse,” father was “evasive but stated that [K.] had 

previously accused him of touching her while she was sleeping.” 

Father denied any touching, and said that because he never slept 

in the bedroom, he could not have touched K. Father also told 

the CSWs that “he was sure allegations were coming from 

maternal grandmother,” because he is Mexican and she is 

prejudiced against Mexicans. Father stated that maternal 

grandmother “puts things in [K.’s] head, like that I’m not her 

father and things like that.”3 Father also said that K. did not 

want him in the home because “he is strict with her and tries to 

make her do chores.” 

The CSW also spoke with maternal grandmother on 

December 10, who “reported that she did have concerns about 

inappropriate behavior towards [K.] from” father. Maternal 

grandmother said that when she was at the home about a month 

earlier, she heard a slap sound from kitchen, where K. and father 

were. Maternal grandmother later asked K. about the sound, 

and she said father spanked her on the butt. Maternal 

grandmother said father did not say anything at the time, and K. 

was not misbehaving. K. told maternal grandmother that father 

“always does that.” Maternal grandmother told the CSW that 

she “felt this was inappropriate as [K.] is a young lady and it is 

3Father spoke with the CSW in Spanish; this quote is the 

English translation of father’s statement as it is written in the 

detention report. 
8

not okay for her to be spanked on the butt by a man.” When 

maternal grandmother spoke with mother about it, mother 

accused maternal grandmother of misinterpreting the situation. 

The CSWs and the family agreed on a safety plan to have 

K. stay with a neighbor and ensure no contact between K. and 

father. DCFS stated that the “family can be categorized as being 

at ‘High Risk’ for future abuse due to [father] sexually abusing 

[K.], [father’s] lack of insight, and the young age of the children.” 

The detention report also stated that “there are concerns of at 

risk [sic] sibling abuse of children [D.] and [J.] as the children are 

at such young and vulnerable ages, where they are unable to 

protect themselves from any abuse and/or neglect.” DCFS noted 

that father was the only adult at home with the children in the 

evenings, and he “has a lack of insight and recognition there is a 

problem which places the children [D.] and [J.] at risk of suffering 

emotional or physical harm.” DCFS then obtained a removal 

order that included D. and J. Father agreed to leave the home, 

and maternal grandmother moved into the home to help care for 

the children. DCFS noted that mother was “willing to receive 

services, comply with court orders and to protect the children.” 

DCFS filed a petition under section 300, alleging one count 

each under subdivisions (b)(1) (section 300(b)(1)), (d) (section 

300(d)), and (j) (section 300(j)). Section 300 states that 

jurisdiction over a child is appropriate when 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 or guardian to adequately supervise 

or protect the child” (section 300(b)(1)); when the child has been 

sexually abused or there is a substantial risk that the child will 

be sexually abused (section 300(d)); or if the child’s sibling has 
9

been abused or neglected (section 300(j)). The three counts in the 

petition—count b-1, d-1, and j-1—each had identical language 

alleging that father “sexually abused [K.] by slapping and 

fondling the child’s buttocks. On a prior occasion, [father] rubbed 

and fondled the child’s leg to the child’s buttocks.” The three 

counts further alleged that mother “knew of the sexual abuse” of 

K., allowed father unlimited access to K., and failed to protect K.

The petition alleged that father’s sexual abuse of K. and mother’s 

failure to protect placed all three children at risk of physical 

harm and sexual abuse. 

At the detention hearing on December 31, 2019, father 

requested a home-of-parent order for D. and J., stating that there 

was no risk to them. Minors’ counsel opposed father’s request, 

noting that the alleged touching while K. slept “took place in the 

room where they were all sleeping together,” which “shows a 

disregard to the fact that his younger children were also present 

in the room.” Counsel for DCFS agreed “that the sexual abuse 

took place in the presence of the other minors,” and requested 

that father’s visitation with the younger children be monitored. 

The juvenile court found a prima facie case for detention, and 

ordered that the children be detained from father and remain in 

the home of mother. The court ordered monitored visitation for 

father with D. and J., and ordered no contact between father and 

K. 

B. Jurisdiction and disposition

The jurisdiction/disposition report dated January 31, 2020 

stated that the three children were living with mother. K. 

confirmed her earlier allegations about father slapping and 

touching her. Mother told K. she believed her, which made K. 

feel supported and safe. D. stated that he never observed father 
10

spank or touch K. D. denied any inappropriate contact involving 

him. J. was too young to give a statement. Maternal 

grandmother confirmed that she heard father slap K. from the 

other room, and said she was not aware of any other 

inappropriate conduct by father. 

Mother said that K. told her about the incident in which 

she awoke to find father touching her just after it happened, and 

in response, mother made father leave the house that day. 

Mother and father said that they had been separated since March 

2019, but father had continued caring for the children while 

mother worked in the evenings. Mother said she did not intend 

to reunify with father, but she wanted him to maintain a 

relationship with D. and J. 

Father denied ever touching K.’s legs. He admitted 

slapping K. on the butt three times in one day, but said it was 

playful, not sexual. Father said he was disappointed that K. 

misinterpreted his actions, and suggested that she “made up lies 

because she is sad she doesn’t get attention like” D. and J. 

DCFS recommended that the petition be sustained and the 

children be declared dependents of the court under section 

300(b)(1), (d), and (j). It also recommended that mother be 

provided family maintenance services, including a parenting 

program, individual counseling, and a sexual abuse awareness 

program. DCFS further recommended that father be provided 

enhancement services including a parenting program, individual 

counseling, and a sexual abuse program for perpetrators. 

Before the disposition hearing, father submitted a trial 

brief asserting that even if the allegations regarding K. were 

found true, there was no “nexus between the allegations and 

substantial risk to father’s biological children,” D. and J. DCFS 
11

filed a response, asking the court to find jurisdiction over D. and 

J. under section 300, subdivisions “(b), (d) and/or (j) as the court 

deems appropriate.” 

The jurisdiction and disposition hearing was held on 

January 31 and February 3, 2020. K. testified in chambers. K. 

said that after she turned 11 years old, father got into “a habit . . 

. of slapping me on my butt randomly.” K. recounted an incident 

in which father threw K.’s clothing on the floor, and when she 

“turned around and bent over” to pick the clothes up, “he slapped 

me.” K. said, “I was, like, why? Because there was no reason.” K. 

said father never slapped her in front of other family members, 

“but my grandma did hear once when we were in the kitchen.” K. 

said father told her once not to tell mother that he slapped her 

butt; K. said she told mother anyway. K. also testified that she

was always clothed when father slapped her. 

K. testified that in another incident, “I was sleeping, and I 

woke up to his hand rubbing my leg, like, it was going up my leg.” 

K. said father’s hand moved from her ankle to the right side of 

her buttocks. K. woke up and hit father, and a ring on her hand 

left a mark; father then asked K. why she hit him. K. said she 

“was upset because he was touching me,” and told mother when 

she came home. Father did not do that again. K. testified that 

her brothers were on the bed at the time of the incident. 

K. testified that in another incident about a month later, 

she had been watching television in the bedroom, and she got up 

to use the restroom. When she returned to the bedroom, father 

“grabbed me and threw me on the bed. He was on top of me, and I 

bit him.” K. testified that father was on his knees over her, and 

she bit father on his right shoulder through his t-shirt. Father 

began yelling at K. for biting him; J. was asleep on the bed at the 
12

time, and he woke up when father began yelling. D. was also in 

the bedroom at the time. When mother came home and saw the 

mark on father’s shoulder, father told mother that something hit 

him at work. K. then told mother that she bit father after he 

threw her on the bed. 

K. testified that she spoke with the adults at her school 

because after father came back to the home, she “was scared he 

was going to do something more.” K. stated that she had started 

cutting herself on her arm because “I was stressed out, and I was 

scared.” K. stated that mother kicked father out of the house 

multiple times in 2019. K. said that “there was always times 

when [mother] would kick [father] out; he’d come back. So it was 

just like that.” 

Father testified that at the time of the biting incident, 

mother had an emergency relating to her asthma and needed to 

go to the hospital; father left work to care for the children while 

mother went to the hospital with maternal grandmother. Father 

and K. got into a disagreement over which television channel to 

watch and whether K. could use father’s phone. Father testified 

that K. physically tried to take the remote control from him, and 

when she could not get it, she bit him on the left side of his chest 

near his shoulder. Father testified that D. and J. were in the 

bedroom at the time; J. did not wake up and D. did not react. 

Three days later, mother saw the bite mark and asked what 

happened; father said he got injured at work. Father said he told 

mother this so K. would not get punished. Later, mother 

confronted father with K.’s version of the story—that father had 

gotten on top of K.—and father said that was not true. 

On cross-examination, father admitted that he slapped K.’s 

buttocks, but said he was only “playing around.” Father 
13

explained that while playing tag, K. “smacked me on the butt. I 

thought we were playing around, so I hit her twice. We kept 

playing and I think the third time I hit her, she got upset.” 

Father said he did not recall hitting K. when maternal

grandmother could hear it. Father also denied touching K. while 

she was asleep. 

Counsel for DCFS argued that K.’s testimony was credible, 

and there was sufficient evidence to sustain the petition as it 

related to K. As to the other children, counsel for DCFS asserted 

that the boys were present when father acted inappropriately 

with K., and asked that the court find jurisdiction under section 

300(b)(1), (d), or (j). Minors’ counsel asked the court to sustain 

the allegation under section 300(d) based on K.’s testimony. 

Minors’ counsel also asked the court to sustain the petition as to 

D. and J. because they were in the room at the time the incidents 

occurred. 

The court noted that the other children were asleep during 

the incident in which K. woke up with father touching her leg, 

and asked, “How should the court analyze the (j) count?” Minors’ 

counsel stated that “[f]ather’s behavior is brazen,” and he always 

gave an alternative explanation to K.’s story. Minors’ counsel

also stated that the court was not required to wait until father’s 

behavior worsened before taking jurisdiction over the children. 

Father’s counsel argued, “[T]his is not a (d) case. This is a 

story about a child not liking her stepfather.” Father’s counsel 

noted that K. said she did not want father in the home, and “the 

desire to not have the stepfather in the home is the driving force 

in this case.” She asserted that K.’s allegations did not amount to 

sexual abuse. Father’s counsel argued that DCFS was required 

to show that the Penal Code had been violated before the court 
14

could sustain an allegation under section 300(d), and asserted 

that there was no indication that father was motivated by sexual 

gratification. The court asked father’s counsel, “Well, would it be 

anything other than sexual gratification to go into the room at 

night, put your hands on the leg all the way up to [the] buttocks? 

Is there a legitimate purpose other than that?” Father’s counsel 

suggested that perhaps father was simply waking K. by touching 

her leg. Father’s counsel also argued that there was insufficient 

evidence to sustain the count under section 300(j) as it pertained 

to D. and J. Father’s counsel argued that D. and J. “have been 

appropriately cared for and have not had any inappropriate 

contact, abuse, or even neglect from the father.” Mother’s counsel 

asked that mother be stricken from the petition, or that the 

petition be amended to state that mother was unable to protect 

the children due to her financial reliance on father. 

The court took the issue under submission and ordered the 

parties back the following court day, Monday, February 3. On 

that day the court stated its decision on the record, noting that 

there had been “[o]ne touch to the leg and buttocks, five slaps to 

the buttocks, [and] the biting incident . . . . [I]s this egregious? 

No. Is it appropriate? No.” The court noted that father slapped 

K. “so hard” one time that maternal grandmother could hear it in 

the other room, and “[t]hat does not sound as if he’s doing this for 

sexual arousal, but instead something else is going on in terms of 

his conduct, which I can only describe as being inappropriate and 

the kind of conduct that suggests that he doesn’t recognize proper 

boundaries. But I think it’s a bit of a leap to say this is a (d) 

count; it’s not.” 

The court then discussed whether there was a risk to D. 

and J., stating, “I think that there’s a risk, but not the risk that is 
15

referenced in I.J.,

[4] which talks about the risk of sexual abuse, 

but risk that he does not recognize that there’s a point in the 

children’s age when what he may think is appropriate becomes 

something inappropriate. So with all of that considered, the 

court is going to dismiss the (j) count – I don’t think the totality of 

the circumstances supports that – as well as the (d) count. But 

the (b) count needs to be amended because I think what we have 

here is inappropriate contact with this minor, who is 11, and 

father not recognizing appropriate boundaries.” The court 

continued by noting that some of father’s inappropriate behavior 

occurred in front of D. and/or J., which was “concerning about 

whether he recognizes what those boundaries should be. And I 

don’t know that he would necessarily recognize it any better 

between biological and non-biological.” The court also stated that 

it would be appropriate to sustain the (b) count as to mother, 

because mother left the children with father even after she knew 

father and K. were having issues. 

The court therefore sustained the petition under section 

300(b)(1), amended to state, “On October 2019 and on prior 

occasions [father] made inappropriate contact and failed to 

recognize appropriate boundaries of the child [K.] by slapping the 

child’s buttocks and touching the child’s leg in an inappropriate 

manner. The mother knew of the inappropriate contact and 

failure to recognize appropriate boundaries of the child [K.], 

mother and [father] failed to protect the child in that mother 

allowed [father] to provide child care and have unlimited access 

to the child. The inappropriate contact and failure to recognize 

appropriate boundaries of the child [K.] by [father] and the 

mother’s failure to protect the child endanger the child’s physical 

4In re I.J. (2013) 56 Cal.4th 766 (I.J.).
16

health and safety and place the child and the child’s sibling[s], 

[D. and J.,] at risk of physical harm, damage, danger and failure 

to protect.” 

The court proceeded to disposition. Father’s counsel 

asserted that father should not have to complete a program 

regarding sexual abuse for perpetrators. Father’s counsel also 

asked that the court enter a home-of-parent order for father as it 

related to D. and J., or that father have unmonitored visitation 

with D. and J. The court said, “I’ll tell you what my concern is: I 

found inappropriate contact.” The court noted that father’s 

behavior “was percolating,” and stated, “My concern is not just 

[K.], but the two other children, and understanding what’s in 

bounds and what’s not in bounds. . . . I don’t want to ignore the 

issue and have it become a situation that years down the road . . . 

father engages in similar conduct.” 

The court asked DCFS’s counsel for his thoughts, and 

counsel stated, “I’m not sure what to make out of the court’s 

ruling as far [as] whatever it is [K.] said happened in that 

bedroom when he came in; she said he touched her leg all the 

way up to the butt. How that can be anything other than sexual 

contact[?]” The court interrupted, and stated, “I’ll tell you why. 

Because I found disparities in both of their versions that made it 

may [sic] hard to reconcile,” and DCFS had not met its burden on 

the issues where the parties’ testimony disagreed. Counsel for 

DCFS stated that he understood, and said, “[T]he department’s 

recommendation for the [sexual abuse] program is, I think, 

consistent with the court’s ruling.” The court responded, “I 

agree.”

Mother’s counsel stated that she did not oppose the homeof-parent order for father. Minors’ counsel stated that K. did not 
17

want “to keep her brothers separate from their dad,” and counsel 

would have no objection to a home-of-parent order for father “as 

long as father is participating in the programs that the court is 

ordering.” Minors’ counsel also asked that father be ordered to 

complete a sexual abuse education program, but “whether that 

necessarily has to be labeled ‘for perpetrators,’ I’ll leave that to 

the court.” 

Father’s counsel again asserted that father should not be 

ordered to enroll in a program for sexual abuse perpetrators, and 

asserted that father’s issues with “inappropriate boundaries” 

could be addressed through parenting classes. Father’s counsel 

stated that the court was “wondering is there going to be some 

kind of problem with the boys,” and stated that there was “no 

evidence” of an issue. The court stated that the biting incident 

“happened in front of one of his children. That’s a cause for 

concern.” Father’s counsel noted that “the boys are attached to 

father,” and the court responded, “That doesn’t allay the concern; 

it heightens it in many respects. Because it normalizes behavior 

that I found inappropriate.” 

The court held that placing D. and J. in father’s home 

would be contrary to the children’s welfare. The court found by 

clear and convincing evidence that there would be a substantial 

danger to the physical health, safety, and well-being of the 

children if they were returned to father’s care. The court 

therefore ordered that the children remain in mother’s home, 

ordered that father’s visits be monitored, and allowed DCFS

discretion to liberalize visitation. The court ordered father’s case 

plan to include sex abuse counseling for perpetrators. Father 
18

timely appealed. DCFS also timely appealed.5 We granted 

DCFS’s request to consolidate the two cases. 

DISCUSSION

In his appeal, father does not challenge jurisdiction under 

the amended b-1 count as it pertains to K.6 However, he asserts 

that the court erred in four respects: (1) by exercising 

jurisdiction over D. and J. due to finding of a serious risk of 

harm, (2) by removing D. and J. from father’s custody, (3) by 

requiring father’s visitation with D. and J. to be monitored, and 

(4) by requiring father to participate in sexual abuse counseling 

for perpetrators. 

In its appeal, DCFS asserts that the trial court erred by 

amending the b-1 count and dismissing the d-1 and j-1 counts. It 

contends that the court’s questions and statements at the 

jurisdiction and disposition hearing made clear that the court 

found that father’s treatment of K. constituted sexual abuse, and 

therefore that the case issues to be addressed include sexual 

5Mother did not appeal. In her respondent’s brief to father’s 

appeal, she states that she joins the contentions asserted in DCFS’s 

appeal. 

6Father makes clear in his opening brief that his appeal 

“only concerns [D.] and [J.],” not K. Nonetheless, in his 

respondent’s brief filed in DCFS’s appeal, father asserts that he 

“maintains that the dependency petitions should have been 

dismissed in their entirety,” and argues there was insufficient 

evidence to show “that any of the children were at substantial 

risk of serious physical harm, as required under section 300, 

subdivision (b)(1).” A jurisdictional finding may not be 

challenged by way of a respondent’s brief in another party’s 

appeal; father forfeited any such argument by failing to raise it in 

his opening brief. We therefore treat jurisdiction over K. as 

conceded.
19

abuse. DCFS asks that the matter be remanded with directions 

to sustain the petition as alleged. 

We address father’s contentions first, then DCFS’s. We 

find that neither party has demonstrated error, and affirm the 

jurisdiction and disposition orders.

A. Father’s appeal

Father asserts that the juvenile court’s jurisdiction and 

disposition orders were not supported by substantial evidence.

7

“‘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. “In making this determination, we 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 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.”’” (I.J., 

supra, 56 Cal.4th at p. 773.)

1. Jurisdiction over D. and J.

Father asserts that there was insufficient evidence to 

support the court’s finding that D. and J. were at risk of serious 

physical harm. Father contends that “it was not shown that [D.] 

7DCFS asserts that father challenges the facial sufficiency 

of the amended petition, but that his contention is forfeited 

because he did not challenge the petition in the juvenile court. In 

his reply brief, father makes clear that his challenge is to the 

sufficiency of the evidence supporting the court’s orders, not the 

facial sufficiency of the petition. 
20

and [J.] were at risk of serious physical harm as a result of any 

merely inappropriate behavior between Father and [K.].” 

As noted above, jurisdiction under section 300(b)(1) is 

appropriate when 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 

or guardian to adequately supervise or protect the child.” 

(§ 300(b)(1).) “[T]he 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.’” (In re Christopher R. (2014) 225 

Cal.App.4th 1210, 1216.)

Father asserts that there was “no evidence whatsoever” 

that his “making inappropriate contact and failing to recognize 

appropriate boundaries with [K.] caused [D.] and [J.] serious 

physical harm, or placed the boys at substantial risk of serious 

physical harm.” Father asserts that “[K.] herself did not suffer a 

serious physical harm” because father’s spanking her only made 

her “uncomfortable,” but did not hurt her. 

We disagree that there is no evidence of a serious risk of 

harm. First, with respect to K., father ignores the fact that K. 

came to the attention of school staff, and ultimately DCFS, 

because she was cutting herself with scissors, which she 

attributed to the stress of being exposed to father’s inappropriate 

touching. K. told the social worker and school staff that she felt 

safe in the home when maternal grandmother was there, and 

that she did not feel safe with father. K. also told the CSW and 
21

court that when she awoke to find father touching her buttocks, 

she hit father hard enough for her rings to leave marks on him, 

and that she cried and told mother about the incident. K. 

testified that when father grabbed her and pinned her to the bed, 

she bit his shoulder hard enough to leave a mark. Thus, the 

evidence shows that when K. was exposed to father’s 

inappropriate behavior, she was distressed enough to harm

herself, to seek help from other adults in her life, and to attempt 

to defend herself with force. Moreover, “[i]t may be inferred from 

the fact of a lewd touching that the victim suffered serious 

physical harm.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 398.) 

Although the court found that father’s behavior did not quite rise 

to the level of a lewd touching, it was not obligated to wait for 

further physical harm to occur before finding that K. was at risk. 

As for the younger children, the evidence demonstrated a 

risk of harm to them as well. “‘[C]ases finding a substantial 

physical danger tend to fall into two factual patterns. One group 

involves an identified, specific hazard in the child’s environment 

— typically an adult with a proven record of abusiveness. 

[Citations.] The second group involves children of such tender 

years that the absence of adequate supervision and care poses an 

inherent risk to their physical health and safety.’” (In re Drake 

M. (2012) 211 Cal.App.4th 754, 766-767.) The evidence here 

supports both patterns. The trial court found that father’s 

behavior with K. was inappropriate enough to support 

jurisdiction as to K., and father has not challenged that finding

on appeal. K. testified that D. and J. were present when father 

touched her while she slept and during the biting incident. 

Exposing children to a situation in which one sibling is being 

touched inappropriately by an adult, causing that child to feel the 
22

need to defend herself with physical violence, places small 

children at risk of harm. 

Furthermore, father’s inconsistent statements to the social 

worker about K.’s accusations (for example, saying he had never 

heard of the accusations, and then saying he had already denied 

them to mother), his failure to acknowledge that he breached 

appropriate boundaries with K., and his lie to mother about the 

bite mark on his shoulder indicated that father was not able or 

willing to address the issues that led to DCFS involvement. In 

addition, D. told the social worker that father hits him “hard,” 

indicating that father might already be breaching appropriate 

boundaries with D. Moreover, D., age five, had a speech delay 

that made it difficult for him to communicate in words, and J., 

age one, was too young to report any inappropriate behavior. The 

boys were therefore of “tender years,” and unsupervised care by 

an adult who failed to recognize appropriate behavioral 

boundaries with children placed them at risk of harm. (See, e.g., 

In re Christopher R., supra, 225 Cal.App.4th at p. 1219 [children 

six years old or younger are of tender years].) 

We therefore find that substantial evidence supported the 

juvenile court’s finding of jurisdiction over D. and J.

2. Disposition orders

Father further contends that the juvenile court erred in its 

disposition orders by removing D. and J. from his care, requiring 

monitored visitation, and requiring father to complete a program 

for sexual abuse perpetrators. We find no error. 

a. Removal of D. and J. from father’s care

“[A] dependent child may not be taken from the physical 

custody of the parent under section 361 unless the court finds 

there is clear and convincing evidence there is or would be a 
23

substantial danger to the child's physical health, safety, 

protection, or physical or emotional well-being if returned home, 

and that there are no reasonable means to protect the child’s 

physical health without removing the child (detriment finding). 

(§ 361, subd. (c)(1).)” (In re D.B. (2018) 26 Cal.App.5th 320, 328.) 

“[A] child does not need to be harmed before being removed from 

his parents’ custody. One of the goals of dependency is to protect 

a child before the harm takes place.” (In re Cole C. (2009) 174 

Cal.App.4th 900, 918.) We review the juvenile court’s finding of 

detriment for substantial evidence. (In re B.S. (2012) 209 

Cal.App.4th 246, 252.) 

Father’s challenge to the court’s order removing D. and J. 

from his care rests on the argument that there was no 

substantial evidence to support a finding that the children were 

at risk of harm. He contends that the court’s detriment finding 

was “pure speculation,” because there “was absolutely no 

evidence that Father had directly harmed or engaged in 

inappropriate behavior with his sons.” However, “[t]he 

jurisdictional findings are prima facie evidence the minor cannot 

safely remain in the home.” (In re T.V. (2013) 217 Cal.App.4th 

126, 135.) As discussed above, the jurisdictional findings were 

supported by substantial evidence. 

In addition, DCFS stated in its disposition report that the 

“family can be categorized as being at ‘High Risk’ for future 

abuse”; it expressed concerns about father’s lack of insight and 

the boys’ “young and vulnerable ages, where they are unable to 

protect themselves from any abuse and/or neglect.” The court 

found that father did not recognize appropriate boundaries with 

K., and stated, “I don’t know that he would recognize it any 

better between [his] biological and non-biological” children. In 
24

rejecting father’s request for a home-of-parent order, the court 

stated that father’s behavior with K. had been “percolating,” and 

expressed concern that with respect to the younger children, 

father might have trouble “understanding what’s in bounds and 

what’s not in bounds.” The court also stated that the biting 

incident “happened in front of one of [the younger] children. 

That’s a cause for concern.” When father’s counsel noted that 

“the boys are attached to father,” the court responded, “That 

doesn’t allay the concern; it heightens it in many respects. 

Because it normalizes behavior that I found inappropriate.” 

Substantial evidence supports the court’s detriment

findings. Jurisdiction was appropriate for all three children, 

father failed to recognize inappropriate behavior with K., and 

father demonstrated a lack of insight regarding the concerns of 

DCFS and the court. (See, e.g., In re Gabriel K. (2012) 203 

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

acknowledge”].) We therefore find no error in the court’s order 

that D. and J. be removed from father’s care.

b. Requirement that father’s visitation be 

monitored

Father further contends that the juvenile court erred in 

requiring his visitation with D. and J. to be monitored. His 

argument relies on the same premise as the one above: that there 

was no evidence the boys would be at risk in father’s 

unsupervised care. “The power to regulate visits between 

dependent children and their parents rests with the juvenile 

court and its visitation orders will not be disturbed on appeal 

absent an abuse of discretion.” (In re D.P. (2020) 44 Cal.App.5th 

1058, 1070.) Because the court’s findings regarding a risk to the 

children were supported by substantial evidence, we find no 
25

abuse of discretion in the court’s order that father’s visitation 

with D. and J. be monitored. 

c. Order that father participate in sex abuse 

counseling for perpetrators

Finally, father contends that the juvenile court erred by 

ordering him to participate in sex abuse counseling for 

perpetrators, after the court did not sustain the allegations 

regarding sexual abuse. Father asserts that “any case concerns 

regarding appropriateness and lack of proper boundaries could 

more than adequately be addressed in individual counseling 

addressing case concerns, coupled with parenting classes.” He 

also argues that “a finding that a parent’s conduct necessitates 

participation in a sexual abuse class for perpetrators is 

pernicious and carries a particular stigma—namely, that the 

parent is a sexual predator.” 

A disposition order “may include a direction to participate 

in a counseling or education program, including, but not limited 

to, a parent education and parenting program . . . . The program 

in which a parent or guardian is required to participate shall be 

designed to eliminate those conditions that led to the court’s 

finding that the child is a person described by Section 300.” 

(§ 362, subd. (g).) “However, when the court is aware of other 

deficiencies that impede the parent’s ability to reunify with his 

child, the court may address them in the reunification plan.” (In 

re Christopher H. (1996) 50 Cal.App.4th 1001, 1008.)

Here, although the court held that father’s inappropriate 

behavior with K. did not necessarily rise to the level of sexual 

abuse for purposes of finding jurisdiction, it was clearly 

concerned that father’s treatment of K. may have included a 

sexual component. Those concerns were supported by 
26

substantial evidence. K. testified that one night while mother 

was away, she awoke to find that father was rubbing his hand up 

her leg to her buttock. K. also testified that father threw clothes

on the floor to cause her to bend over to pick them up, and when 

she did so, he slapped her buttocks. Father looked at K. “from 

head to toe” in a way that made her uncomfortable, and maternal 

grandmother found father’s slapping of K.’s buttocks to be 

concerning. At least some of this behavior occurred in the 

presence of the younger children, including the nighttime 

touching incident.

Moreover, father’s concern about the “stigma” that may 

arise from his participation in a sexual abuse program for 

perpetrators is irrelevant. Father cites this court’s opinion in In 

re M.W. (2015) 238 Cal.App.4th 1444, 1455-1456, in which we 

found that the evidence did not support a jurisdictional finding 

that the children’s mother knew that the children’s father had a 

history involving criminal sexual assault, and failed to protect 

the children from the father. Although we noted in that case that 

the allegations against the mother “carrie[d] a particular stigma” 

(id. at p. 1452), nothing in that opinion supports father’s 

contention here, that the court should consider the “stigma” of 

participating in parental education programs of any type in 

fashioning a disposition order.

The juvenile court’s disposition order was therefore 

supported by substantial evidence, and the visitation order did 

not constitute an abuse of discretion. 

B. DCFS’s appeal

DCFS asserts on appeal that the juvenile court erred in 

amending the petition to remove allegations of sexual abuse, and 

in sustaining the petition as amended. It asks that we reverse 
27

the court’s ruling and remand the case with directions to sustain 

the petition as originally alleged. Father asserts that the 

evidence does not support a finding of sexual abuse. We find that 

DCFS has not met the high burden required for a reversal. 

In the juvenile court, DCFS had the burden of proof. To 

establish a basis for jurisdiction, DCFS was required to prove by 

a preponderance of the evidence that the minor at issue was a 

person described by section 300. (§ 355, subd. (a).) Here, the 

court found that DCFS failed to meet that burden under section 

300(d) and (j), and it met the burden under section 300(b)(1) only 

when the language in the petition was amended. 

“[W]here the trier of fact has expressly or implicitly 

concluded that the party with the burden of proof did not carry 

the burden and that party appeals,” the “question for a reviewing 

court becomes whether the evidence compels a finding in favor of 

the appellant as a matter of law. [Citations.] Specifically, the 

question becomes whether the appellant’s evidence was (1) 

‘uncontradicted and unimpeached’ and (2) ‘of such a character 

and weight as to leave no room for a judicial determination that 

it was insufficient to support a finding.’” (In re I.W. (2009) 180 

Cal.App.4th 1517, 1528, disapproved of on other grounds by 

Conservatorship of O.B. (2020) 9 Cal.5th 989.) Thus, the question 

before us is whether the juvenile court was compelled, as a 

matter of law, to sustain the petition as alleged under section 

300(b)(1), (d), and (j). We find it was not. 

When father spoke to the CSWs and when he testified at 

the adjudication hearing, he denied slapping K.’s buttocks except 

for several slaps on a single occasion while they were playing tag. 

Father also denied ever touching K. while she slept. Father 

admitted the biting incident, but said that K. bit him during a 
28

tussle over the television remote and denied pinning K. down. 

The juvenile court noted that the only evidence that was not in 

conflict was that there were “three to five slaps of this child’s 

bottom,” and the biting incident, for which “[s]ome of the 

essential facts are in dispute.” 

The court’s identification of the evidence that was not in 

conflict appears to be supported by the record. This is the 

evidence that is “uncontradicted and unimpeached.” (In re I.W., 

supra, 180 Cal.App.4th at p. 1528.) Although DCFS 

acknowledges the correct standard of review for its appeal, it 

nonetheless asserts that “father’s conduct as consistently 

disclosed by [K.] supported jurisdiction” as alleged in the petition. 

However, given the procedural posture of the case before us, we 

may not presume that K.’s version of the events was entirely

accurate. 

Each of the three counts in the petition initially stated that 

father “sexually abused” K. “by slapping and fondling the child’s 

buttocks,” and by “rubb[ing] and fondl[ing] the child’s leg to the 

child’s buttocks.” The petition further alleged that mother knew 

of the sexual abuse and failed to protect K., and that father’s 

sexual abuse and mother’s failure to protect endangered all three 

children. The uncontradicted and unimpeached evidence does 

not compel a finding that father sexually abused K.

Section 300(d) allows for an exercise of jurisdiction when a 

“child has been sexually abused, or there is a substantial risk 

that the child will be sexually abused, as defined in Section 

11165.1 of the Penal Code. . . .” Penal Code section 11165.1 

states that “‘sexual abuse’ means sexual assault or sexual 

exploitation,” and subdivision (b)(4) of that statute states, 

“Conduct described as ‘sexual assault’ includes, but is not limited 
29

to . . . [t]he intentional touching of the genitals or intimate parts, 

including the breasts, genital area, groin, inner thighs, and 

buttocks, or the clothing covering them, of a child, or of the 

perpetrator by a child, for purposes of sexual arousal or 

gratification . . . .” 

Penal Code section 11165.1 also refers to Penal Code 

section 288, which bars “any lewd or lascivious act . . . upon or 

with the body, or any part or member thereof, of a child who is 

under the age of 14 years, with the intent of arousing, appealing 

to, or gratifying the lust, passions, or sexual desires of that 

person or the child.” (Pen. Code, § 288, subd. (a).) Penal Code 

“[s]ection 288 is violated by ‘any touching’ of an underage child 

accomplished with the intent of arousing the sexual desires of 

either the perpetrator or the child.” (People v. Martinez (1995) 11 

Cal.4th 434, 452.) Penal Code section 11165.1 also refers to 

Penal Code section 647.6, subdivision (a)(1), which makes it a 

crime to “annoy[ ] or molest[ ] any child under 18 years of age.”

Penal Code section 647.6 “does not require a touching [citation] 

but does require (1) conduct a ‘“normal person would 

unhesitatingly be irritated by’” [citations], and (2) conduct 

‘“motivated by an unnatural or abnormal sexual interest”’ in the 

victim.” (People v. Lopez (1998) 19 Cal.4th 282, 289.)

DCFS asserts that father’s conduct constituted sexual 

abuse as defined in Penal Code sections 288 and 647.6. It argues 

that father touching K.’s leg and buttocks must have been 

sexually motivated because “there could be no other purpose . . . 

than for sexual gratification.” It also contends that father 

slapped K.’s buttocks, and maintained a culture of secrecy about 

his behavior when he told K. not to tell anyone about the slaps 

and lied to mother about the bite mark on his shoulder. 
30

We agree that father’s behavior toward K. was concerning; 

indeed, it was an appropriate basis for jurisdiction over all three 

children. However, the uncontradicted and unimpeached 

evidence presented does not compel a finding of sexual abuse as a 

matter of law, in part because it does not support a finding that 

father had the requisite intent. DCFS has not cited any 

authority, and we have found none, to support a holding that 

such an inference is compelled as a matter of law based on the 

uncontradicted evidence in this case.

DCFS further argues that the trial court’s error is 

demonstrated in its contradictory and confusing statements 

about its findings. On the one hand, the court seemed to base 

jurisdiction only on the evidence it found to be uncontradicted. 

When discussing whether disposition orders would address 

sexual abuse education in light of the amended petition, the court 

said, “I found disparities in both of their versions that made it 

may [sic] hard to reconcile, so I looked at the part where there 

wasn’t a disparity, where there wasn’t conflicting motives for 

their stories, and let’s and [sic] reconcile to say, all right. Where 

has the burden been met?” DCFS asserts that this exchange 

indicates that “the juvenile court is basically saying it did not 

assess father’s and [K.’s] credibility, weigh the evidence, or 

resolve conflicts in the evidence. [Citation.] Rather, it simply 

disregarded the conflicting evidence and based its jurisdictional 

findings on three to five slaps to [K.’s] buttocks that father 

admitted to.” 

DCFS points out that at other times, the court seemed to 

accept K.’s version of events. For example, in considering whether 

father’s actions were “prolonged,” the court stated that there had 

been “[o]ne touch to the leg and the buttocks, five slaps on the 
31

buttocks, a touch – the biting incident and what actually 

transpired. I don’t know if that’s what the court had in mind in 

I.J. when it talked about prolonged.” DCFS asserts that court’s 

disposition order requiring father complete a sexual abuse 

program for perpetrators also shows that the court accepted K.’s 

version of events. Based on these statements, DCFS contends

that it is “clear the jurisdictional findings do not reflect the 

juvenile court’s assessment of the evidence.” 

We agree that the court’s statements were contradictory at 

times, but confusing statements do not meet the high appellate 

burden applicable here. If K.’s statements were the only evidence 

before the court, and her version of events was uncontradicted 

and unimpeached, a different result might be warrant. But 

because father’s testimony contradicted K.’s accounts, we cannot 

find that the evidence compelled, as a matter of law, a finding of 

jurisdiction under the petition as originally phrased.

DCFS further asserts, “Even if it were true that father’s 

proven conduct did not rise to the level of sexual abuse, that 

would be no reason to not sustain count j-1.” It contends that the 

juvenile court seemed to misunderstand the relevant standard, 

because it stated that it would not sustain the count under 

section 300(j) because it did not find sexual abuse. In stating its 

ruling from the bench, the court said that it did not believe that 

father’s actions were sufficiently sexual in nature to warrant 

jurisdiction under section 300(d). The court then considered 

whether D. and J. were at risk, and said, “I think that there’s a 

risk, but not the risk that is referenced in I.J., which talks about 

a risk of sexual abuse, but a risk that he does not recognize that 

there’s a point in the children’s age when what he may think is 
32

appropriate becomes something inappropriate. So with all of that 

considered, the court is going to dismiss the (j) count . . . .” 

The court’s statement could be read to reflect an incorrect 

understanding that a count under section 300(j) requires a 

finding that a sibling was sexually abused. But section 300(j) is 

not so limited; it states that jurisdiction over a child is 

appropriate when the “child’s sibling has been abused or 

neglected, as defined in subdivision (a), (b), (d), (e), or (i), and 

there is a substantial risk that the child will be abused or 

neglected, as defined in those subdivisions.” Thus, the court 

could have exercised jurisdiction over D. and J. under section 

300(j), because it exercised jurisdiction over K. under section 

300(b), and also found a substantial risk to D. and J. 

Nevertheless, for the reasons discussed above, we do not 

find that the court was compelled as a matter of law to find 

jurisdiction over D. and J. under section 300(j) as that count was 

originally stated in the petition, which included allegations of 

sexual abuse. We therefore decline DCFS’s request to remand 

the cause and order the court to find jurisdiction under the 

petition as alleged. 

DISPOSITION

The juvenile court’s jurisdiction and disposition orders are 

affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. WILLHITE, J.