Filed 11/21/22 In re Hector R. CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re HECTOR R. et al.,

Persons Coming Under the 

Juvenile Court Law.

 B314373

 (Los Angeles County

 Super. Ct. No. 21CCJP00669)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

JAMES R.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles 

County, Lisa A. Brackelmanns, Judge Pro Tempore. Affirmed.
2

Robert McLaughlin, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Dawyn R. Harrison, Acting County Counsel, Kim Nemoy, 

Assistant County Counsel, and Jane E. Kwon, Deputy County 

Counsel, for Plaintiff and Respondent.

_____________________

Father James R. (Father) appeals from the juvenile court’s 

dispositional orders removing his young two sons, Hector R. and 

Jaden R.,

1 from his custody due to domestic violence between 

Father and mother, T.H. (Mother), and Father’s sexual abuse of 

his five-year-old stepdaughter, L.H. We conclude substantial 

evidence supports the juvenile court’s orders removing Father’s 

sons from his custody and that no reasonable means existed to 

protect the children absent removal. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Family

Father and Mother began dating in 2017 or 2018. They 

have two children together, Hector and Jaden, who, at the time of 

the Welfare and Institutions Code2 section 300 petition in 

February 2021, were 22 months old and six months old, 

respectively. Mother also has two daughters from a relationship

1 The section 300 petitions refer to Jaden, but his name is 

spelled Jayden on the hospital’s birth certificate.

2 Subsequent unspecified statutory references are to the 

Welfare and Institutions Code.
3

with Jorge V.,

3 11-year-old P.H. and five-year-old L.H. Mother, 

Father, and the children lived together in Laughlin, Nevada, 

then in a shelter, and then in an apartment in Los Angeles 

County for which both Mother and Father were listed on the 

lease as tenants. Only Hector and Jaden are subjects of this 

appeal. Neither Mother nor Jorge is a party to this appeal.

B. Child Welfare History

In 2020, the Los Angeles County Department of Children 

and Family Services (DCFS) received three referrals involving 

Father. In January 2020, a caller reported sexual abuse by 

Father. The referral was evaluated out for investigation. In July 

2020, a caller reported Father allegedly sexually abused P.H.

4 

That referral was closed as unfounded. In September 2020, 

DCFS received a referral that P.H. intervened during an episode 

of domestic violence between Mother and Father. The referral 

was closed as inconclusive.

C. Events Giving Rise to DCFS’s Involvement

On February 3, 2021, DCFS received a referral that Father 

sexually abused L.H. “about two weeks ago and also in June or 

July of 2020 and August 2020.” Law enforcement brought L.H. to 

a clinic for forensic examination, during which L.H. was observed 

3 Jorge is a non-offending parent in these dependency 

proceedings.

4 Based on DCFS’s interviews during these proceedings, 

the July 2020 referral likely concerned L.H. and not P.H.
4

to have several bruises, including on her left hip and left midthigh, and brown spots indicating prior bruising.5

On February 4, 2021, Mother told a DCFS social worker 

that she and Father argued on February 3, 2021, regarding rent 

and disciplining the children. Father urged Mother to spank 

them; Mother told Father to leave. After he did so, Mother 

remembered her wallet was in his car. She claimed that Father 

refused to return it. Mother called the police and informed them 

of domestic violence between her and Father and that L.H. had 

told her that Father had touched her vagina.

1. Investigation of Domestic Violence

During the social worker’s February 4, 2021 interview of 

Mother, Mother confirmed that she and Father have a history of 

domestic violence and that since December 2020, they have had 

three physical altercations. During one altercation at the end of 

last year, P.H. intervened. She was not physically injured.

P.H. and the maternal grandmother also reported that five 

months before, when the family lived in a shelter, Mother and 

Father fought. The maternal grandmother reported that Father 

choked Mother and that P.H. had witnessed the incident.

Father stated that Mother hit him when they lived in the 

shelter. He claimed that when he stood up after Mother hit him, 

P.H. thought he was going to hit Mother, so P.H. grabbed a stick 

5 A DCFS social worker also observed brown marks on 

L.H.’s right knee, left outer thigh, and lower left side of the 

stomach. L.H. also had a greenish mark just below her hairline. 

L.H. denied being hit by anyone. Mother does not know the 

cause of L.H.’s bruises. She denied that any of the children were 

hit.
5

and came towards him. He took the stick from P.H. and left the 

shelter. He claimed that he never hit Mother and that Mother 

was always the aggressor.6

2. Investigation of Sexual Abuse

Mother, a victim of childhood sexual abuse by the maternal 

grandfather and maternal great grandfather, told a DCFS social 

worker that in “July/August 2020,” L.H. told her that Father had 

touched her inappropriately. The results of a forensic sexual 

abuse exam conducted at the time at Olive View Medical Center 

were negative. As a result, both Mother and P.H. were not sure 

whether they believed L.H.’s allegations of sexual abuse. The 

social worker advised Mother that forensic examinations are not 

always able to confirm inappropriate sexual touching. Mother 

observed that the maternal grandmother “is always asking the 

girls if anyone is touching them inappropriately.”

However, Mother recounted a recent incident that caused 

her to be concerned about L.H. She, Father, and L.H. went to a

grocery store. While there, L.H. stated that Father promised to 

buy her an “LOL” toy during Christmas. Mother asked L.H. why 

Father had made that promise and observed Father had a serious 

look on his face. When L.H. saw the look on Father’s face, she 

became quiet. Mother later asked L.H. if Father touched her; 

L.H. would not answer the question.

On February 3, Mother asked L.H. again if Father touched 

her. L.H. responded that Father rubbed her “private” with his 

fingers at Christmas time. Mother took L.H. to the hospital for 

6 Father also told the DCFS social worker that he had been 

in prison from 1998 to 2015 for voluntary manslaughter, 

possession of a firearm, and gang activity.
6

an examination, but ended it before the vaginal examination was 

completed because she felt it was invasive and that L.H. was 

nervous.

Mother reported that every other week since December 

2020, L.H. has woken up with a bad dream. L.H. did not tell 

Mother what the dreams were about, but L.H. was afraid to sleep 

alone. In January 2021, Mother observed L.H. “grinding” on the 

sofa twice. Mother also reported that L.H. changes her 

underwear two to three times per day and states that she wants 

a boyfriend.

Mother also participated in a forensic interview on 

February 3, 2021. During the forensic interview, Mother stated 

L.H. said Father touched her at night, while L.H. was sleeping. 

Mother reported that L.H. shares a room and a bed with her little 

brother. According to P.H., L.H. does not sleep alone; she sleeps 

in the same room as Hector. When Father goes in to check on 

Hector, the door is always open, and Father stays in the room for 

only a couple of minutes.

The social worker asked L.H. if anyone touched her body on 

a place they are not supposed to. L.H. responded that Father did. 

When asked where he had touched her, L.H. pointed to her 

vagina. She stated that Father came into her room at night time 

and touched her under her pajamas and panties with his finger. 

She denied penetration and said Father touched her one time 

only. When asked if Father bought her anything, she stated he 

bought her an “LOL” toy, but did not know why he bought it.

A nurse practitioner reported to the social worker that L.H. 

had twice reported Father touched her inappropriately in the last 

year, although the nurse did not know if L.H. reported the same 

incident twice. She claimed it was Mother, not L.H., who was 
7

nervous during L.H.’s February 3, 2021 examination. The nurse 

observed redness around L.H.’s genitals, but concluded it may or 

may not be abuse related.

The record includes notes, dated February 4, 2021, from a 

registered nurse that indicate L.H. told the nurse that Father 

touched under her clothes on her “private part” when he came in

and told her “sweet dreams.”

On February 5 and 6, 2021, the social worker interviewed 

Father by phone. He denied inappropriately touching L.H. He

observed he is never alone with her; stated L.H. had acted 

inappropriately with him in front of Mother by attempting to hug 

and kiss him; and stated he bought her an “LOL” toy for 

Christmas and her birthday. Further, Father stated Mother, 

maternal grandmother, and maternal grandfather are “always”

putting thoughts in the girls’ heads about being touched 

inappropriately.

Maternal grandmother confirmed that she does ask the 

girls if they are being touched inappropriately. The girls have 

not disclosed any inappropriate touching to her.

On February 10, 2021, a social worker interviewed P.H. 

and L.H.’s biological father, Jorge. He stated that he does not 

disbelieve L.H.’s allegations of sexual abuse, but noted L.H. has a 

vivid imagination and that in the past, maternal grandmother 

was responsible for putting thoughts in P.H.’s head that he 

touched her inappropriately. Jorge stated a lie detector test 

proved he did not. DCFS’s records indicate that the sexual abuse 

allegations against Jorge were deemed inconclusive in June 2012, 

and then, in November 2012, the same incident was investigated 

and deemed unfounded.
8

3. Additional Observations

The social worker did not observe any marks on Hector or 

Jaden. The social worker recommended that Hector be assessed 

for speech delays.

Neither Mother nor Father planned to stay in a 

relationship together. Mother signed a safety plan to, inter alia, 

protect the children from Father, seek an emergency protective 

order as soon as possible, and pending doctor approval, take L.H. 

in for a sexual abuse forensic exam.7

D. DCFS Detains the Children

On February 8 and 9, 2021, the juvenile court issued orders

permitting DCFS to remove P.H. and L.H. from Mother, and 

Hector and Jaden from Mother and Father pursuant to section 

340.

On February 10, 2021, the social worker, accompanied by 

law enforcement, removed the children from Mother’s custody. 

While the social worker was at Mother’s residence, the maternal 

grandmother, who was present, told the social worker than when 

Hector was one month old, maternal grandmother saw Father 

with Hector’s penis in his mouth. The maternal grandmother 

also recounted that on one occasion when she slept on the sofa in 

Mother’s apartment, she woke up with a bruise on her arm and 

her pants’ zipper broken. She believed Father was responsible 

for the bruise and the broken zipper.

7 On February 10, 2021, Mother stated she was waiting for 

the restraining order to be signed. A copy of the restraining order 

is not in the record and there is no indication whether Mother 

obtained the restraining order.
9

On February 10, 2021, a social worker spoke with Father 

by telephone to inform him that the children had been detained. 

Father cried and stated he now lived out of state and did not 

understand why the children were detained from Mother. Father 

denied the maternal grandmother’s allegations about Hector or 

that he put a bruise on her arm or tore the zipper on her pants. 

Father noted that when Hector was one month old, they lived in 

a shelter, and he was never alone with the children.8

P.H. and L.H. were placed with Jorge. On February 16, 

2021, Hector and Jaden were placed in the home of maternal 

great cousin. In April 2021, Hector and Jaden were placed with a 

non-relative caregiver.

E. The Petition

On February 16, 2021, DCFS filed a section 300 petition. 

In counts a-1 and b-2, DCFS alleged that the four children were 

at substantial risk of suffering serious harm as a result of Mother 

and Father’s domestic violence, from which Mother failed to 

protect the children. The allegations included that on one 

occasion, “[P.H.] intervened and stopped the altercation.” DCFS 

further alleged in counts b-1, d-1, and j-1, that L.H. and her 

siblings were at substantial risk of suffering serious harm as a 

result of Father’s sexual abuse of L.H. and Mother’s failure to 

8 The record does not disclose that the trial court relied on 

the maternal grandmother’s allegations of Father’s sexual abuse 

of Hector or of Father breaking her zipper while she slept, and we 

conclude that it is not necessary to determine the reliability of 

the maternal grandmother’s statements to affirm the juvenile 

court’s judgment.
10

protect the children from the sexual abuse that she allegedly 

knew about.

F. Detention Hearing

On February 17, 2021, the juvenile court found DCFS had 

made a prima facie showing that P.H., L.H., Hector, and Jaden

were persons described by section 300 and ordered them 

temporarily removed from Mother and Father. The juvenile 

court also ordered monitored visitation for Mother, that DCFS to 

provide no- or low-cost referrals for educational programs for 

Mother and Father, and that L.H. participate in counseling (P.H. 

was already receiving counseling services).

G. Jurisdiction and Disposition Report, Addendum 

Reports,

9 and the First Amended Petition

1. Domestic Violence Allegations

DCFS reported that on March 11, 2021, Mother 

acknowledged she had “an anger problem,” and that she has 

thrown things at Father, including a knife.

When asked if Father hit her, Mother responded, “There 

was a time when I was asleep and I would feel him hit me. It 

happened after Jaden was born.” She also confirmed that she 

and Father fought while at the shelter. Father tried to leave, but 

Mother prevented him. Father was about to grab her neck when 

P.H. hit him in the back. Then, in their apartment in February 

9 On March 29, 2021, DCFS filed a jurisdiction and 

disposition report. DCFS filed addendum reports on April 9, 

2021 (attaching the transcripts of the forensic interviews of 

Mother and L.H.) and May 27, 2021.
11

2021, Mother told Father to leave. Mother pushed Father, and

Father choked and punched her.

Mother also acknowledged that she has spanked her kids “a 

couple of times.” She admitted, “I think I have left bruises.” She 

also threw a shoe at P.H. and threw a plastic chair in L.H.’s 

direction.

Father acknowledged he and Mother argued and yelled, but

claimed “I never laid hands on her.” He stated Mother “would get 

a little handsy with me, but she never punched me really hard or 

punched me on the face.” He also stated, “I’ve never seen her 

throw objects at the kids.”

Jorge stated that when he and Mother were together, she 

broke his printer and 10 phones out of anger.

L.H. stated that Mother and Father argued and that 

Father hit Mother.

On March 24, 2021, P.H. told the social worker that Mother 

and Father constantly fought about cheating. She noted the 

same types of arguments happened between Mother and her 

father, Jorge. She explained that at the shelter, it looked like 

Father had Mother by the neck and started to choke her. In 

response, P.H. picked up a piñata stick and hit him on the back. 

P.H. also reported that Mother throws things when she gets 

angry, including an adult shoe thrown at Father that hit Hector 

and a “Minnie Mouse” chair thrown at Father that hit L.H.

2. Sexual Abuse Allegations

On March 11, 2021, Mother admitted that “[L.H.] told me 

that [Father] never touched her.” “I lied that [L.H.] reported 

again that [Father] touched her. . . . The reason I did it because I 

didn’t want him to get full custody of the boys.”
12

Mother also told the Los Angeles Police Department 

investigating detective that she “made the whole thing up.” She 

said she told L.H. to lie and promised to get her a doll if she did.

Mother also stated that one day, she left L.H. with Father’s 

stepmom and paternal grandfather (also named James) to drive 

Father to work. When she returned, L.H. was asleep, naked. 

When Mother asked L.H. why she was naked, L.H. responded she 

did not know. Later, maternal great uncle told Mother that L.H. 

had said that “James touched her.” Mother then asked L.H. 

about whether James touched her, and L.H. said no.10

Father continued to deny allegations of sexual abuse. He 

stated, “I was never left alone with the kids. [Mother] had some 

stuff happen to her in the past. She watches them closely. She is 

worried about that happening to her kids.” With respect to 

whether paternal grandfather did anything to L.H., Father said 

that Mother only told him after the fact what had happened. He 

asked her why she did not call the police. She responded, 

“Because I don’t know.”

P.H. stated that she is unsure if her sister is telling the 

truth about Father touching her. Mother did not leave the 

children alone; she either took the children with her or P.H. 

would watch her siblings. As to the incident when L.H. woke up 

naked at paternal grandfather’s house, P.H. recalled that L.H. 

woke up with her pajama top and underwear on, but no pajama 

bottoms. L.H. did not tell her anything about being touched.

When asked if there have been any changes in L.H.’s 

behavior, Jorge stated that L.H. has nightmares; has mentioned 

10 The record does not indicate whether “James” refers to 

Father or paternal grandfather.
13

Father, his finger, and her private parts; is extra clingy; and 

needs him by her side to fall asleep.

The social worker did not interview L.H. about the sexual 

abuse allegations because she had been interviewed about it 

multiple times, including a forensic interview on March 9, 2021, 

and due to her young age. During L.H.’s forensic interview, she 

stated that while she was in her upper bunk bed, Father pulled 

down her clothes, touched her “vaginal,” and that it felt “ticklish.” 

She stated her sister slept in the lower bunk. L.H. attempted to 

avoid answering questions and did not provide clear details 

relating to the circumstances of the abuse.

3. The First Amended Petition

On March 30, 2021, DCFS amended counts a-1 and b-2 to 

include allegations that during an altercation, Mother threw a 

shoe at Father while he was holding Hector. The shoe hit Hector. 

On another occasion, Mother threw a small plastic chair at 

Father and struck L.H.

4. Additional Information

On April 1, 2021, Mother was admitted to the hospital for 

an involuntary 72-hour psychiatric hold and was diagnosed with 

severe depression.

During the proceedings, Mother enrolled in domestic 

violence, parenting, and sexual abuse awareness counseling. By 

May 15, 2021, she had completed 9 out of 12 parenting classes, 

and 11 out of 12 domestic violence classes. She also attended 

individual counseling sessions and was assessed for Regional 

Center services. The DCFS social worker noted “that [Mother] 

may have an intellectual disability.” “[M]other has a difficult 

time concentrating, retaining information and understanding 

what is being told to her.” It was determined that Mother 
14

required assistance from the Regional Center for daily 

functioning, including raising her children. DCFS requested 

further evaluation of Mother’s cognitive abilities and capacity to 

provide appropriate supervision for the children. L.H. and 

Hector were also referred for Regional Center assessments as 

there was concern surrounding their development. Mother 

visited all four children on a regular basis.

At the time of the jurisdiction and disposition report, 

Father was residing in Arizona and had elected to not have any 

visits until the dependency proceedings were resolved because he 

did not want to be accused of improperly influencing the children. 

By May 26, 2021, however, Father had virtual calls with Hector 

and Jaden and planned to have a monitored visit on May 27, 

2021.

Father did not enroll in any programs.

H. The Second Amended Petition

On May 14, 2021, DCFS filed a second amended petition. 

In count b-3, DCFS alleged that Mother had mental and 

emotional problems, including severe depression, for which she 

had been involuntarily hospitalized, and that Mother failed to 

take the psychotropic medications that had been prescribed to 

her.

I. Jurisdictional and Dispositional Hearing and Orders

At the June 1, 2021, combined jurisdictional and 

dispositional hearing, Mother and Father argued Mother’s 

allegations of sexual abuse had been falsified. Father’s counsel 

argued L.H.’s statements were unreliable, pointing to, inter alia,

inconsistencies in L.H.’s recounting of the circumstances 

surrounding the inappropriate touching and that the social 

worker observed that L.H. was highly impressionable. Mother’s 
15

counsel also argued that Mother had been abused when she was 

young, so she was sensitive to her children’s safety and never left 

the girls alone with Father. Thus, Mother argued the sexual 

abuse allegation should be dismissed, or in the alternative, the 

allegations that Mother failed to protect the children from sexual 

abuse should be stricken.

The juvenile court found it had jurisdiction over the 

children pursuant to section 300, subdivisions (a), (b), (d), and (j). 

It sustained counts a-1 and b-2, relating to domestic violence, but 

struck the failure to protect language in favor of finding the 

domestic violence was mutual. The court also sustained count b3, relating to Mother’s mental and emotional health. As to the 

sexual abuse counts, b-1, d-1, and j-1, the juvenile court 

discounted Mother’s recantation of the sexual abuse, noting that 

Mother has unresolved mental health issues. Further, the 

juvenile court found L.H.’s behaviors of having nightmares, being 

clingy, and changing her underwear frequently was consistent 

with sexual abuse. It struck Mother’s failure to protect from 

counts b-1, d-1, and j-1 and otherwise sustained those counts.

The juvenile court then determined clear and convincing 

evidence relating to each sustained count supported removing the 

children from Mother and Father. It explained that it was 

concerned about the sexual abuse of a five-year-old girl, and that 

because Hector and Jaden were too young to be able to express 

themselves should Father engage in similar behavior with them, 

removal of the boys from Father was warranted.

Father appealed.
16

DISCUSSION

A. Legal Principles and Standard of Review

To remove a child from the custody of a parent with whom 

the child resided at the time the petition was filed, the juvenile 

court must find by clear and convincing evidence11 that one of 

five grounds exists pursuant to section 361, subdivision (c). (In re

V.L., supra, 54 Cal.App.5th at p. 154.) Of relevance here, “[o]ne 

ground for removal is that there is a substantial risk of injury to 

the child’s physical health, safety, protection or emotional wellbeing if he or she were returned home, and there are no 

reasonable means to protect the child.” (Ibid., citing § 361, subd. 

(c)(1).) Another ground for removal is that “[t]he minor or a 

sibling of the minor has been sexually abused, or is deemed to be 

at substantial risk of being sexually abused, by a parent, 

guardian, . . . or member of his or her household, . . . and there 

are no reasonable means by which the minor can be protected 

from further sexual abuse or a substantial risk of sexual abuse 

11 The clear and convincing evidence standard “ ‘ “requires 

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

leave no substantial doubt.” ’ ” (In re V.L. (2020) 54 Cal.App.5th 

147, 154.) “ ‘[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 probable that the fact was true.’ ” (Id. at 

p. 155 [applying the standard of review articulated in a 

conservatorship matter to a dependency proceeding], quoting 

Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
17

without removing the minor from his or her parent, 

guardian . . . .” (§ 361, subd. (c)(4).)

12

“ ‘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 

N.M. (2011) 197 Cal.App.4th 159, 169-170.)

“ ‘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 

12 Father argues the juvenile court lacked authority to 

remove the children from his custody pursuant to section 361, 

subdivision (c) because Father “maintained a separate residence 

and did not reside with the children.” Father does not cite any 

evidence to support his contention that at the time the petition 

was initiated, the children did not reside with him. Rather, the 

record reflects the children, Mother, and Father lived together in 

an apartment for which Father was named as a tenant on the 

lease. Nonetheless, Father acknowledges section 361, 

subdivision (d) authorizes removal of children from a parent with 

whom the children did not reside at the time the petition was 

initiated if “the juvenile court finds clear and convincing evidence 

that would be a substantial danger to the physical health, safety, 

protection, or physical or emotional well-being of the child for the 

parent . . . to live with the child or otherwise exercise the parent’s 

. . . right to physical custody.” (§ 361, subd. (d).) We observe that 

the juvenile court’s minute orders also cite to section 361, 

subdivision (d).
18

court.” [Citation.] “We do not reweigh the evidence or exercise 

independent judgment, but merely determine if there are 

sufficient facts to support the findings of the trial court. 

[Citations.] ‘ “[T]he [appellate] court must review the whole 

record in the light most favorable to the judgment below to 

determine whether it discloses substantial evidence . . . such that 

a reasonable trier of fact could find [that the order is 

appropriate].” ’ [Citation.]” [Citation.]’ [Citation.]” (In re I.J.

(2013) 56 Cal.4th 766, 773.) “In reviewing for substantial 

evidence to support a dispositional order removing a child, we 

‘keep[ ] in mind that the [juvenile] court was required to make its 

order based on the higher standard of clear and convincing 

evidence.’ [Citations.]” (In re Nathan E. (2021) 61 Cal.App.5th 

114, 123.)

B. Substantial Evidence Supported Removal of Hector 

and Jaden from Father’s Custody Based on Father’s 

Sexual Abuse of L.H.

Father argues there was not clear and convincing evidence 

of a substantial risk of injury necessitating removal of Hector and 

Jaden from his custody. He first argues that L.H.’s unreliable 

hearsay statements were the only evidence of the sexual abuse 

following Mother’s recantation of her earlier statements

concerning Father’s inappropriate touching of L.H. This 

argument is without merit.

As a preliminary matter, we observe that Father does not 

challenge the juvenile court’s jurisdictional findings, and thus 

does not contest that the juvenile court’s determination that 

Hector and Jaden were at substantial risk of harm as a result of 

Father’s sexual abuse as alleged in counts b-1, d-1 and j-1 of the 
19

second amended petition was supported by a preponderance of 

the evidence.

Father relies on In re Lucero L. (2000) 22 Cal.4th 1227. 

There, our Supreme Court considered the admissibility and 

substantiality of the hearsay statements of a three-year-old. The 

court held, in a plurality opinion, that “a juvenile court may not 

base its findings solely on the hearsay statements of a truthincompetent child—that is, a child who may not testify because 

she is too young to separate truth from falsehood—unless the 

child’s statements bear ‘special indicia of reliability.’ ” (In re I.C. 

(2018) 4 Cal.5th 869, 875 [summarizing the holding of In re 

Lucero L., supra].)

Father made similar arguments in the juvenile court, 

which the juvenile court rejected. The juvenile court determined

it would not credit Mother’s recantation, observing Mother had 

been suffering from severe depression at the time she stated that 

she had made up the sexual abuse allegations and told L.H. to lie. 

We are not in a position to question the court’s credibility 

determinations or reweigh the evidence. (See In re I.J., supra, 56 

Cal.4th at p. 773.) Thus, the juvenile court’s findings were not 

based solely on L.H.’s hearsay statements. Rather, the record 

also included corroborating statements from Mother and L.H.’s 

father, including statements about L.H.’s conduct that were 

consistent with sexual abuse.

Mother and L.H.’s father observed that L.H.’s behavior had 

changed in that she had nightmares, could not sleep by herself, 

and was extra clingy. Mother also testified that L.H. engaged in 

sexualized behaviors such as grinding on the couch and that L.H. 

changed her underwear several times a day. Further, well before 

Mother claimed to have made up the sexual abuse allegations in 
20

February 2021 to prevent Father from getting custody of the 

boys, another allegation of Father sexually abusing L.H. had 

been made in July 2020.

Additionally, substantial evidence supports the conclusion 

that L.H. is not “truth incompetent.” The forensic interviewer 

established that L.H. knew when to say “I don’t know.” The 

forensic interviewer also established that L.H. was able to 

disagree and correct incorrect statements, and linked that 

practice to the question, “Will you tell me the truth?” Further, 

L.H.’s allegations bore an indicia of reliability. Her core 

allegations were consistent. She told a registered nurse, a

forensic interviewer, the social worker, and her father that 

Father had touched her vagina or private part, under her clothes, 

with his finger.

Next, Father argues that neither of his son’s experienced or 

was exposed to Father’s alleged sexual abuse, and that his sons 

are dissimilarly situated from L.H. in terms of age, gender, and 

biological connection. In In re I.J., our high court addressed the 

question of whether a father’s sexual abuse of his daughter 

supported the juvenile court’s exercise of jurisdiction over his 

sons under section 300, subdivision (j) relating to abuse of a 

sibling even when there was no evidence the father sexually 

abused or otherwise mistreated his sons. (In re I.J., supra, 56 

Cal.4th at pp. 770, 772.) In holding the juvenile court’s 

dependency jurisdiction over the sons was proper, our Supreme 

Court explained, “ ‘[s]ome risks may be substantial even if they 

carry a low degree of probability because the magnitude of the 

harm is potentially great.’ ” (Id. at p. 778.) The court further 

explained that under subdivision (j) of section 300, the juvenile 

court is to consider the totality of the circumstances of the child 
21

and his or her siblings, including “the age and gender of each 

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

condition of the parent or guardian, and any other factors the 

court considers probative in determining whether there is a 

substantial risk to the child.’ (§ 300, subd. (j).)” (Id. at p. 774.) 

Subdivision (j) “thus accords the trial court greater latitude to 

exercise jurisdiction as to a child whose sibling has been found to 

have been abused than the court would have in the absence of 

that circumstance.” (Ibid.)

Although In re I.J. concerned the juvenile court’s 

jurisdictional findings, and Father does not challenge the juvenile

court’s jurisdictional findings, both Father and DCFS agree that 

it provides relevant guidance here. Given that In re I.J. concerns 

a fundamental question at issue in this appeal—i.e., whether 

sexual abuse of a sibling (or, here, half-sibling) can support 

removal of a child of the opposite sex—and that the same 

evidence that supports the juvenile court’s exercise of jurisdiction 

is sufficient to the removal of Hector and Jaden from Father’s 

custody, we agree. (See In re S.R. (2020) 48 Cal.App.5th 204, 207 

[quoting In re I.J. for the proposition that “ ‘ “even . . . a low 

degree of probability” ’ can give rise to a substantial risk if ‘ “the 

magnitude of the harm is potentially great,” ’ ” and affirming 

removal].) Following the guidance of In re I.J. to consider the 

totality of the circumstances, we conclude substantial evidence 

supported the juvenile court’s removal order.

We are not convinced that the difference between the age 

and gender of the children here alleviate the risk to Hector and 

Jaden. In In re P.A. (2006) 144 Cal.App.4th 1339, the appellate 

court considered whether five- and eight-year-old boys were at 

risk of sexual abuse after the father twice touched his nine-year-
22

old daughter’s vagina. The court concluded that “where . . . a 

child has been sexually abused, any younger sibling [including 

one of the opposite sex] who is approaching the age at which the 

child was abused, may be found to be at risk of sexual abuse.” 

(Id. at p. 1347.) Here, like the children in In re P.A., L.H., 

Hector, and Jaden were sufficiently close in age to warrant 

removal. When Father sexually abused L.H. in December 2020, 

she was on the verge of turning five years old; Hector was 

approximately one-and-a-half years old; and Jaden was 

approximately half-a-year old.

Further, Father contends his relationship with L.H. differs 

from that with his sons because he is not biologically related to 

L.H. However, Mother and Father had dated since 

approximately 2017 or 2018, at least two years before the abuse, 

and had lived together for some time in Laughlin, in a shelter, 

and then in their apartment. Given L.H.’s young age and her 

concomitant reliance on Father as the father figure in the 

household, Father’s sexual abuse of L.H. was abhorrent and 

unnatural. (See In re I.J., supra, 56 Cal.4th at p. 778 [“ ‘[S]exual 

or other serious physical abuse of a child by an adult constitutes 

a fundamental betrayal of the appropriate relationship between 

the generations’ ”].)

Additionally, the juvenile court’s observation that Hector 

and Jaden were too young to express themselves (and Hector may 

have developmental delays) and, thus, would be unable to 

indicate they needed help is well-taken. Because the children 

therefore could not cry for help, fight back, or report any 

inappropriate touching, the risk of abuse was greater than it 

would be for an older child. Moreover, a sibling need not be 

inappropriately touched to suffer a risk of substantial harm as 
23

exposure to sexual abuse is also harmful. (See In re I.J., supra, 

56 Cal.4th at p. 778 [“Also relevant to the totality of the 

circumstances surrounding the sibling abuse is the violation of 

trust shown by sexually abusing one child while the other 

children were living in the same home and could easily have 

learned of or even interrupted the abuse”]; In re Andy G. (2010)

183 Cal.App.4th 1405, 1412 [“ ‘We do not discount the real 

possibility that brothers of molested sisters can be molested 

[citation] or in other ways harmed by the fact of the molestation 

within the family. Brothers can be harmed by the knowledge 

that a parent has so abused the trust of their sister. They can 

even be harmed by the denial of the perpetrator, the spouse’s 

acquiescence in the denial, or their parents’ efforts to embrace 

them in a web of denial’ ”]; see also In re Karen R. (2001) 95 

Cal.App.4th 84, 89-91 [finding son was also sexually abused 

because he had seen his sister beaten by the father and was told 

by his sister about the rape immediately thereafter].) Although 

Father claims Hector was not exposed to his inappropriate 

touching of L.H., the record demonstrates that L.H. and Hector 

shared a room and that at times, L.H. shared her bed with one of 

her brothers.

Also relevant to the determination that removal of Hector 

and Jaden from Father was proper is that by the time of the 

combined jurisdictional and dispositional hearing, Father had not 

enrolled in any educational programs. Father’s failure to do so is 

probative of the fact that there were no other reasonable 

alternatives to removal because it strongly indicates Father has 

failed to confront and deal with the issues giving rise to the 

court’s jurisdiction. (See § 366.21, subd. (e)(1) [“The failure of the 

parent or legal guardian to participate regularly and make 
24

substantive progress in court-ordered treatment programs shall 

be prima facie evidence that return would be detrimental”].)

C. Substantial Evidence Supported Removal of Hector 

and Jaden from Father’s Custody Based on Father’s 

Domestic Violence Against Mother

Father argues that the evidence of a substantial risk of 

serious harm due to domestic violence was insufficient to support 

the juvenile court’s removal order. He contends that because he 

and Mother are no longer in a relationship and he lives in 

Arizona, there is no current risk of harm to his sons.

In In re Daisy H. (2011) 192 Cal.App.4th 713, 717, this 

court explained that “[p]hysical violence between a child’s 

parents may support the exercise of jurisdiction under section 

300, subdivision (b) but only if there is evidence that the violence 

is ongoing or likely to continue and that it directly harmed the 

child physically or placed the child at risk of physical harm.” In 

that matter, DCFS alleged the father choked the mother and 

pulled her hair. The record disclosed, however, that those 

incidents occurred seven years before DCFS filed the section 300 

petition, and that none of the incidents occurred in the presence 

of the children. (Ibid.) Thus, there was no reason to believe the 

violence would continue into the future and place the children at 

risk of harm.

Here, however, the incidents of violence were not so remote 

in time. Father choked and punched Mother on February 3, 

2021, the day before DCFS initiated its investigation of the 

instant matter and a mere four months before the juvenile court 

ordered the children removed from Father. Moreover, the record 

reflects a pattern of violence and discloses that Father (and 

Mother) lack sufficient awareness of and impulse control to not 
25

resort to physical violence. Mother acknowledged that she and 

Father had a history of violence and between December 2020 and 

February 3, 2021, she and Father had three physical altercations. 

Even a few months before December 2020, Father choked Mother 

while the family lived in a shelter. Also, unlike In re Daisy, the 

children were present both times Father choked Mother. In the 

first instance, P.H. felt compelled to intervene to protect Mother

and hit Father with a stick.

13

Further demonstrating his lack of awareness or interest to 

change, throughout the proceedings Father claimed he never laid 

a hand on Mother, minimized Mother’s violence against him 

(noting she gets a little handsy, but does not punch him in the 

face), and did not enroll in any educational programs. Father’s 

failure to acknowledge his violence and seek treatment is 

especially concerning when viewed in the context that Father 

spent 17 years in prison for voluntary manslaughter, suggesting 

a propensity for violence. Indeed, other courts have observed,

“ ‘ “[P]ast violent behavior in a relationship is ‘the best predictor 

of future violence.’ Studies demonstrate that once violence occurs 

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

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

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

controlling his new partner.” [Citation.]’ [Citation.]” (In re R.C.

(2012) 210 Cal.App.4th 930, 942, italics added.)

13 In criminal sentencing, strangulation is recognized as 

aggravated conduct reflecting an exceptionally callous disregard 

for human suffering. (See In re Scott (2004) 119 Cal.App.4th 871, 

891-892.) While this is not a criminal matter, Father’s tendency 

to resort to choking Mother is concerning and reflects a lack of 

aversion to violence.
26

Accordingly, at the time of the dispositional hearing, 

Father demonstrated a tendency towards physical violence and 

provided no reason for the court to believe those tendencies would 

change. Moreover, the juvenile court need not consider Father’s 

sexual abuse of L.H. and domestic violence with Mother in 

isolation when considering whether Hector and Jaden were at 

substantial risk of serious harm. As a practical matter, the 

juvenile court evaluates the aggregate risk to Hector and Jayden 

if they were not removed from Father’s custody, including the 

risk occasioned by Father’s abuse of L.H., domestic violence with 

Mother, Father’s failure to acknowledge the domestic violence 

between him and Mother, and Father’s failure to pursue 

educational or treatment programs to assist him in addressing 

the issues that gave rise to the juvenile court’s jurisdiction.

Finally, because Father lived in Arizona, there were no 

reasonable means by which Father could have custody of the 

children and be sufficiently monitored to ensure the children 

were not exposed to domestic violence or sexual abuse, especially 

given the continuing strain on child protective services resources 

during the Covid-19 pandemic.
27

DISPOSITION

The June 1, 2021 dispositional orders removing Hector and 

Jaden from Father’s custody are affirmed.

NOT TO BE PUBLISHED

KELLEY, J.*

We concur:

CHANEY, J.

BENDIX, Acting P. J.

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

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

Constitution.