Filed 2/21/24 In re O.B. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re O.B., a Person Coming 

Under the Juvenile Court Law.

2d Juv. No. B325600

(Super. Ct. No. 

22JD-00260-001)

(San Luis Obispo County)

SAN LUIS OBISPO COUNTY 

DEPARTMENT OF SOCIAL 

SERVICES,

 Plaintiff and Respondent,

v.

L.M. et al.,

 Defendant and Appellant.

L.M. (Father) appeals an order of the juvenile court finding 

jurisdiction over his child pursuant to Welfare and Institutions 
2

Code1 section 300, subdivision (b)(1), and depriving Father of 

custody under section 361.2, subdivision (a). We affirm.

FACTS

Background

E.C. (Mother) and Father had a brief relationship in 2020. 

O.B. was born in August 2021. Father is not on O.B.’s birth 

certificate. Father and Mother were not residing together at the 

time of O.B.’s birth or thereafter.

In August 2021, Mother obtained a domestic violence 

restraining order against Father from family law court. The 

order required Father to stay at least 100 yards from Mother. 

Mother’s declaration in support of the order stated that while she 

was seven months pregnant with O.B., Father punched in a 

window of the trailer she was living in and tried to pull her out of 

the window, causing bruising to her arms.

Thereafter Father filed an action in family law court for 

custody of O.B. The court made no finding of paternity, but 

ordered Father pay child support to Mother. The court awarded 

Father supervised visitation with O.B.

In August 2022, Mother filed for temporary restraining 

order (TRO) against Father. The hearing was pending when the 

San Luis Obispo County Department of Social Services (DSS)

filed the petition in this case.

Altercation

On September 11, 2022, DSS received a report that in the 

early morning hours on that date, Mother, and her then boyfriend

engaged in a physical altercation in front of O.B. Mother bit her 

boyfriend numerous times and wrestled him to the ground. Her 

1 All statutory references are to the Welfare and 

Institutions Code.
3

boyfriend reported that there had been at least three other 

altercations between them in recent months.

Shortly after the altercation Mother called Father and 

asked him to meet her at a gas station. When Father arrived,

Mother told him about the altercation. She had O.B. with her in 

the car. Mother drove away because Father became erratic. 

Father followed her and repeatedly swerved in front of her car to 

get her to stop. Father called the police who arrested Mother. 

Father falsely told the police that he had joint legal custody of 

O.B. The police let him take O.B.

On the day Mother was released from custody, she went to 

Father’s home to pick up O.B. Father called the police. Mother 

told the police that she had sole legal custody of O.B. and Father 

had only supervised visitation. The police let Mother take O.B. 

and Mother returned to her home with her boyfriend.

Investigation

On September 13, 2022, a DSS social worker met with 

Mother and O.B. at Mother’s home. O.B. appeared underweight 

and small with thin legs but did not appear emaciated. Mother 

reported that Father drives around the neighborhood screaming 

and crying and follows her home. She also informed the social 

worker that Father sends messages to her in violation of the 

restraining order. When Mother filed a subsequent request for a 

TRO, she attached as exhibits multiple pages of numerous emails 

and texts Father sent to her over a period of a few months.

DSS told Mother of its intent to remove O.B. from her care

due to alleged domestic violence. O.B. could not be placed with 

Father because he had only supervised visits. DSS said it was 

seeking a warrant to remove O.B. and place her under DSS 

protection.
4

Father called a social worker and informed her that he had 

custody of O.B. He did not want O.B. returned to Mother because 

he believed that she is not a fit parent. Father said he was 

taking O.B. to a hotel because “law enforcement had been called 

numerous times to his current living arrangement and they did 

not want him there anymore.” The social worker could hear O.B. 

crying in the background. When the social worker pointed out 

that Father had only supervised visitation, he hung up.

The next day a DSS social worker called Father about his 

repeated contacts with DSS. Father’s speech was manic and 

rambling. He attempted to explain something about his contact 

with law enforcement. The social worker could not understand 

him. Father was argumentative and would not allow the social 

worker to speak.

After DSS obtained the protective warrant for O.B., Father 

met with a social worker at a DSS office to surrender O.B. O.B. 

was crying and appeared only minimally comfortable in Father’s 

care. When O.B. was held by a social worker, she calmed down,

but began crying again when returned to Father. Father was 

unable to understand, soothe, or meet her other needs. Father 

was primarily focused on his phone and computer.

During the meeting, DSS called law enforcement for 

standby assistance due to Father’s agitation and irritability. A 

social worker asked Father about his mental health. Father said 

he was working with a therapist and a psychiatrist and taking 

medication. The social worker observed that Father “presented 

as emotionally dysregulated throughout the contact” with DSS. 

Father insisted that he had full custody of O.B., even though he

had only supervised visitation. DSS took custody of O.B. and 

placed her in foster care.
5

After the meeting, DSS sent Father an email stating that 

any further contact with DSS must be by email. During that day 

and night, Father sent almost 50 emails and messages to DSS 

and the social worker’s phone, the last one sent after 2:00 a.m.

Procedure

DSS filed a petition pursuant to section 300, subdivision

(b)(1), alleging O.B.’s parents’ failure to supervise or protect her 

and to provide her with adequate food, shelter, clothing, or

medical treatment.

At the conclusion of the initial hearing the juvenile court 

found that O.B. is a person described in section 300, subdivision

(b)(1). The court expressed particular concern that at 13 months 

old O.B.’s weight was consistent with that of a four- or fivemonth-old child, and a DSS physician’s concern that O.B. 

exhibited a “potential for failure to thrive.”

At the detention hearing both Mother and Father 

submitted on the issue of detention, and the juvenile court stated 

that it would be treating Father as an alleged father until it 

received more information on paternity.

TRO

Also during the detention hearing, the juvenile court 

announced that it had taken jurisdiction over Mother’s 

application for a TRO against Father from the family law court. 

The evidence before the juvenile court included that Father had 

violated the previous restraining order by sending an excessive 

number of texts and emails to Mother; that Father had failed to 

fill out the required form certifying that any weapons he might 

possess had been turned in; and that Father previously had a 

restraining order prohibiting contact with a different woman. 

The juvenile court granted Mother the TRO.
6

Jurisdiction Report

At the time of the jurisdiction report O.B. was still in foster 

care. Father’s behavior had improved in his interactions with 

DSS and he signed a release of information form (ROI) so that 

DSS could communicate with his therapist.

The therapist reported to DSS that he was treating Father 

for “Adjustment Disorder and Mixed Mood.” He had been 

working with Father for six to eight weeks, focusing on Father’s 

anxiety and how to manage it by thinking before acting. The 

therapist acknowledged that Father’s excessive communications 

caused concern regarding his stability.

Father volunteered to DSS that he had been going to 

Alcoholics Anonymous for several months. Drug and alcohol 

testing showed Father was positive for amphetamine and THC, 

but the results were consistent with prescription medications he 

was taking. Mother reported that Father used cocaine and 

ketamine.

DSS concluded that juvenile court oversite was necessary 

to ensure O.B.’s physical and emotional safety. At the time DSS 

became involved, only one month prior, Mother and Father’s 

relationship posed a threat to O.B.’s safety.

Disposition Report

DSS obtained information on Father’s criminal history. In 

2006 Father was convicted of second-degree robbery and served 

11 years of a 13-year sentence.

Mother reported that during her brief relationship with 

Father he was emotionally abusive. He used drugs including 

cocaine and ketamine. Mother raised concerns about Father’s 

emotional stability, mental health, and the effect on O.B. should 

Father get custody.
7

A DSS social worker spoke with Father’s treating 

psychiatrist. The psychiatrist stated that Father suffers from 

severe attention deficit hyperactivity disorder (ADHD) and 

anxiety. He prescribed medications and recommended that they 

be taken on a regular basis, particularly before meeting with 

DSS, but Father did not do so. The psychiatrist acknowledged 

that Father’s behaviors in interacting with DSS has been selfsabotaging.

A DSS social worker attempted to complete a social 

study/family assessment with Father. Father was uncooperative 

and made disparaging comments throughout the interview. 

When the social worker informed Father that the 

recommendation would be that O.B. remain in foster care, Father 

stated he would not work with the social worker anymore and 

hung up. Thereafter Father sent the social worker 20 emails 

expressing his frustration with the dependency. Father also 

revoked his ROI.

DSS recommended that O.B. be declared a dependent of the

juvenile court and remain in foster care; that reunification 

services be provided to Mother; and that reunification services be 

provided to Father if he is found to be a presumed or biological 

father.

Combined Jurisdiction and Disposition Hearing

On November 21, 2022, the juvenile court held a combined 

jurisdiction and disposition hearing. Mother submitted the 

matter, but Father contested.

A DSS social worker testified that Father’s conduct showed 

an inability to follow the guidance of his service providers. DSS 

could no longer evaluate the services and treatment Father was 

getting because he revoked his ROI. Father lacks understanding 
8

of the circumstances that brought O.B. into the dependency 

proceedings. He blames DSS for getting involved. The social 

worker further testified that Father’s psychiatrist recommended 

that he take medication prior to a DSS meeting, but Father 

refused to do so. Father is required to take medication four times 

a day, but he admitted that he does not like taking pills.

DSS recommended that Father not be given custody of O.B. 

Father’s inability to control his emotions and impulses would put 

O.B. at substantial risk if Father were given custody.

During the hearing the juvenile court noticed Father was 

talking into a recording device. The court asked Father if that 

was what he was doing. Father denied it. The court told Father 

that his emotionally dysregulated behavior has increased in 

every hearing that Father has participated in. Father’s behavior 

increased the court’s concern for his ability to provide calm and 

effective care for O.B.

Ruling

At the end of the combined jurisdiction and disposition

hearing the juvenile court took jurisdiction, finding that the 

allegations of the petition were true.

The juvenile court stated that its primary concern was with 

Mother— her emotional stability and her ability to set 

boundaries. The court also expressed grave concern about O.B.’s 

nutritional health, noting the improvement that O.B. has shown 

since being placed in foster care.

The juvenile court was also concerned, to a lesser extent, 

with Father’s behavior. Father is unable to regulate his 

emotions. Given O.B.’s young age at the time of the hearing (18 

months old) and Father’s dysregulated behavior, the court found 

that Father should not be given custody of O.B.
9

Mother’s and O.B.’s counsel objected to Father being 

declared a presumed father. The paternity test results had not 

yet been obtained. The juvenile court set a special hearing in 

three months to determine paternity. The court declined to 

declare Father the presumed father. Nevertheless, the court 

ordered that Father be provided with services.

When the paternity test results became available, the 

juvenile court declared Father to be the presumed father. The 

court granted Father unsupervised daytime visits with O.B., but 

refused his request to grant him custody.

DISCUSSION

I.

Substantial Evidence as to Jurisdiction

Father contends that the juvenile court’s jurisdictional 

findings are not supported by substantial evidence as to him.

Father acknowledges that dependency jurisdiction attaches 

to the child if either parent’s actions bring the child within the 

statutory definition of a dependent. (In re Alysha S. (1996) 51 

Cal.App.4th 393, 397.) Here Mother did not contest jurisdiction.

Father requests, however, that we exercise our discretion to 

consider the merits of his claim. We may exercise our discretion 

where the jurisdictional findings: 1) serve as a basis for 

dispositional orders that are also challenged on appeal; 2) could 

be prejudicial to appellant in current or future dependency 

proceedings; or 3) could have other consequences beyond 

jurisdiction. (In re Drake M. (2012) 211 Cal.App.4th 754, 762.) 

Assuming that at least one of the factors applies, we will discuss 

the merits of Father’s challenge.

Section 300, subdivision (b)(1), provides: A child comes 

within the jurisdiction of the juvenile court when the child has 
10

suffered or there is a substantial risk the child will suffer serious 

physical harm or illness as a result of the failure of the child’s 

parent to adequately supervise or protect the child; the failure of 

the parent to provide the child with adequate food, clothing, 

shelter or medical treatment; or the inability of the parent to 

provide regular care for the child due to the parent’s mental 

illness, developmental disability or substance abuse.

DSS has the burden of proving by a preponderance of the 

evidence that the child comes within the jurisdiction of the 

juvenile court. (In re Isabella F. (2014) 226 Cal.App.4th 128,

137.) We review the court’s findings for substantial evidence. 

(Ibid. at p. 137.)

Jurisdiction may be based on a prior incident of harm or a 

future risk of harm. (In re J.K. (2009) 174 Cal.App.4th 1426,

1435, fn. 5.) The juvenile court need not wait until the child is 

seriously abused or injured to assume jurisdiction. (In re I.J.

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

Here at 13 months old O.B.’s weight was consistent with a 

four- or five-month-old child and a physician expressed concern 

that O.B. had a “potential for failure to thrive.” O.B.’s health was 

obviously at risk. Although Father did not have custody of O.B., 

he had visitation. Yet he did nothing to protect O.B. In fact, 

after a social worker observed Father’s interactions with O.B., 

the social worker reported that Father was unable to understand 

or meet O.B.’s needs. Father lacks understanding as to why O.B. 

is in the dependency proceedings. He blames DSS for getting 

involved.

Father suffers from significant mental illness that impairs 

his ability to meet O.B.’s needs. His psychiatrist reported that

Father suffers from anxiety and severe ADHD. DSS observed 
11

that he is unable to control his emotions and impulses. Father

does not follow his psychiatrist’s instructions on taking 

medication and stated that he does not like taking pills. The 

juvenile court directly observed Father’s dysregulated behavior.

Finally, Father’s relationship with Mother places O.B.’s 

emotional well being at risk. Father violated the first restraining 

order by contacting Mother numerous times. Mother presented 

evidence of numerous texts and emails from Father. Mother had 

to get a second restraining order. Mother reported that during 

her brief relationship with Father he was emotionally abusive. 

She raised concerns about Father’s emotional stability and 

mental health. Those concerns were confirmed by DSS and the 

juvenile court’s own observations.

There is more than ample evidence to support the juvenile 

court’s finding of jurisdiction.

II.

Sufficient Evidence to Support Juvenile Court’s Order

Father contends that the juvenile court’s order removing 

O.B. from his custody is not supported by sufficient evidence.

Section 361, subdivision (c)(1), provides, in part: “A 

dependent child shall not be taken from the physical custody of 

his or her parents . . . with whom the child resides at the time the 

petition was initiated, unless the juvenile court finds clear and 

convincing evidence of any of the following circumstances listed 

in paragraphs (1) to (5), inclusive . . . [¶] (1) There is or would be 

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

physical or emotional well-being of the minor if the minor were 

returned home, and there are no reasonable means by which the 

minor’s physical health can be protected without removing the 

minor from the minor’s parent’s . . . physical custody.” 
12

“The term ‘resides’ . . . mean[s] “‘“to dwell permanently or 

for a considerable time.”’” (In re Dakota J. (2015) 242

Cal.App.4th 619, 628.) Section 361, subdivision (c)(1), does not 

apply because O.B. was not residing with Father. Mother had 

sole legal custody of O.B. O.B. resided with Mother since her 

birth. Father had custody of O.B. for a short period only because 

he lied about having joint custody.

Section 361.2, subdivision (a), provides, in part: “If a court 

orders removal of a child pursuant to Section 361, the court shall 

first determine whether there is a parent of the child, with whom 

the child was not residing at the time that the events or 

conditions arose that brought the child within the provisions of 

Section 300, who desires to assume custody of the child. If that 

parent requests custody, the court shall place the child with the 

parent unless it finds that placement with that parent would be 

detrimental to the safety, protection, or physical or emotional 

well-being of the child.”

The finding of a detriment necessary to deprive Father of 

custody under section 361.2, subdivision (a), requires proof by 

clear and convincing evidence. (In re Marquis D. (1995) 38 

Cal.App.4th 1813, 1829.) The party opposing placement with 

Father has the burden of proof. (In re C.M. (2014) 232 

Cal.App.4th 1394, 1402.)

The clear and convincing evidence standard requires the 

party with the burden of proof to convince the trier of fact that it 

is “highly probable” the facts which he asserts are true. 

(Conservatorship of O.B. (2020) 9 Cal.5th 989, 998.) We review 

the record in a light most favorable to the prevailing party giving 

“deference to how the trier of fact may have evaluated the 

credibility of witnesses, resolved conflicts in the evidence, and 
13

drawn reasonable inferences from the evidence.” (Id. at pp. 1011-

1012.) We uphold the finding if any reasonable finder of fact 

could have found it highly probable the fact was true. (Id. at p. 

1011.)

Here, although the juvenile court did not make an express 

finding of detriment, no reasonable trier of fact could conclude 

otherwise. At the time of the hearing Father had unresolved 

mental illness that made it impossible for him to care for O.B. In 

addition, he had unresolved conflicts with Mother. Father also 

refused to cooperate with DSS. A DSS social worker could not 

complete a social study/family assessment because Father would 

not cooperate. Thereafter Father sent DSS 20 emails expressing 

his frustration. Father revoked his ROI, making it impossible for 

DSS to keep track of his progress with his service providers. 

Father also did not understand why DSS is involved. There is 

simply no doubt it would have been detrimental to O.B. to give 

Father custody.

DISPOSITION

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

BALTODANO, J. CODY, J.
Linda D. Hurst, Judge

Superior Court County of San Luis Obispo

______________________________

Jesse Rodriguez, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Rita L. Neal, County Counsel, Ann Duggan, Deputy County 

Counsel, for Plaintiff and Respondent.