Filed 7/20/21 In re B.R. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re B.R. et al., Persons Coming 

Under Juvenile Court Law.

_________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.C., 

Defendant and Appellant.

 B307796

 (Los Angeles County Super.

 Ct. No. 20CCJP03816A)

APPEAL from orders of the Superior Court of Los Angeles 

County, Marguerite D. Downing, Judge. Affirmed.

Suzanne Davidson, under appointment by the Court of Appeal, 

for Objector and Appellant.

No appearance by Plaintiff and Respondent.

________________________
2

J.C. (mother) appeals an order removing her infant daughter B.R. 

(daughter) from parental custody under Welfare and Institutions Code 

section 361, subdivision (c), after the juvenile court declared daughter a 

dependent based on domestic violence between mother and A.R. 

(father).

1 Mother contends the removal order is unsupported by 

substantial evidence. The Department of Children and Family Services 

(Department) did not recommend removing daughter from mother’s 

custody and did not file a respondent’s brief in this appeal.

2 Finding 

sufficient evidence to support the court’s removal order, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review, we state the facts in the 

light most favorable to the juvenile court’s findings, resolving all 

conflicts and drawing all reasonable inferences to uphold the court’s 

order, if possible. (In re R.T. (2017) 3 Cal.5th 622, 633.) Mother and 

father both have children from prior relationships, as well as prior 

dependency proceedings based on domestic violence with their previous 

partners.3 Daughter (born December 2019) is the only child mother 

1 All further undesignated statutory references are to the 

Welfare and Institutions Code. Father is not a party to this 

appeal. 

2 The case is before us on mother’s opening brief only. The 

Department submitted a letter indicating that, as it had 

recommended daughter remain placed with mother, it “is not the 

appropriate respondent.” It took no position on the appeal. No 

other party filed a respondent’s brief.

3 The other children were not named in the dependency 

petition in this case. 
3

and father have in common. The Department began investigating 

possible risk to daughter’s safety in June 2020, after both parents were 

taken into custody following a domestic violence incident between

them.

1. Half-siblings and prior dependency proceedings

In 2016, mother’s two older sons (born 2013 and 2015) were 

declared dependents based on the risk posed by ongoing domestic 

violence between mother and the boys’ father. The case was closed in 

2018 with a custody order granting mother full custody and the boys’ 

father monitored visitation. 

Father’s oldest son (born 2012) was declared dependent in 2015, 

also based on domestic violence. Father’s reunification services were 

terminated in 2017, and the child was placed in a legal guardianship 

with a maternal relative. The relative reported father maintains 

consistent weekend visits with the child, monitored by paternal 

grandmother. Father’s younger son (born 2015) remains in the custody 

of the son’s mother, with no dependency proceedings involving the 

child. Father reported he pays child support and visits regularly. 

2. Relationship between mother and father

Mother and father were in a relationship for several years, and 

sometime prior to daughter’s birth, father moved into mother’s family 

home, where mother and her two sons lived together with maternal 

grandmother and two maternal uncles. According to maternal uncle, 

father was initially respectful, but became increasingly verbally 

aggressive towards mother over time. 
4

Father moved out of mother’s family home in April 2020, for 

reasons that are unclear from the record. According to maternal uncle, 

maternal grandmother evicted father due to his aggressive behavior 

and use of foul language. According to mother, father wanted to help 

paternal grandmother. According to father, he wanted to save money 

by living with his own family, because he was in the process of 

relocating to Baltimore. 

On April 10, 2020, police investigated a domestic battery radio 

call and spoke with father; mother was not present. Father reported 

that he and mother had separated approximately a week earlier, and 

were having an ongoing custody dispute over daughter, who was four 

months old at the time. While daughter was in his custody, he and 

mother had a verbal argument. Mother struck his face and her nails 

caused visible injuries. The police observed scratch marks and redness 

on father’s face, but he refused to be photographed and refused to 

provide additional information. Father did not want mother (who was 

not present) to be arrested. Describing the incident during a later 

interview with a Department investigator, father showed the 

investigator a photo with three scratch marks on the right side of 

father’s face, extending from his forehead down to the cheek line, and 

various small red marks. Father reported daughter was in the 

bedroom sleeping when mother assaulted him. 

On June 10, 2020, a second incident resulted in both mother and 

father being taken into police custody. According to the police report, 

mother called for police assistance after father physically assaulted her. 

Mother was in front of father’s building when the police arrived. She 

told police that she and father became involved in a verbal dispute over 

the status of their dating relationship. Mother did not want to argue, 

so she asked father if she could pick up daughter and leave. Father 

became visibly upset and began to physically assault mother, dragging 
5

her by the hair and punching her in the face, causing visible bruising to 

her lips. Mother was reluctant to provide any additional information to 

police, including whether mother and father have a history of domestic 

violence. Mother stated she just wanted to take her daughter and 

leave. The officers interviewed father separately. He told them about 

his prior police report against mother for domestic battery, and denied 

assaulting mother, claiming instead that she had injured herself. 

Ultimately, the police took both mother and father into custody. 

3. The Department’s Initial Investigation

On June 12, 2020, the Department received a referral concerning 

daughter, claiming that father was keeping daughter away from 

mother and tried to convince mother to sign a notarized letter allowing 

father to take daughter out of state. When mother did not agree, father 

claimed that he needed to use “substances” because of mother, and he 

physically assaulted mother. Both parents were arrested, and mother 

was unable to pick up daughter, who had been left with paternal 

grandmother. 

A social worker inspected mother’s home and interviewed mother 

on June 18, 2020. The home was clean with plenty of food, and 

daughter was healthy and clean. Mother stated that father was trying 

to move to Baltimore and there was no custody arrangement regarding 

daughter. Mother claimed father had made a false report regarding the 

April 2020 incident. Mother agreed the June incident occurred, but 

minimized it, suggesting father had been trying to shove her out and 

his hand ended up hitting her face. She denied any prior history of

domestic violence with father, claiming this was the first time she and 

father had ever argued. Mother was willing to participate in an Up 
6

Front Assessment. Her boys, daughter’s half-siblings, both said they 

had never seen mother and father fight. 

In a separate interview, father denied ever hitting or hurting 

mother. He claimed he knew not to get involved in domestic violence

due to his past experience. He has anxiety and uses marijuana 

occasionally to sleep. Father told the social worker mother had a lot of 

jealousy, was indecisive about their relationship, and always brought 

up his prior relationship. When asked if he would participate in an Up 

Front Assessment and obtain services, father denied needing services 

and stated he would think about participating in the assessment. 

The social worker met with mother and father separately again 

in early July to advise them that the Department would be seeking to 

detain daughter from father’s custody. When asked if she would be 

willing to cooperate in services in order to keep daughter in her care, 

mother agreed. Father told the social worker he “agrees with an open 

case in court,” and also wanted a determination of whether child was 

truly his. Father initially agreed to drug test, but later said he would 

only agree to drug test if mother drug tests as well, claiming that 

mother also uses marijuana.

On July 15, 2020, the social worker called maternal grandmother 

and asked if she had any concerns regarding the parents’ care of 

daughter. Maternal grandmother said father is jealous and possessive 

of mother, but he also does not get along with mother. He would come 

and take daughter away from mother. Maternal grandmother did not 

want him coming back and starting trouble. 

4. Detention and petition

In July 2020, the court authorized the Department to remove 

daughter from father’s custody. The Department filed a petition 
7

alleging under section 300, subdivisions (a) (physical abuse), (b) 

(neglect/failure to protect), and (j) (sibling abuse or neglect) that the 

parents had a history of violent altercations in the presence of child, 

specifically, the June 10 incident in which father struck and shoved 

mother. The petition also alleged that child’s half-siblings from both 

parents had previously been declared dependents due to domestic 

violence. The court released daughter to mother under Department 

supervision, with family maintenance services. The court ordered 

monitored visitation for Father; the visits were not to occur at mother’s 

home, and mother was not to act as the monitor for father’s visits. 

At the July 22, 2020 detention hearing, the court ordered the 

Department to provide family maintenance services and referrals as 

appropriate, and to file a jurisdiction and disposition report in just over 

one month, on August 28, 2020.

5. Jurisdiction and disposition report

The social worker met with mother on August 18, 2020. Mother 

confirmed she was aware that father’s visits with daughter were to be 

monitored by someone other than mother in a neutral setting, but she

had not allowed father to visit daughter, explaining that mother did not 

want to mess it up and worried the Department would find an excuse to 

take away her children. 

Mother minimized the June 10 incident and continued to deny 

any history of domestic violence with father. Mother claimed she was 

being protective by calling the police on June 10, 2020 when father had 

hit her, but then regretted making the call, stating “I knew DCFS 

gonna come as soon as the cops showed up. I didn’t want this to 

happen. I just wanted to scare him [father] because I was scared too.” 

She reported falling, but did not recall whether she tripped or father 
8

pushed her. She also waffled on whether father intended to hit her or 

was trying to help her up after she tripped, stating “I don’t think he 

really tried to hit me. I probably overreacted.” When asked if she 

intended to file a restraining order against father, she saw no need to 

do so, saying “He doesn’t bother me.” When asked whether father has 

ever used the children as leverage to threaten mother, she responded, 

“No. He’s too scared to do anything.” 

Mother’s relatives undermined mother’s efforts to minimize the 

seriousness of domestic violence between the two, explaining that the 

parents had a turbulent relationship and yelled at each other 

frequently (often within earshot of mother’s boys). Mother’s oldest son 

said he had seen mother and father yelling really loud and he “worries 

[father] will hit my mommy and mommy will hit him back.” A 

maternal uncle described father’s increasing verbal aggression against 

mother; maternal uncle also said he had seen bruises on mother’s arms, 

which he believed father had caused. Maternal uncle was concerned 

about mother resuming her relationship with father, despite the family 

having voiced their concerns. When asked what services might help 

the parents, the maternal uncle said “they need counseling for sure. 

They can’t keep going back and forth. It’s toxic.” 

Mother insisted she had a loving relationship with father, and 

the only source of their arguments was father’s relationship with the 

mother of father’s oldest son. According to mother, she and father were 

planning to relocate to Baltimore with mother’s three children to start 

a new life. When the social worker asked mother if she has a plan to 

address case concerns, mother responded “Yes, I can do co-parenting if 

he wants to, but I think we are fine.” She agreed that she could be 

helped by counseling. Mother had not enrolled in any services, opting 

to wait for a court order because she did not know whether to take 

perpetrator or victim classes. 
9

In a separate interview on August 18, 2020, father told the social 

worker initially that mother was playing games and not letting him see 

daughter. Father also reported an increase in relationship problems 

over the past year after he learned she cheated on him. He claimed 

mother was using the domestic violence accusations to get him 

arrested, and showed the social worker text messages supporting his 

claim. 4 Father expressed an interest in reunifying with child, but was 

unsure whether he wanted a relationship with mother. He believed he 

had matured and wanted to move on. He was reluctant to speak more 

about his relationship with mother, but acceded to the social worker’s 

suggestion that he provide a written statement if he wished. 

The following week, father sent the investigator an e-mail which 

he wanted included in the Department’s report. In his e-mail, father

accused mother of cheating with her boys’ father and plotting to frame 

him (father) for domestic violence. He also explained that, after the

domestic violence incident (which he continued to deny), “we’ve seen 

each other a lot and I slept over at her house for two weeks straight, 

. . . .” 

In a section of the Department’s report titled “Child(ren)’s Safety 

In Home,” the Department found significant child safety concerns, 

stating “the child[’s] safety cannot be ensured without the 

Departmental oversight.” Citing the domestic violence incidents 

between the parents and their respective histories in previous 

relationships, the Department found that daughter’s “safety cannot be 

ensured in the home of parents until they demonstrate substantial 

progress towards the recommended case plan,” which would include 

parenting, domestic violence classes, and individual counseling. 

4 Father showed the investigator an e-mail from mother 

dated August 20, 2020, stating, “Can you come please ima stay 

alone with the kids.” 
10

The Department’s report included the following summary: 

“Although the Department does not have any immediate child safety 

concerns for the child being released to the mother’s care and custody, 

the Department remains concerned as to her ability to protect the child. 

Per the maternal uncle, the mother has a history of ‘going back’ to be in 

a relationship with the father, despite the family having voiced their 

concerns with the mother after he observed the mother had multiple 

unexplained bruising on her person. [¶] Further, despite the 

[Department]/Court involvement, the father admitted that the mother 

had brought the child to his family home and was allowing him to have 

unmonitored visit [sic] with the child after the Department had already 

detained the child from his care and custody.” 

The Department’s report noted that despite being aware of the 

conditions for father’s monitored visitation, mother had both refused to 

permit visitation and also brought daughter to father’s home after the 

court removed her from father’s custody. The Department asked the 

court to admonish parents for their violations of the visitation order. 

The Department recommended the court find the petition true, bypass 

father’s reunification based on his earlier failure to reunify with his 

oldest son, and order family maintenance services for mother, keeping 

daughter placed with mother. The Department advised, “if the Court 

terminates its jurisdiction with a Family Law Order, the mother will 

most likely allow the father to return to the home, as she expressed a 

strong desire to remain in the relationship. Neither parent has taken 

an active role in addressing the case concerns and have failed to enroll 

in any services.” The Department recommended co-parenting and 

domestic violence classes, with a 52-week certified program to address 

mother’s aggression when resolving conflicts. 
11

6. The Adjudication/Disposition Hearing

On September 17, 2020, the court conducted a combined 

jurisdiction and disposition hearing, admitting the Department’s 

reports and two photos from father into evidence. No additional 

evidence or testimony was offered, and the parties proceeded to 

argument.

Minor’s counsel argued that the petition should be sustained and 

sought reunification for both parents. Each parent’s counsel argued for

the petition to be dismissed for insufficient evidence; mother’s counsel

asked that child be placed with mother; father’s counsel asked that 

child be placed with father. Mother’s counsel objected to a 52-week 

domestic violence program, arguing mother was a victim not a 

perpetrator. The Department reviewed evidence from the jurisdiction 

report and argued to sustain the petition, based on the toxic 

relationship between mother and father, and their failure to learn from 

their previous court cases. Regarding disposition, the Department

asked for father to not receive reunification services. The court 

responded that if the Department was recommending placing minor 

with mother, there was no “bypass” under section 361.5 for 

enhancement services. 

Before sustaining the petition allegations, the court asked 

minor’s counsel, “Did I hear you right, did you say that this child 

should be removed from both parents?”5 Minor’s counsel disagreed, 

5 According to the reporter’s transcript of the hearing, the 

Department interjected to say “The Department’s 

recommendation is to stay with father.” Despite the word 

“father” appearing in the transcript, we understand from the 

balance of the record on appeal that the Department 

recommended placing daughter with mother, not father. 
12

stating, “No. [¶] I did not have a recommendation for the minor to be 

removed from both parents.” The court responded, “Well I’m of a mind 

this child should be removed from mother.” After sustaining the 

petition, the court found by clear and convincing evidence that there 

was substantial danger to child if she remained in mother’s home. 

The court reasoned that this was not the first incident, and mother 

continued to return to father and to minimize and deny the domestic 

violence in her relationship with father. Mother was backpedaling,

initially claiming father had hit her, then saying she might have fallen 

and run into father’s hand. Mother had previously been through a 

domestic violence victim program, but had not gained any insight, 

staying in the relationship and making excuses for father, the same 

person she had previously accused of pulling her by the hair. The baby 

was young, mother would not comply with a restraining order, and 

there were no measures that could be put into place to allow daughter

to remain in the home. As to father, the court also found clear and 

convincing evidence that returning daughter to his custody would be 

detrimental under section 361, subdivision (c). The court summed up 

that both parents were backpedaling, making excuses, and seeking to 

cover up their behavior. “Neither parent is protective against the 

other, and the court has no confidence, based on their past 

performance, that either parent is going to stay away from the other.” 

The minute order also stated the court found that the Department 

“made reasonable efforts to prevent removal but there are no services 

available to prevent further detention.” 

The court ordered reunification services and monitored visitation 

for both parents, declining the Department’s recommendation to bypass 

reunification services for father. Mother’s counsel objected to the 

removal order and asked for daughter to be placed with a relative; the 
13

court granted the Department discretion to do so. Mother filed a timely 

notice of appeal. 

DISCUSSION

Mother contends there was insufficient evidence to support the 

court’s determination, by clear and convincing evidence, that daughter 

was at risk of serious physical harm and there were no reasonable 

means to keep daughter safe without removing her from mother’s 

custody. We disagree.

1. Governing law and standard of review

“‘At the dispositional hearing, 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 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.’” (In re D.P. (2020) 44 Cal.App.5th 1058, 1065; 

accord, In re G.C. (2020) 48 Cal.App.5th 257, 265; In re D.C. (2015) 243 

Cal.App.4th 41, 51, 54; see § 361, subd. (c)(1).) When determining 

whether a child will be in substantial danger if permitted to remain in 

the parent’s physical custody, the juvenile court must consider, “not 

only the parent’s past conduct, but also current circumstances, and the 

parent’s response to the conditions that gave rise to juvenile court 

intervention.” (In re I.R. (2021) 61 Cal.App.5th 510, 520 (I.R).) The 

juvenile court must determine “whether reasonable efforts were made 

to prevent or to eliminate the need for removal of the minor from his or 

her home” and “shall state the facts on which the decision to remove 
14

the minor is based.” (§ 361, subd. (e).) The California Rules of Court 

also require the court to determine and make a finding as to “whether 

reasonable efforts to prevent or eliminate the need for removal” were 

made by the Department. (Rule 5.695(d).) “The parent need not be 

dangerous and the minor need not have been harmed before removal is 

appropriate. The focus of the statute is on averting harm to the child.”

(In re T.W. (2013) 214 Cal.App.4th 1154, 1163.)

“Even if a child suffers no physical harm due to domestic 

violence, a ‘cycle of violence between . . . parents constitute[s] a failure 

to protect [a child] “from the substantial risk of encountering the 

violence and suffering serious physical harm or illness from it.”

[Citations.]’ [Citation.] A parent’s denial of domestic violence increases 

the risk of it recurring. [Citations.]” (In re V.L. (2020) 54 Cal.App.5th 

147, 156.) 

In determining whether substantial evidence supports the 

juvenile court’s dispositional findings, we must account for the clear 

and convincing standard of proof. (Conservatorship of O.B. (2020) 9 

Cal.5th 989, 1011.) The question before us 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.”

(Ibid.) As with our review of the court’s jurisdictional findings, we 

“view the record in the light most favorable to the prevailing party 

below and give appropriate deference to how the trier of fact may have 

evaluated the credibility of witnesses, resolved conflicts in the evidence, 

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

1012.) 
15

2. Evidence Supporting Removal Order

Mother and father’s statements and actions, particularly when 

considered against the backdrop of their respective domestic violence 

histories, provide substantial evidence that if mother retains custody of 

daughter and also maintains contact with father, there is substantial 

risk of ongoing domestic violence, placing daughter at risk of harm. 

Past violence in a relationship is a good predictor of similar behavior in 

the future. (In re V.L., supra, 54 Cal.App.5th at p. 156; In re T.V.

(2013) 217 Cal.App.4th 126, 136.) 

Mother argues that the Department found her to be sincere in 

her desire to keep daughter in her custody. But that desire does not 

undermine the juvenile court’s focus on evidence of the daughter’s 

young age and both parents’ actions and statements backpedaling the 

seriousness of the prior domestic violence incidents to conclude that 

removal was warranted. Here, there is evidence that mother sought to 

reestablish her relationship with father, delayed enrolling in a domestic 

violence program, declined to obtain a restraining order, and violated 

the court order limiting father to monitored visitation with someone 

other than mother as the monitor. All of these actions support the 

juvenile court’s finding that daughter was at risk of exposure to future 

domestic violence.

There is also sufficient evidence to support the court’s 

determination that no reasonable means exist to protect child other 

than removal. The Department provided both parents with referrals to 

services, but neither parent had enrolled. The Department’s report 

also documented that parents not only violated the prior court orders 

limiting father to monitored visits, but that both initially sought to hide 

that fact from the Department and the court. 
16

While mother expressed a willingness to engage in services, her 

statements evidenced a troubling lack of insight into the dangers posed 

by domestic violence. At the same time that mother was confidently 

stating that she and father were in a loving relationship and planned to 

move to Baltimore as a family, she also acknowledged that father had 

failed to comply with court requirements to reunify with his older son, 

daughter’s half-sibling, and sought to minimize and excuse father’s 

inability or unwillingness to comply with services, stating “it’s just how 

he is. He gets frustrated when you [try] to tell him to do things.” 

The Department reported that the case issues that brought 

daughter to the court’s attention had yet to be resolved, and that her 

safety could not be ensured in the parents’ home until they 

demonstrated substantial progress in the case plan, including 

completing parenting and domestic violence classes and individual 

counseling. Despite both parents having prior dependency cases 

involving domestic violence with different partners, “mother and father 

have failed to apply what they have learned from their previous Court 

case and continued engaging in domestic violence in their current 

relationship.” 

The evidence in the Department’s jurisdiction and disposition 

report constitutes substantial evidence supporting the removal order. 

The fact that the Department recommended placing daughter with 

mother does not overcome the substantial evidence presented to the 

trial court supporting its finding, under the clear and convincing 

standard, that the requirements for removal under section 361, 

subdivision (c), had been met. The record before us amply 

demonstrates that there was ongoing tension between mother and 

father regarding the future of their relationship and custody of 

daughter. Absent persuasive evidence that mother had demonstrated 

awareness of the cycle of domestic violence, and absent mother’s 
17

willingness to take sufficient steps to prevent such violence, mother’s 

continued contact with father would have placed daughter at risk of 

harm. 

DISPOSITION

The dispositional order removing daughter from mother is 

affirmed. 

MOOR, J.

I CONCUR:

KIM, J.
In re B.R. / Los Angeles County Department of

Children and Family Services v. J.C. - B307796

RUBIN, P. J. – DISSENTING:

I respectfully dissent. I find my answer to the question put 

to this court largely compelled by our Supreme Court’s recent 

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

(O.B.).

At the adjudication/disposition hearing, the Department 

recommended placing the child with mother. California Rules of 

Court, rule 5.690(a)(1)(B) requires the Department to include in 

its report a discussion of the reasonable efforts it made to prevent 

or eliminate removal, but this is required only if the Department 

recommends removal. As the Department did not recommend 

removal, it included no such discussion. The record did not 

include a formal statement that described services mother had 

received in the earlier dependency proceedings involving her 

older children and what lessons she may have learned. The 

record does reflect that at one point, the Department investigator 

“asked the mother if she could identify the cycle of abuse, 

Incident, Reconciliation, Calm, and Tension building and she 

said, ‘I remember the counselor told me something like that 

before.’” This was the sole reference to any counseling mother 

received or any domestic violence program she may have 

previously attended. In explaining the reasons for removal, the 

juvenile court stated that mother “previously had a D.V. victim 

program” and had “been through D.V. counseling, as a victim.” 

But no detail was forthcoming, and the notion that a domestic 

violence victim, who had been in a program before, might again 

be the victim of domestic violence without losing custody of her 
2

children is not remarkable. Nor is it a particularly strong reason 

for removing a child in the absence of information why 

reasonable efforts to avoid removal would not have been 

successful. 

Echoing the Department, child’s counsel did not 

recommend removal. Nor, obviously, did mother’s attorney. In 

response to this near stipulation for child to remain with mother, 

with services, the trial court instead found removal necessary, 

without questioning the Department on a plan it might have to 

assure the child’s safety in mother’s home.

The record indicates mother was a good parent to child, and 

child was safe in her care. The danger potentially posed to child 

was that mother appeared trapped in a cycle of domestic violence 

with father, and, like many other victims, was in denial. This is 

not to say that a child may never be removed from a domestic 

violence victim. But, here, father no longer lived in the home, 

and there were several relatives who could help ensure that 

mother, father, and child were not together in violation of court 

orders. Counseling, parenting, and domestic violence classes 

were scheduled. Unannounced visits by the Department could 

confirm compliance.

Appellate courts do not typically reverse on the grounds of 

insufficiency of the evidence to support a removal order. This is 

so because most often the issue is fully litigated with – and again, 

typically – the parents and the Department taking conflicting 

positions. Each side customarily provides legally sufficient 

evidence to support its position, and the juvenile court is within 

its authority to accept one version over the other, or some 

combination of the two. In such situations, the appellate court 
3

will give honored deference to the juvenile court, apply the 

substantial evidence standard of review, and affirm.

The underpinning for that deference has been somewhat 

altered by our Supreme Court’s decision in O.B. There, the court 

addressed the proper application of substantial evidence review 

in the appellate court for those cases in which the burden of proof 

in the trial court was clear and convincing evidence, as it was 

here. In a prior opinion, the Supreme Court had explained why 

our legal system employs more than one burden of proof -- most 

commonly, preponderance of the evidence, clear and convincing 

evidence, or beyond a reasonable doubt. “The function of a 

standard of proof is to instruct the fact finder concerning the 

degree of confidence our society deems necessary in the 

correctness of factual conclusions for a particular type of 

adjudication, to allocate the risk of error between the litigants, 

and to indicate the relative importance attached to the ultimate 

decision.” (Conservatorship of Wendland (2001) 26 Cal.4th 519, 

546; see also O.B., supra, 9 Cal.5th at p. 998.) For clear and 

convincing evidence, “‘the proponent must convince the jury or 

judge, as the case may be, that it is highly probable that the facts 

which he asserts are true. He must do more than show that the 

facts are probably true.’ (Comment, Evidence: Clear and 

Convincing Proof: Appellate Review (1944) 32 Cal. L.Rev. 74, 

75.).” (O.B., supra, 9 Cal.5th at pp. 998–999.)

Prior to the high court’s resolution of the issue in O.B., 

appellate courts had disagreed on how to apply substantial 

evidence review to findings which had been established by clear 

and convincing evidence. Some courts took the position that our 

review must determine if there was substantial evidence of the 

existence of clear and convincing proof. (E.g., In re Basilio T.
4

(1992) 4 Cal.App.4th 155, 170.) Many courts employed the 

“disappearing” standard. “The sufficiency of evidence to establish 

a given fact, where the law requires proof of the fact to be clear 

and convincing, is primarily a question for the trial court to 

determine, and if there is substantial evidence to support its 

conclusion, the determination is not open to review on appeal. 

Thus, on appeal from a judgment required to be based upon clear 

and convincing evidence, the clear and convincing test disappears 

and the usual rule of conflicting evidence is applied, giving full 

effect to the respondent’s evidence, however slight, and 

disregarding the appellant’s evidence, however strong.” (In re 

I.W. (2009) 180 Cal.App.4th 1517, 1525–1526 [internal quotes 

and citations omitted].) 

After O.B., the “disappearing” standard itself has 

disappeared from our appellate jurisprudence. Our Supreme 

Court held that, “when 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 factfinder could 

have found it highly probable that the fact was true.” (O.B., 

supra, 9 Cal.5th at pp. 1011–1012; italics added.) The court 

expressly rejected the notion that the clear and convincing 

burden of proof in the trial court has no effect on appellate review 

for sufficiency of the evidence. (Id. at p. 1010 & fn. 7.) 

I agree with my Division 2 colleagues who recently 

concluded that the proper application of the O.B. standard in a 

case where a child was removed from a parent due to domestic 

violence is to ask whether “a reasonable trier of fact could have 

found it highly probable that placement of [the child] with [the 

parent] would pose a substantial risk of [the child] being harmed 
5

by exposure to future domestic violence, and that there were no 

reasonable means to protect [the child] without removal from [the 

parent’s] physical custody.” (In re V.L. (2020) 54 Cal.App.5th 

147, 156–157 (V.L.); italics added.) The V.L. court applied the 

O.B. standard in affirming the order removing the child. In In re 

I.R. (2021) 61 Cal.App.5th 510, 521–522, Division 1 of this court 

applied the substantial evidence/clear and convincing standard of 

review to reverse a removal order. It held that whether 

substantial evidence supported the removal order in that case 

depended on whether there is substantial evidence domestic 

violence will continue if the child is returned home. The analysis 

is to be informed by the clear and convincing standard and the 

general premise in favor of keeping children with their parents 

while proceedings are pending, whenever safely possible.6

The majority opinion points to admittedly troubling 

evidence that does not speak well of mother – she was resistant 

to terminating her relationship with father, had minimized the 

domestic violence between the two, and, like father, had 

experienced domestic violence in other relationships. But it was 

undisputed that, at the time of removal, mother and father did 

not reside in the same home. Instead, each lived with relatives 

who could help provide support. I find it also telling that,

between the court’s release of the child to mother at the detention 

6 O.B. was a conservatorship case, not a dependency 

proceeding. The Supreme Court made it clear, however, that the 

principle it announced was broad and applied to dependency 

matters. As the court observed in V.L., “In a footnote, O.B.

disapproved of a host of dependency cases to the extent that they 

are inconsistent with O.B.’s holding. (O.B., supra, at p. 1010, 

fn. 7.)” (V.L., supra, 54 Cal.App.5th 147, 155.)
6

hearing on July 22, 2020, and the removal of the child on 

September 17, 2020, at the adjudication/disposition hearing, the 

Department did not report further incidences of domestic 

violence. In recommending release of the child to mother, the 

Department reported that mother and child were well bonded. 

Mother’s house was clean, with plenty of food.

I suspect appellate courts will be wrestling with the 

application of the O.B. standard of review in clear and convincing 

cases for some time. The process, although well-articulated, is a 

bit abstract. I may very well have agreed to an affirmance if the 

order had been governed by the preponderance of the evidence 

burden of proof. But I cannot say on this record that the evidence 

showed it was highly probable that the child will be exposed to 

additional acts of domestic violence and that there are no means 

to protect child, if child is placed in mother’s custody.

I would reverse the court’s order removing child from 

mother.

RUBIN, P. J.