Filed 8/30/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re LUIS H. et al., Minors. B276237

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

MORENA H.,

Defendant and Respondent;

LUIS H. et al.,

Appellants.

(Los Angeles County

Super Ct. No. DK17782)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Julie Fox Blackshaw, Judge. Affirmed.

Valerie N. Lankford, under appointment by the Court of 

Appeal, for Appellants. 

Kate M. Chandler, under appointment by the Court of 

Appeal, for Respondent. 

_______________________
2

Minors Luis H. and Alan H. appeal from the dismissal of 

the dependency petition filed on their behalf pursuant to Welfare 

and Institutions Code1 section 300. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Morena H. has four children: Maria E. (born 2002), 

Leslie O. (born 2008), Luis H. (born 2012), and Alan H. (born 

2016). In 2016 the family came to the attention of the 

Department of Children and Family Services when Leslie O. 

disclosed to her teacher that her mother’s boyfriend and Luis H.’s 

father, Manuel B., had sexually abused her. 

After an investigation also revealed possible physical abuse 

of Maria E. by Morena H., DCFS filed a petition alleging that the 

four children came within the jurisdiction of the juvenile court 

under section 300, subdivisions (a) (serious physical harm); (b) 

(failure to protect); (d) (sexual abuse); and (j) (abuse of sibling). 

The juvenile court conducted a contested jurisdictional 

hearing. At the close of the hearing, the court dismissed the 

allegations of serious physical harm as to all children; concluded 

that Morena H. had failed to protect Leslie O. from being 

sexually abused by Manuel H.; and sustained the failure to 

protect and sexual abuse allegations under section 300, 

subdivisions (b) and (d) as to Leslie O. only. The court did not 

sustain the subdivision (b), (d), or (j) allegations as to the other 

three children, saying, “I will not sustain the counts as to the 

siblings. And the reason is this: I don’t have any evidence that 

there has been any sexual abuse of any of the siblings, including 

 

1 Unless otherwise indicated, all further statutory references 

are to the Welfare and Institutions Code.
3

Maria [E.], the other possibly more obvious target. And I don’t 

believe the abuse of Leslie [O.], at least based on the evidence in 

front of me, reaches the level of egregiousness, for instance, that 

was mentioned in [In re I.J. (2013) 56 Cal.4th 766] where it 

obviously puts the other children at risk. [¶] We have two young 

boys. I don’t believe that they are—those young siblings are 

similarly situated. And I actually don’t think Maria [E.] is 

similarly situated. I do think that [Manuel B.] . . . was 

opportunistic in that Leslie [O.] is shy, she is young, and he 

thought he could do it to her. I’m not sure that I can also infer 

that the same conduct would have been done with an older girl, a 

girl who would be more explicit in what was happening, a girl 

who actually might be able to push him away. But Leslie [O.] 

was a target who was vulnerable, who was shy, who is not 

terribly articulate. And I do believe that—that she is differently 

situated than the other children in the home. So I won’t sustain 

the allegations.”

The court declared Leslie O. a dependent child of the 

juvenile court and dismissed the petition as to the other three 

minors.2 Luis H. and Alan H. appeal the dismissal of the petition 

with respect to the allegations under section 300, subdivisions (b) 

and (j). 

 

2 On our own motion, we take judicial notice of minute orders 

concerning subsequent proceedings in this matter. We 

understand from these orders that at disposition, the juvenile 

court ordered Leslie O. placed in the home of her mother, and 

that the court subsequently terminated dependency jurisdiction 

over her.
4

DISCUSSION

Luis H. and Alan H. argue that no substantial evidence 

supports the juvenile court’s “finding” that they were not placed 

at a substantial risk of harm by Morena H.’s failure to protect 

Leslie O. from sexual abuse by Manuel B. and by the abuse itself. 

Here, the minors are “essentially urging that there was 

insufficient evidence to support the juvenile court’s finding 

against [their] position because evidence supports [their] 

position.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) As the 

Court of Appeal observed in In re I.W., characterizing the 

analysis as one of substantial evidence is misleading where, as 

here, the trier of fact has expressly or implicitly concluded that 

the burden of proof was not met. (Id. at p. 1528.) 

We are aware that in In re I.W., supra, 180 Cal.App.4th at 

page 1528, the Court of Appeal considered the situation in which 

the appellant was also the party who bore the burden of proof in 

the juvenile court proceedings. Here, DCFS bore the burden of 

proof at the jurisdictional hearing (In re S.D. (2002) 99 

Cal.App.4th 1068, 1078 [agency that filed the petition “had the 

burden of proof as to each fact necessary to sustain the 

jurisdictional petition”]) but only Luis H. and Alan H. appeal the 

dismissal. We do not believe that this distinction changes the 

nature or standard of our review. At the jurisdictional hearing, 

children who are the subject of dependency petitions have the 

right to present evidence to the court, the right to use the process 

of the court to summon witnesses, and the right to confront and 

cross-examine witnesses. (Cal. Rules of Court, rule 5.534(g)(1).) 

They have the right to counsel (§ 349), and their counsel is 

obligated to perform investigations and to “examine and crossexamine witnesses in both the adjudicatory and dispositional 
5

hearing.” (§ 317.) The children’s counsel is authorized by statute 

to “also introduce and examine his or her own witnesses, make 

recommendations to the juvenile court concerning the child[ren]’s 

welfare, and participate in the proceedings to the degree 

necessary to adequately represent the child[ren].” (§ 317.) 

Indeed, the dependency scheme contemplates children presenting 

evidence despite not bearing the burden of proof: “At any hearing 

in which the probation department bears the burden of proof, 

after the presentation of evidence on behalf of the probation 

department and the minor has been closed, the court, on motion 

of the minor, parent, or guardian, or on its own motion, shall 

order whatever action the law requires of it if the court, upon 

weighing all of the evidence then before it, finds that the burden 

of proof has not been met.” (§ 350, subd. (c) (italics added). Here, 

consistent with these provisions, Luis H. and Alan H. were 

represented by counsel3 who had the opportunity to present 

evidence at the jurisdictional hearing and who advocated for the 

court to sustain the dependency petition. As the children had the 

opportunity to produce evidence and to create a record that 

supported their position that they came within the jurisdiction of 

the juvenile court, we see no reason to depart from the general 

rule that “where the issue on appeal turns on a failure of proof at 

trial, the question for a reviewing court becomes whether the 

evidence compels a finding in favor of the appellant as a matter of 

law.” (In re I.W., supra, 180 Cal.App.4th at p. 1528.) 

Here, the juvenile court concluded that the evidence 

presented in support of the dependency petition was insufficient 

to establish that Luis H. and Alan H. were at substantial risk of 

 

3 One attorney represented Luis H., Alan H., and Leslie O. 

Maria E. was represented by separate counsel.
6

harm under section 300, subdivisions (b) and (j). Luis H. and 

Alan H. have argued that the evidence showed that Morena H.’s 

failure to protect and Manuel B.’s sexual abuse of Leslie O. 

placed them at substantial risk of harm, but they have not 

argued or demonstrated that the evidence “was (1) 

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

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

it was insufficient to support a finding.’ [Citation.]” (In re I.W., 

supra, 180 Cal.App.4th at p. 1528.) Luis H. and Alan H. have 

failed to meet their burden on appeal. 

DISPOSITION

The judgment is affirmed. 

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.