In re L.O.
67 Cal.App.5th 227
| Cal. Ct. App. | 2021Background
- Six‑year‑old L.L.O. (born Dec. 2014) showed bruises and a cut; he also displayed sexualized behaviors and profanity after visits with Mother and Mother’s boyfriend (G.B.).
- Parents shared custody and each blamed the other; Father reported prior domestic altercations in the child’s presence and admitted several physical incidents with Mother; Mother reported incidents in which L. witnessed fights.
- CFS detained L., placed him with paternal grandmother, and filed a petition under Welf. & Inst. Code § 300 alleging (inter alia) Father exposed L. to domestic violence (§ 300(b)) and to sexualized conduct (§ 300(d)).
- At the contested hearing the juvenile court sustained the § 300(b) and § 300(d) allegations as to Father, declared L. a dependent, and removed him from parental custody (§ 361(c)(1)).
- On appeal the Court of Appeal affirmed the § 300(b) finding and the removal order but concluded insufficient evidence supported the § 300(d) finding and struck that allegation; the disposition was otherwise affirmed as modified.
Issues
| Issue | Plaintiff's Argument (CFS/Respondent) | Defendant's Argument (Father L.O.) | Held |
|---|---|---|---|
| Sufficiency of evidence for § 300(b) (failure to protect/exposure to domestic violence) | Recent and repeated domestic violence and child’s witnessing of physical incidents created a substantial risk of physical harm | Incidents were remote or involved "partners" not Father; no present risk shown | Affirmed — substantial evidence Father exposed child to ongoing domestic violence risk |
| Sufficiency of evidence for § 300(d) (sexual abuse / failure to protect from sexual abuse) | Child’s sexualized behavior and reports that he saw sexual activity supported a finding Father exposed child to sexual conduct | No evidence Father intentionally or sexually motivatedly exposed child; no touching, grooming, or pornographic exposure shown | Reversed as to § 300(d) — insufficient evidence; allegation d‑10 stricken |
| Justiciability / whether appellate court should review Father’s jurisdictional challenge | The court may decline review when an unchallenged finding as to the other parent supports jurisdiction | Father challenged dispositional orders that were based in part on his adjudications — merits review necessary | Court exercised discretion to review Father’s challenges because findings affected disposition and could prejudice Father |
| Sufficiency of evidence and factual findings supporting removal (§ 361(c)(1)) | Removal necessary to protect child given unresolved source of injuries and sexualized behavior; no reasonable alternative | Father argued less drastic alternatives (family maintenance) and pointed to cooperation and child’s preference | Affirmed — clear and convincing evidence supported removal; court’s failure to state detailed factual findings was harmless error |
Key Cases Cited
- In re R.T., 3 Cal.5th 622 (Cal. 2017) (standard for dependency jurisdiction and that § 300(b) authorizes jurisdiction without finding parental fault)
- In re R.C., 210 Cal.App.4th 930 (Cal. Ct. App. 2012) (exposure to domestic violence may support § 300(b) jurisdiction)
- In re D.C., 243 Cal.App.4th 41 (Cal. Ct. App. 2015) (standards for reviewing dispositional removal under heightened burden)
- In re Jordan R., 205 Cal.App.4th 111 (Cal. Ct. App. 2012) (absence of physical evidence does not preclude finding of sexual abuse in some contexts)
- People v. Lopez, 19 Cal.4th 282 (Cal. 1998) (definition and mens rea considerations for Penal Code § 647.6 annoy/molest)
- People v. Kongs, 30 Cal.App.4th 1741 (Cal. Ct. App. 1994) (application of § 647.6 to non‑explicit but offensive sexually motivated conduct)
- In re Daisy H., 192 Cal.App.4th 713 (Cal. Ct. App. 2011) (remote or stale incidents of domestic violence may not support jurisdiction)
- In re M.W., 238 Cal.App.4th 1444 (Cal. Ct. App. 2015) (domestic violence too remote to support jurisdiction where single old incident)
- In re D.P., 44 Cal.App.5th 1058 (Cal. Ct. App. 2020) (minute order alone insufficient; court must state facts supporting removal decision)
- In re Henry V., 119 Cal.App.4th 522 (Cal. Ct. App. 2004) (discussion of when removal is supported and consideration of alternative services)