54 Cal.App.5th 147
Cal. Ct. App.2020Background
- Minors: V.L. (15) and K.L. (8) were the subjects of a dependency petition after recurring domestic violence between parents, including three incidents (two in 2017 and a mutual-combat incident on January 18, 2019) some witnessed by the children.
- January 18, 2019 incident: surveillance video and interviews showed a physical altercation initiated by mother, but father engaged, drove off, returned, failed to stop at an intersection at speed, and either struck or came into dangerous contact with mother while son was present.
- Department filed an amended Welfare & Institutions Code section 300 petition; the juvenile court sustained counts concerning parental physical altercations and mutual combat in the children’s presence.
- At disposition the court removed the minors from father’s custody by clear and convincing evidence, citing substantial danger to the children’s physical or emotional well‑being and lack of reasonable alternatives to protect them.
- Father had participated in parenting and domestic-violence programs and had monitored then unmonitored visits; he denied a history of domestic violence and minimized his role in the incidents; the court found his denials undermined prospects for change.
Issues
| Issue | Plaintiff's Argument (DCFS) | Defendant's Argument (Father) | Held |
|---|---|---|---|
| Whether removal from father's custody was supported by clear and convincing evidence that placement with father posed a substantial risk of harm and that no reasonable alternatives existed | Recurring domestic violence (including a recent dangerous 2019 incident witnessed in part by son), father’s reckless driving near mother, and father’s denial of responsibility made future violence highly probable and home visits/other measures insufficient | Evidence was insufficient: past incidents were remote or provoked, father completed services and made progress, children are old enough to report future incidents, less restrictive measures (unannounced visits, in‑home services) could protect children | Affirmed. Applying the O.B. standard, the record contains substantial evidence from which a reasonable trier of fact could find it highly probable that minors would face substantial risk if returned to father and that removal was necessary |
| Whether the juvenile court’s failure to state the factual basis for removal requires reversal | Removal order is supported by the record so omission is harmless | Court’s omission is reversible error because findings weren’t specified | Harmless error. Because substantial evidence supports removal, it is not reasonably probable the outcome would differ if the court had articulated the facts |
Key Cases Cited
- Conservatorship of O.B., 9 Cal.5th 989 (clarifies that appellate sufficiency review of findings requiring clear and convincing proof asks whether a reasonable factfinder could find the fact highly probable)
- In re David C., 152 Cal.App.3d 1189 (definition and description of the clear and convincing evidence standard)
- T.J. v. Superior Court, 21 Cal.App.5th 1229 (discusses how appellate review should account for the heightened proof standard)
- In re Daisy H., 192 Cal.App.4th 713 (insufficient evidence where domestic violence was remote and parents were separated)
- In re Ashley F., 225 Cal.App.4th 803 (reversed removal where reasonable alternatives could adequately protect children)
- In re T.V., 217 Cal.App.4th 126 (cycle of parental violence can constitute failure to protect)
- In re Giovanni F., 184 Cal.App.4th 594 (parental denial of abuse increases risk of recurrence and undermines protection)
- In re J.S., 196 Cal.App.4th 1069 (harmless error standard for appellate reversal)