Filed 7/22/14 In re Randy L. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN


In re RANDY L., a Person Coming Under                                B251713
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. CK64088)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

ASTRID M.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Carlos
Vazquez, Judge. Affirmed.
         Linda Rehm, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, and Jacklyn K. Louie, Principal Deputy County
Counsel for Plaintiff and Respondent.




                                         ________________________
       Astrid M., the mother of Randy L. and David L., challenges the juvenile court’s
jurisdictional findings and dispositional orders concerning David L. and its decision not
to return Randy L. to her custody. We affirm.


                  FACTUAL AND PROCEDURAL BACKGROUND

       Astrid M. has an extensive history of involvement with the Department of
Children and Family Services (DCFS) that began long before the births of Randy L. and
David L. The instant dependency proceedings commenced in October 2012 with respect
to Randy L., who was then 2 months old, after an incident of domestic violence between
Astrid M. and Randy’s father, S.L. Randy L. was declared a dependent child of the court
under Welfare and Institutions Code1 section 300, subdivision (b), with allegations found
true that the parents had a history of physical altercations, including the October 2012
incident in which S.L. struck Astrid M.’s head with his fists; and that S.L. had a
substance abuse problem and was presently using methamphetamine. Randy L. was
placed the home of his paternal grandmother.
       David L. was born in July 2013, and he was immediately detained by DCFS,
which filed a dependency petition alleging that David L. came within the jurisdiction of
the juvenile court under section 300, subdivisions (a) and (b).
       On September 11, 2013, the court held a six-month review hearing for Randy L.
and the jurisdictional and dispositional hearing for David L. The court found that return
of Randy L. to his parents would create a substantial risk of detriment to him. With
respect to David L., DCFS asked the court to dismiss the initial allegations under section
300, subdivisions (a) and (b) and to amend the petition to assert three allegations under
section 300, subdivision (j). The first allegation under section 300, subdivision (j) was
that Astrid M. and S.L. had “a history of engaging in physical altercations. On 10/15/12,
the father struck the mother’s head with the father’s hands. The mother had limited
ability to protect the children. The child’s siblings, Cesar [L.] . . . and Randy L[.] . . . are


1      All further statutory references are to the Welfare and Institutions Code.

                                               2
depend[e]nts of the Juvenile Court due to domestic violence between the mother and the
father. Such conduct on the part of the parents places the child at risk of harm.” Next,
DCFS alleged that S.L. had a history of substance abuse and was a current user of
methamphetamine. S.L.’s substance abuse problems, DCFS asserted, were unresolved
and limited his ability to provide care, protection, and support for David L. and placed
David L. at risk of harm. Finally, DCFS alleged that S.L. had an admitted history of
mental and emotional problems, including a diagnosis of bipolar disorder and auditory
hallucinations, which rendered him unable to care for David L. and placed David L. at
risk of harm. The juvenile court sustained all three allegations and found David L. to be
a dependent child of the juvenile court under section 300, subdivision (j). The court
further found by clear and convincing evidence that substantial danger existed to David
L. and that there was no reasonable means to protect him without removing him from the
custody of his parents.
       Astrid M. appeals one of the three jurisdictional findings concerning David L., the
removal of David L. from her custody, and the failure to return Randy L. to her custody.


                                      DISCUSSION

       I.     David L.: Challenge to Jurisdictional Finding

       Astrid M. contends that there is insufficient evidence to support the finding that
physical altercations between the parents placed David L. at risk. DCFS argues that the
issue is nonjusticiable because even if the court’s finding was not supported by
substantial evidence, the juvenile court would nonetheless maintain jurisdiction over
David L. because of the two unchallenged findings under section 300, subdivision (j)
pertaining to S.L. (In re I.A. (2011) 201 Cal.App.4th 1484, 1491-1492.) Astrid M. notes
that even when the juvenile court would nonetheless maintain dependency jurisdiction
over a child, reviewing courts reach the merits of challenges to jurisdictional findings
when those findings could be prejudicial to the parent who appeals. (See, e.g., In re
Drake M. (2012) 211 Cal.App.4th 754, 763.) Astrid M. argues that because she would


                                             3
otherwise have been considered a nonoffending parent, this erroneous finding concerning
her impacted the removal, visitation, and reunification services orders. In light of her
argument, we will review Astrid M.’s appeal on the merits although dependency
jurisdiction over David L. will remain in place regardless of our review. (Ibid.)
       Section 300, subdivision (j) provides that a child is within the juvenile court’s
jurisdiction if the child’s sibling has been abused or neglected, as defined elsewhere in
section 300, and there is a substantial risk that the child will be abused or neglected. We
review the juvenile court’s jurisdiction and disposition findings for substantial evidence.
(In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Substantial evidence is “evidence which
is reasonable in nature, credible, and of solid value.” (Ibid.) Under this standard of
review, we examine the record in a light most favorable to the findings and conclusions
of the juvenile court and defer to the lower court on issues of credibility of the evidence
and witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733.) We determine only
whether there is any substantial evidence, contradicted or uncontradicted, that supports
the juvenile court’s order, resolving all conflicts in support of the determination and
indulging all legitimate inferences to uphold the lower court’s ruling. (In re John V.
(1992) 5 Cal.App.4th 1201, 1212.)
       We conclude that the evidence presented at the jurisdictional hearing of the
family’s patterns of intermittent violence and the failure to address the root causes of the
violence supported the determination that David L. was at risk. Astrid M. and S.L. had
engaged in periodic domestic violence for many years, and David L.’s three older
siblings had become dependent children of the juvenile court due to that violence. In
2007, the juvenile court had found true that S.L. “threatened to harm minor [David L.’s
older sister A.L.] and minor’s mother if mother reveals that he is the father of [A.L.] or if
mother attempts to collect welfare or child support for the minor.” The juvenile court had
also found in another proceeding involving David L.’s older brother Cesar L. that in late
2010 Astrid M. and S.L. “engaged in a violent altercation in the child’s presence. The
mother threw a frying pan and pushed the father. The father pushed the mother, resulting
in the mother hitting the mother’s head on a step. The father kicked the mother on the

                                              4
mother’s back.” The juvenile court had also found that in 2012 S.L. struck Astrid M.’s
head with his fists. There were indications in the record of further violence between the
parents in November 2012. All of David L.’s older siblings and his older half-sibling had
been placed outside the home by the time David L. was born. S.L.’s volatile temper had
even been on display in his interactions with DCFS, as when in one instance he became
angry during a conversation with a social worker and warned her to end the conversation,
implying that he would do something harmful if she continued to speak.
       The record also reveals that the parents often denied the violence, even when
incidents were witnessed by others. In the October 2012 incident, for instance, S.L. hit
Astrid M. in front of several children, and on the day of the incident, Astrid M. told a
neighbor and the police that S.L. had hit her. S.L. was arrested for battery on a
cohabitant. The following day, however, Astrid M. denied that she had been assaulted
and went to court seeking to cause the charges to be dropped. Astrid M. told DCFS that
she refused to seek a restraining order against S.L. because it could have led to S.L. being
sent to prison. Later, Astrid M. admitted to DCFS that she was protecting S.L. when she
did not disclose that S.L. had hit her. S.L. denied that there had been any domestic
violence in the October 2012 incident.
       The record also indicates that despite the violence and court orders, Astrid M. may
have permitted S.L. to have unsupervised contact with the children. Astrid M. denied
that S.L.’s substance abuse and his mental health problems—which included S.L. hearing
voices that told him to hurt himself and others—interfered with his ability to parent.
DCFS concluded, “[M]other and father continue not to take ownership for their roles in
their DCFS involvement. Both blamed DCFS, and did not grasp the seriousness of issues
like domestic violence and substance abuse, [and] provided explanations inconsistent
with what they stated during the initial investigation.”
       Further, Astrid M. and S.L. had a history of partial compliance with their case
plans, and their compliance with court orders at the time of the September 2013
adjudication hearing was very recent. Astrid M. had enrolled in parent education and
domestic violence education in January 2013, but she was dropped from the program

                                              5
when she stopped attending in March 2013. She had begun attending a domestic
violence support group weekly in April 2013 and began counseling in May 2013. S.L.
had participated in 12 weeks of domestic violence counseling prior to the October 2012
incident of domestic violence but was subsequently arrested after that altercation. S.L.
had begun receiving psychiatric services in January 2013 after he reported auditory
hallucinations urging him to harm himself and others, but he had attended only two
appointments and missed five others. He had been discharged from his substance abuse
program in April 2013 for failure to attend, and although three appointments had been
scheduled with another treatment program, he did not appear for any of them. S.L. was
scheduled to enroll in a treatment program in June 2013 but failed to do so. He finally
enrolled in an in-patient treatment program in August 2013. Between January and
August 2013, S.L. participated in drug testing only 11 of the 29 times he was asked to
test.
        Astrid M. and S.L., moreover, maintained what Astrid M.’s therapist described in
June 2013 as “a very enmeshed and unhealthy relationship” in which S.L. was constantly
present. As of February 2013 S.L. had told DCFS that they were not living together, but
DCFS concluded that this was untrue and that “they are together in spite of their denial to
DCFS.” As of March and June 2013 they were openly living together again. DCFS
advised Astrid M. that “even if she were compliant with the orders of the Court, the fact
that she remains involved with father (who is largely non-compliant) would negatively
impact her reunification case.” Astrid M. responded that she understood this, but she
remained devoted to S.L. DCFS concluded in June 2013, when Astrid M. was pregnant
with David L., that she “fails to see how her continued relationship with father negatively
impacts her own reunification case. Time and time again, mother has chosen to remain
with father even though she is aware that terminating this relationship would be key to
her reunification case.”
        The record, therefore, supports taking jurisdiction over David L. on the basis of
the risk of harm posed by domestic violence: this family had repeated instances of



                                              6
violence, and neither parent had taken sufficient steps to ameliorate the risk of harm to
children in this volatile environment.
       Astrid M. argues that although there may have been domestic violence between
the parents in October 2012, there was no substantial risk to David L. as of September
2013 because there had been no further incidents of violence between the parents;
Astrid M. was renting a room on her own and was not living with S.L.; she was enrolled
in individual therapy, parenting, and a women’s support group; and she was complying
with her case plan. In light of the history of the family’s periodic violence and return to
old patterns, Astrid M.’s argument that almost a year had passed since the last
documented incident of domestic violence does not demonstrate that there was no risk of
harm to David L. Three years passed between the 2007 threats of violence and the 2010
altercation, and then two years passed before S.L. struck Astrid M. with his fists. The
mere passage of time does not, in light of the history of violence here, demonstrate that
the risk of harm to David L. had subsided by the time of the jurisdictional hearing.
       A temporary separation and separate housing for Astrid M. and S.L. at the time of
the hearing in September 2013, moreover, also failed to ameliorate the risk because both
parents were contemplating reuniting once S.L. was discharged from his in-patient
program in November 2013. Astrid M. would not commit to remaining independent of
S.L. when he left his program: when asked by DCFS if she planned to reunify with him,
she responded, “I will not say yes or no, it depends if he has changed when he gets out.”
S.L. appeared to anticipate a reunion at some point after his completion of treatment,
telling DCFS that the judge had not said that they could not be together. Astrid M.’s
enrollment in individual therapy, parenting, and a support group, and her recent
compliance with her case plan, while commendable, similarly did not demonstrate that
the risk of harm posed by domestic violence had subsided: Astrid M. had gone through
cycles of compliance before but then returned to noncompliance and her violent
relationship with S.L. Substantial evidence supported the finding on this count.




                                             7
       II.    Removal of David L.

       Section 361, subdivision (c)(1) permits removal of a child from his or her parent's
custody only if the juvenile court finds by clear and convincing evidence that “[t]here is
or would be a substantial danger to the physical health, safety, protection, or physical or
emotional well-being” of the child if the child were returned home and “there are no
reasonable means by which the [child]’s physical health can be protected without
removing” the child from his or her parent’s custody. “The parent need not be dangerous
and the child need not have been actually harmed for removal to be appropriate. The
focus of the statute is on averting harm to the child. [Citations.] In this regard, the court
may consider the parent’s past conduct as well as present circumstances.” (In re Cole C.
(2009) 174 Cal.App.4th 900, 917.)
       Although she did not object to David L.’s removal at the disposition hearing,
Astrid M. argues there was insufficient evidence David L. would be in danger if he were
returned to her.2 We review removal orders at disposition for substantial evidence,


2       We reject DCFS’s contention that Astrid M. forfeited her argument on appeal that
removal was improper because she failed to object in the juvenile court. As DCFS
explains, a reviewing court ordinarily will not consider a challenge to a procedural defect
or erroneous ruling if an objection could have been but was not made in the trial court.
“Dependency matters are not exempt from this rule.” (In re S.B. (2004) 32 Cal.4th 1287,
1293; see In re Wilford J. (2005) 131 Cal.App.4th 742, 754 [“[t]he purpose of the
forfeiture rule is to encourage parties to bring errors to the attention of the juvenile court
so that they may be corrected”].) Nonetheless, it is DCFS’s burden to prove removal
from the physical custody of a parent is necessary to protect the child. Absent a
statement by the parent clearly evidencing acquiescence in the recommendation for
removal, the failure to expressly object does not relieve the juvenile court of its
obligation to make appropriate evidentiary findings and apply relevant law to determine
whether the case has been proved. (In re Richard K. (1994) 25 Cal.App.4th 580, 589;
In re Tommy E. (1992) 7 Cal.App.4th 1234, 1237.) Nor does the parent forfeit for
appellate purposes his or her right to challenge the propriety of the court’s orders. (In re
M.B. (2010) 182 Cal.App.4th 1496, 1506 [“while a parent may waive an objection to
specific evidence, a claim that there is insufficient evidence to support the judgment is
not waived by a failure to object”]; In re Richard K., at p. 589; see generally People v.
Butler (2003) 31 Cal.4th 1119, 1126 [“‘Generally, points not urged in the trial court
cannot be raised on appeal. [Citation.] The contention that a judgment is not supported

                                              8
bearing in mind the clear and convincing evidence standard of proof at the juvenile court
level. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) Substantial evidence
supports the removal order.
       The removal order must be understood in the context of the family’s history.
David L. was the third child of Astrid M. and S.L. to be removed from their custody
because of the ongoing domestic violence in the home and the parents’ failure to address
the violence or to separate from each other. Astrid M. had complied with court-ordered
programs before, to the point that two of her older children were returned to her for a
time. Her compliance, however, was temporary, and she was unable to reunify with
those children. Domestic violence occurred periodically between the parents, and
although Astrid M. had completed domestic violence counseling in 2011, she became
involved in a further altercation with S.L. in 2012. Astrid M. remained “enmeshed” in an
“unhealthy relationship” with S.L. and refused to rule out reunifying with him when he
returned from his inpatient program. She repeatedly denied domestic violence, just as
she had denied that S.L.’s substance abuse and his mental health problems interfered with
his parenting. Astrid M. consistently “fail[ed] to see how her continued relationship with
father negatively impacts her own reunification case,” and chose to remain with S.L.
despite its consequences for reunification. The domestic violence; Astrid M.’s apparent
inability or unwillingness to detach from a noncompliant partner with mental illness,
substance abuse problems, and a history of domestic violence; and Astrid M.’s denial and
refusal to accept responsibility all rendered Astrid M. incapable of protecting David L.
from domestic violence and established that David L. would suffer a substantial risk of
detriment if he was returned to her care. Substantial evidence supported the juvenile
court’s determination.
       Astrid M. makes a series of observations in support of her argument that there was
no evidence of risk of detriment, none of which are persuasive. First, she argues that


by substantial evidence, however, is an obvious exception.’”].) Here, the record includes
no statement by Astrid M. clearly evidencing acquiescence in the recommendation for
removal, and therefore she has not forfeited her challenge to the removal order.

                                             9
David L. had never been hurt in any way, but a child need not be actually harmed for
removal to be appropriate. (In re Cole C., supra, 174 Cal.App.4th at p. 917.) Next, she
notes that David L. had no medical concerns at birth. Medical concerns are not present in
this case, and the absence of medical concerns here is irrelevant to the basis for the
finding of risk of detriment. She then observes that she had denied any domestic violence
since 2012. Astrid M. may have denied domestic violence since 2012, but she also
denied domestic violence at other times, and that denial contributed to the risk here
because it rendered her incapable of protecting the children. To the extent that
Astrid M.’s denial that there had been domestic violence in the prior 11 months may be
relied upon as evidence that no violence occurred, the absence of actual violence does not
mean that there was not a risk of violence nonetheless; the family’s history was of
intermittent violence, and of a return to violence after quiet periods and even after
domestic violence counseling.
       Next, Astrid M. notes that S.L. reported that he had been sober since 2012. S.L.’s
history of drug testing reveals a less than 50% appearance rate for testing; and, even
assuming that S.L. was not using illegal substances at the time, his mental illness and
domestic violence issues remained. Astrid M. also states that she was renting a room on
her own. Astrid M. may have been living apart from S.L. at the time of the removal
order, but this very recent development appears to have been occasioned by S.L.’s
enrollment in an inpatient program; Astrid M. was contemplating reuniting with S.L.
after his program ended in two months. Because Astrid M. was unwilling to commit to
ending her relationship with S.L., his temporary absence does not establish that there was
no longer any risk of harm to David L. if he was in Astrid M.’s custody. Finally, Astrid
M. notes that she was undergoing therapy, parenting, and a support group, and that she
was positive about her therapy and willing to follow directives and court requirements.
Her compliance with the case plan and her good attitude at the time of removal, while
positive developments, were undermined by her persistent denial of the domestic
violence and her failure to take responsibility for the role she had played, as well as by
her continued relationship with S.L. Astrid M. has not established any error here.

                                             10
       III.   Failure to Return Randy L. to Astrid M.

       At the six-month review hearing, “after considering the admissible and relevant
evidence, the court shall order the return of the child to the physical custody of his or her
parent or legal guardian unless the court finds, by a preponderance of the evidence, that
the return of the child to his or her parent or legal guardian would create a substantial risk
of detriment to the safety, protection, or physical or emotional well-being of the child.”
(§ 366.21, subd. (e).) In making its determination, the court “shall consider the efforts or
progress, or both, demonstrated by the parent or legal guardian and the extent to which he
or she availed himself or herself to services provided.” (§ 366.21, subd. (e).)
       At Randy L.’s six-month review hearing, the court found that returning him to
Astrid M. would create a substantial risk of detriment to him. Specifically, the court
found that “the extent of progress by the mother and father ha[d] been insufficient to
return the child to them.” We review findings and orders made pursuant to section
366.21 for substantial evidence (In re Mary B. (2013) 218 Cal.App.4th 1474, 1483) and
conclude that substantial evidence supports the court’s determination.3
       Our analysis of the risk of detriment to Randy L. is very similar to the analysis of
the risk of harm for David L. Astrid M. and S.L. had a long history of domestic violence
and of denial of that violence; they had failed to successfully address the issue of
violence or to separate from each other. While Astrid M. was participating in the
services set out in her case plan at the time of the removal order, she had failed to
demonstrate sufficient progress: she continued to deny that domestic violence had
occurred; she denied that S.L.’s mental health problems and substance abuse interfered
with his parenting; she attributed the dependency proceedings not to domestic violence

3      DCFS contends that Astrid M. waived her challenge to the order declining to
return Randy L. to her care by not objecting before the juvenile court. We reject this
argument because the failure to expressly object does not relieve the juvenile court of its
obligation to make appropriate evidentiary findings and apply the relevant law, nor does
the parent forfeit for appellate purposes his or her right to challenge the propriety of the
court’s orders. (In re Richard K., supra, 25 Cal.App.4th at p. 589; In re Tommy E.,
supra, 7 Cal.App.4th at p. 1237; In re M.B., supra, 182 Cal.App.4th at p. 1506.)

                                             11
and to S.L.’s drug use and mental health issues but to a “dumb thing” she had said; and
she continued to be involved in an unhealthy relationship with S.L., contemplating
reunifying with him when he returned from his inpatient program. All of these factors—
the domestic violence; the continued relationship with S.L. despite his unresolved
violence, mental illness, and substance abuse problems; and Astrid M.’s consistent denial
and refusal to accept responsibility—rendered Astrid M. just as incapable of protecting
Randy L. from harm as she was incapable of protecting David L., and they demonstrated
that Randy L. would suffer a substantial risk of detriment if he was returned to Astrid
M.’s care. Substantial evidence supported the juvenile court’s determination.

                                     DISPOSITION

       The judgment is affirmed.




                                                 ZELON, J.
We concur:




       WOODS, Acting P. J.




       SEGAL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            12
