Filed 6/30/16 In re C.E. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


In re C.E., a Person Coming Under the                                B267266
Juvenile Court Law.
                                                                     (Los Angeles County
LOS ANGELES COUNTY                                                   Super. Ct. No. DK05406)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

F.E.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Marilyn K.
Martinez, Judge. Affirmed.
         Cameryn Schmidt, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
         M. Elizabeth Handy, under appointment by the Court of Appeal, for minor.
                                        _________________________
                                    INTRODUCTION
       F.E. appeals from the order of the juvenile court at the disposition hearing that
denied him visitation with his daughter C.E. (Welf. & Inst. Code, § 362.1.)1 He
contends that the evidence does not support the court’s finding that visitation would be
detrimental to C.E. The Department of Children and Family Services (the Department)
recommended supervised visitation and did not file an appellate brief in support of the
challenged order. Instead, C.E. is the party defending the no-visitation order arguing the
evidence is sufficient. We affirm the order.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. Detention
       The family consisted of mother Veronica R., her children Jesse and Grecia R. by
another man, father, and C.E. who is father’s daughter. Grecia, an adult, has lived with
father since she was five years old. The Department received a referral in May 2014,
when Jesse was 14 years old and C.E. was 10, indicating that father was emotionally
abusing the children. According to the caller, mother and father were “ ‘having
relationship problems.’ ” Mother and C.E. went to see father, an armed security guard, at
work. Father became angry, grabbed mother by the hair, pushed and pulled her, threw
her against the car, and threatened to use his gun. C.E. witnessed the incident and cried
for mother to get into the car so they could leave. Mother went to the police who granted
her an emergency protective order. Mother reported that this is not the first time father
has acted physically aggressive or displayed violence.
       During the Department’s investigation, mother related that father was verbally
abusive to her and became increasingly aggressive as he drank alcohol. He would lose
control and throw things at her, such as beer cans. Once, as mother was getting out of the
car, her scarf became caught. Father, who was angry at Jesse, drove off dragging mother
and nearly running her over as the children watched. Father was also abusive to the



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


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children. Angry at Jesse for cleaning the garage too slowly, father took the children’s
dogs and left them where they could not be found. When C.E. cried for her dogs, father
called her “dumb-ass” and hit her on the back with his fist. Once, father grabbed Jesse by
his shirt and threw him toward the garage to clean it.
       Jesse reported feeling “a little afraid” of father because “ ‘he never knows when
dad is [going] to be mad.’ ” Father would drink on the weekends and became meaner
when he drank. Father shoved Jesse on two occasions, the most recent being the day
father gave away the dogs. Jesse has seen bruises on mother.
       C.E. stated she was afraid of father. She reported that father once threw her dogs
away and her cat mysteriously died. Once father got angry at her for crying and hit her
on the back with his hand. Sometimes, father would get mad at her for not bringing him
a beer fast enough and would throw empty cans at her. C.E. watched as father
gratuitously hit mother on the back and kicked her so that she fell off the bed. That
scared the child. She has seen bruises on mother from father’s violence. C.E. and Jesse
did not see father hit the other sibling. But, father called C.E. and Jesse bad names,
including stupid and dumb-ass. The name-calling made her sad and scared.
       Father denied hitting C.E. on the back or calling the children names. He claimed
mother was manipulating the children. A coworker wrote a letter on behalf of father
stating that father has always been responsible, and that several times mother has come to
father’s work place to confront him. The author claimed that mother was verbally and
physically abusive to father. An employer at Wilshire Bank also wrote a letter on behalf
of father describing him as reliable, hard working, compassionate, well-mannered, and
respectful.
       The family has a history with the Department dating back to 2000. The parents
have filed domestic violence charges against each other in the past and each sought a
restraining order against the other. Grecia and Jesse’s father reported that mother used to
hit and scratch him and then accuse him of domestic violence. Mother claimed that
father threatened to use his gun on her. Father claimed that mother came to his place of



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work and slapped him and threatened to have him arrested. Father was arrested in 2010
for domestic violence but was released for lack of evidence.
        The Department filed a petition alleging that the children were at risk of abuse and
neglect because father and mother have a history of engaging in domestic violence in the
children’s presence; father physically abused C.E. by striking her on the back with his fist
and Jesse by grabbing and pushing him; father has a history of abusing alcohol. (§ 300,
subds. (a), (b) & (j).) The court detained the children from father, released them to
mother, and forbade father from visiting or contacting the children. The superior court
issued domestic violence restraining orders, forbidding the parties to harass each other
and ordering them to stay 100 yards away from each other.
        2. Jurisdiction
        The jurisdiction report reflects Grecia’s statements that she never saw mother hit
father. Rather, “ ‘He was the one.’ ” (Italics added.) Father would see mother cry and
continue to hit her. Grecia saw father throw sauce, a beer bottle, baby oil, keys, and
plates at mother. He would break things “ ‘all the time.’ ” Grecia witnessed father hit
Jesse twice on the back, pinch Jesse on the leg, and hit him with a closed fist. She
explained that father’s drinking increased over the years until he drank “ ‘all the time’ ”
and was violent.
        C.E. stated to the social worker that she is afraid of father and did not want to see
him. She was in individual counseling. She reported that she saw father attempt to pull
out his gun during the May 2014 incident that triggered the instant petition.
        Father again denied the allegations. The Department interviewed two people who
have known father for many years and who work where father does. One reported that
father was hard working and respectful. Both stated that mother was the aggressor and
that father often brought the children to work because mother was not around to watch
them.
        The Department categorized the family at high risk for future abuse because of the
parents’ domestic violence witnessed by the children, mother’s failure to report all of the
violence, and father’s drinking problem. Its recommendation to the court was to place

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the children with mother and to grant them family maintenance services, and to provide
father family reunification services with C.E. As for visitation, the Department
recommended that father be awarded visits, monitored by someone other than mother,
which supervision could be liberalized by the Department.
       3. The jurisdiction and disposition hearing.
       During the jurisdiction and disposition hearing, the juvenile court extended the
temporary restraining order. C.E. testified in chambers. She confirmed that father hit
mother “a lot.” Father once kicked mother so hard she almost fell out of bed. Father
pulled his gun out and pointed it at mother during the May 2014 incident. Father also hit
C.E. on the back or side of her body with his fist. He hit her hard enough and sometimes
she would fall. It hurt and scared her. She is mad at father. She saw father hit Jesse. If
father asked for beer and they did not cut lemons fast enough for him, he would hit both
of the children with a fist. She had not seen father since the referral. C.E.’s attorney
reported that the child did not want to have contact with father.
       Father denied the petition’s allegations. He testified that his relationship with C.E.
was “very good” and that it was strange that she would say these things about him. He
explained that mother promised to do everything possible to prevent him from seeing
C.E.
       At the close of the hearing, the juvenile court declared Jesse and C.E. dependents
(§ 300, subds. (a), (b) & (j)). Finding by clear and convincing evidence that substantial
danger existed to C.E. and that she was suffering severe emotional damage, the court
removed her from father’s custody (§ 361, subd. (c)) and placed her with mother. With
respect to visitation, the court found that contact with father did not pose a risk to C.E.’s
safety, but would be detrimental for her. The court listed the detriment factors it
considered: (1) C.E.’s age, 11; (2) the “extreme” degree of abuse father exposed her to
and perpetrated on her; (3) the experiences she suffered because of father’s abuse of
alcohol and the way he bullied the family; (4) his failure to show remorse; (5) his failure
to take responsibility for his conduct; and (6) his failure to show sensitivity for C.E. The
court found that father was a bully who had conducted himself just as he wanted, by

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hitting the children or mother, using his fists and getting rid of the dogs. The court found
it would be detrimental to force the child to meet father who has hurt her and her family,
her pets, and had bullied them for a substantial period of time. The court stated that
father would need to show that he takes responsibility and makes progress in addressing
the issues that brought his daughter into court before he could persuade the court that it
would not be detrimental for C.E. to have contact with him. The court allowed father no
contact with C.E. until further order of the court. The court issued a permanent
restraining order against father to expire on July 2, 2018, and scheduled a judicial review
hearing under section 364. Father’s appeal followed.
                                       DISCUSSION
       Disposition orders granting reunification services must provide for visitation
between the parent and child that is “as frequent as possible, consistent with the well-
being of the child.” (§ 362.1, subd. (a)(1)(A).) It is widely recognized that “[v]isitation
between a dependent child and his or her parents is an essential component of a
reunification plan, even if actual physical custody is not the outcome of the
proceedings. . . .” (In re Mark L. (2001) 94 Cal.App.4th 573, 580.) However, section
362.1 specifies that “[n]o visitation order shall jeopardize the safety of the child.” (Id.,
subd. (a)(1)(B), italics added.)
       The juvenile court here expressly found that visitation did not pose a threat to
C.E.’s physical safety “because a monitor can provide safety,” but that contact with father
was detrimental to the child’s well-being. As father and C.E. observe, there is a split of
authority over whether section 362.1 authorizes the denial of visitation only on a finding
of a threat to the child’s physical safety (In re C.C. (2009) 172 Cal.App.4th 1481, 1492),
or whether evidence of a threat to the child’s emotional well-being is enough. (In re
Mark L., supra, 94 Cal.App.4th at p. 581.) The weight of authority appears to allow a no-
contact order based on emotional detriment. (Ibid. [emotional harm]; In re A.J. (2015)
239 Cal.App.4th 154, 160 [physical or emotional well-being]; In re S.H. (2003) 111
Cal.App.4th 310, 317, fn. 9 [well-being]; In re Julie M. (1999) 69 Cal.App.4th 41, 50
[emotional harm]; In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [emotional

                                               6
harm]; see In re Brittany C. (2011) 191 Cal.App.4th 1343, 1357 [both physical safety and
emotional well-being].) “It is ordinarily improper to deny visitation absent a showing of
detriment.” (In re Mark L., at p. 580.) “Detriment includes harm to the child’s emotional
well-being.” (In re Brittany C., supra, at p. 1357.)
       “ ‘Detriment is a familiar standard in child welfare determinations; but, as several
courts have acknowledged, the notion of detriment is at best a nebulous standard that
depends on the context of the inquiry. . . . It cannot mean merely that the parent in
question is less than ideal . . . . Rather, the risk of detriment must be substantial, such
that [the proposed action] represents some danger to the child’s physical or emotional
well-being.’ [Citation.]” (In re A.J., supra, 239 Cal.App.4th at p. 160, italics added.)
       Viewing the evidence in the light most favorable to the court’s order, we hold the
record contains sufficient evidence to support the court’s order denying visitation
between father and C.E. based on the finding that visits would be detrimental to the child,
until father has made progress in addressing the issues that triggered the dependency. For
years, father has bullied his family by physically abusing them with fists and objects and
belittling his daughter by calling her derogatory names. Father’s drinking and ensuing
violence and anger scared C.E., made her sad and cry. She is afraid of father. Father’s
repeated and consistent denial that he bullies his family by hitting and throwing objects at
them or throwing their pets away, palpably demonstrates his refusal to take responsibility
for his conduct and his disregard for his child’s emotional or physical well-being. In our
view, the record supports the court’s conclusion that visits between C.E. and father
represent a substantial danger to the child’s emotional well-being. Likewise the violence
between the parents justifies their mutual restraining orders.
       Moreover, C.E. has repeatedly stated that she did not want to see father. “[T]he
child’s input and refusal and the possible adverse consequences if a visit is forced against
the child’s will are factors to be considered in administering visitation. [Citation.]” (In
re S.H., supra, 111 Cal.App.4th at p. 317.) The “child’s aversion to visiting an abusive
parent may be a ‘dominant,’ ” but not the sole factor in administering visitation. (In re
Julie M., supra, 69 Cal.App.4th at p. 51.) The juvenile court here considered C.E.’s

                                              7
desire not to see father as only one of a “variety” of factors it weighed. The majority of
factors listed by the court concerned father’s violence and its deleterious effect on C.E.’s
well-being. Accordingly, the record supports the court’s detriment finding. (In re Mark
L., supra, 94 Cal.App.4th at p. 581 [evidence is “ ‘reasonable in nature, credible, and of
solid value . . . .’ ”].)
        Father contends that the juvenile court erred in applying the preponderance of the
evidence standard to its detriment finding because, he argues, the stricter clear and
convincing standard should apply to visitation orders made during the reunification
period. He relies on In re Dylan T. (1998) 65 Cal.App.4th 765, and In re D.B. (2013)
217 Cal.App.4th 1080. Dylan T. held that “visitation between an incarcerated parent and
a minor cannot be arbitrarily determined based on factors which do not show by clear and
convincing evidence that visitation would be detrimental to the minor.” (In re Dylan T.,
at p. 773.) In reaching this conclusion, the Dylan T. court relied heavily on the statutory
provisions for providing reunification to incarcerated or institutionalized parents, section
361.5. (In re Dylan T., at pp. 770-773.) Section 362.1, subdivision (a)(1) however, does
not specify a standard for parental visitation. In In re D.B., the juvenile court granted a
section 388 motion to terminate visitation after reunification services ended. The court in
In re D.B. recognized its pronouncement was dicta, stating, “Although we need not
resolve the issue, we recognize that when the focus of dependency proceedings is on
reunification, a higher standard of proof may be warranted before a court may deny
visitation outright.” (In re D.B., at p. 1090, italics added.)
        Nonetheless, even if the appropriate standard of proof were the more heightened
clear-and-convincing standard, on this record we conclude father was not prejudiced.
The juvenile court had already made the necessary finding of detriment to C.E.’s well-
being by clear and convincing evidence when it ordered C.E. removed from father’s
custody under section 361, subdivision (c). That statute forbids removal of the child from
the parents’ custody unless the juvenile court finds clear and convincing evidence that,
similar to section 362.1, subdivision (a)(1), “[t]here is or would be a substantial danger
to the physical health, safety, protection, or physical or emotional well-being of the minor

                                               8
if the minor were returned home.” (§ 361, subd. (c)(1), italics added.) Father does not
challenge the sufficiency of the evidence to support the court’s removal order. Therefore,
under either standard, the record supports the juvenile court’s finding that visitation with
father would be detrimental to C.E.’s well-being.
       We are mindful of the juvenile court’s statutory obligation to provide visitation as
frequently as possible (§ 362.1, subd. (a)(1)(A)) as “the rights of children in their family
relationships are at least as fundamental and compelling as those of their parents.” (In re
Bridget R. (1996) 41 Cal.App.4th 1483, 1504, superseded by statute on another ground as
stated in In re Santos Y. (2001) 92 Cal.App.4th 1274, 1311-1312.) “ ‘An obvious
prerequisite to family reunification is regular visits between the noncustodial parent or
parents and the dependent children “as frequent[ly] as possible, consistent with the well-
being of the minor.” ’ [Citation].” (In re S.H., supra, 111 Cal.App.4th at p. 317.) Yet, in
the context of child visitation, the juvenile court must maintain flexibility to respond to
the changing needs of the child and the dynamic circumstances of the family. (Ibid.)
“[T]he parents’ interest in the care, custody and companionship of their children is not to
be maintained at the child’s expense.” (Ibid.; see also In re Julie M., supra,
69 Cal.App.4th at p. 50.) It is our hope that at the next review hearing the juvenile court
will consider whether supervised or therapeutic visitation between father and child might
better serve the statutory goal of reunification. Father may always bring a motion under
section 388 to modify the no-contact order.




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                                  DISPOSITION
     The order appealed from is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             ALDRICH, J.




We concur:




             EDMON, P. J.




             LAVIN, J.




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