Filed 1/16/15 In re L.M. CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE


In re L.M., a Person Coming Under the                                B253602
Juvenile Court Law.                                                  (Los Angeles County
                                                                     Super. Ct. No. CK96911)


LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

TANYA M.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County. Annabelle
G. Cortez, Judge. Affirmed.
         Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                             ___________________
        Tanya M. (Mother) appeals from the juvenile court’s December 27, 2013
dispositional order placing seven-year-old L.M. in the partial custody of Jose M. (Father).
The dispositional order at issue here was based on a jurisdictional finding under Welfare
and Institutions Code section 300, subdivisions (b) (failure to protect) and (d) (sexual
abuse).1 Mother contends that under section 361, subdivision (c)(1), Father failed to
rebut the “presumption of detriment associated with” section 300 findings of sexual abuse
by parental grandfather, and therefore L.M. should have been removed from Father’s
care.
        Father is not a party to this appeal. The Department of Children and Family
Services (DCFS) does not oppose Mother’s challenge to the dispositional order, but has
not filed a separate brief.
        Because substantial evidence supported the juvenile court’s dispositional order, we
affirm the order placing L.M. in the partial custody of Father.
                                       BACKGROUND
The section 300 petition
        On December 12, 2012, DCFS filed a petition on behalf of L.M., who was then
six-years old, alleging she was a child described under section 300, subdivisions (a)
(physical abuse), (b) (failure to protect), and (d) (sexual abuse). The petition alleged
under section 300, subdivision (a), that paternal grandfather physically abused L.M. when
he pulled her hair, ears, legs, and arms, and that Father knew of paternal grandfather’s
physical abuse and failed to protect her. The petition also contained a count of physical
abuse and failure to protect under section 300, subdivision (b). The allegations pertaining
to physical abuse were eventually dismissed. As amended and sustained on
December 27, 2013, the petition alleged under section 300, subdivisions (b) and (d) that
on prior occasions paternal grandfather sexually abused L.M. by fondling her vagina and
Father knew of paternal grandfather’s sexual abuse of L.M., but failed to protect her.



        1   Undesignated statutory references are to the Welfare and Institutions Code.

                                               2
Events leading up to filing of the section 300 petition
       On November 30, 2012, DCFS received a referral based on a November 29, 2012
call to the Child Abuse Hotline that L.M. had been neglected by Father and paternal
grandmother. The referral reported that L.M. did not want to live with her paternal
grandparents anymore because paternal grandfather yelled at her and paternal
grandmother, paternal grandmother talked “bad” about Mother and encouraged her to
injure herself so that Mother could be blamed for the injury, and paternal grandmother
put a pink substance on her legs to remove her hair. The referral also reported paternal
grandfather’s excessive drinking. Mother disclosed that she had moved away from the
Fresno area because there were allegations that paternal grandfather had inappropriately
touched L.M., although those allegations were unsubstantiated upon investigation
because L.M. was “too afraid to say anything.”
       DCFS conducted several interviews, whose substance it reported to the juvenile
court. We now summarize those reports.
       Mother and Father divorced in 2008. Mother lived in West Covina with her new
husband and L.M; Father lived in Fresno with paternal grandparents. Mother reported
that in 2011, L.M. had told her that paternal grandfather “‘tickled and touched her private
parts.’” The ensuing investigation was closed in 2011, which Mother attributed to L.M.’s
being afraid to say anything at her interview.
       Pursuant to a family court custody order issued in November 2011, Mother and
Father shared custody of L.M., with Father having custody every other weekend. The
family court also ordered that L.M not be left unsupervised with paternal grandfather due
to the prior sexual abuse allegations.
       Despite the family court’s order, L.M. “disclosed being left alone with her paternal
grandfather.” L.M. reported that when she visited Father, she stayed with him at the
home of paternal grandparents and slept with Father in his bed. She also reported that
Father left her in the care of paternal grandparents when he went to work, despite a
family court order prohibiting such unsupervised contact with paternal grandfather.


                                             3
       L.M. also told DCFS that paternal grandfather “‘put his hand inside [her] pants’”
and touched her genital area. He pressed his fingers on her “‘butt’ area,” which hurt
because he had sharp nails. L.M. could not recall the last time paternal grandfather
touched her, but believed he did it when she was “about 3 to 4 years old.” She did not
like going to paternal grandparents’ home because paternal grandfather “‘does bad stuff’”
like pulling her hair, ears, legs, and arms, and poking her eye. L.M. further disclosed that
while paternal grandfather was watching television with her on one occasion, he put his
hand under her dress and touched her vagina “‘with his finger and hard nail and it hurt.
He did it more than one time.’” L.M. told Father that paternal grandfather touched her
and she heard Father tell paternal grandfather “‘“not to . . . be doing that anymore.”’”
       Father, paternal grandmother, and paternal grandfather denied that paternal
grandfather had sexually or physically abused L.M. Father acknowledged that the family
court ordered that L.M. could not be left alone with paternal grandfather, but apparently
thought that the order allowed him to leave L.M. with the grandparents as long as
paternal grandmother was present. He explained that when he worked on Saturdays, he
left L.M. in the care of paternal grandparents, “‘mostly my mom, she takes [L.M.] with
her everywhere she goes.’” He admitted that “he could not know for sure” whether or
not L.M. was left unsupervised with paternal grandfather. He indicated that he would be
willing to move out of his parents’ home and had been planning to do so before the
referral.
The detention hearing and subsequent events
       At the detention hearing on December 12, 2012, the juvenile court placed L.M. in
the home of Mother and ordered Father to have unmonitored visits in Los Angeles
County, including overnight visits. Regarding contact with paternal grandparents, the
court ordered visits by paternal grandmother monitored by DCFS and not Father, but
precluded paternal grandfather from having any contact with L.M. Finally, the court
ordered family maintenance services for L.M., Mother, and Father.
       Subsequently, L.M. enrolled in counseling, but was discharged from the
counseling program in June 2013 “due to [Mother’s] lack of compliance.” Mother

                                             4
believed L.M. did not need counseling and relocated L.M. to Las Vegas, without
informing the social worker. Mother failed to appear at a hearing on August 28, 2013,
and did not return DCFS’s calls to arrange transportation for her from Fresno, where she
was visiting relatives.
       On August 28, 2013, the juvenile court issued a protective custody warrant for
L.M., requiring her to be brought to court when located. DCFS left a message for Mother
that if she did not appear in court on August 29, 2013, the court would issue an arrest
warrant for her. When Mother failed to appear on August 29, 2013, the court issued an
arrest warrant for Mother. After Mother contacted DCFS on November 4, 2013, the
court recalled the protective custody warrant and arrest warrant, and released L.M. to
Mother.
       On December 17, 2013, Mother informed DCFS that she was living in West
Covina with her brother and hoped to be moving into her own home soon. L.M.’s social
worker confirmed that L.M. had already attended two counseling sessions as of
December 17, 2013.
       After several unsuccessful attempts to contact Father, DCFS interviewed him on
January 28, 2013. The social worker discussed with Father his failure to enroll in any
court-ordered program and his limited contact with L.M. Father blamed lack of
transportation, financial difficulties, and lack of a place to stay in the Los Angeles area
for these failures. Father indicated an interest in taking classes on the Internet, but DCFS
would not accept an Internet class. The social worker concluded that “at this time,” L.M.
was not Father’s “priority,” given Father’s failure to attend classes and keep in contact
with DCFS.
       By April 2013, Father had moved out of paternal grandparents’ home into the
home of his girlfriend and her mother, also in Fresno. L.M. still slept in Father’s bed
when she visited him in Fresno. In an April 15, 2013 interview, Father stated that while
he was looking for day care facilities, his girlfriend’s mother was available to watch
L.M. Father still had not enrolled in any court-ordered program. At a hearing on April 2,
2013, the court ordered DCFS to provide bus passes to Father. DCFS reported in July

                                              5
2013 that it had requested transportation funds for Father, but on December 27, 2013,
DCFS reported that it had been unsuccessful in securing that funding.
The December 27, 2013 jurisdictional and dispositional hearing
       The jurisdictional hearing was continued several times, in part because Mother
failed to appear at hearings between August 28 and October 3, 2013. The juvenile court
conducted a combined jurisdictional and dispositional hearing on November 25, 2013,
December 18, 2013, and December 27, 2013.
       At the hearing, Father testified that when the sexual abuse allegations were made
in 2011, he immediately moved out of paternal grandparents’ house so that he could have
visitation with L.M. He further testified that the family law court allowed him to move
back in with paternal grandparents on the condition that paternal grandfather not be
allowed unsupervised visits with L.M. He began working in July 2012, leaving L.M. in
the care of paternal grandmother. Father testified that after the allegations surfaced in the
current DCFS case, paternal grandfather had no contact with L.M.
       Although he did not believe paternal grandfather had sexually abused L.M. and
believed that the sexual abuse accusations were the product of Mother’s trying to restrict
his visitation rights, he was “open minded to find out the truth.” He stated, “[W]e are
here for a reason. . . . I am trying to find out the truth to make sure my daughter is safe
and protect my daughter, if I need to.” He explained that he and his girlfriend had moved
out of her mother’s house and were living together in a one-bedroom house in Fresno,
and that L.M. would have her own bed. Father stated that he was willing to comply with
court orders that paternal grandfather have no contact with L.M. “as long as I need to,”
even if it is “until she is 18.” He also said that he was also willing to comply with orders
that paternal grandmother have monitored visits with L.M.
       After argument of counsel, the juvenile court determined L.M. to be a dependent
child and sustained the section 300 petition, as amended to delete the allegations under
subdivisions (a) and (b) regarding physical abuse. It thus found by a preponderance of
the evidence that paternal grandfather had sexually abused L.M. and that L.M. had told
her Father about the sexual abuse and he had failed to protect her.

                                              6
       At the dispositional hearing, counsel for L.M. requested continued jurisdiction
because Mother had stated she did not believe L.M. needed therapy and had been
inconsistent in enrolling L.M. in therapy. Counsel for L.M. argued that L.M. should not
be removed from Father’s care because Father was credible, he was willing to follow the
juvenile court’s orders to keep L.M. safe, and L.M. needed Father “in her life, and . . .
misses him very much.”
       Significantly, counsel for L.M. argued to the juvenile court that “we do not have
the burden for clear and convincing evidence to remove from the Father today” and that
she found Father credible because “[h]e had long pauses” when asked about whether he
believed the sexual abuse had happened. Counsel for L.M. credited Father’s willingness
to comply with the court’s orders, and the court’s ability to protect L.M. both through its
continued jurisdiction and ordering of joint counseling for Father and L.M.
       Arguing that Father had violated the family court’s orders, denied the sexual
abuse, and demonstrated that he would not follow court orders, DCFS requested that
L.M. be removed from Father’s care. In the alternative, DCFS requested the juvenile
court to impose the conditions of the detention order allowing Father overnight visits in
Los Angeles, order DCFS to provide transportation assistance, and order Father into
sexual abuse awareness counseling.
       Mother asked for sole legal and physical custody, overnight and weekend visits for
Father in Los Angeles County, no contact with paternal grandfather, and sexual abuse
awareness counseling for Father. Father asked that the matter be closed, with a family
law order in place giving joint legal and physical custody to Mother and Father, or that
L.M. be placed in the care of Father. He objected to visitation rights only in Los Angeles
County.
       The juvenile court declared L.M. a dependant of the court and continued
jurisdiction because of the sustained allegations of sexual abuse and Mother’s
inconsistency in ensuring that L.M. attend therapy. In refusing to remove L.M. from
Father’s custody, the juvenile court observed that “there are reasonable means by which


                                             7
to protect without removing her from the Father,” and “reasonable services that must be
put in place to ensure that [L.M.] is safely at home with the Father.”
       The juvenile court noted that Father was no longer living with paternal grandfather
and ordered that paternal grandfather not be present when L.M. visits Father and that
there be monitored visitation for paternal grandmother. The court further noted Father’s
willingness to “abide” by these orders. The juvenile court ordered that the parents have
physical custody under DCFS supervision, with primary custody in Mother’s home, and
that Father’s visitation rights should not be geographically limited to Los Angeles
County. The juvenile court ordered that paternal grandfather have no contact with L.M.,
and Father agreed to abide by that order. Father was ordered to provide a separate bed
for L.M., and DCFS was ordered to verify within two weeks that paternal grandfather
was “not in Father’s home.”
       The juvenile court ordered a panoply of counseling: individual counseling for
Mother, individual and conjoint counseling for L.M.; and individual counseling, sexual
abuse awareness counseling, and conjoint counseling for Father. Finally, the juvenile
court ordered Father and Mother that they could not change their own or L.M.’s address
without notifying the court and that L.M. could not be taken outside the seven Southern
California counties except when L.M. was visiting Father in Fresno County, where he
was living.
       DCFS and Mother objected to the juvenile court’s release of L.M. to Father and
visitation in Fresno, and requested a stay of the court’s order. The court denied the
request and once again ordered DCFS to verify within two weeks that Father had a
separate address from paternal grandfather’s residence and that L.M. had a bed of her
own in her Father’s residence. The court reiterated its finding that there are “reasonable
services to keep [L.M.] at home safely.”
       Mother appeals from the juvenile court’s dispositional order.




                                             8
                                      DISCUSSION
Substantial evidence supported the juvenile court’s dispositional order
       We conclude that substantial evidence supported the juvenile court’s dispositional
order placing L.M. in the partial custody of Father.
       In order to remove a dependent child from a parent’s home, the juvenile court
must find by clear and convincing evidence “[t]here is or would be a substantial danger to
the physical health, safety, protection, or physical or emotional well-being of the minor if
the minor were returned home, and there are no reasonable means by which the minor’s
physical health can be protected without removing the minor from the minor’s parent’s
. . . physical custody.” (§ 361, subd. (c)(1).) The heavy burden of clear and convincing
evidence protects the fundamental right of a parent to retain custody of a child; thus,
removal under section 361 occurs under “‘only extreme cases of parental abuse or
neglect.’” (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656.)
       Mother argues that the juvenile court’s jurisdictional findings are prima facie
evidence that L.M. cannot safely remain in Father’s custody, creating a rebuttable
presumption of detriment were L.M. returned to Father’s custody, and that “no
substantial evidence rebutted the presumption of detriment” arising from the
jurisdictional findings. Mother relies on the reference in section 361, subdivision (c)(1)
to a minor’s having been “adjudicated a dependent child” being “prima facie evidence
that the minor cannot be safely left in the physical custody of a parent,” and In re Noe F.
(2013) 213 Cal.App.4th 358 for this proposition.
       We observe that Mother takes the reference to “prima facie” evidence out of
context. Section 361, subdivision (c)(1) provides in pertinent part: “The fact that a
minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of
Section 300 shall constitute prima facie evidence that the minor cannot be safely left in
the physical custody of the parent . . . with whom the minor resided at the time of injury.”
The full text thus reveals that the reference to “prima facie” evidence in section 361,




                                             9
subdivision (c)(1) is to adjudications under section 300, subdivision (e),2 which was not
the basis for the jurisdictional findings here. In re Noe F. does not assist Mother either
because that case involved two incarcerated parents and the custody issues centered on
the trial court’s failure to make the findings required by section 361.2, also not at issue
here. (In re Noe F., supra, 213 Cal.App.4th at pp. 368–369.)
       We review the dispositional orders regarding removal for substantial evidence. (In
re John M. (2012) 212 Cal.App.4th 1117, 1126.) “‘“When the sufficiency of the
evidence to support a finding or order is challenged on appeal, the reviewing court must
determine if there is any substantial evidence, that is, evidence which is reasonable,
credible, and of solid value to support the conclusion of the trier of fact. [Citation.] In
making this determination, all conflicts [in the evidence and in reasonable inferences
from the evidence] are to be resolved in favor of the prevailing party, and issues of fact
and credibility are questions for the trier of fact. [Citation.]”’ [Citation.]” (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1258–1259.)
       We observe that at the dispositional hearing counsel for L.M. expressly requested
that L.M. not be removed from Father’s care and argued that L.M. missed and needed
Father, who was credible and willing to comply with all court orders. Mother disagreed
because despite a family court order to the contrary, Father “continued to leave [L.M.]
with the paternal grandfather when he went to work.” Father made no effort to
participate in services and did not return calls from DCFS; Father “refused to
meaningfully consider the possibility that [L.M.] had actually been victimized by the
paternal grandfather.” Mother argued based on these past actions that Father will not
prevent paternal grandfather from seeing L.M. in the future.
       To the extent Mother asks us to reweigh the evidence and assess Father’s
credibility, we cannot do so. The juvenile court appeared to credit Father’s testimony
expressing his appreciation of the seriousness of the sexual abuse charges, the potential

       2 Briefly summarized, section 300, subdivision (e) applies to a child under the age
of five, who has suffered severe physical abuse by a parent or by any person known by
the parent.

                                              10
danger to L.M., and the importance of complying with court orders. In making its orders,
the court repeatedly emphasized that paternal grandfather was not to have any contact
with L.M. and received Father’s assurance that he would comply with court orders. The
court also observed Father was now living in his own home, separate from paternal
grandparents, and that unlike before, L.M. would have her own bed.
       In addition, there was substantial evidence that reasonable means existed to keep
L.M. safe short of removal from Father’s care. The challenged dispositional order
required paternal grandfather to have no contact with L.M. and L.M. to have only
monitored visits with paternal grandmother. In accordance with the order, Father was
living in a residence separate from paternal grandfather, and DCFS was required to
confirm Father’s living arrangements within two weeks of the hearing. Father was also
ordered to participate in individual, sexual abuse awareness, and conjoint counseling. If
Father failed to comply with orders to keep paternal grandfather away from L.M. or to
participate in counseling, the juvenile court, which retained jurisdiction, had the ability to
limit Father’s visitation with, or care of L.M. pursuant to a petition for modification of
orders under section 388. As another safeguard, L.M. was placed in the primary care of
Mother.
       For all these reasons, we conclude that substantial evidence supported the
dispositional order here placing L.M. in the partial custody of Father.




                                             11
                                    DISPOSITION
      The juvenile court’s December 27, 2013 dispositional order is affirmed.
      NOT TO BE PUBLISHED.


                                                BENDIX, J.*
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




        * Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to art6icle VI, section 6 of the California Constitution.
                                           12
