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Name: In re H.E.
Case #: A120903
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 12/23/2008

Substantial evidence of risk of emotional harm is sufficient to support a removal order. The dependency proceedings were initiated following a referral from the judge in a marital dissolution action involving a bitter custody battle where there were allegations against the father by the mother of sexual abuse and domestic violence. The mother continually accused the father of sexual abuse and talked about the alleged abuse in front of the children. A juvenile dependency petition alleged serious emotional abuse. The petition was found true, and the minors were removed from the parents. The mother challenged the order removing the minors from her home, arguing a lack of substantial evidence that there was a risk of physical, as opposed to emotional harm. The appellate court rejected the argument, holding that there was an express finding of current emotional damage, as well as a risk of future emotional harm. Section 361 allows for removal where return of the child creates a substantial risk of detriment to the child’s physical or emotional well-being. Section 361 does not require proof of physical harm. A reasonable trier of fact could conclude on this record that the children were at risk of emotional harm, and the removal finding was therefore supported.