In re L.B. ( 2023 )

Filed 2/16/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re L.B., A Person Coming Under
the Juvenile Court Law.
CONTRA COSTA COUNTY A165001
CHILDREN AND FAMILY
SERVICES BUREAU, (Contra Costa County
Super. Ct. No. J21-00286)
Plaintiff and Respondent,
v.
L.D.,
Defendant and Appellant.
In this dependency proceeding, L.D. (mother) appeals from
jurisdictional findings and dispositional orders concluding that her son L.B.
(born May 2009) was described by Welfare and Institutions Code1 section
300, subdivision (b), adjudging him a juvenile court dependent, and placing
him in the home of his father, S.B. Mother asserts on appeal that there was
insufficient evidence to support jurisdictional findings under recent
amendments to section 300, subdivision (b), and that any risk of physical
harm to L.B. was speculative. We affirm.
All section references are to the Welfare and Institutions Code unless
1
otherwise specified.
1
I. BACKGROUND
In June 2021, the Contra Costa County Children and Family Services
Bureau (Bureau) filed a dependency petition with respect to L.B., alleging
that the minor came within the provisions of section 300, subdivision (b) due
to mother’s failure to protect L.B. from ongoing domestic violence between
mother and her long-term partner, T.Y. The petition additionally alleged
jurisdiction under subdivision (g) based on mother’s inability to provide
support for the minor due to her hospitalization for a serious medical
condition and consumption of high doses of pain medication.
In March 2021, the Bureau had received a referral alleging general
neglect of L.B. and his half-siblings—seven-year-old T.Y., Jr. and four-year-
old Y.Y. According to the reporting party, mother’s mental state appeared to
be impaired due to substance use or a mental health condition. The Bureau
located and interviewed mother at John Muir Medical Center on June 8,
2021. She disclosed that, at the beginning of June, T.Y. put her in a choke
hold and began choking her and hitting her in the face. The social worker
observed a broken blood vessel in mother’s left eye and was informed by staff
that mother had bruising on her leg and a large bruise on her upper left arm.
Mother stated T.Y., Jr. and Y.Y. did not witness the incident but she
“strongly believe[d]” they heard it. She further explained that her older
sons—L.B. and his adult brother, C.B.—had previously “seen and heard [her]
being choked out and abused by [T.Y.]” She sent them to live with their
father three months before this latest domestic violence incident.
According to mother, she had been together with T.Y. on and off for
eight years and had moved back to California with him in October 2020, after
which he had been “treating her mean.” Mother felt that T.Y. wanted to kill
her. Despite his continuing to beat her, mother repeatedly went back to T.Y.
2
because she was homeless at one point in her life, and she had no one else to
help her. When interviewed, Y.Y. was aware that T.Y. “pushed mommy” and
“hurt her” but stated she was not afraid of either parent. T.Y., Jr. reported
that he had never seen his parents fight but he hears T.Y. hit his mother. He
was afraid to go home with T.Y.
After the June 2021 incident of domestic violence, mother took T.Y., Jr.
and Y.Y. to a shelter. However, mother has leukemia, she left her pain
medications in the family home, and she was afraid to retrieve them.
Eventually, her pain became so severe that she had to be transported by
ambulance to the hospital. Mother reported she takes Dilaudid, OxyContin,
and Xanax for pain, and sometimes takes more than the prescribed dosage to
help her sleep. Because she was in constant pain, it was difficult for her to
keep the family home clean. Mother disclosed that T.Y. had a gun in the
home, but she did not want “to press the issues and get him into any trouble.”
She did not plan to go back to the home upon her discharge from the hospital
because she needed “to protect [herself] and [her] children.” T.Y., Jr. and
Y.Y. were taken into protective custody. A records review showed mother
had a history of arrests between 1999 and 2018, including four misdemeanor
convictions in 1999–2000—one for obstructing a police officer and three for
various assault crimes.
The social worker contacted C.J.—mother’s cousin-in-law and a
potential placement for the younger children. C.J. reported that mother
struggled with methamphetamine use. She confirmed mother’s leukemia and
stated father had a babysitter for the children while he worked. In her
opinion, T.Y, and mother were “ ‘just not good together.’ ” C.J. was concerned
that if the younger children were released to T.Y., mother would attempt
suicide. She had done so several times over the years. T.Y. had admitted to
3
C.J. that he had been “beating [mother] up.” Mother had told C.J. on various
occasions that T.Y. had tapped her phone, taken money out of her account,
and stolen things from her. Given the “toxicity” of mother and T.Y., C.J. had
instructed 18-year-old C.B. to call father to come get him and L.B. The two
had been with their father for about three months.
T.Y. told the social worker that, when mother moved to California with
her children in 2018, he stayed behind in Texas. He described mother as
paranoid and stated she had struggled with drugs and alcohol over the last
several years. T.Y. also acknowledged that mother had been suicidal on
several occasions. Given the “tremendous difficulty” mother was facing, T.Y.
had traveled to California at least three times to check on the family. Mother
and T.Y. rekindled their romantic relationship at one point, and mother and
the children returned to Texas. While there, mother assaulted T.Y. with a
knife, resulting in a cut on his hand and an open child welfare case in Texas.
T.Y. admitted to engaging in four or five domestic violence incidents with
mother where he had called the police.
T.Y. was self-employed in construction/tile work. About three months
before child welfare’s involvement, father quit his other job in order to find an
appropriate babysitter because mother “was leaving for weeks at a time.”
During this timeframe, mother was threatening suicide and her substance
abuse was out of control, so T.Y. sent C.B. and L.B. to live with their father.
According to T.Y., mother had been offered space in a stem cell program to
treat her leukemia but was hesitant because the process might compromise
her immune system and she was abusing drugs and alcohol. T.Y. stated he
was “no longer sure of [mother’s] mental capacity.” He reported he primarily
cared for the children, explaining that “ ‘although [mother] is a beautiful
person, she is not a good parent.’ ”
4
Father confirmed that L.B. was in his care. He stated there was a
formal custody arrangement through family court which allowed him to have
L.B. for the summer and mother to have custody during the school year.
However, father had removed L.B. from mother approximately one month
early because “her household was unmanageable.” In particular, he had
concerns about the domestic violence he witnessed in mother’s household.
Further, this was not the first time father had removed L.B. from mother’s
care. In 2018, mother was staying at a “trap house” and had made a suicide
attempt. Father found L.B. dirty, hungry, and with insufficient clothes.
Once he was in father’s care with enough food to eat, L.B. outgrew three sets
of clothing. Father expressed a desire to keep L.B. indefinitely. He had two
felony drug convictions, one in 1996 and the other in 2000.
Due to mother’s history of domestic violence, possible substance abuse,
potential unaddressed mental health issues, and questions regarding medical
management of her serious health condition, the Bureau recommended that
L.B. be detained from mother and left in the care of father. L.B. was formally
detained with father at the detention hearing on June 15, 2021. Mother was
offered supervised visitation with L.B. a minimum of twice per month.
Following a number of continuances, mother’s counsel was relieved and new
counsel was appointed after an October 2021 Marsden2 hearing.
In advance of the contested jurisdictional and dispositional hearing, the
Bureau filed a report disclosing that, while they have been separated since
2009, mother and father remained married so that mother could maintain
access to better health insurance. When mother and the children returned
from Texas, they lived with the maternal grandmother for about a year.
However, the level of domestic violence between mother and T.Y. was too
2 People v. Marsden (1970) 2 Cal.3d 118.
5
much for the maternal grandmother, and she asked them to leave. Despite
all of the information received, as of the time the social worker prepared the
report, mother was denying domestic violence in her relationship with T.Y.,
claiming she had no mental health issues, and denying use of any non-
prescribed drugs. She variously reported that her leukemia was both “under
control” and “end stage.” She declined to participate in a psychosocial
interview.
According to school staff, L.B.’s prior school attendance had been poor
because “ ‘his mother never brought him to school.’ ” Father and his fiancée
worked with L.B. over the summer and were able to help him catch up.
Mother had not been in contact with L.B. since he left her home; nor had she
addressed any of the concerns underlying these proceedings.
Pursuant to a March 2022 supplemental report, mother asserted she
had started services and had a job interview but declined to sign releases so
her participation in services could be verified without speaking with her
attorney. Mother had recently relocated to Sacramento County and was
reportedly living with friends. Father stated that phone contact between L.B.
and mother had been going well. Mother declined to provide any details
regarding her August 2021 arrest and detention to the social worker.3
The contested jurisdictional and dispositional hearing was finally held
on March 7, 2022. After admission of the relevant reports into evidence and
brief testimony from two social workers, mother took the stand. She testified
3 According to the related police report, the victim of the assault had a
brain bleed after being hit with an aluminum bat. The victim reported he
had been sitting on the couch at a friend’s house with a 40-year-old black
woman he knew as “L.” He apparently lost consciousness, and, when he
woke up, he was told by a friend that L. was responsible for his injury. After
being Mirandized, mother stated she believed the victim was going to hurt
her. She was arrested for assault with a deadly weapon.
6
that her current arrangement with father was that L.B. “could be where he
would like to be.” However, when she got back on her feet, they could split
time with L.B. Mother acknowledged that, under the formal custody
agreement, she had the right to have L.B. in her home at that time and for
some holidays. She denied telling a social worker that L.B. had previously
seen domestic violence between her and T.Y. She stated she was on the
waiting list for a domestic violence program. She did not have a current
restraining order against T.Y. With respect to the alleged assault for which
she had recently been arrested, mother initially claimed the account in the
police report was false, but, when pressed, stated she did not want to discuss
the matter further.
After argument, the juvenile court turned first to jurisdiction,
sustaining an amended subdivision (b) allegation which provided: “[M]other
is unable to protect the child from ongoing domestic violence with the father
of the child’s half-siblings, [T.Y.], in that [] mother has engaged in at least
five incidents of domestic violence with [T.Y.], at least one of which occurred
in the child’s presence.”4 In doing so, the court noted that the record
supported a “history here of serious domestic violence incidents.” It found
mother’s version of the acts precipitating L.B. and C.B.’s most recent removal
to father’s home not credible. And it concluded that mother presented an
ongoing risk to L.B. given her domestic violence history; her propensity to
engage in violent acts, including the baseball-bat incident that she chose not
to rebut on the stand; and her failure to take any preventative steps to allay
the court’s concerns “should she elect to reel [L.B.] back and exercise her
power of physical custody that she currently ha[d] in this case.” The juvenile
court additionally found T.Y. to be a violent person and concluded mother’s
4 The remainder of the allegations in the petition were dismissed.
7
contact with T.Y. had been recent enough to raise concerns that her pattern
with him would continue.
Having declared L.B. to be a child described by subdivision (b) of
section 300, the juvenile court proceeded to disposition, declaring L.B. a
juvenile court dependent and removing him from mother’s physical custody.
The court granted sole physical custody of L.B. to father, joint legal custody
to both parents, and supervised visitation for mother. Thereafter, finding
that L.B. was no longer a person described by section 300, the court vacated
the dependency and dismissed the petition, with a custody order pursuant to
section 361.2 to be filed in family court.
This timely appeal followed.
II. DISCUSSION
A. Legal Framework
Dependency jurisdiction may be asserted under subdivision (b) of
section 300 if “[t]he child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result of . . . [¶] “the
failure or inability of the child’s parent . . . to adequately supervise or protect
the child” or the “willful or negligent failure” of the parent to protect the
child from the conduct of a custodian with whom the child has been left.
(§ 300, subd. (b)(1)(A) & (B).) “The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps
necessary to protect the child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843;
see In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.) [“[t]he focus of section
300 is on averting harm to the child”].) It is well settled that physical
violence between a child’s parents may support the exercise of jurisdiction
under subdivision (b)(1) of section 300 where there is evidence that the
domestic violence has placed the child at risk of physical harm and the
8
violence is ongoing or likely to recur. (In re M.W. (2015) 238 Cal.App.4th
1444, 1453–1454; In re R.C. (2012) 210 Cal.App.4th 930, 941–942; In re Daisy
H. (2011) 192 Cal.App.4th 713, 717, disapproved on another ground in In re
D.P. (2023) 14 Cal.5th 266, 278; In re Heather A. (1996) 52 Cal.App.4th 183,
194 [“It is clear to this court that domestic violence in the same household
where children are living is neglect; it is a failure to protect [the children]
from the substantial risk of encountering the violence and suffering serious
physical harm or illness from it. Such neglect causes the risk.”], disapproved
on another ground in In re R.T. (2017) 3 Cal.5th 622, 628–629 (R.T.).)
The relevant inquiry under section 300, subdivision (b)(1), is whether
circumstances at the time of the jurisdictional hearing “ ‘subject the minor to
the defined risk of harm.’ ” (T.V., supra, 217 Cal.App.4th at p. 133.) “The
court may consider past events in deciding whether a child currently needs
the court’s protection.” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383
(Kadence P.); see T.V., at p. 133.) Indeed, in a domestic violence situation,
past violence is highly probative of the risk that violence may recur. (See In
re E.B. (2010) 184 Cal.App.4th 568, 576 (E.B.) [“ ‘Past violent behavior in a
relationship is “the best predictor of future violence.” Studies demonstrate
that once violence occurs in a relationship, the use of force will reoccur in 63%
of these relationships.’ ”], disapproved on another ground in Conservatorship
of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; In re John M. (2013) 217
Cal.App.4th 410, 419 [concluding even a single incident of domestic violence
may be sufficient to support a jurisdictional finding under section 300,
subdivision (b)], disapproved on another ground in R.T., supra, 3 Cal.5th at
pp. 628–629.) To establish a defined risk of harm at the time of the hearing,
there “must be some reason beyond mere speculation to believe the alleged
conduct will recur.” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146 (D.L.).)
9
A jurisdictional finding that the minor is a person described in section
300 must be made by at least a preponderance of the evidence. (§ 355, subd.
(a); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 248.) “We review the
jurisdictional findings for substantial evidence. [Citation.] We consider the
entire record, drawing all reasonable inferences in support of the juvenile
court’s findings and affirming the order even if other evidence supports a
different finding. [Citation.] We do not consider the credibility of witnesses
or reweigh the evidence.” (In re Isabella F. (2014) 226 Cal.App.4th 128, 137–
138.) “The parent has the burden on appeal of showing there is insufficient
evidence to support the juvenile court’s order.” (Id. at p. 138.)
However, to the extent statutory interpretation is involved, our review
is de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.) As we recently
reiterated: “ ‘ “The fundamental rule of statutory construction is that a court
should ascertain the intent of the Legislature so as to effectuate the purpose
of the law.’ ” [Citations.] ‘Because the statutory language is generally the
most reliable indicator of legislative intent, we first examine the words
themselves, giving them their usual and ordinary meaning and construing
them in context.’ [Citation.] ‘The statute’s plain meaning controls the court’s
interpretation unless its words are ambiguous.’ [Citation.]” (Pacific Fertility
Cases (2022) 78 Cal.App.5th 568, 575–576 (Pacific Fertility), review granted
Aug. 17, 2022, S275134.)
“When ‘ “the language permits more than one reasonable
interpretation, . . . the court looks ‘to a variety of extrinsic aids, including the
ostensible objects to be achieved, the evils to be remedied, the legislative
history, public policy, contemporaneous administrative construction, and the
statutory scheme of which the statute is a part.’ ” ’ [Citation.]” (Pacific
Fertility, supra, 78 Cal.App.5th at p. 576.) Fundamentally, however,
10
“ ‘ “statutes must be construed so as to give a reasonable and common-sense
construction consistent with the apparent purpose and intention of the
lawmakers—a construction that is practical rather than technical[] and will
lead to wise policy rather than mischief or absurdity.” ’ [Citation.]” (Ibid.)
B. Impact of Revisions to Subdivision (b)
Effective January 1, 2022, subdivision (b)(1) of section 300 was
amended to include the following language: “A child shall not be found to be
a person described by this subdivision solely due to the failure of the child’s
parent or alleged parent to seek court orders for custody of the child. (Stats.
2021, ch. 98, § 1 (Assem. Bill 841); former § 300, subd. (b)(1); see also § 300,
subd. (b)(2)(B).) Mother initially argues that, under this new provision,
jurisdiction was improper here because it was only necessary due to the
failure of the parents to seek formal custody orders to protect L.B. Mother
misapprehends both the statutory language and the related legislative
history.5
Looking first to the plain language of the statute, we note that the
provision only applies when the child is described by section 300, subdivision
(b) solely due to the failure of a parent to seek custody orders. (§ 300, subd.
(b)(2)(B).) Arguably, whenever custody orders would ameliorate risk, it could
be claimed that dependency jurisdiction was based solely on the failure to
5 Mother’s unopposed request for judicial notice of the legislative
history of Assembly Bill 841, filed on July 6, 2022, is granted. (See People v.
Synder (2000) 22 Cal.4th 304, 315, fn.5; Kaufman & Broad Communities, Inc.
v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-37; see also
Evid. Code, §§ 452, subd. (c), 459, subd. (a).) On our own motion, we also take
judicial notice of the legislative history of Senate Bill No. 1085 (2021-2022
Reg. Sess.) (Sen. Bill 1085). (Evid. Code, § 452, subd. (c); Kern v. County of
Imperial (1990) 226 Cal.App.3d 391, 400, fn.8 [appellate court may take
judicial notice of legislative history materials on own motion].)
11
obtain such orders. However, we believe this reading of the statutory
language sweeps too broadly, encompassing numerous cases (such as this
one) where dependency jurisdiction is necessary to protect a child. Instead, it
would appear that the provision means what it says: Where other allegations
are made pursuant to section 300, subdivision (b)—such as the assertions of
extensive domestic violence present here—the new provision is simply
inapplicable. This construction is borne out when section 300, subdivision (b)
is read as a whole.
After the custody-order provision at issue was added effective January
1, 2022, subdivision (b) was again amended by the Legislature, this time to
add a similar provision related to indigency, effective January 1, 2023.
(Stats. 2022, ch. 832, § 1 (Senate Bill 1085); see § 300, subd. (b)(2)(C).)
Senate Bill 1085 also grouped these two provisions together with an existing,
third provision involving homelessness. Thus, in its current form, section
300, subd. (b)(2) provides: “A child shall not be found to be a person
described by this subdivision solely due to any of the following: [¶] (A)
Homelessness or the lack of an emergency shelter for the family. [¶] (B) The
failure of the child’s parent or alleged parent to seek court orders for custody
of the child. [¶] (C) Indigence or other conditions of financial difficulty,
including, but not limited to, poverty, the inability to provide or obtain
clothing, home or property repair, or childcare.”
By grouping these three exclusions from jurisdiction together, the
Legislature made even clearer that they are all meant to operate in a similar
fashion. And both homelessness and indigence may be a factor considered
under section 300, subdivision (b), so long as neither is the only factor. For
example, substance abuse or mental health issues that lead to homelessness
or indigence, putting children at risk, could potentially support jurisdiction
12
under subdivision (b) of section 300. Analogously, a failure to obtain custody
orders to protect a child from one parent whose behaviors place that child at
risk is one factor that may be considered by the juvenile court in finding
jurisdiction under subdivision (b), but it may not be the only factor and, by
itself, would likely be insufficient to support removal of the child from the
other parent.
Contrary to mother’s assertions, the legislative history for both
Assembly Bill 841 and Senate Bill 1085 supports this interpretation. The
Assembly Committee on Human Services quoted the author of Assembly Bill
841 as follows: “ ‘A parent is not unfit solely because they are not litigious,
lacking the money or sophistication or time to seek legal redress of family
issues in court actions. Likewise, a parent is not unfit solely because they try
to work out issues with another parent informally and collaboratively,
without seeking formal court orders. Even so, in rare but not uncommon
cases, child welfare agencies will allege that a parent has failed to protect a
child under WIC 300 solely on the single ground that the parent did not
initiate child-protecting litigation against another parent. Such allegations
penalize and seek to rupture families based on either their poverty, lack of
legal sophistication, or efforts informally to resolve family issues. Inspired by
current law’s treatment of lack of emergency shelter, which, too, cannot all by
itself be the basis of a Section 300 allegation [citation], [this bill] narrowly
addresses this problem simply by saying that an alleged failure to seek
protection for a child by initiating litigation, while permitted as one of the
factors in weighing whether a parent has adequately protected a child, cannot
all by itself serve as the basis of a WIC section 300 allegation.’ ” (Assem. Com.
on Human Services, Analysis of Assem. Bill No. 841 (2021-2022 Reg. Sess.) as
amended Mar. 23, 2021, p. 3, italics added; see also Assem. Com. on
13
Judiciary, Analysis of Assem. Bill No. 841 (2021-2022 Reg. Sess.) as amended
Mar. 23, 2021, p. 4 (Judiciary Analysis) [“Simply being poor and homeless, in
and of itself, does not allow a juvenile court to take dependency jurisdiction
over the child. However, if there are additional reasons, being homeless
could be part of the reason that a child is made a dependent of the juvenile
court.”].)
The illustrative case presented to the Legislature underscores this
point. In that case, the father failed to seek appropriate custody orders to
obtain custody of the children and prevent mother from taking them out of
state where they were exposed to unsafe circumstances, “ ‘even though [the
father] knew or reasonably should have known that the mother was using
illicit drugs and had mental health issues.’ ” (Judiciary Analysis, supra, p. 4.)
Of importance in that scenario, “the allegation [was] not that the father knew
that the mother was headed to another state. Nor [was] it alleged that the
father knew what was in store for his children in the other state was
dangerous. Nor [was] it alleged the father actually and subjectively knew of
the mother’s drug use. [Nevertheless], the county successfully pressed the
allegation that the father was legally abusive or neglectful only because he
did not initiate litigation against the mother on her drug use—even though
he may not actually have known of the drug use.” (Ibid.)
Thus, as the Judiciary Committee summarized: “A child can be
brought into the juvenile court for a parent’s failure to protect the child from
harm, including harm caused by the other parent. However, failure to bring
an action in family court to establish custody of a child should not, by itself,
be enough to bring a child into the child welfare system or have the child
removed from the parent. In the example above, the child may very likely
still be brought within the jurisdiction of the juvenile court and taken away
14
from the mother, but the father should not need to do anything more to gain
(or regain) custody of the child. If, however, the father knew that the child
was in danger by being with the mother and took no action to protect the
child—which could include seeking a custody order for the child—the juvenile
court could find that the father posed a risk of harm to the child.” (Judiciary
Analysis, supra, p. 4.)
Finally, the legislative history for Senate Bill 1085 is in accord. As
stated above, that legislation amended subdivision (b) of section 300 to
provide that a child may not be found to be a person described by that
subdivision solely due to “[i]ndigence or other conditions of financial
difficulty, including, but not limited to, poverty, the inability to provide or
obtain clothing, home or property repair, or childcare.” (§ 300, subd.
(b)(2)(C).) Senate Bill 1085 makes clear that the three exceptions to
jurisdiction under subdivision (b) are meant to be similarly construed:
“Existing law prohibits a child from being found to be within the jurisdiction
of the juvenile court [under subdivision (b)] solely due to the lack of an
emergency shelter for the family or the failure of the child’s parent or alleged
parent to seek court orders for custody of the child. [¶] This bill would also
prohibit a child from being found to be within the jurisdiction of the juvenile
court [under subdivision (b)] solely due to indigence or other conditions of
financial difficulty.” (Legis. Counsel’s Dig., Sen. Bill No. 1085 (2021-2022
Reg. Sess.) Stats. 2022, Summary Dig., p. 94; see also Assem. Com. on
Judiciary, Analysis of Sen. Bill No. 1085 (2021-2022 Reg. Sess.) as amended
June 9, 2022, pp. 5–6 [“The author, sponsor, and supporters . . . believe it is
important to clarify that conditions of poverty alone do not give a dependency
court jurisdiction over a child. This bill builds on the existing exception to
juvenile court jurisdiction solely because a family lacks emergency shelter
15
and provides that simply being homeless, alone, is not a basis for dependency
court jurisdiction of a child.”].)6
In sum, subdivision (b)(2)(B) of section 300 has no relevance to this
case, where the lack of appropriate custody orders was only one of many
factors placing L.B. at risk of harm pursuant to section 300, subdivision (b).
C. Substantial Evidence Supports the Jurisdictional Findings
Mother argues in the alternative that, even if section 300, subdivision
(b)(2)(B) is inapplicable on these facts, there is still a lack of substantial
evidence that L.B. would be at substantial risk of serious harm absent
jurisdiction under subdivision (b) of section 300. Specifically, she asserts that
it was “impermissibly speculative” to base jurisdiction on “the possibility that
L.B. might be injured from domestic violence if mother again became a victim
of domestic violence or engaged in domestic violence, and father released L.B.
to mother . . . [or] mother sought custody from father when she was in a
domestic violence relationship.” We disagree.
While father and/or mother may have acted to protect L.B. from the
June 2021 incident of domestic violence between mother and T.Y., the
relevant inquiry under section 300, subdivision (b)(1), as stated above, is
whether circumstances at the time of the jurisdictional hearing “ ‘subject the
minor to the defined risk of harm.’ ” (T.V., supra, 217 Cal.App.4th at p. 133.)
6
Senate Bill 1085 also added subdivision (b) to section 300.2 to codify
the following legislative intent: “It is the intent of the Legislature that
families should not be subject to the jurisdiction of the juvenile court nor
should children be separated from their parents based on conditions of
financial difficulty . . . . Consistent with existing law, no family should be
subject to the jurisdiction of the juvenile court nor should children be
separated from their parents based on conditions of financial difficulty unless
there is willful or negligent action or failure to act and a nexus to harm such
that the child has suffered or there is a substantial risk the child will suffer
serious physical harm or illness.” (Italics added.)
16
Moreover, “[t]he court may consider past events in deciding whether a child
currently needs the court’s protection” (Kadence P., supra, 241 Cal.App.4th at
p. 1383), but there “must be some reason beyond mere speculation to believe
the alleged conduct will recur” (D.L., supra, 22 Cal.App.5th at p. 1146; see
also In re J.N. (2021) 62 Cal.App.5th 767, 775 [child welfare “must establish
a nexus between the parent’s past conduct and the current risk of harm”]). In
the domestic violence context, past violence is highly probative of the risk
that violence may recur. (See E.B., supra, 184 Cal.App.4th at p. 576.)
Here, we have no difficulty concluding that L.B. was subject to a
defined risk of harm at the time of the jurisdictional hearing. There was a
significant history of past domestic violence in this case pursuant to
statements from mother, T.Y., the maternal grandmother, and C.J. Indeed,
father stated he viewed domestic violence in mother’s household when he
decided to remove L.B. before the June 2021 incident. Further, there was a
gun in T.Y.’s home, and mother stated she always went back to him because
she had been homeless before and she had no one else to help her. In
addition, there was also significant evidence of mother’s own assaultive
behavior—in her criminal history, assault of T.Y. in Texas, and recent arrest
for assault with a deadly weapon.7 Thus, the risk to L.B. did not necessarily
depend on mother reuniting with T.Y. Finally, mother subsequently denied
any domestic violence, failed to maintain the temporary restraining order
7 Mother argues that the juvenile court erred by relying on her refusal
to testify regarding her recent assault arrest in finding jurisdiction, citing
self-incrimination concerns. However, even were we to assume that the
juvenile court erred by commenting on mother’s failure to explain the
incident (but see § 355.1, subd. (f)), the police report provides substantial
evidence that the assault actually occurred, including mother’s own
admission that she believed the victim was going to hurt her.
17
against T.Y., and had not provided evidence of engagement in any services
addressed at ameliorating the juvenile court’s concerns.
Nor does it matter that mother had not attempted to change the
custody arrangement between April 2021 when L.B. moved to father’s home
and the March 2022 jurisdictional hearing. As stated above, the juvenile
court properly considered, as one factor, the fact that the current custody
orders permitted mother to remove L.B. from father’s custody during the
school year and for certain holidays. Thus, the risk to L.B. remained
regardless of mother’s failure to exercise her custody rights while these
proceedings were pending. Indeed, we note in this regard that father had
previously removed L.B. from mother in 2018 due to significant neglect and
nevertheless allowed him later to spend the bulk of his time in mother’s care.
Under such circumstances, the juvenile court acted appropriately by taking
jurisdiction based on the defined risk of harm to L.B. and then dismissing
dependency after changing the relevant custody orders to ameliorate that
risk of harm.
III. DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
18
SWOPE, J.
WE CONCUR:
HUMES, P. J.
MARGULIES, J.
A165001P

Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
19
Contra Costa County Superior Court
Hon. Wade M. Rhyne
Counsel:
Seth F. Gorman under appointment by the Court of Appeal for Defendant
and Appellant.
Mary Ann Mcnett-Mason, County Counsel, Noel Plummer, Deputy County
Counsel, for Plaintiff and Respondent.
20