Filed 3/1/18; Certified for Publication 3/22/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re E.D., a Person Coming Under 

the Juvenile Court Law.

 B284657

 (Los Angeles County

 Super. Ct. No. DK21342)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

PAUL D.,

Defendant and Appellant.
2

APPEAL from an order of the Superior Court of Los 

Angeles County, Kristen Byrdsong, Commissioner. Affirmed 

in part and reversed in part.

Jacques Alexander Love, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, R. Keith Davis, 

Assistant County Counsel, and Brian Mahler, Deputy 

County Counsel, for Plaintiff and Respondent.

——————————

Paul D. (father) appeals from the juvenile court’s order 

of dependency jurisdiction over E.D. (child), age two, under 

Welfare and Institutions Code section 300, subdivision (b)(1)

(failure to protect),1 on the ground that the order was not 

supported by substantial evidence. As the evidence was 

insufficient to show a substantial risk of serious physical 

harm or illness to the child, we reverse the juvenile court’s 

order as to father only. 

BACKGROUND

I. The domestic violence incident

On May 12, 2015, the Los Angeles County Department 

of Children and Family Services (DCFS) received a referral 

alleging emotional abuse by father and general neglect by 

mother (who is not a party to this appeal). The referral 

alleged that father struck mother while she was holding 

child. At the time of the incident, child was only two months 

 

1 All further statutory references are to the Welfare 

and Institutions Code unless otherwise indicated.
3

old, mother was 17 years old, and father was 21 years old. 

Mother indicated to the police at the time of the incident 

that father had never threatened or used a weapon against 

her and had never threatened to kill her, and that she was 

not in fear of her safety. Following the incident, mother 

obtained a restraining order against father on behalf of 

herself and child; mother ended her relationship with father; 

and DCFS deemed the referral inconclusive on those 

grounds. The restraining order provided, inter alia, that 

father was to have “no personal, electronic telephonic, or 

written contact” with mother or child, except for courtordered visitation and the safe exchange of child.

II. Mother’s arrest

On January 6, 2017, mother and child were passengers 

in a vehicle stopped by the police for a traffic violation. 

During the stop, the police discovered 11 grams of 

methamphetamine (meth) and two grams of marijuana on 

mother. Mother disclosed to the police that she frequently 

used meth and had last used the drug three days earlier. 

Mother also stated she was on her way to the paternal 

grandmother’s home, where father lived, because he cared 

for child on weekends, while she cared for child on weekdays. 

Police arrested mother for felony possession of meth for sale. 

This incident resulted in a child welfare referral to DCFS.

III. DCFS’s prepetition investigation and petition

A. THE PREPETITION INVESTIGATION

On January 11, 2017, a DCFS social worker went to 

the paternal grandmother’s home, where she encountered 
4

both father and mother. Father informed the social worker 

that the paternal grandmother was away on errands and 

that he was taking care of child while mother was asleep in 

another room. The social worker observed that child was 

“appropriately dressed” and “running around playing.” The 

social worker interviewed mother and father individually.

Mother told the social worker that she began using 

meth approximately 18 months earlier.2 She typically used 

meth when child was on weekend visits with father, though 

she admitted also using meth while child was in her care. 

She claimed father did not know she still used meth because 

they had “little contact.” Mother also stated that “she went 

to court . . . to get the [restraining] order lifted but the judge 

would not allow it until [father] completed a court ordered 

domestic violence class.”

Father admitted to the social worker that he had 

repeatedly violated the restraining order based on his 

continuing physical contact with mother and child. He 

claimed the paternal grandmother took care of child during 

weekend visits, though he acknowledged having contact with 

child because he also lived in the home. Father additionally 

stated he had enrolled in a 52-week domestic violence 

batterer’s program following the domestic violence incident 

and provided to the social worker a document that appeared 

 

2 Approximately two weeks later, in late January 2017, 

mother reported to a DCFS consultant that she began using 

methamphetamine four years earlier.
5

to be a sign-in sheet indicating he had started the program 

in February 2016 and had attended 38 sessions since that 

time.

That same day, after concluding her interviews of 

mother and father, the social worker made a temporary 

safety plan that was agreed upon by the parents. Among 

other things, the plan provided that child would be 

supervised by either the paternal grandmother or the 

maternal grandfather at all times and that the parents were 

prohibited from having any unsupervised contact with child.

The social worker subsequently investigated mother 

and father’s criminal histories. Mother had a misdemeanor 

conviction for reckless driving in 2016 and arrests for driving 

under the influence of drugs in 2016, and possession of meth 

for sale in 2017. Father had a felony conviction for assault 

by means likely to produce great bodily injury in 2013, and 

misdemeanor convictions for possession of meth in 2014 and 

corporal injury on a spouse or cohabitant in 2015, along with 

several arrests in 2013-2014 for drug- and violence-related 

crimes.

B. THE PETITION

On February 6, 2017, DCFS filed a petition on behalf of 

child under section 300, subdivisions (a) and (b). The 

petition generally alleged child was at risk of physical harm 

based on father’s actions during the domestic violence 

incident, father’s convictions for violent crimes, and father’s 

violation of the restraining order and mother’s history of 

substance abuse and her possession of meth while in a 
6

vehicle with child. At the detention hearing held that same 

day, the juvenile court found father to be child’s presumed 

father, detained child from both parents, granted the 

parents monitored visits, ordered father and mother to 

submit to drug testing, and further ordered mother to enroll 

in substance abuse and parenting programs.

IV. The jurisdiction and disposition hearing

On April 28, 2017, the juvenile court held a combined 

jurisdiction and disposition hearing. At the hearing, the 

court admitted into evidence three documents: the DCFS’s 

prepetition detention report and two post-petition reports—a 

jurisdiction and disposition report, dated April 4, 2017; and a 

last minute information report, dated April 28, 2017.

The jurisdiction and disposition report, inter alia, 

stated that both father and mother confirmed that father 

had struck mother once—a single punch or slap to the 

forehead—which led to the restraining order. The 

jurisdiction and disposition report also stated that child 

“appears to be developing in a timely manner and reaching 

her developmental milestones in all areas except speech.” A 

DCFS assessment of child found, inter alia, that father was 

affectionate and protective of child and that child enjoyed 

interactions with father.

The last minute information report advised the 

juvenile court that father had informed the social worker 

that he had completed his domestic violence batterer's 

program and had enrolled in individual counseling. In 

addition, the report stated that father’s probation officer had 
7

told DCFS’s representative that father was “in compliance 

and reports in on a regular basis” and that the probation 

officer “does not have any concerns [about father] at this 

time.”

At the hearing, the juvenile court dismissed the count 

brought pursuant to section 300, subdivision (a) [child had 

suffered or was at risk of suffering nonaccidental harm] and 

sustained the counts brought pursuant to section 300, 

subdivision (b) [child had suffered or was at risk of suffering 

harm]. The court found jurisdiction over the father for two 

principal reasons: First, despite the existence of the 

criminal protective order, father continued to have 

“significant physical contact” with mother and child. Second, 

the court believed father to be less than truthful. 

Specifically, the juvenile court found that neither father’s 

representations to the police about his 2013 assault 

conviction3 nor his denial of any knowledge about mother’s 

drug use were credible.

 

3 Father told DCFS’s social worker that he was 

convicted “because he was riding in a car with his friend and 

his friend was carrying a weapon” and was advised by his 

court-appointed attorney to plead guilty “so that he could get 

out of jail more quickly.” The police report for the incident, 

however, tells a somewhat different story. According to the 

police report, the victims, who identified father in a 

photographic lineup, stated that father approached them 

near an alley, displayed a handgun, and then called out a 

gang’s name, which caused the victims to become fearful, 

flee the scene, and call the police. In his voluntary 
8

With regard to disposition, the juvenile court found 

that “by clear and convincing evidence that remaining in the 

home of parents would pose substantial danger to the child’s 

physical health, safety, and emotional well-being.” 

Accordingly, the court declared child a dependent of the 

court, removed child from both parents’ custody, but allowed 

monitored visitation by parents and ordered DCFS to 

provide family reunification services.

As for father’s reunification plan, the court ordered 

father to (a) submit to six consecutive drug tests with the 

further provision that if any of those tests were missed or 

“dirty,” father would be required to complete a full drug 

rehabilitation program and (b) complete a domestic violence 

program, a parenting program, and individual counseling. 

Father’s counsel objected unsuccessfully to the drug testing 

requirement on the ground that “what’s been sustained is 

mother’s drug use, not father’s drug use.” Father timely 

appealed.

DISCUSSION

I. Father’s appeal is “justiciable”

Father contends that the evidence is insufficient to 

support the court’s jurisdictional finding as to him. DCFS

argues, however, that, because the jurisdictional findings as 

to mother are uncontested, we would not reverse the juvenile 

 

statements to the police, father denied all involvement, 

stating, as he did later to the social worker, that he had been 

picked up by his friends in their car shortly before the police 

pulled them over.
9

court’s jurisdictional finding even if father’s arguments were 

accepted. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1489.) 

DCFS consequently asks us to dismiss this appeal for lack of 

a justiciable issue.

As a general rule, “ ‘a minor is a dependent if the 

actions of either parent bring [him] within one of the 

statutory definitions.’ ” (In re X.S. (2010) 190 Cal.App.4th 

1154, 1161.) However, California courts have held that 

discretion may be exercised to reach the merits of the other 

parent’s jurisdictional challenge “in three situations: (1) the 

jurisdictional finding serves as the basis for dispositional 

orders that are also challenged on appeal; (2) the findings 

could be prejudicial to the appellant or could impact the 

current or any future dependency proceedings; and (3) the 

finding could have consequences for the appellant beyond 

jurisdiction.” (In re A.R. (2014) 228 Cal.App.4th 1146, 1150; 

accord In re J.C. (2014) 233 Cal.App.4th 1, 3–4; In re 

Quentin H. (2014) 230 Cal.App.4th 608, 613 (Quentin H.); In 

re Christopher M. (2014) 228 Cal.App.4th 1310, 1316–1317 

(Christopher M.); In re Drake M. (2012) 211 Cal.App.4th 754, 

762–763 (Drake M.).)

Father contends the last two factors apply here, and 

urges us to consider the merits of his appeal. In Quentin H., 

supra, 230 Cal.App.4th 608, Christopher M., supra, 228 

Cal.App.4th 1310, and Drake M., supra, 211 Cal.App.4th 

754, the reviewing courts each found that the distinction 

between being found an “offending” parent versus a 

“nonoffending” parent “may have far reaching implications 
10

with respect to future dependency proceedings . . . and 

father’s parental rights.” (Drake M., at p. 763; Quentin H., 

at p. 613; Christopher M., at p. 1317; see § 361.2, subd. (a) 

[governing placement of a dependent child with a 

noncustodial parent]4.)

Since father’s status as either an offending or 

nonoffending parent may have far-reaching consequences in

future dependency proceedings, we exercise our discretion to 

consider father’s jurisdictional challenge.

II. Standard of review

We review the juvenile court’s jurisdictional findings 

for substantial evidence. (In re John M. (2013) 217 

Cal.App.4th 410, 418 (John M.).) “The term ‘substantial 

evidence’ means such relevant evidence as a reasonable 

mind would accept as adequate to support a conclusion; it is 

evidence which is reasonable in nature, credible, and of solid 

value.” (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) 

Although substantial evidence may consist of inferences, the 

inferences must be logical, reasonable and supported by 

 

4 “When a court orders removal of a child pursuant to 

Section 361, the court shall first determine whether there is 

a parent of the child, with whom the child was not residing 

at the time that the events or conditions arose that brought 

the child within the provisions of Section 300, who desires to 

assume custody of the child. If that parent requests custody, 

the court shall place the child with the parent unless it finds 

that placement with that parent would be detrimental to the 

safety, protection, or physical or emotional well-being of the 

child.” (§ 361.2, subd. (a).)
11

evidence; the inferences cannot be the product of speculation 

or conjecture. (In re Savannah M. (2005) 131 Cal.App.4th 

1387, 1393–1394.) 

We review the evidence in the light most favorable to 

the juvenile court’s findings and draw all reasonable 

inferences in support of those findings. (In re Heather A. 

(1996) 52 Cal.App.4th 183, 193.) We may not “consider 

whether there is evidence from which the dependency court 

could have drawn a different conclusion,” but are limited to 

determining “whether there is substantial evidence to 

support the conclusion that the court did draw.” (In re 

Noe F. (2013) 213 Cal.App.4th 358, 366.) The juvenile 

court’s determination “will not be disturbed unless it exceeds 

the bounds of reason.” (In re Ricardo L. (2003) 109 

Cal.App.4th 552, 564.)

III. The jurisdictional order was not supported by 

substantial evidence of a substantial risk of serious 

physical harm or illness

A. GUIDING PRINCIPLES

Section 300, subdivision (b)(1) provides for dependency 

jurisdiction where “[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 his or 

her parent or guardian to adequately supervise or protect 

the child.” (Italics added.) “The child shall continue to be a 

dependent child pursuant to this subdivision only so long as 

is necessary to protect the child from risk of suffering serious 

physical harm or illness.” (Ibid.)
12

“ ‘ “A jurisdictional finding under section 300, 

subdivision (b) requires: ‘ “(1) neglectful conduct by the 

parent in one of the specified forms; (2) causation; and 

(3) ‘serious physical harm or illness’ to the child, or a 

‘substantial risk’ of such harm or illness.” [Citation.]’ 

[Citations.] The third element ‘effectively requires a 

showing that at the time of the jurisdictional hearing the 

child is at substantial risk of serious physical harm in the 

future (e.g., evidence showing a substantial risk that past 

physical harm will reoccur).’ ” ’ ” (In re Jesus M. (2015) 235 

Cal.App.4th 104, 111, italics added.) 

Section 300, subdivision (b), in other words, requires a 

showing of “concrete harm or risk of physical harm to the 

child.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 821, italics 

added.) “As appellate courts have repeatedly stressed, 

‘ “[s]ubdivision (b) means what it says. Before courts and 

agencies can exert jurisdiction under section 300, 

subdivision (b), there must be evidence indicating that the 

child is exposed to a substantial risk of serious physical harm 

or illness.” ’ ” (In re Jesus M., supra, 235 Cal.App.4th at 

p. 111.)

“ ‘In evaluating risk based upon a single episode of 

endangering conduct, a juvenile court should consider the 

nature of the conduct and all surrounding circumstances. It

should also consider the present circumstances, which might 

include, among other things, evidence of the parent’s current 

understanding of and attitude toward the past conduct that 

endangered a child, or participation in educational 
13

programs, or other steps taken, by the parent to address the 

problematic conduct in the interim, and probationary 

support and supervision already being provided through the 

criminal courts that would help a parent avoid a recurrence 

of such an incident. The nature and circumstances of a 

single incident of harmful or potentially harmful conduct 

may be sufficient, in a particular case, to establish current 

risk depending upon present circumstances.’ [Citation.] We 

must have a basis to conclude there is a substantial risk the 

parent’s endangering behavior will recur.” (John M., supra, 

217 Cal.App.4th at p. 418–419.)

B. THE JUVENILE COURT’S JURISDICTIONAL FINDINGS

AS TO FATHER WERE NOT SUPPORTED BY SUBSTANTIAL EVIDENCE

DCFS argues that this case is analogous to John M., 

supra, 217 Cal.App.4th 410. For his part, father contends 

that In re Daisy H. (2011) 192 Cal.App.4th 713 (Daisy H.) 

controls. Although neither case is directly on point, father 

has the better argument.

In John M., supra, 217 Cal.App.4th 410, this court 

upheld a juvenile court finding of jurisdiction under section 

300, subdivision (b) based upon domestic violence, even 

though the child had not yet been injured. The parents had 

a history of verbal altercations and hitting each other. The 

immediate event leading to dependency court jurisdiction 

was an incident in which the father repeatedly hit the 

mother while they were driving home from a party and then 

continued to strike her when they arrived home. (Id. at 

pp. 416–419.) The father was prosecuted and received 
14

prison time for the incident. (Ibid.) This court held that “the 

parents’ history of domestic violence evidences an ongoing 

pattern that, while not yet causing harm to John, presented 

a very real risk to John’s physical and emotional health. 

Both parents hit each other; verbal altercations were 

frequent; and father engaged in reckless driving with mother 

in the car.” (Id. at p. 419.) John M. is inapposite because, on 

the record before us, there is no similar history of physical 

abuse and verbal altercations between child’s parents.

On balance, this case is more like Daisy H., supra, 192 

Cal.App.4th 713. In Daisy H., the mother claimed the father 

choked and pulled her hair, but the incident happened “at 

least two, and probably seven, years” before the dependency 

petition was filed. (Id. at p. 717.) There was no evidence the 

alleged hair-pulling and choking occurred in the children’s 

presence, the children denied ever seeing domestic abuse 

between their parents, and they stated they were not afraid 

of their father. (Ibid.) On these facts, the Daisy H. court 

found the evidence insufficient to support a finding that the 

acts of domestic violence placed the children at a substantial 

risk of physical harm, stating: “Physical violence between a 

child’s parents may support the exercise of jurisdiction under 

section 300, subdivision (b) but only if there is evidence that 

the violence is ongoing or likely to continue and that it 

directly harmed the child physically or placed the child at 

risk of physical harm.” (Ibid., italics added.)

Here, as in Daisy H., supra, 192 Cal.App.4th 713, there 

is no evidence that at the time of the jurisdictional hearing 
15

that the domestic violence between mother and father was 

on-going or likely to continue. There was, for example, no 

evidence of any repeat behavior by father since the 2015 

incident or even any evidence of escalating arguments, such 

as the one between mother and father that gave rise to the 

domestic violence incident in 2015.5 In fact, there was only 

the one incident of domestic violence and, as in Daisy H., it 

was relatively remote in time from the jurisdictional and 

dispositional hearing. Moreover, the evidence showed that 

between the time of the lone domestic violence incident and 

the hearing, father had acknowledged his misconduct and 

had taken concrete steps to correct his behavior going 

forward. He had completed his domestic violence batterer’s 

program and had enrolled in individual counseling. His 

probation officer found him to be acting in a responsible 

manner and had no concerns that father would relapse at 

the time of the hearing. In addition, the DCFS social worker 

found father “loving and nurturing to the child.” 

 

5 According to father, the 2015 domestic violence 

incident arose over a disagreement between the parents on 

whether mother should cut child’s fingernails. The 

disagreement escalated to mother screaming. When 

paternal grandmother tried to intervene, mother called the 

paternal grandmother a “bitch,” which, in turn, prompted 

father to strike mother once on the forehead. Mother could 

not recall exactly what gave rise to the incident, only that 

father “slapped” or “punched” her once on the forehead.
16

In short, the evidence was insufficient to support the 

juvenile court’s finding of dependency jurisdiction over the 

child under section 300, subdivision (b) as to father, because 

there was no evidence of a substantial risk of serious 

physical harm or illness to the child from father. Without 

proper jurisdiction, the juvenile court had no authority to 

issue a dispositional order as to father. (In re R.M. (2009) 

175 Cal.App.4th 986, 991.)

DISPOSITION

The jurisdiction and disposition order is reversed as to 

father. In all other respects, the order is affirmed.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

BENDIX, J.*

 

* Judge of the Los Angeles Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
Filed 3/22/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re E.D., a Person Coming Under 

the Juvenile Court Law.

 B284657

 (Los Angeles County

 Super. Ct. No. DK21342)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

PAUL D.,

Defendant and Appellant.

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed March 1, 2018, was not 

certified for publication in the Official Reports. For good cause it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

ROTHSCHILD, P. J. JOHNSON, J. BENDIX, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.