Filed 7/11/23 In re S.M. CA2/1

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re S.M., et al., Persons Coming 

Under the Juvenile Court Law.

_________________________________

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

ANTHONY M.,

Defendant and Appellant.

 B319168, B323847

 (Los Angeles County

 Super. Ct. No. 19CCJP08020)

APPEAL from an order of the Superior Court of Los Angeles

County, Philip L. Soto, Judge. Affirmed in part and reversed in 

part.

Gina Zaragoza, under appointment by the Court of Appeal,

for Defendant and Appellant.

Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant 

County Counsel, and Tracey Dodds, Deputy County Counsel, for 

Plaintiff and Respondent.
2

Anthony M. (Father) appealed from orders declaring his 

two children to be dependents of the juvenile court under Welfare 

and Institutions Code section 300, subdivisions (a) and (b)(1),

1 and 

ordering that the children be removed from his physical custody. 

Father also challenges a restraining order to the extent that it 

restrains him from contacting or coming within 100 yards of the 

children. We agree with Father that there is insufficient evidence 

to support jurisdiction or removal based on his conduct, and that 

the restraining order should not include his children.

FACTUAL AND PROCEDURAL HISTORY

A. Background

This appeal concerns Father’s two children with Brittany S.J. 

(Mother), S.M. (born July 2019) and A.M. (born October 2020) (the 

children). Father and Mother were never married to each other. 

Mother is also the parent of J.T. (born February 2013). Father has

known J.T. since he was born, and J.T. refers to him as “Dad.”

For some time prior to October 22, 2021, Father and Mother 

had an arrangement whereby S.M. and A.M. would live with Father

for one week and live with Mother the next week.

For about five days leading up to October 22, 2021, S.M. and 

A.M. had been living with Father at the paternal grandmother’s

house. That morning, Father drove with S.M. and A.M. to 

Mother’s apartment to pick up Mother and take her to a doctor’s 

appointment. At the apartment, Father and Mother argued about 

Father’s possession of Mother’s car keys, which led to a physical 

altercation.

1 Subsequent unspecified statutory references are to the

Welfare and Institutions Code.
3

According to Mother, as she attempted to take the car keys 

from Father, Father grabbed her by the neck and choked her to 

the point where she had difficulty breathing. Father then pushed 

Mother against a wall and threw her to the floor, causing her to 

hit her head. J.T. jumped on Father, and Father threw J.T. to 

the floor. J.T. then ran out of the apartment and returned with a 

security guard. At some point during the fight, Mother bit Father’s 

hand.

According to Father, Mother had accused him “of cheating,” 

and started an argument about the car keys. Mother got angry and

either knocked a cup of coffee out of his hands (according to a police 

report) or threw a pot of hot water at him (as Father told a social 

worker). When Father picked up S.M. to protect her from getting 

coffee spilled on her, Mother tried to wrestle the child from him. 

She also tried to take Father’s cell phone from his hand. During 

the struggle, Mother bit Father on his hand, resulting in a visible 

injury. Father denied pushing Mother to the floor, grabbing 

Mother’s neck, or choking her. He also denied that J.T. intervened 

and denied that he threw the boy to the ground.

According to J.T., Father started to strangle Mother. J.T.

jumped on Father to get him to stop. Father shoved Mother, 

causing her to fall to the ground. Mother then told J.T. to get help. 

When he returned with a security guard, Father was trying to take 

one of the children away.

According to the security guard who responded to J.T.’s 

request for help, upon arrival at the scene she observed Father 

and Mother struggling over the possession of a baby. When she 

and a neighbor intervened, Father let go of the baby. She also saw 

Mother trying to take a cell phone from Father. The security guard 

did not, however, see Father hit Mother or Mother bite Father.
4

Law enforcement officers responded to the scene and

interviewed Father, Mother, and others. They observed redness 

and scratches on Mother’s neck, and a “slight bump/swelling” on

her forehead. Father had a small cut on a finger. The officers

determined that Father “was the dominant aggressor,” and arrested 

him on suspicion of committing corporal injury on a cohabitant. 

(Pen. Code, § 273.5, subd. (a).) 

A report generated from the California Law Enforcement 

Telecommunications System (CLETS) revealed that Mother had 

been convicted in 2006 of prostitution and in 2020 for “reckless 

driving,” each described as a misdemeanor. CLETS showed that 

Father had been arrested in 2017 on charges of inflicting corporal 

injury on a spouse/cohabitant, and convicted shortly afterward 

on an unspecified misdemeanor count. Father’s 2017 conviction 

occurred before the children were born, and the identity of the 

victim is not apparent from our record. 

During an interview with a social worker about a week after

the altercation, Mother denied that there was an ongoing issue 

between her and Father; although they argued “at times,” there was

“nothing over the top.” The social worker also spoke with J.T., who 

denied any ongoing violence in the home or prior incidents involving 

Mother and Father.

B. Jurisdiction and Disposition

On December 8, 2021, DCFS filed a petition under 

section 300, subdivisions (a) and (b)(1), requesting that the children

be declared dependents of the juvenile court. On December 13, 

2021, the court detained the children from the parents and placed 

them in the custody of DCFS, but released them to Mother’s home 

under DCFS supervision. The court ordered monitored visits for 

Father.
5

In January 2022, during a discussion with a social worker 

about Father’s and Mother’s discipline methods, J.T. said that 

Father “would hit him in his chest.” J.T. pointed to his chest and 

said, “ ‘He would hit me where I have my asthma.’ ” He could not, 

however, give the social worker an approximate date when Father 

had hit him. In a subsequent meeting with the social worker, J.T. 

explained that the only time Father hit him in the chest was during 

the October 2021 altercation, when Father hit him and threw him 

to the ground.

Father denied hitting J.T. in the chest. Mother told a 

social worker that she had never seen Father hit J.T. as a form of

discipline, but expressed concern about his “rough play” with the

child.

On February 3, 2022, DCFS filed an amended petition, which 

it further amended on March 16, 2022. In the operative amended 

petition, DCFS averred in count a-2 that Father hit J.T. in the chest 

and, during the October 2021 altercation, Father “threw the child to

the ground” after J.T. jumped on Father’s back.

2 J.T. “was scared 

and did not want . . . Father to hurt . . . Mother.” DCFS alleged 

that Father’s “violent conduct” “endangers the children’s physical 

health and safety, and places the children at risk of serious physical 

harm, damage and danger.”

DCFS further alleged, under section 300, subdivision (b)(1), 

that the children have suffered, or there is a substantial risk that 

they will suffer, serious physical harm or illness as a result of either 

(1) the failure or inability of the parents to supervise or protect 

the children, or (2) the willful or negligent failure of the parents to 

supervise or protect the children from the conduct of the children’s 

2 An allegation previously alleged as allegation a-1 was 

dismissed in the amended petition.
6

custodian. Under count b-1, DCFS alleged that Father and 

Mother “have a history of engaging in physical altercations in

the presence of the children,” and that during the October 2021 

altercation, Father choked Mother causing injuries to her neck, 

pushed her against a wall, and threw her to the floor causing 

injuries to her head. During the same altercation, Mother bit 

Father’s hand causing an injury, “smacked a cup of coffee out of . . . 

[F]ather’s hand,” and the parents struggled over one of the children

and a cell phone. In addition, Father “has a criminal conviction 

for inflicting corporal injury to a spouse/cohabitant,” and had 

previously threatened Mother with a gun. (Capitalization omitted.) 

Mother also allows Father to reside in the children’s home and to 

have unlimited access to the children. Father’s physical conduct 

against Mother and Mother’s “failure to protect the children, 

endangers the children’s physical health and safety, and places the 

children at risk of serious physical harm, and failure to protect.”

Under count b-2, DCFS repeated the facts alleged in 

count a-1: Father hit J.T. in the chest and, during the October 2021 

incident, threw J.T. to the ground. Such “violent conduct,” DCFS 

alleged, “endangers the children’s physical health and safety, and 

places the children at risk of serious physical harm, and failure to 

protect.”

On February 4, 2022, the court granted Mother’s application 

for a temporary restraining order protecting her and the children 

from Father. The court set a hearing on a permanent restraining 

order.
7

On March 16, 2022, the court held a jurisdiction and 

disposition hearing at which the court admitted the social worker’s 

reports into evidence without objection. Mother pleaded no contest 

to count b-1—the only count based in part on her conduct, and 

submitted on DCFS’s recommendation that the children be removed 

from Father’s custody and remain in her care.

Unlike Mother, Father denied the allegations and argued 

that sufficient evidence did not support the petition, requiring 

its dismissal. He further argued that, if the court sustained the 

petition, it should nonetheless release the children to the parents 

because there was insufficient evidence to support a finding that 

the children would be at risk if released to Father.

The court sustained each of the allegations and declared the

children dependents of the court. The court further ordered the 

children be removed from Father “because there is a substantial 

danger to the physical health, safety, protection, or physical 

or emotional well-being” of the children. The court ordered the 

children placed with Mother under DCFS supervision. It adopted 

DCFS’s case plan for Father, which included participation in 

domestic violence and anger management programs and individual 

counseling, and required that he take random or on-demand drug 

tests. The court granted Father monitored visits with the children.

Immediately following the jurisdiction and disposition 

hearing, the court heard Mother’s application for a restraining 

order against Father. The application sought to restrain Father 

from contacting or coming within 100 yards of the children, as

well as Mother and J.T., except during Father’s monitored visits. 

Over Father’s objection, the court granted the application.
8

Father timely appealed from the orders made on March 16, 

2022. This court assigned case No. B319168 to the appeal.

C. Six-Month Review Hearing

In a report prepared for the six-month review hearing, DCFS

reported that the children are living with Mother, who “continues 

to meet the needs of the children for food, shelter, care, and 

supervision.” Father “has maintained a consistent relationship 

with [the] children,” and the children enjoy their three-hour, twice 

per week visits with Father, who never missed a visit. A social 

worker monitoring the visits described him as “very attentive and 

loving to the children,” and described the “quality of visits . . . [as] 

great.”

In April 2022, a social worker assessed Father’s home and 

found it “neat and clean,” with “ample amounts of food, running 

water, and a play area in the apartment complex,” and devoid of

safety hazards. After the assessment, the children’ visits with

Father were “liberalized from monitored to unmonitored.”

Father was in compliance with his case plan, and was 

participating in the programs and counseling called for under his

case plan. He tested positive for marijuana on seven occasions, 

tested negative on two occasions, and was a “no show” on one 

occasion.

In August 2022, Father informed a social worker that he and 

Mother were exchanging text messages “about having intercourse 

with one another and trying to work on getting the family back 

together.” When the social worker asked Mother about the texts,

Mother said that she has no intention of reuniting with Father 

and explained that she used the sexual banter in the texts “to get 

[Father] to feel comfortable enough to admit that he was telling 

people that she was a murderer and prostitute.”
9

The social worker opined that although the children appear 

to be safe in the care of both Mother and Father, “the parents 

do not appear able to maintain civil conversations,” and their 

conversations “could lead to another physical altercation.”

According to the social worker, Father continues to develop 

his relationship with his children in a healthy and positive manner 

by taking responsibility for his actions, actively participating in 

services, and reported gaining new tools to help manage and 

regulate his emotions, by being more vocal about how he feels as 

well as learning how not to feed into others’ actions. Nevertheless, 

the social worker determined that the risk level for this family is 

“HIGH,” and recommended the court continue services.

On September 14, 2022, the court held a six-month review 

hearing. Mother requested that the court terminate its jurisdiction, 

and Father objected “to prior orders the court made at jurisdiction.”

The court determined that continued jurisdiction is necessary 

and appropriate.

Father timely appealed from the orders made at the 

six-month review hearing. This court assigned case No. B323847 

to the appeal and granted Father’s motion to consolidate the 

appeals in case Nos. B319168 and B323847 for purposes of briefing, 

argument, and decision.

DISCUSSION

A. Jurisdictional Findings

Father contends that the court’s jurisdictional findings are 

not supported by substantial evidence. 

Initially, we note that the juvenile court’s jurisdiction was 

based in part on a true finding as to count b-1 based on Mother’s 

no contest plea to that count. Mother has not challenged that 

finding, and therefore we do not review it. Notwithstanding the 
10

existence of jurisdiction based on the unchallenged finding as to 

Mother’s conduct, we exercise our discretion to reach the merits 

of Father’s challenge to the jurisdictional findings against him 

because the findings serve as the basis for a dispositional order and 

the restraining order Father challenges on appeal. (See In re J.N.

(2021) 62 Cal.App.5th 767, 774.) 

In reviewing a challenge to the sufficiency of the evidence 

to support a jurisdictional finding, we review the record in the light 

most favorable to the judgment, drawing all reasonable inferences 

in support of the findings. (In re A.M. (2010) 187 Cal.App.4th 1380, 

1388; In re Alexis E. (2009) 171 Cal.App.4th 438, 450–451.) “We 

do not reweigh the evidence, evaluate the credibility of witnesses, 

or resolve evidentiary conflicts.” (In re Dakota H. (2005) 132 

Cal.App.4th 212, 228.) Substantial evidence, however, “ ‘is not 

synonymous with any evidence. [Citation.] To be substantial, 

the evidence must be of ponderable legal significance and must be 

reasonable in nature, credible, and of solid value.’ ” (In re Cole L.

(2021) 70 Cal.App.5th 591, 602.)

1. Counts a-2 and b-2

A juvenile court may assert jurisdiction under section 300, 

subdivision (a) if the “child has suffered, or there is a substantial 

risk that the child will suffer, serious physical harm inflicted 

nonaccidentally upon the child by the child’s parent or guardian.” 

Under subdivision (b)(1) of section 300, the court may assert 

jurisdiction if a “child has suffered, or there is a substantial risk 

that the child will suffer, serious physical harm or illness, as a 

result of” “[t]he failure or inability of the child’s parent or guardian 

to adequately supervise or protect the child”; or “[t]he willful or 

negligent failure of the child’s parent or guardian to adequately 
11

supervise or protect the child from the conduct of the custodian 

with whom the child has been left.” 

Count a-2 (arising under section 300, subdivision (a)) and 

count b-2 (arising upon section 300, subdivision (b)) are based 

on the same factual allegations: Father hit J.T. in the chest and,

during the October 2021 incident, Father threw J.T. to the ground. 

The juvenile court sustained both counts.

Although a social worker reported that J.T. initially told the 

social worker that Father “would hit him in his chest,” suggesting 

that Father had hit J.T. on more than one occasion, J.T. later 

clarified that the only time Father hit him was during the October 

2021 incident, after J.T. jumped on Father. There is thus no 

substantial evidence that Father hit J.T. other than during the 

October 2021 incident. On appeal, DCFS does not assert otherwise.

There is no evidence that J.T. or either of the younger 

children suffered any physical harm or illness as a result of 

the October 2021 incident. Thus, the issue under section 300 

subdivision (a) and (b)(1) in this case is whether there is substantial 

evidence to support the findings that there was a “substantial risk”

that the children “will suffer” physical harm as a result of Father

nonaccidentally inflicting serious physical harm upon them (§ 300, 

subd. (a)), or physical harm or illness as a result of the parents’ 

failure to supervise or protect the children (§ 300, subd. (b)(1)).

“In order to sustain a petition under section 300, a significant 

risk to the child must exist ‘ “at the time of the jurisdiction 

hearing.” ’ ” (In re J.N., supra, 62 Cal.App.5th at p. 775.) Although 

past conduct may be probative of current conditions, “ ‘there “must 

be some reason beyond mere speculation to believe the alleged 

conduct will recur.” ’ ” (In re Cole L., supra, 70 Cal.App.5th at 

p. 602; see In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re S.F.

(2023) 91 Cal.App.5th 696, 712–713.)
12

DCFS points to the October 2021 incident and argues that 

“[a]ny time a grown man and a seven[-]year[-]old boy get into a 

physical confrontation, the boy will be at substantial risk of harm.”3

Mother’s and J.T.’s statements to law enforcement and social 

workers are evidence that J.T. jumped on Father in an attempt to 

stop Father from harming Mother, and Father responded by hitting 

J.T. in the chest or throwing him to the ground. Although Father’s 

actions created a substantial risk of physical harm to J.T. during 

that incident, such evidence is insufficient to establish a substantial 

risk of harm to J.T. or the other children in the future. There is 

no other substantial evidence to infer such a risk. J.T., as well as 

Mother and Father, denied that Father ever physically disciplined 

J.T. and they agreed that the parents have no ongoing domestic 

violence issues. The evidence, therefore, is insufficient to support 

the court’s true finding as to counts a-2 and b-2.

2. Count b-1

DCFS supported count b-1 with additional facts concerning 

the October 2021 incident, including that Father choked Mother, 

“pushed [her] against a wall,” and “threw [her] to the floor.” As 

a result, Mother had difficulty breathing and suffered scratches 

to her neck and swelling on her head. In addition, the parents 

“struggled over [a] child” and “struggled over a cell[ ]phone.” These

allegations are supported by Mother’s and J.T.’s statements to law 

enforcement and social workers, summarized above. 

3 DCFS refers to J.T. as a seven-year-old boy at the time 

of the October 2021 incident. Our record, however, indicates that 

he was eight years old at the time.
13

For the reasons discussed above regarding counts a-2 and b-2, 

the evidence of the October 2021 incident is insufficient to support 

the b-1 allegation; no child suffered serious physical harm or an 

illness during the altercation and there is no evidence of ongoing 

domestic violence or other conduct since the incident that could 

support a finding of substantial risk of harm to the children. 

In addition to the October 2021 incident, DCFS further 

alleged that Father “threatened . . . [M]other with a gun”; the 

two “engaged in a physical altercation” in 2019; and Father 

has a criminal conviction for inflicting corporal injury to a 

spouse/cohabitant. On appeal, DCFS does not rely on these facts

to support the court’s findings. We have, however, reviewed the 

record and conclude that the evidence related to these allegations 

is insufficient to support the court’s jurisdictional finding. 

The only evidence of Father’s alleged threating Mother with 

a gun is the following statement in the social worker’s detention 

report: “[M]other stated she has concerns as to [F]ather having 

a weapon at his home because [F]ather threaten[ed] her with one. 

Mother denied knowing for sure as to the weapon, but [M]other 

stated she thinks it is a ‘BB gun.’ ” In the jurisdiction/disposition 

report, the social worker noted that Mother “did not see the gun.” 

It does not appear from our record that anyone investigated 

the threat—other than to ask Father, who denied making it—

or the possible existence of a gun or other weapon. The social 

worker’s reports do not indicate what Father said in making the 

threat, when he said it, who was present when Father made the 

threat, or why Mother “thinks” the weapon was a BB gun. Nor 

is there any reason to believe that the threat, if Father made it, 

involved or endangered the children in any way or placed them 

at risk of suffering serious physical harm or illness. The vague 

report of Mother’s statement does not, therefore, constitute 
14

substantial evidence to support jurisdiction under section 300, 

subdivision (b)(1). 

The allegation of a “physical altercation” between Father 

and Mother in 2019 is presented without factual support and 

unexplained by DCFS at the jurisdictional hearing and on 

appeal. Our record does refer to two referrals to DCFS regarding 

incidents involving Father in 2019, but DCFS disposed of each 

as inconclusive or unfounded. They are insufficient to support 

the challenged jurisdictional finding.

Lastly, the allegation that Father “has a criminal conviction 

for inflicting corporal injury to a spouse/cohabitant” (capitalization 

omitted), is based on the social worker’s summary of a CLETS 

report concerning Father. The social worker’s report states: 

“4/27/17—arr/det/cited for PC inflict corporal inj on spouse/cohab, 

5/1/17—court action—misd. conviction; sen: 36 months probation, 

9 days jail.” The cryptic notation suggests that five years before 

the jurisdictional hearing Father was arrested on a charge of 

inflicting corporal injury on a spouse or cohabitant, that he was 

convicted four days later (presumably by plea) of an unspecified 

misdemeanor, and, after serving nine days in jail, given three years 

of probation. Neither the social worker’s summary of the CLETS

report nor anything else in our record is evidence concerning the 

nature or circumstances of the crime of which Father was convicted, 

and DCFS offers no explanation as to how the conviction places the 

children at risk of harm.

For all the foregoing reasons, we agree with Father that 

the jurisdictional findings arising from his alleged conduct must be 

vacated.
15

B. Order Removing Children From Father’s Custody

Father challenges the court’s dispositional order removing 

the children from his physical custody. 

A juvenile court may not remove a dependent child from 

physical custody of his or her parent “with whom the child resides 

at the time the petition was initiated, unless the juvenile court 

finds clear and convincing evidence” of, as is relevant here, “[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 . . . custody.” (§ 361, 

subd. (c)(1).)

For the same reasons that the evidence is insufficient to 

support the jurisdictional findings that Father’s conduct placed 

the children at substantial risk of harm or illness, the evidence 

is insufficient to support the finding that allowing Father to have 

physical custody of the children would place them in “substantial 

danger” of their “physical health, safety, protection, or physical or 

emotional well-being.” (§ 361, subd. (c)(1).) The order removing 

the children from Father, therefore, must also be vacated. 

Because Father challenges only the court’s dispositional 

order removing the children from his custody, we do not address 

any other dispositional orders, such as requiring his compliance 

with his case plan. (See In re Briana V. (2015) 236 Cal.App.4th 

297, 311 [when the court has jurisdiction over children based on 

conduct of one parent, the court may enter binding dispositional 

orders on the other, nonoffending parent]; In re I.A. (2011) 201 

Cal.App.4th 1484, 1492 [same].)
16

C. Restraining Order Protecting Children

Father argues that the court erred when it granted 

Mother’s request for a restraining order to the extent that it

restrains Father from contacting or coming within 100 yards 

of the children. Because there is no substantial evidence to support 

the jurisdictional allegations against Father or the order removing 

the children from his custody, we agree with Father that the 

restraining order must be vacated to the extent it applies to the

children.

4

4 We note that our decision is based on the record at the time 

of Father’s appeal. (See In re Zeth S. (2003) 31 Cal.4th 396, 405

[we review “ ‘the correctness of a judgment as of the time of its 

rendition, upon a record of matters which were before the trial court 

for its consideration’ ”].) We realize that while this case has been 

pending on appeal other issues may have been presented to the 

juvenile court. Our opinion and disposition do not preclude further 

action by the juvenile court based on events that occurred after 

those set forth in the record on appeal.
17

DISPOSITION

The court’s true findings as to counts a-2 and b-2 of the 

second amended petition filed on March 16, 2022 are vacated. 

The court’s true finding as to count b-1 is vacated to the extent 

that it is based on Father’s conduct. 

The court’s March 16, 2022 dispositional order removing 

the children from Father’s custody is vacated.

The restraining order entered on March 16, 2022 against 

Father is vacated to the extent that it restrains Father from 

contacting the children. 

The orders from which Father has appealed are otherwise 

affirmed. 

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

CHANEY, J.

BENDIX, J.