Filed 9/14/20 In re Mia S. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re MIA S. et al., Persons Coming 

Under the Juvenile Court Law.

 B300204

 (Los Angeles County

 Super. Ct. Nos. 

 19CCJP03735B-C)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN 

AND FAMILY SERVICES,

Plaintiff and Appellant,

v.

EDWIN T. et al.,

Defendants and Appellants,

MIA S. et al., 

Minors and Appellants.
2

APPEALS from jurisdiction findings and disposition orders 

of the Superior Court of Los Angeles County, Craig S. Barnes 

Judge. Affirmed in part, reversed in part and remanded with 

directions. 

Mary C. Wickham, County Counsel, Kristine P. Miles and 

Jessica S. Mitchell, Assistant County Counsel, for Plaintiff and 

Appellant.

Jesse McGown, under appointment by the Court of Appeal, 

for Defendant and Appellant Edwin T.

Cristina Gabrielidis, under appointment by the Court of 

Appeal, for Defendant and Appellant Maricela H. 

Marissa Coffey for Minors and Appellants.

________________________

Maricela H. and Edwin T., the mother and presumed father 

of nine-year-old Mia S. and four-year-old Emma S., appeal the 

juvenile court’s jurisdiction findings and disposition orders 

declaring Mia and Emma dependent children of the court under 

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

(failure to protect),

1

following Edwin’s arrest for arranging over 

the Internet to have sexual intercourse with a 16-year-old minor. 

Mia and Emma also appeal, joining their parents’ arguments. 

The Los Angeles County Department of Children and Family 

Services (Department) cross-appeals, contending the juvenile 

court erred when it dismissed an identically pleaded count 

alleging Mia and Emma were at substantial risk of sexual abuse 

by Edwin within the meaning of section 300, subdivision (d). We

1

Statutory references are to this code unless otherwise 

stated.
3

reverse the subdivision (b)(1) findings, affirm the subdivision (d) 

finding and remand with directions to the juvenile court to 

dismiss the petition.

FACTUAL AND PROCEDURAL BACKGROUND

1. Edwin’s Attempted Sexual Liaison, Arrest and 

Conviction

Using the messaging feature on a social media website, on 

March 11, 2019 Edwin contacted an undercover officer from the

Los Angeles County Sheriff’s Department’s human trafficking 

bureau posing as Dejanira, a 16-year-old female, based on 

Dejanira’s profile indicating she was sexually available.

According to the incident report prepared the day after Edwin’s 

arrest, Edwin texted Dejanira for several days after first 

contacting her; and on March 17, 2019 asked, “Are you available 

$$$.” Dejanira replied, “I’m young is dat ok?” Edwin asked how 

old she was, and Dejanira answered she would turn 17 the 

following month. Edwin asked what she was offering and the 

price. Dejanira responded $60 for sexual intercourse and $40 for 

oral sex. Edwin texted, “I want both Lets get a room [where] u 

at.” After further exchanges that again included specific 

reference to Dejanira’s age and Edwin’s promise of payment for 

sexual acts, as well as mutual assurances they were not police 

officers, they agreed to meet on March 18, 2019 at a convenience 

store, later changed to a liquor store. When he arrived at the 

meeting location, Edwin was arrested for arranging to meet with 

a minor to engage in lewd acts (Pen. Code, § 288.4, subd. (b)).

On May 7, 2019 Edwin pleaded no contest to attempted 

unlawful sexual intercourse with a minor more than three years 

younger than the perpetrator, charged as a felony. (Pen. Code, 

§§ 664, 261.5, subd. (c).) Edwin, who had no prior criminal 
4

record, was placed on formal probation for five years and 

required to participate in a 52-week sex offender counseling 

program. As an additional condition of probation Edwin was 

prohibited from having any unsupervised contact with minors. 

Based on the judge’s instructions, Edwin understood his own 

children were included in the court-ordered restriction.

2

 

2. The Department’s Petition

Edwin resided in a two-bedroom home with Maricela, his

13-year-old son Edwin S., Mia, Emma and the children’s paternal 

grandmother. Following a routine compliance check on Edwin at 

the family home on June 10, 2019, Edwin’s probation officer 

notified the Department of Edwin’s conviction and the conditions

of his probation, including the prohibition of unsupervised 

contact with minors. 

An emergency response children’s social worker visited the 

home and interviewed Edwin, Maricela, Edwin S., Mia and the 

paternal grandmother. The social worker learned that Edwin 

had not shared the details of his arrest and conviction with 

Maricela, claiming only that he had been “set up.” For her part, 

Maricela knew Edwin had been convicted of a crime but declined 

to obtain more information because she was afraid of what she 

might learn. Although Edwin had told Maricela he needed to be 

supervised around children, Maricela did not understand this 

restriction applied to his own children. Nonetheless, Edwin, 

Maricela and the paternal grandmother, who apparently was the 

children’s primary caregiver because both parents worked, 

insisted Edwin was never alone with any of the children; 

2

The criminal court minute order simply states, “No 

unsupervised contact with minors.”
5

Maricela or the paternal grandmother was always present when 

Edwin and one of the children were together. Edwin S. and Mia 

confirmed they were never alone with their father. (Emma was 

too young to provide meaningful information.) 

The Department initiated dependency proceedings on 

behalf of Edwin S., Mia and Emma on June 13, 2019 under 

section 300, subdivisions (b)(1) and (d). In identical language for 

both counts the Department alleged, “From 3/11/19 to 3/18/19, 

the children, Edwin S[.], Mia[ ] and Emma[’s] father, Edwin T[.] 

engaged in a course of conduct with the purpose of having sexual 

contact with a minor. The children’s father communicated with a 

person the father believed to be an underage female on-line. The 

female told the father her age and the father continued to 

communicate with her and the father arranged to meet and have 

sex with the person the father believed to be a minor for the 

purpose of engaging in lewd and lascivious conduct. The mother, 

[Maricela], failed to protect the children in that the mother was 

aware the father engaged in a crime which resulted in father’s 

contact with children was restricted, yet mother failed to ensure 

father was participating in sex offender class to address his 

conduct and allowed father to reside in the children’s home and 

have unlimited access to the children. On 5/7/19, the father was 

convicted of Arranging A Meeting With A Minor. The father’s 

conduct and the mother’s failure to protect the children endanger 

the children’s physical health and safety and place the children 

at risk of harm, damage, danger, sexual abuse and failure to 

protect.”

At an initial petition hearing on June 14, 2019 the court 

found a prima facie case had been made that the children came 

within section 300, but, on the Department’s recommendation,
6

released the children to their parents. The court ordered Edwin 

to comply with the criminal court order regarding unsupervised 

contact with his children.

3. The Jurisdiction/Disposition Hearing

In its report for the August 21, 2019 jurisdiction/disposition 

hearing, the Department summarized interviews with Edwin S., 

Mia, Edwin, Maricela and the paternal grandmother. Edwin S. 

and Mia denied any abuse in the home; Edwin S. said he and his 

sisters were safe; and Mia described her parents as getting along 

very well with each other.

Edwin agreed the description of his conduct in the 

Department’s petition was accurate and admitted, “I wasn’t 

thinking properly. . . . I was being a dumbass.” However, Edwin 

disagreed that Maricela had failed to protect the children, 

describing her as “very protective.” He insisted that, since his 

release from custody, he had not been alone with any of the 

children. Maricela or the paternal grandmother always 

supervised his contact with them. Edwin acknowledged he had 

been slow to enroll in the court-ordered sex offenders program, 

but explained the delay was due to difficulty he had getting a 

correct referral from the probation department. The report 

attached an enrollment verification form indicating Edwin had 

registered for the 52-week sex offender counseling program on 

June 11, 2019.

Maricela again stated she did not fully understand the 

nature of Edwin’s conduct prior to initiation of the dependency 

proceedings when she finally saw the police report. He had told 

her he needed to stay off social media and could not be left alone 

with children, including Edwin S., Mia and Emma; but she 

“didn’t want to see the reality of it. It’s his mess.” Maricela told 
7

the social worker she and the paternal grandmother monitored 

all of Edwin’s contact with the children and stated she had no 

concerns regarding the children’s safety with Edwin living in 

their home. Both Edwin and Maricela agreed they had 

communication issues and believed couples counseling would be 

helpful.

The paternal grandmother reported the children were well 

cared for by both parents, confirmed they were never left alone 

with Edwin and said she had no concerns for their safety. She 

described Maricela as protective of the children. 

The Department had initially categorized the children as 

“‘Very High’ for future risk of general neglect/sexual abuse living 

under the care of their parents” because of Edwin’s criminal 

conduct and Maricela’s reluctance to learn the details of his 

offense. Nevertheless, as it had when it filed the dependency 

petition, the Department continued to believe the children could 

remain safely in the home with their parents as long as Edwin 

complied with the conditions of his probation. The report 

indicated the children were healthy with no signs of abuse or 

neglect. A last minute information report filed shortly before the 

hearing advised that Edwin and Maricela had enrolled in a 

couples counseling program on August 3, 2019. 

Maricela testified at the jurisdiction hearing she would 

move out with the children if that were necessary to keep them 

safe from Edwin, and she also explained she would have reacted 

very differently if Edwin had attempted to have sex with a 

10-year-old. After Maricela’s testimony her lawyer and counsel 

for Edwin and the children urged the court to dismiss the 

petition, emphasizing Mia and Emma were not only Edwin’s 
8

biological children but also significantly younger than the 

unrelated 16-year-old Edwin believed he was contacting for sex. 

The court dismissed the subdivision (d) count and, after 

deleting Edwin S. from the subdivision (b)(1) count,3sustained 

that count as pleaded as to both Edwin and Maricela. 

Concerning Edwin the court stated, “Father’s conduct does not 

appear to be in dispute, and it’s the kind that would place the 

young girls at risk.” As to Maricela it explained, “I tell you why I 

see [the parent’s communication issue] as a risk, because if what 

you’re on probation for is kept a secret and part of it is mom 

supposed to watch you to make sure you’re abiding, she’s got to 

know what risks are attendant to that. And if their relationship 

is such that that’s not being shared, then the children are 

basically walking in a risky environment.” It continued, 

“Mother’s testimony highlights her concerns for the children and 

the challenges she faces. However, it also highlights some of the 

triggering events that places them at risk by Father’s conduct.” 

Proceeding to disposition, the court declared Mia and 

Emma dependents of the court, allowed them to remain in their 

parents’ care and ordered Maricela and Edwin to participate in 

family maintenance services. Maricela’s case plan included 

participation in a sex abuse awareness counseling program and 

specified she was to ensure that Edwin was not left alone with 

3 Although urging the court to dismiss the entire petition,

minors’ counsel argued there was absolutely no basis for 

believing Edwin S., a 14-year-old boy, was at risk: “We have no 

reason to believe that Father other than this incident has ever 

had any contact but particularly with a boy.” The court asked the 

Department’s counsel why Edwin S. had been named. Counsel 

agreed he should be dismissed from the petition. 
9

the children pursuant to the terms of his probation. Edwin’s case 

plan required him to comply with all orders of the criminal court, 

including completion of a 52-week sex offenders program. 

Maricela, Edwin, Mia and Emma timely appealed the

juvenile court’s jurisdiction findings and disposition orders. The 

Department cross-appealed dismissal of the subdivision (d) count

as it related to Edwin, but concedes on appeal the jurisdiction 

finding as to Maricela under subdivision (b)(1) was error.

DISCUSSION

1. Governing Law and Standard of Review

A child may be adjudged a dependent child of the juvenile 

court under section 300, subdivision (d), if there is a substantial 

risk the child will be sexually abused, as defined by Penal Code 

section 11165.1, by a parent or a member of the child’s household. 

(In re D.G. (2012) 208 Cal.App.4th 1562, 1571-1572; see In re I.J.

(2013) 56 Cal.4th 766, 773.) Penal Code section 11165.1 defines 

“sexual abuse” to include acts that violate Penal Code 

sections 261.5 (sexual intercourse with a minor), 288 (lewd or 

lascivious acts upon a child) and 647.6 (annoying or molesting a 

child).

4

 Jurisdiction under section 300, subdivision (d), may also 

be asserted over a parent who knew or reasonably should have 

known a child was in danger of sexual abuse and who failed to 

adequately protect the child. 

Section 300, subdivision (b)(1), authorizes the court to 

adjudge a child a dependent of the juvenile court if “[t]he child 

4 A violation of Penal Code section 261.5 (unlawful sexual 

intercourse with a child under 18 years old) is not specifically 

enumerated in Penal Code section 11165.1 as constituting sexual 

abuse.
10

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.” Courts have frequently 

summarized subdivision (b)(1) as requiring proof of: 

“(1) neglectful conduct by the parent in one of the specified forms; 

(2) causation; and (3) ‘serious physical harm or illness’ to the 

minor, or a ‘substantial risk’ of such harm or illness.” (In re 

Rocco M. (1991) 1 Cal.App.4th 814, 820; see In re Joaquin C.

(2017) 15 Cal.App.5th 537, 561; see also In re Jesus M. (2015)

235 Cal.App.4th 104, 111; In re Savannah M. (2005)

131 Cal.App.4th 1387, 1395-1396.) However, the Supreme Court 

in In re R.T. (2017) 3 Cal.5th 622 clarified section 300, 

subdivision (b)(1), does not require a parent commit neglect or 

deserve blame for being unable to supervise or protect the child, 

only that a failure or inability to provide the necessary 

supervision or protection exists. (In re R.T., at p. 629.)

The Department has the burden of proving by a

preponderance of the evidence a child should be declared a

dependent of the court under section 300. (In re I.J., supra, 

56 Cal.4th at p. 773; see § 355, subd. (a).) When the juvenile 

court finds the Department has carried that burden and sustains 

a section 300 petition, we review the court’s findings for 

substantial evidence. (In re R.T., supra, 3 Cal.5th at p. 633; In re 

I.J., at p. 773.) Under that standard we inquire whether the 

evidence, contradicted or uncontradicted, supports the court’s 

determination. We resolve all conflicts in support of the 

determination, indulge in all legitimate inferences to uphold the 

findings and may not substitute our deductions for those of the 

juvenile court. (In re R.T., at p. 633; In re I.J., at p. 773.) 
11

However, “[s]ubstantial evidence 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 M.S. (2019) 41 Cal.App.5th

568, 580; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046

[while substantial evidence may consist of inferences, any 

inferences must rest on the evidence; inferences based on

speculation or conjecture cannot support a finding].)

When the Department appeals the juvenile court’s 

conclusion it failed to carry its burden of proof, as in all failure-ofproof cases, we determine only whether the evidence compelled a 

finding in favor of the Department as a matter of law. (In re R.V.

(2015) 61 Cal.4th 181, 218 [“‘where the issue on appeal turns on a 

failure of proof at trial, the question for a reviewing court 

becomes whether the evidence compels a finding in favor of the 

appellant as a matter of law,’” quoting In re I.W. (2009) 

180 Cal.App.4th 1517, 1528]; accord, In re Luis H. (2017) 

14 Cal.App.5th 1223, 1227; Dreyer’s Grand Ice Cream, Inc. v. 

County of Kern (2013) 218 Cal.App.4th 828, 838.)

2. The Evidence Does Not Compel a Finding of a 

Substantial Risk Mia and Emma Will Be Sexually 

Abused by Edwin

When evaluating the Department’s evidence regarding the 

subdivision (d) count, the juvenile court stated, “I just don’t think 

you make it because Father’s conduct gets stopped before any of 

the elements of a (d)(1) is there.” That rationale for dismissing 

the subdivision (d) count was mistaken: Although Edwin’s 

attempted crime did not constitute sexual abuse within the 

meaning of Penal Code section 11165.1, the issue before the court 

was not whether Edwin had already committed sexual abuse as 
12

defined in that provision, but whether Mia and Emma were at 

risk for such sexual abuse in the future. A parent’s attempt to 

commit a serious sexual offense, even if not successful, could 

certainly create the substantial risk Welfare and Institutions 

Code section 300, subdivision (d) addresses.

Similarly focusing on the nature of Edwin’s criminal act, 

rather than the risk to Mia and Emma, the Department explains 

a violation of Penal Code section 647.6 (annoying or molesting a 

child) constitutes sexual abuse within the meaning of Penal Code 

section 11165.1 and, therefore, Welfare and Institutions Code 

section 300, subdivision (d), and physical contact between 

perpetrator and victim is not required for a violation of 

section 647.6. (See, e.g., In re R.C. (2011) 196 Cal.App.4th 741, 

750 [“[n]o touching is required, but the statute requires conduct 

that would unhesitatingly irritate a normal person, and ‘“conduct 

“‘motivated by an unnatural or abnormal sexual interest”’ in the 

victim”’”].) Edwin violated section 647.6, the Department 

continues, by soliciting a sexual act from a minor. (See People v. 

Kongs (1994) 30 Cal.App.4th 1741, 1750; People v. LaFontaine

(1978) 79 Cal.App.3d 176, 179-180 [predecessor to Penal Code 

section 647.6].)5

5 A conviction for violating Penal Code section 647.6 would

have created a rebuttable evidentiary presumption under Welfare 

and Institutions Code section 355.1, subdivision (d), that Mia and 

Emma were at substantial risk of abuse. Even if otherwise 

applicable, however, that presumption would have no effect in 

this case because, once evidence is introduced that would support 

a contrary finding, “the presumption disappears and the matter 

must be determined based on all the evidence presented, 

including the fact of the prior conviction and reasonable 
13

Edwin’s conduct, even though his first criminal offense of 

any sort, might support a finding under subdivision (d), as the 

Department contends. Indeed, the juvenile court said as much

when it sustained the subdivision (b)(1) count. Without in any 

way intending to suggest we excuse Edwin’s behavior, however, 

given the significant differences between Edwin’s nearly 17-yearold, unrelated, intended victim and his two prepubescent 

daughters, the evidence did not compel a finding Mia and Emma 

were at substantial risk of sexual abuse from their father. There 

was no evidence he had ever acted inappropriately toward either 

child, sexually or otherwise; and both Maricela and the paternal 

grandmother confirmed he was a good father and they believed 

the children were safe in the home. (See In re B.T. (2011) 

193 Cal.App.4th 685, 695 [mother’s sexual relationship with the 

15-year-old son of a neighbor, which resulted in her pregnancy, 

did not place the mother’s infant daughter at risk of sexual 

abuse]; see generally In re I.J., supra, 56 Cal.4th at p. 780 

[juvenile court is not compelled, “as a matter of law, to assume 

jurisdiction over all the children whenever one child is sexually 

abused”].)

3. Substantial Evidence Does Not Support the 

Subdivision (b)(1) Jurisdiction Finding as to Edwin

As discussed, the Department’s section 300 petition alleged, 

in identical language, that Mia and Emma came within the 

jurisdiction of the juvenile court under both subdivisions (b)(1)

and (d) based on Edwin’s attempted sexual liaison with 

“Dejanira” and Marcela’s inattention to the circumstances of his 

arrest and conviction and the consequent need to protect the 

inferences derived from it.” (In re Quentin H. (2014) 

230 Cal.App.4th 608, 610.)
14

children by keeping Edwin from having unsupervised contact 

with them. Whatever substantial risk of future serious physical 

harm the juvenile court may have believed Edwin’s conduct 

created, however, it was necessarily the result of Edwin’s 

intentional acts, not a consequence of his failure or inability to 

protect or supervise his children. And no other evidence relating 

to Edwin supports a subdivision (b)(1) finding: There was no 

evidence of domestic violence between Edwin and Maricela, and 

no suggestion either parent used inappropriate physical 

discipline or otherwise physically or emotionally abused the 

children. In short, the finding as to Edwin under section 300, 

subdivision (b)(1), lacked any evidentiary support.

4. Substantial Evidence Does Not Support the Jurisdiction 

Finding as to Maricela

Unlike the allegations concerning Edwin, the petition’s 

subdivision (b)(1) allegations regarding Maricela describe her

failure to adequately protect Mia and Emma by allowing Edwin 

to remain in the home with them, permitting him to have 

unlimited access to the children and not ensuring he was 

participating in a sex offender class to address his conduct, as 

ordered by the criminal court. The evidence before the court, 

however, disproved those allegations. Maricela, Edwin and the 

paternal grandmother all affirmed that Edwin was not allowed 

unsupervised contact with children following his arrest, and none 

had occurred. No contrary evidence was presented. In addition, 

Edwin had enrolled in the required sex offender program two 

days before the dependency petition was filed, as established by 

the registration form submitted to the court by the Department 

prior to the jurisdiction hearing. As discussed, the Department 
15

has conceded it was error to sustain the subdivision (b)(1) finding 

as to Maricela.

The juvenile court’s concerns about Maricela and Edwin’s 

lack of communication and Maricela’s initial unwillingness to 

learn the details of Edwin’s criminal conduct and conditions of 

probation are similarly insufficient to support a subdivision (b)(1) 

finding. Section 300 generally requires proof the child is subject 

to the defined risk of harm at the time of the jurisdiction hearing. 

(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383; 

In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) While 

the court may consider past events in deciding whether a child 

currently needs the court’s protection, there must be some reason 

to believe that the conduct will continue to support the exercise of 

jurisdiction. (In re Kadence P., at p. 1384; In re Christopher R.

(2014) 225 Cal.App.4th 1210, 1216; see In re S.O. (2002) 

103 Cal.App.4th 453, 461.) Here, as Maricela argues, and the 

Department implicitly agrees, by the time of the jurisdiction 

hearing Maricela was well aware of the circumstances that led to 

Edwin’s conviction and the conditions of his probation. As she 

testified, she was determined to honor the prohibition of 

unsupervised contact between Edwin and the children and was 

fully prepared to move from the family home if necessary to 

protect them: “The safety of my children will be first.” There was 

no evidence of any current risk to the children as a consequence 

of Maricela’s failure to supervise or protect them. 
16

DISPOSITION

The juvenile court’s finding of a lack of jurisdiction under 

section 300, subdivision (d), is affirmed. The jurisdiction finding

under subdivision (b)(1) and disposition orders are reversed. The 

juvenile court is directed to dismiss the petition.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.