1

Filed 2/ 16 /23

CERTIFIED FOR PUBLICATION

I N 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

CHILDREN AND FAMILY

SERVICES BUREAU

,

Plaintiff and Respondent

,

v.

L

. D

.,

Defendant and Appellant

. A1 65001

( Contra Costa County

Super. Ct. No

. J21

- 00286)

In this dependency proceeding

, L

. D . (mother) appeals from

jurisdictional findings and dispositional orders concludi ng that her son L. B

.

( born May 2009 ) was described by Welfare and Institutions Code 1 s ection

300

, subdivision (b), adjudging him a juvenile court dependent, and placing

him in the home of his father, S .B

. Mother asserts o n appeal that there was

insufficient evidence to support jurisdictional findi ngs under recent

amendments to section 300, subdivision (b), and that any risk of physical

harm to L. B . was speculative

. W e affirm.

1 All section references are to the Welfare and Institutions Code unless

otherwise specified.2 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 domes tic 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 co nsumption 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 l eg 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 he ard [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 Ca lifornia 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.3

because she was homeless at one point in her life

, and she h a d 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.

Eventua lly, 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 const ant 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 t he 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 m other

ha d 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 a ttempt

suicide. She had done so several times over the years. T.Y. had admitted to4

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 f

rom 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. r ekindled 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 constructi on/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.”

D uring this timeframe , mother was threatening suicide and her subs tance

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.’ ”5

F ather 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 2 018, 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 desir e 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

manag ement 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 wit h 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 Marsden 2 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 remain ed married so that mother c ould maintain

access to better health insurance. W hen mother and the children returned

from Texas, they live d with the maternal grandmother for about a year

.

However, the level of domestic violence betwee n mother and T.Y. was too

2 People v. Marsden (1970) 2 Cal.3d 118.6

much for the maternal grandmother , and she asked them to leave. Despite

all of the information received, as of the time the social w orker prepared the

report, mother was denying domestic violence in her relationship with T.Y.,

claim ing she had no mental health issues, and den ying use of any non

prescribed drugs. She variously reported that her leukemia was both “under

control” and “en d 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 2 022 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 Coun ty 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 apparen tly 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

.7

that her current arrangement wit h father was that L.B. “could be where he

w ould 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 . S he 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

,

sustain ing an amended s ubdivision ( 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 ch ild’s presence.” 4 In doing so, the court noted that the record

supported a “history here of serious domestic violence inc i dents.” It found

mother’s version of the acts precipitating L.B. and C.B.’s most recent re mov al

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 preventativ e 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 T he remainder of the allegations in the petition were dismissed

.8

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 cou rt 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 descr ibe d by section 300

, t he 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. DISCUSSI ON

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

. . . [¶] “t he

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 the9

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 Dais y

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, 62 8

– 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. 1 33.) “ 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.) In deed, 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. ) [ “ ‘ P ast 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) 21 7

Cal.App.4th 410, 419 [concluding even a single incident o f 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 t he 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. ) .)10

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 Isabe lla 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 administ rative 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,11

“ ‘ “ statutes must be construed so as to give a reasonable and common

- sense

con struction 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 th e 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 legislat ive history of Senate Bill No. 1 0 85 (20 2 1

- 202 2

Reg. Sess.) (Sen

. Bill 1 0 85)

. (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].)12

obtain such orders. However, w e 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: W here other allegations

are made pursuant to section 300, subdivision (b)

— such as the assertions of

extensive domestic violence present here

— th e new provision i s simply

inapplicable . This construction is born e 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 1 0 85); see § 300, subd. (b)(2)( C ).)

Senate Bill 1 0 85 also grouped these two provisions together with a n 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 ma de even clearer that they are all meant to operate in a similar

fashion

. And b oth homelessness and indigence may b e 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 jurisdiction13

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 subd ivision (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 support s 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 o f emergency shelter, which, too, cannot all by

itself be the basis of a Section 300 allegation [citat ion], [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. on14

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 cust ody 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 c hildren 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 becau se 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 failu re 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 away15

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 legislativ e history for Senate Bill 1085 i s 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 f inancial

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 exception s 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

cour t [under subdivision (b)] solely du e to indigence or other conditions of

financial difficulty. ” (Leg is . 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 am ended

June 9 , 202 2 , p p

. 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 shelter16

and provides that simply being homeless, alone, is not a basis for depende ncy

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 w as only one of many

factors placing L.B. at risk of harm pursuant to section 300

, s ubdivisio n (b).

C

. Substantial Evidence Supports the Jurisdiction al 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. m ight 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 v iolence 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., t he

relevant inquiry under section 300, subdivision (b)(1), as stated above, is

wheth er 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 condition s 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.)17

Moreover, “[t] he court may consider past events in deciding whether a child

currently needs the cour t ’ 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 fro m 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 assau lt 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 hur t her.18

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 juvenil e

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 e xercise 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 moth er’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. D ISPOSITION

The ju risdictional findings and dispositional orders are affirme d.19 SWOPE

, J. 

WE CONCUR:

H UMES

, P. J.

M ARGULIES

, J.

A 165001P

 Judge of the San Mateo County Superior Court, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.20

Contra Costa County Superior Court

Hon. Wade M. Rhyne

Counsel:

Seth F. Gorman under appointment by the Court of Appea l for Defendant

and Appellant.

M ary Ann Mcnett

- Mason, County Counsel, Noel Plummer

, Deputy C ounty

Counsel

, for Plaintiff and Respondent.