1

Filed 2/16/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re L.B., A Person Coming Under 

the Juvenile Court Law.

CONTRA COSTA COUNTY

CHILDREN AND FAMILY 

SERVICES BUREAU,

Plaintiff and Respondent,

v.

L.D.,

Defendant and Appellant.

 A165001

 (Contra Costa County

Super. Ct. No. J21-00286) 

 

In this dependency proceeding, L.D. (mother) appeals from 

jurisdictional findings and dispositional orders concluding that her son L.B. 

(born May 2009) was described by Welfare and Institutions Code1 section

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

him in the home of his father, S.B. Mother asserts on appeal that there was 

insufficient evidence to support jurisdictional findings under recent 

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

harm to L.B. was speculative. We affirm.

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 domestic violence between 

mother and her long-term partner, T.Y. The petition additionally alleged 

jurisdiction under subdivision (g) based on mother’s inability to provide 

support for the minor due to her hospitalization for a serious medical 

condition and consumption of high doses of pain medication. 

In March 2021, the Bureau had received a referral alleging general 

neglect of L.B. and his half-siblings—seven-year-old T.Y., Jr. and four-yearold Y.Y. According to the reporting party, mother’s mental state appeared to 

be impaired due to substance use or a mental health condition. The Bureau

located and interviewed mother at John Muir Medical Center on June 8, 

2021. She disclosed that, at the beginning of June, T.Y. put her in a choke 

hold and began choking her and hitting her in the face. The social worker 

observed a broken blood vessel in mother’s left eye and was informed by staff 

that mother had bruising on her leg and a large bruise on her upper left arm.

Mother stated T.Y., Jr. and Y.Y. did not witness the incident but she 

“strongly believe[d]” they heard it. She further explained that her older 

sons—L.B. and his adult brother, C.B.—had previously “seen and heard [her] 

being choked out and abused by [T.Y.]” She sent them to live with their 

father three months before this latest domestic violence incident.

According to mother, she had been together with T.Y. on and off for 

eight years and had moved back to California with him in October 2020, after 

which he had been “treating her mean.” Mother felt that T.Y. wanted to kill 

her. Despite his continuing to beat her, mother repeatedly went back to T.Y. 
3

because she was homeless at one point in her life, and she had no one else to 

help her. When interviewed, Y.Y. was aware that T.Y. “pushed mommy” and 

“hurt her” but stated she was not afraid of either parent. T.Y., Jr. reported 

that he had never seen his parents fight but he hears T.Y. hit his mother. He 

was afraid to go home with T.Y. 

After the June 2021 incident of domestic violence, mother took T.Y., Jr. 

and Y.Y. to a shelter. However, mother has leukemia, she left her pain 

medications in the family home, and she was afraid to retrieve them. 

Eventually, her pain became so severe that she had to be transported by 

ambulance to the hospital. Mother reported she takes Dilaudid, OxyContin, 

and Xanax for pain, and sometimes takes more than the prescribed dosage to 

help her sleep. Because she was in constant pain, it was difficult for her to 

keep the family home clean. Mother disclosed that T.Y. had a gun in the 

home, but she did not want “to press the issues and get him into any trouble.”

She did not plan to go back to the home upon her discharge from the hospital

because she needed “to protect [herself] and [her] children.” T.Y., Jr. and 

Y.Y. were taken into protective custody. A records review showed mother 

had a history of arrests between 1999 and 2018, including four misdemeanor 

convictions in 1999–2000—one for obstructing a police officer and three for 

various assault crimes.

The social worker contacted C.J.—mother’s cousin-in-law and a 

potential placement for the younger children. C.J. reported that mother 

struggled with methamphetamine use. She confirmed mother’s leukemia and 

stated father had a babysitter for the children while he worked. In her 

opinion, T.Y, and mother were “ ‘just not good together.’ ” C.J. was concerned 

that if the younger children were released to T.Y., mother would attempt 

suicide. She had done so several times over the years. T.Y. had admitted to 
4

C.J. that he had been “beating [mother] up.” Mother had told C.J. on various 

occasions that T.Y. had tapped her phone, taken money out of her account, 

and stolen things from her. Given the “toxicity” of mother and T.Y., C.J. had 

instructed 18-year-old C.B. to call father to come get him and L.B. The two 

had been with their father for about three months.

T.Y. told the social worker that, when mother moved to California with 

her children in 2018, he stayed behind in Texas. He described mother as 

paranoid and stated she had struggled with drugs and alcohol over the last 

several years. T.Y. also acknowledged that mother had been suicidal on 

several occasions. Given the “tremendous difficulty” mother was facing, T.Y. 

had traveled to California at least three times to check on the family. Mother 

and T.Y. rekindled their romantic relationship at one point, and mother and 

the children returned to Texas. While there, mother assaulted T.Y. with a 

knife, resulting in a cut on his hand and an open child welfare case in Texas.

T.Y. admitted to engaging in four or five domestic violence incidents with 

mother where he had called the police.

T.Y. was self-employed in construction/tile work. About three months 

before child welfare’s involvement, father quit his other job in order to find an 

appropriate babysitter because mother “was leaving for weeks at a time.” 

During this timeframe, mother was threatening suicide and her substance 

abuse was out of control, so T.Y. sent C.B. and L.B. to live with their father.

According to T.Y., mother had been offered space in a stem cell program to 

treat her leukemia but was hesitant because the process might compromise 

her immune system and she was abusing drugs and alcohol. T.Y. stated he 

was “no longer sure of [mother’s] mental capacity.” He reported he primarily 

cared for the children, explaining that “ ‘although [mother] is a beautiful 

person, she is not a good parent.’ ”
5

Father confirmed that L.B. was in his care. He stated there was a 

formal custody arrangement through family court which allowed him to have 

L.B. for the summer and mother to have custody during the school year. 

However, father had removed L.B. from mother approximately one month 

early because “her household was unmanageable.” In particular, he had 

concerns about the domestic violence he witnessed in mother’s household.

Further, this was not the first time father had removed L.B. from mother’s 

care. In 2018, mother was staying at a “trap house” and had made a suicide 

attempt. Father found L.B. dirty, hungry, and with insufficient clothes. 

Once he was in father’s care with enough food to eat, L.B. outgrew three sets 

of clothing. Father expressed a desire to keep L.B. indefinitely. He had two 

felony drug convictions, one in 1996 and the other in 2000.

Due to mother’s history of domestic violence, possible substance abuse, 

potential unaddressed mental health issues, and questions regarding medical 

management of her serious health condition, the Bureau recommended that 

L.B. be detained from mother and left in the care of father. L.B. was formally 

detained with father at the detention hearing on June 15, 2021. Mother was 

offered supervised visitation with L.B. a minimum of twice per month.

Following a number of continuances, mother’s counsel was relieved and new 

counsel was appointed after an October 2021 Marsden2 hearing. 

In advance of the contested jurisdictional and dispositional hearing, the 

Bureau filed a report disclosing that, while they have been separated since 

2009, mother and father remained married so that mother could maintain 

access to better health insurance. When mother and the children returned 

from Texas, they lived with the maternal grandmother for about a year. 

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

2 People v. Marsden (1970) 2 Cal.3d 118.
6

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

all of the information received, as of the time the social worker prepared the 

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

claiming she had no mental health issues, and denying use of any nonprescribed drugs. She variously reported that her leukemia was both “under 

control” and “end stage.” She declined to participate in a psychosocial 

interview. 

According to school staff, L.B.’s prior school attendance had been poor 

because “ ‘his mother never brought him to school.’ ” Father and his fiancée 

worked with L.B. over the summer and were able to help him catch up. 

Mother had not been in contact with L.B. since he left her home; nor had she 

addressed any of the concerns underlying these proceedings.

Pursuant to a March 2022 supplemental report, mother asserted she 

had started services and had a job interview but declined to sign releases so 

her participation in services could be verified without speaking with her 

attorney. Mother had recently relocated to Sacramento County and was 

reportedly living with friends. Father stated that phone contact between L.B. 

and mother had been going well. Mother declined to provide any details 

regarding her August 2021 arrest and detention to the social worker.

3 

The contested jurisdictional and dispositional hearing was finally held 

on March 7, 2022. After admission of the relevant reports into evidence and 

brief testimony from two social workers, mother took the stand. She testified 

3 According to the related police report, the victim of the assault had a 

brain bleed after being hit with an aluminum bat. The victim reported he 

had been sitting on the couch at a friend’s house with a 40-year-old black 

woman he knew as “L.” He apparently lost consciousness, and, when he 

woke up, he was told by a friend that L. was responsible for his injury. After 

being Mirandized, mother stated she believed the victim was going to hurt 

her. She was arrested for assault with a deadly weapon. 
7

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

would like to be.” However, when she got back on her feet, they could split 

time with L.B. Mother acknowledged that, under the formal custody 

agreement, she had the right to have L.B. in her home at that time and for 

some holidays. She denied telling a social worker that L.B. had previously 

seen domestic violence between her and T.Y. She stated she was on the 

waiting list for a domestic violence program. She did not have a current 

restraining order against T.Y. With respect to the alleged assault for which 

she had recently been arrested, mother initially claimed the account in the 

police report was false, but, when pressed, stated she did not want to discuss 

the matter further.

After argument, the juvenile court turned first to jurisdiction,

sustaining an amended subdivision (b) allegation which provided: “[M]other 

is unable to protect the child from ongoing domestic violence with the father 

of the child’s half-siblings, [T.Y.], in that [] mother has engaged in at least 

five incidents of domestic violence with [T.Y.], at least one of which occurred 

in the child’s presence.”4 In doing so, the court noted that the record 

supported a “history here of serious domestic violence incidents.” It found 

mother’s version of the acts precipitating L.B. and C.B.’s most recent removal

to father’s home not credible. And it concluded that mother presented an 

ongoing risk to L.B. given her domestic violence history; her propensity to 

engage in violent acts, including the baseball-bat incident that she chose not 

to rebut on the stand; and her failure to take any preventative steps to allay 

the court’s concerns “should she elect to reel [L.B.] back and exercise her 

power of physical custody that she currently ha[d] in this case.” The juvenile 

court additionally found T.Y. to be a violent person and concluded mother’s 

4 The remainder of the allegations in the petition were dismissed. 
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 court dependent and removing him from mother’s physical custody.

The court granted sole physical custody of L.B. to father, joint legal custody 

to both parents, and supervised visitation for mother. Thereafter, finding 

that L.B. was no longer a person described by section 300, the court vacated 

the dependency and dismissed the petition, with a custody order pursuant to 

section 361.2 to be filed in family court. 

This timely appeal followed.

II. DISCUSSION

A. Legal Framework

Dependency jurisdiction may be asserted under subdivision (b) of

section 300 if “[t]he child has suffered, or there is a substantial risk that the

child will suffer, serious physical harm or illness, as a result of . . . [¶] “the

failure or inability of the child’s parent . . . to adequately supervise or protect

the child” or the “willful or negligent failure” of the parent to protect the

child from the conduct of a custodian with whom the child has been left.

(§ 300, subd. (b)(1)(A) & (B).) “The court need not wait until a child is

seriously abused or injured to assume jurisdiction and take the steps

necessary to protect the child.” (In re R.V. (2012) 208 Cal.App.4th 837, 843;

see In re T.V. (2013) 217 Cal.App.4th 126, 133 (T.V.) [“[t]he focus of section

300 is on averting harm to the child”].) It is well settled that physical

violence between a child’s parents may support the exercise of jurisdiction

under subdivision (b)(1) of section 300 where there is evidence that the

domestic violence has placed the child at risk of physical harm and the
9

violence is ongoing or likely to recur. (In re M.W. (2015) 238 Cal.App.4th

1444, 1453–1454; In re R.C. (2012) 210 Cal.App.4th 930, 941–942; In re Daisy

H. (2011) 192 Cal.App.4th 713, 717, disapproved on another ground in In re

D.P. (2023) 14 Cal.5th 266, 278; In re Heather A. (1996) 52 Cal.App.4th 183,

194 [“It is clear to this court that domestic violence in the same household

where children are living is neglect; it is a failure to protect [the children]

from the substantial risk of encountering the violence and suffering serious

physical harm or illness from it. Such neglect causes the risk.”], disapproved

on another ground in In re R.T. (2017) 3 Cal.5th 622, 628–629 (R.T.).) 

The relevant inquiry under section 300, subdivision (b)(1), is whether

circumstances at the time of the jurisdictional hearing “ ‘subject the minor to

the defined risk of harm.’ ” (T.V., supra, 217 Cal.App.4th at p. 133.) “The

court may consider past events in deciding whether a child currently needs

the court’s protection.” (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383

(Kadence P.); see T.V., at p. 133.) Indeed, in a domestic violence situation,

past violence is highly probative of the risk that violence may recur. (See In

re E.B. (2010) 184 Cal.App.4th 568, 576 (E.B.) [“ ‘Past violent behavior in a

relationship is “the best predictor of future violence.” Studies demonstrate

that once violence occurs in a relationship, the use of force will reoccur in 63%

of these relationships.’ ”], disapproved on another ground in Conservatorship

of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7; In re John M. (2013) 217

Cal.App.4th 410, 419 [concluding even a single incident of domestic violence

may be sufficient to support a jurisdictional finding under section 300,

subdivision (b)], disapproved on another ground in R.T., supra, 3 Cal.5th at

pp. 628–629.) To establish a defined risk of harm at the time of the hearing,

there “must be some reason beyond mere speculation to believe the alleged

conduct will recur.” (In re D.L. (2018) 22 Cal.App.5th 1142, 1146 (D.L.).)
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 Isabella F. (2014) 226 Cal.App.4th 128, 137–

138.) “The parent has the burden on appeal of showing there is insufficient

evidence to support the juvenile court’s order.” (Id. at p. 138.)

However, to the extent statutory interpretation is involved, our review

is de novo. (People v. Tirado (2022) 12 Cal.5th 688, 694.) As we recently

reiterated: “ ‘ “The fundamental rule of statutory construction is that a court

should ascertain the intent of the Legislature so as to effectuate the purpose

of the law.’ ” [Citations.] ‘Because the statutory language is generally the

most reliable indicator of legislative intent, we first examine the words

themselves, giving them their usual and ordinary meaning and construing

them in context.’ [Citation.] ‘The statute’s plain meaning controls the court’s

interpretation unless its words are ambiguous.’ [Citation.]” (Pacific Fertility

Cases (2022) 78 Cal.App.5th 568, 575–576 (Pacific Fertility), review granted 

Aug. 17, 2022, S275134.)

“When ‘ “the language permits more than one reasonable

interpretation, . . . the court looks ‘to a variety of extrinsic aids, including the

ostensible objects to be achieved, the evils to be remedied, the legislative

history, public policy, contemporaneous administrative construction, and the

statutory scheme of which the statute is a part.’ ” ’ [Citation.]” (Pacific

Fertility, supra, 78 Cal.App.5th at p. 576.) Fundamentally, however,
11

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

construction consistent with the apparent purpose and intention of the

lawmakers—a construction that is practical rather than technical[] and will

lead to wise policy rather than mischief or absurdity.” ’ [Citation.]” (Ibid.)

B. Impact of Revisions to Subdivision (b) 

Effective January 1, 2022, subdivision (b)(1) of section 300 was 

amended to include the following language: “A child shall not be found to be 

a person described by this subdivision solely due to the failure of the child’s 

parent or alleged parent to seek court orders for custody of the child. (Stats. 

2021, ch. 98, § 1 (Assem. Bill 841); former § 300, subd. (b)(1); see also § 300, 

subd. (b)(2)(B).) Mother initially argues that, under this new provision,

jurisdiction was improper here because it was only necessary due to the 

failure of the parents to seek formal custody orders to protect L.B. Mother 

misapprehends both the statutory language and the related legislative 

history.5

Looking first to the plain language of the statute, we note that the 

provision only applies when the child is described by section 300, subdivision 

(b) solely due to the failure of a parent to seek custody orders. (§ 300, subd. 

(b)(2)(B).) Arguably, whenever custody orders would ameliorate risk, it could

be claimed that dependency jurisdiction was based solely on the failure to 

5 Mother’s unopposed request for judicial notice of the legislative 

history of Assembly Bill 841, filed on July 6, 2022, is granted. (See People v. 

Synder (2000) 22 Cal.4th 304, 315, fn.5; Kaufman & Broad Communities, Inc. 

v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-37; see also 

Evid. Code, §§ 452, subd. (c), 459, subd. (a).) On our own motion, we also take

judicial notice of the legislative history of Senate Bill No. 1085 (2021-2022

Reg. Sess.) (Sen. Bill 1085). (Evid. Code, § 452, subd. (c); Kern v. County of

Imperial (1990) 226 Cal.App.3d 391, 400, fn.8 [appellate court may take

judicial notice of legislative history materials on own motion].)
12

obtain such orders. However, we believe this reading of the statutory 

language sweeps too broadly, encompassing numerous cases (such as this 

one) where dependency jurisdiction is necessary to protect a child. Instead, it 

would appear that the provision means what it says: Where other allegations 

are made pursuant to section 300, subdivision (b)—such as the assertions of 

extensive domestic violence present here—the new provision is simply 

inapplicable. This construction is borne out when section 300, subdivision (b) 

is read as a whole.

After the custody-order provision at issue was added effective January 

1, 2022, subdivision (b) was again amended by the Legislature, this time to

add a similar provision related to indigency, effective January 1, 2023. 

(Stats. 2022, ch. 832, § 1 (Senate Bill 1085); see § 300, subd. (b)(2)(C).) 

Senate Bill 1085 also grouped these two provisions together with an existing,

third provision involving homelessness. Thus, in its current form, section 

300, subd. (b)(2) provides: “A child shall not be found to be a person 

described by this subdivision solely due to any of the following: [¶] (A) 

Homelessness or the lack of an emergency shelter for the family. [¶] (B) The

failure of the child’s parent or alleged parent to seek court orders for custody

of the child. [¶] (C) Indigence or other conditions of financial difficulty,

including, but not limited to, poverty, the inability to provide or obtain

clothing, home or property repair, or childcare.” 

By grouping these three exclusions from jurisdiction together, the 

Legislature made even clearer that they are all meant to operate in a similar

fashion. And both homelessness and indigence may be a factor considered 

under section 300, subdivision (b), so long as neither is the only factor. For 

example, substance abuse or mental health issues that lead to homelessness

or indigence, putting children at risk, could potentially support jurisdiction 
13

under subdivision (b) of section 300. Analogously, a failure to obtain custody 

orders to protect a child from one parent whose behaviors place that child at 

risk is one factor that may be considered by the juvenile court in finding 

jurisdiction under subdivision (b), but it may not be the only factor and, by 

itself, would likely be insufficient to support removal of the child from the 

other parent. 

Contrary to mother’s assertions, the legislative history for both 

Assembly Bill 841 and Senate Bill 1085 supports this interpretation. The 

Assembly Committee on Human Services quoted the author of Assembly Bill 

841 as follows: “ ‘A parent is not unfit solely because they are not litigious, 

lacking the money or sophistication or time to seek legal redress of family 

issues in court actions. Likewise, a parent is not unfit solely because they try 

to work out issues with another parent informally and collaboratively, 

without seeking formal court orders. Even so, in rare but not uncommon 

cases, child welfare agencies will allege that a parent has failed to protect a 

child under WIC 300 solely on the single ground that the parent did not 

initiate child-protecting litigation against another parent. Such allegations 

penalize and seek to rupture families based on either their poverty, lack of 

legal sophistication, or efforts informally to resolve family issues. Inspired by 

current law’s treatment of lack of emergency shelter, which, too, cannot all by 

itself be the basis of a Section 300 allegation [citation], [this bill] narrowly

addresses this problem simply by saying that an alleged failure to seek 

protection for a child by initiating litigation, while permitted as one of the 

factors in weighing whether a parent has adequately protected a child, cannot 

all by itself serve as the basis of a WIC section 300 allegation.’ ” (Assem. Com. 

on Human Services, Analysis of Assem. Bill No. 841 (2021-2022 Reg. Sess.) as 

amended Mar. 23, 2021, p. 3, italics added; see also Assem. Com. on 
14

Judiciary, Analysis of Assem. Bill No. 841 (2021-2022 Reg. Sess.) as amended 

Mar. 23, 2021, p. 4 (Judiciary Analysis) [“Simply being poor and homeless, in 

and of itself, does not allow a juvenile court to take dependency jurisdiction 

over the child. However, if there are additional reasons, being homeless 

could be part of the reason that a child is made a dependent of the juvenile 

court.”].)

The illustrative case presented to the Legislature underscores this 

point. In that case, the father failed to seek appropriate custody orders to 

obtain custody of the children and prevent mother from taking them out of 

state where they were exposed to unsafe circumstances, “ ‘even though [the 

father] knew or reasonably should have known that the mother was using 

illicit drugs and had mental health issues.’ ” (Judiciary Analysis, supra, p. 4.) 

Of importance in that scenario, “the allegation [was] not that the father knew 

that the mother was headed to another state. Nor [was] it alleged that the 

father knew what was in store for his children in the other state was 

dangerous. Nor [was] it alleged the father actually and subjectively knew of 

the mother’s drug use. [Nevertheless], the county successfully pressed the 

allegation that the father was legally abusive or neglectful only because he 

did not initiate litigation against the mother on her drug use—even though 

he may not actually have known of the drug use.” (Ibid.) 

Thus, as the Judiciary Committee summarized: “A child can be 

brought into the juvenile court for a parent’s failure to protect the child from 

harm, including harm caused by the other parent. However, failure to bring 

an action in family court to establish custody of a child should not, by itself, 

be enough to bring a child into the child welfare system or have the child 

removed from the parent. In the example above, the child may very likely 

still be brought within the jurisdiction of the juvenile court and taken away 
15

from the mother, but the father should not need to do anything more to gain 

(or regain) custody of the child. If, however, the father knew that the child 

was in danger by being with the mother and took no action to protect the 

child—which could include seeking a custody order for the child—the juvenile 

court could find that the father posed a risk of harm to the child.” (Judiciary 

Analysis, supra, p. 4.)

Finally, the legislative history for Senate Bill 1085 is in accord. As 

stated above, that legislation amended subdivision (b) of section 300 to 

provide that a child may not be found to be a person described by that 

subdivision solely due to “[i]ndigence or other conditions of financial

difficulty, including, but not limited to, poverty, the inability to provide or

obtain clothing, home or property repair, or childcare.” (§ 300, subd.

(b)(2)(C).) Senate Bill 1085 makes clear that the three exceptions to

jurisdiction under subdivision (b) are meant to be similarly construed: 

“Existing law prohibits a child from being found to be within the jurisdiction 

of the juvenile court [under subdivision (b)] solely due to the lack of an 

emergency shelter for the family or the failure of the child’s parent or alleged 

parent to seek court orders for custody of the child. [¶] This bill would also 

prohibit a child from being found to be within the jurisdiction of the juvenile 

court [under subdivision (b)] solely due to indigence or other conditions of 

financial difficulty.” (Legis. Counsel’s Dig., Sen. Bill No. 1085 (2021-2022 

Reg. Sess.) Stats. 2022, Summary Dig., p. 94; see also Assem. Com. on 

Judiciary, Analysis of Sen. Bill No. 1085 (2021-2022 Reg. Sess.) as amended 

June 9, 2022, pp. 5–6 [“The author, sponsor, and supporters . . . believe it is 

important to clarify that conditions of poverty alone do not give a dependency 

court jurisdiction over a child. This bill builds on the existing exception to 

juvenile court jurisdiction solely because a family lacks emergency shelter 
16

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

court jurisdiction of a child.”].)6

In sum, subdivision (b)(2)(B) of section 300 has no relevance to this 

case, where the lack of appropriate custody orders was only one of many 

factors placing L.B. at risk of harm pursuant to section 300, subdivision (b). 

C. Substantial Evidence Supports the Jurisdictional Findings 

Mother argues in the alternative that, even if section 300, subdivision 

(b)(2)(B) is inapplicable on these facts, there is still a lack of substantial 

evidence that L.B. would be at substantial risk of serious harm absent 

jurisdiction under subdivision (b) of section 300. Specifically, she asserts that 

it was “impermissibly speculative” to base jurisdiction on “the possibility that 

L.B. might be injured from domestic violence if mother again became a victim 

of domestic violence or engaged in domestic violence, and father released L.B. 

to mother . . . [or] mother sought custody from father when she was in a 

domestic violence relationship.” We disagree.

While father and/or mother may have acted to protect L.B. from the 

June 2021 incident of domestic violence between mother and T.Y., the

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

whether circumstances at the time of the jurisdictional hearing “ ‘subject the

minor to the defined risk of harm.’ ” (T.V., supra, 217 Cal.App.4th at p. 133.) 

6 Senate Bill 1085 also added subdivision (b) to section 300.2 to codify 

the following legislative intent: “It is the intent of the Legislature that 

families should not be subject to the jurisdiction of the juvenile court nor 

should children be separated from their parents based on conditions of 

financial difficulty . . . . Consistent with existing law, no family should be 

subject to the jurisdiction of the juvenile court nor should children be 

separated from their parents based on conditions of financial difficulty unless 

there is willful or negligent action or failure to act and a nexus to harm such 

that the child has suffered or there is a substantial risk the child will suffer 

serious physical harm or illness.” (Italics added.)
17

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

currently needs the court’s protection” (Kadence P., supra, 241 Cal.App.4th at

p. 1383), but there “must be some reason beyond mere speculation to believe

the alleged conduct will recur” (D.L., supra, 22 Cal.App.5th at p. 1146; see

also In re J.N. (2021) 62 Cal.App.5th 767, 775 [child welfare “must establish 

a nexus between the parent’s past conduct and the current risk of harm”]). In 

the domestic violence context, past violence is highly probative of the risk

that violence may recur. (See E.B., supra, 184 Cal.App.4th at p. 576.)

Here, we have no difficulty concluding that L.B. was subject to a

defined risk of harm at the time of the jurisdictional hearing. There was a

significant history of past domestic violence in this case pursuant to

statements from mother, T.Y., the maternal grandmother, and C.J. Indeed,

father stated he viewed domestic violence in mother’s household when he

decided to remove L.B. before the June 2021 incident. Further, there was a

gun in T.Y.’s home, and mother stated she always went back to him because

she had been homeless before and she had no one else to help her. In

addition, there was also significant evidence of mother’s own assaultive

behavior—in her criminal history, assault of T.Y. in Texas, and recent arrest

for assault with a deadly weapon.7 Thus, the risk to L.B. did not necessarily

depend on mother reuniting with T.Y. Finally, mother subsequently denied

any domestic violence, failed to maintain the temporary restraining order

7 Mother argues that the juvenile court erred by relying on her refusal 

to testify regarding her recent assault arrest in finding jurisdiction, citing 

self-incrimination concerns. However, even were we to assume that the 

juvenile court erred by commenting on mother’s failure to explain the 

incident (but see § 355.1, subd. (f)), the police report provides substantial 

evidence that the assault actually occurred, including mother’s own 

admission that she believed the victim was going to hurt her.
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 juvenile 

court properly considered, as one factor, the fact that the current custody 

orders permitted mother to remove L.B. from father’s custody during the 

school year and for certain holidays. Thus, the risk to L.B. remained 

regardless of mother’s failure to exercise her custody rights while these 

proceedings were pending. Indeed, we note in this regard that father had 

previously removed L.B. from mother in 2018 due to significant neglect and 

nevertheless allowed him later to spend the bulk of his time in mother’s care. 

Under such circumstances, the juvenile court acted appropriately by taking 

jurisdiction based on the defined risk of harm to L.B. and then dismissing 

dependency after changing the relevant custody orders to ameliorate that 

risk of harm.

III. DISPOSITION

The jurisdictional findings and dispositional orders are affirmed.
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SWOPE, J.

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A165001P



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

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

Contra Costa County Superior Court

Hon. Wade M. Rhyne

Counsel: 

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

and Appellant.

Mary Ann Mcnett-Mason, County Counsel, Noel Plummer, Deputy County 

Counsel, for Plaintiff and Respondent.