Filed 11/17/20 In re J.G. CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re J.G. et al., Persons 

Coming Under the Juvenile 

Court Law.

 B301707

 (Los Angeles County

 Super. Ct. Nos. 

 19CCJP04105A & B;

 19CCJP04089A-D)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

MYESHA S.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of 

Los Angeles County, Rashida A. Adams, Judge. We reverse one 
2

of the jurisdiction findings as to J.G. and T.J. (19CCJP04105A

& B). In all other respects the jurisdiction findings and 

disposition orders in both dependency cases are affirmed.

Valerie N. Lankford, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Mary C. Wickham, County Counsel, Kim Nemoy, Acting 

Assistant County Counsel, and Sarah Vesecky, Senior Deputy 

County Counsel, for Plaintiff and Respondent. 

______________________________

Alleging domestic violence and substance abuse, the 

Los Angeles County Department of Children and Family Services 

(Department) in late June 2019 filed a petition pursuant to 

Welfare and Institutions Code section 3001 concerning 

Myesha S.’s two sons, 15-year-old J.G. and 13-year-old T.J., and a 

second petition as to the four children for whom she serves as 

legal guardian, 16-year-old Monique C., 15-year-old twins 

Evette C. and Evon C., and three-year-old Josiah C., Monique’s 

son.2 The juvenile court sustained both petitions, declared the 

children dependents of the juvenile court and removed them from 

Myesha’s custody. Emphasizing her participation in a variety of 

programs prior to the jurisdiction hearings and her decision to 

sever her relationship with her long-time boyfriend Dennis J., the 

man responsible for the domestic violence at issue in the cases, 

1 Statutory references are to this code.

2 The Department’s detention report indicated Nina W., the 

mother of Monique, Evette and Evon, was Myesha’s sister-in-law 

and a close friend. Myesha became the children’s legal guardian 

in June 2018. 
3

Myesha contends on appeal there was insufficient evidence to 

support the court’s finding her past conduct created a substantial 

risk of future physical harm to the children. Alternatively, even 

if dependency jurisdiction was appropriate, she contends the 

court erred in finding by clear and convincing evidence that no 

reasonable means existed to protect the children without 

removing them from her care.3 We reverse one of the jurisdiction 

findings as to J.G. and T.J. but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Children’s Detention

The Department received a report in May 2019 that 

Dennis J. had physically abused Myesha in front of Dennis J.’s 

six-year-old son and the reporting party’s six-year-old son. When 

interviewed by one of the Department’s social workers several 

weeks later, Myesha said she had ended her relationship with 

Dennis J. two months before but nonetheless had gone to his 

home to braid his hair. Dennis J. became enraged when Myesha 

disclosed she was romantically involved with someone else, and 

he hit her several times. Myesha locked herself in the bathroom 

to prevent further injury. Although Myesha initially claimed this 

was the only violent incident she had with Dennis J., she 

3 In her opening brief Myesha also argues the minute order 

from the disposition hearing for Monique, Evette, Evon and 

Josiah inaccurately stated the court ordered her visitation with 

these children to be monitored, rather than unmonitored. We 

have granted the Department’s request to take judicial notice of 

the juvenile court’s June 1, 2020 order correcting its disposition 

order nunc pro tunc to reflect Myesha’s visits are to be 

unmonitored. This issue, therefore, is moot.
4

subsequently acknowledged she had been physically abused by 

Dennis J. “off and on for a few years.”

Thereafter, Myesha submitted to a drug test that was 

positive for methamphetamine and marijuana; the test results 

also indicated Myesha had diluted her sample. Myesha denied 

using methamphetamine but admitted she regularly used 

marijuana, insisting she never smoked in front of the children. 

Additional interviews included a statement from T.J.’s father 

that Myesha had said she smoked “primos” (a combination of 

marijuana and cocaine). On June 21, 2019 Myesha advised the 

Department she had checked into an outpatient program for drug 

and alcohol abuse and claimed she had discovered the 

methamphetamine in her system was due to consuming Jello 

shots at a party.

On June 24, 2019 the juvenile court authorized the 

Department to detain the children from Myesha. J.G. and T.J. 

were released to their respective fathers. The Department could 

not locate Monique, Evette, Evon or Josiah. It was ultimately 

learned that Myesha had fled with them to Las Vegas to avoid 

their detention. Monique then ran away from the relative’s home 

where they were staying in Las Vegas, taking Josiah with her.

The Department filed petitions as to all six children 

pursuant to section 300, subdivisions (a) and (b)(1), alleging the 

domestic violence between Dennis J. and Myesha endangered the

children’s physical health and safety. The petition specifically 

referred to the May 2019 incident, during which Dennis J. had 

hit Myesha, causing a two-inch cut on her face, and additionally 

alleged, “[o]n prior occasions, [Myesha’s] male companion struck 

[Myesha].” The petitions also alleged under section 300, 

subdivision (b)(1), that Myesha was a current user of 
5

amphetamine, methamphetamine and marijuana, which 

rendered her incapable of regular care of the children.

At detention hearings on June 28, 2019 all six children 

were detained from Myesha, and her visits with the children 

were ordered to be monitored. J.G. and T.J. remained released to 

their fathers. Protective custody warrants were issued for the 

four children under Myesha’s legal guardianship, and an arrest 

warrant was issued for Myesha. Evette and Evon were located 

and detained on July 2, 2019. Monique and Josiah remained at 

large. They were ultimately detained on August 19, 2019.

The Department filed first amended petitions in both cases 

on August 20, 2019, adding language to the substance abuse 

count alleging Myesha had “a two year history of illicit drug 

abuse including ecstasy and is a frequent user of amphetamine, 

methamphetamine, marijuana, ecstasy and alcohol,” which 

rendered her incapable of providing regular care for the children.4

2. The Jurisdiction/Disposition Reports

The Department filed jurisdiction/disposition reports in the 

two cases on August 20, 2019 that were substantially identical 

except for the biographical information regarding the children 

and their various paternal and maternal relatives. The reports 

4 On September 3, 2019 the Department filed a second 

amended petition on behalf of J.G. and T.J. adding counts under 

section 300, subdivisions (b)(1) and (g), alleging in identical 

language that J.G.’s father was unwilling to care for him and that 

“[s]uch unwillingness to provide the child with the basic 

necessities of life including, but not limited to, food, clothing and 

shelter, endangers the child’s physical and emotional health and 

safety and places the child at risk of physical and emotional harm 

and damage.” 
6

detailed an August 16, 2019 interview with Myesha conducted by 

one of the Department’s dependency investigators.

Myesha described the incident at Dennis J.’s house that 

triggered the investigation, stating Dennis J. had choked her, 

dragged her and “knocked me out three times.” She had 

previously explained he hit her in the face several times, 

although she could not recall exactly how many. Dennis J.’s 

six-year-old son was present (“peeking in”) during the episode. 

When asked about her history of domestic violence with 

Dennis J., Myesha said that about a month before the May 

incident Dennis J. had hit her while they were together in a car. 

She said the violence had only started recently when she and 

Dennis J. began using drugs. She explained it was Dennis J. who 

had introduced her to ecstasy. Myesha said she had now stopped 

all contact with Dennis J.

Myesha insisted the children had never seen any of the 

violent altercations between Dennis J. and her, but, after initial 

denials, acknowledged they were probably aware of the violence 

and had seen her injuries. Several of the children confirmed 

hearing about the most recent episode of violence and seeing 

Myesha’s injuries.

Asked specifically about drug use, Myesha said she had 

been using ecstasy for two years. She initially used it to stay 

alert at work, approximately two or three times a week, but also 

started using it after work (recreationally). Myesha denied using 

methamphetamine, but then admitted, although she was not a 

“crystal meth head,” there was methamphetamine in the pills she 

took. Myesha regularly smoked marijuana, having started years 

earlier after an injury, but claimed she had recently stopped. She 

also insisted she did not smoke in front of the children. 
7

Generally, she would go outside to her balcony and then, when 

finished, return to the children. Myesha said she did not drink 

much alcohol, perhaps wine once a week.

A treatment plan attached to the jurisdiction/disposition 

report, prepared July 9, 2019 and signed by Myesha and a 

counselor from the House of Uhuru outpatient drug program, 

stated, “Patient [Myesha] reported that she has 35 years history 

of smoking Marijuana and 2 years history of Amphetamines 

abuse.” 

Myesha provided the dependency investigator with copies 

of her certificates of completion of a domestic violence program 

and a parenting program, as well as copies of the sign-in sheet for 

a substance abuse program. 

Dennis J., interviewed by the dependency investigator by 

telephone on August 15, 2019, said he and Myesha had a long 

relationship (13 years) that had just ended, but indicated the two 

of them still continued to see each other. He denied there had 

ever been incidents of domestic violence between them (although 

he conceded he and the mother of his child “had some issues”) 

and specifically claimed Myesha’s allegations concerning the day 

she came to braid his hair were false. 

 Tommie J., T.J.’s father, described Myesha as an alcoholic 

and said she regularly smoked marijuana. T.J.’s paternal aunt

recounted numerous episodes of domestic violence between 

Dennis J. and Myesha and explained, because Myesha’s older son 

J.G. was a known gang member, no one would call the police.

The Department’s assessment was that Myesha had an 

extensive and unresolved substance abuse issue that needed to be 

addressed to create a safe environment for the children. The 

Department acknowledged Myesha’s participation in a substance 
8

abuse treatment program, but noted her enrollment in the 

program was relatively recent and there were only a few drug 

test results after the June 12, 2019 positive test for 

methamphetamine and marijuana. Two tests had been positive 

for marijuana; Myesha had missed a test scheduled for 

August 12, 2019. 

3. The Jurisdiction Hearing for Monique, Evette, Evon and 

Josiah 

At the jurisdiction hearing for Monique, Evette, Evon and 

Josiah on September 4, 2019, after the court admitted into 

evidence the Department’s reports and the documents Myesha 

presented concerning her program participation, Myesha’s 

counsel asked the court to dismiss the petition. Children’s 

counsel asked the court to sustain the domestic violence count 

under section 300, subdivision (b)(1), but not subdivision (a), and 

to sustain the count alleging substance abuse.5

The court sustained both section 300, subdivision (b)(1), 

counts and dismissed the subdivision (a) count, finding the 

Department had not carried its burden of proof as to the latter 

charge, explaining the evidence was that the children were not 

present during the violent altercations but were aware of them. 

The court continued, “This kind of violence, which the children 

indicated occurred when the legal guardian and [Dennis J.] were 

in and out of each other’s homes, is the kind of conduct which 

places the children at substantial risk of serious physical harm.” 

As for the substance abuse count, the court found the evidence, 

including from Myesha’s own statements, established ongoing 

5 Monique, Evette and Evon were jointly represented; Josiah 

had separate counsel. Both lawyers joined in this 

recommendation. 
9

substance use and abuse and, further, that the children were in 

Myesha’s care while she was under the influence.6 The 

disposition hearing was continued to October 17, 2019 and then 

again to November 1, 2019.

4. The Jurisdiction and Disposition Hearings for J.G. and 

T.J.

The court conducted the jurisdiction and disposition 

hearings for J.G. and T.J. on October 17, 2019.7 In addition to 

the material the court had at the jurisdiction hearing the prior 

month for Monique, Evette, Evon and Josiah, the Department 

submitted a last minute information report, dated October 17, 

2019. The Department stated a corrected letter from Myesha’s 

drug treatment program indicated that, as of September 3, 2019, 

she had been in the program for 71 days (not 90 days as 

previously reported). Myesha’s drug tests continued to show 

positive for marijuana during June, July and August, but were 

negative in September and October. (She missed a test on 

September 9, 2019.) Myesha provided the court with a more 

recent letter from her program, dated October 15, 2019, which 

reported she continued to demonstrate positive behavior in the 

program with full participation in all treatment services. Myesha 

6 While finding that Myesha’s conduct endangered all the 

children, the court emphasized Josiah was “of tender years.” 

7 The jurisdiction hearing for J.G. and T.J. had been 

scheduled for September 4, 2019, the same day as the jurisdiction 

hearing for Monique, Evette, Evon and Josiah, but was continued 

after the Department filed a second amended petition to include 

allegations regarding the difficulties between J.G. and his father. 

(See footnote 4, above.)
10

also submitted a letter reporting she was actively participating in 

therapy. 

T.J. and J.G.’s counsel joined Myesha in requesting the 

court dismiss the section 300 petition in its entirety. 

The court sustained the domestic violence counts under 

both section 300, subdivisions (a) and (b)(1),8 and the substance 

abuse count under section 300, subdivision (b)(1).9 The court 

observed that the evidence established “not only a lengthy and 

serious history of ongoing violence perpetrated by the companion, 

Dennis J[.], on the mother but also a long-standing significant 

and severe substance abuse problem suffered by the mother.” 

The court noted, although T.J. and J.G. were teenagers, “the 

extent of the mother being under the influence while the children 

were in her care remains significant in that, as indicated in the 

evidence, it was of such a nature that it prevented her from 

providing adequate care and supervision even of older children.” 

The court commended Myesha’s recent steps to address these 

issues, but emphasized the problems had existed for a long time 

prior to the Department’s intervention. 

Proceeding immediately to disposition, the court declared 

both boys dependents of the court and found by clear and 

8 Neither the parties nor the court addressed any 

inconsistency between the court’s determination on September 4, 

2019 that the Department’s evidence supported the domestic 

violence count under section 300, subdivision (b)(1), but not 

subdivision (a), and its finding, based on the identical evidence,

sustaining both domestic violence counts on October 17, 2019. 

9 The court also sustained the additional count regarding 

J.G.’s father under section 300, subdivision (b)(1), but dismissed 

the subdivision (g) count.
11

convincing evidence there would be substantial danger to their 

physical health or safety if returned to Myesha’s physical custody 

and, as to J.G., to his father’s custody, and further found there 

were no reasonable means to protect them without removal. The 

court identified as the basis for its determination the facts as 

found true in the sustained petition and again stated the 

domestic violence and substance abuse issues were significant,

severe and long-standing. The court ordered J.G. suitably placed 

and released T.J. to his father. The Department was ordered to 

provide reunification services to Myesha, including unmonitored 

daytime visitation; Myesha was given credit for the programs in 

which she had already participated. 

5. The Disposition Hearing for Monique, Evette, Evon and 

Josiah 

Children’s counsel joined Myesha in urging the court to 

allow the children to return home at the November 1, 2019 

disposition hearing.

10 Nonetheless, the court declared all four 

children dependents of the court; removed them from Myesha’s 

custody based on its findings, by clear and convincing evidence,

there would be a substantial danger to their physical health and 

safety if returned home and there were no reasonable means by 

which they could be protected without removal; and ordered the 

Department to provide Myesha with reunification services. As it 

had two weeks earlier at the disposition hearing for J.G. and T.J., 

the court referred to the extreme domestic violence and Myesha’s 

significant substance abuse issues, as found true in the sustained 

petition. The court also expressed concern about the children’s 

flight to avoid detention at the outset of the dependency 

10 Nina W.’s counsel also joined in the request. 
12

proceedings and Myesha’s active role in that episode. The court 

again commended Myesha’s recent efforts to resolve her 

problems, but noted she was still at the initial stages of 

treatment when compared with the length of time the substance 

abuse and domestic violence had been going on. 

Myesha filed timely notices of appeal in both cases. We

consolidated the two appeals at Myesha’s request.

DISCUSSION

1. Governing Law

The purpose of section 300 “is to provide maximum safety 

and protection for children who are currently being physically, 

sexually, or emotionally abused, being neglected, or being 

exploited, and to ensure the safety, protection, and physical and 

emotional well-being of children who are at risk of that harm.” 

(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re 

Giovanni F. (2010) 184 Cal.App.4th 594, 599.) In addition, the 

Legislature has declared, “The provision of a home environment

free from the negative effects of substance abuse is a necessary 

condition for the safety, protection and physical and emotional 

well-being of the child.” (§ 300.2.)

Section 300, subdivision (a), provides that jurisdiction may 

be assumed if the child has suffered, or there is a substantial risk 

the child will suffer, serious physical harm inflicted 

nonaccidentally by the child’s parent or guardian. 

“Nonaccidental” generally means a parent or guardian “acted 

intentionally or willfully.” (In re R.T. (2017) 3 Cal.5th 622, 629.) 

Section 300, subdivision (b)(1), allows a child to be 

adjudged a dependent of the juvenile court when “[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 
13

inability of his or her parent or guardian to adequately supervise 

or protect the child, or the willful or negligent failure of the 

child’s parent or guardian to adequately supervise or protect the 

child . . . .” A jurisdiction finding under section 300, 

subdivision (b)(1), requires the Department to prove 

three elements: (1) the parent’s or guardian’s neglectful conduct 

or failure or inability to protect the child; (2) causation; and

(3) serious physical harm or illness or a substantial risk of 

serious physical harm or illness. (In re L.W. (2019) 

32 Cal.App.5th 840, 848; In re Joaquin C. (2017) 15 Cal.App.5th 

537, 561; see In re R.T., supra, 3 Cal.5th at p. 624

[“section 300(b)(1) authorizes dependency jurisdiction without a 

finding that a parent is at fault or blameworthy for her failure or 

inability to supervise or protect her child”].)

Although section 300 requires proof the child is subject to 

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

(In re D.L. (2018) 22 Cal.App.5th 1142, 1146), the court need not 

wait until a child is seriously abused or injured to assume 

jurisdiction and take steps necessary to protect the child. (In re 

Kadence P. (2015) 241 Cal.App.4th 1376, 1383; In re N.M. (2011) 

197 Cal.App.4th 159, 165.) The court may consider past events in 

deciding whether a child currently needs the court’s protection. 

(In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-1216; 

In re N.M., at p. 165.) A parent’s “‘[p]ast conduct may be 

probative of current conditions’ if there is reason to believe that 

the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th 

453, 461; accord, In Kadence P., at p. 1384.)

Before the court may order a child removed from the 

physical custody of a parent with whom the child was residing at 

the time the dependency proceedings were initiated, it must find 
14

by clear and convincing evidence that the child would be at 

substantial risk of physical or emotional harm if returned home 

and there are no reasonable means by which the child can be 

protected without removal. (§ 361, subd. (c); In re T.V. (2013) 

217 Cal.App.4th 126, 135; see In re Anthony Q. (2016) 

5 Cal.App.5th 336, 347.) “The parent need not be dangerous and 

the minor need not have been actually harmed before removal is 

appropriate. The focus of the statute is on averting harm to the 

child.” (In re T.V., at pp. 135-136.)

2. Standard of Review

“‘In reviewing a challenge to the sufficiency of the evidence 

supporting the jurisdictional findings and disposition, we 

determine if substantial evidence, contradicted or uncontradicted, 

supports them. “In making this determination, we draw all 

reasonable inferences from the evidence to support the findings 

and orders of the dependency court; we review the record in the 

light most favorable to the court’s determinations; and we note 

that issues of fact and credibility are the province of the trial 

court.” [Citation.] “We do not reweigh the evidence or exercise 

independent judgment, but merely determine if there are 

sufficient facts to support the findings of the trial court.”’” 

(In re I.J. (2013) 56 Cal.4th 766, 773.) We review the whole 

record in the light most favorable to the judgment below to 

determine whether it discloses substantial evidence such that a 

reasonable trier of fact could find that the order is appropriate. 

(Ibid.; accord, In re I.C. (2018) 4 Cal.5th 869, 892.) 

In evaluating the propriety of a disposition order removing 

a child from a parent or guardian pursuant to section 361, in 

view of the requirement the juvenile court make the requisite 

findings based on clear and convincing evidence, we “must 
15

determine whether the record, viewed as a whole, contains 

substantial evidence from which a reasonable trier of fact could 

have made the finding of high probability demanded by this 

standard of proof.” (Conservatorship of O.B. (2020) 9 Cal.5th

989, 1005.)

3. Substantial Evidence Supports the Jurisdiction Findings 

Under Section 300, Subdivision (b)(1)

Myesha does not deny her history of substance abuse or the 

episodes of domestic violence with Dennis J. but argues the 

evidence did not establish any of the children was at current risk 

of harm by the time of the jurisdiction hearings in September and 

November 2019. Substantial evidence supports the juvenile 

court’s jurisdiction findings on both grounds under section 300, 

subdivision (b)(1).

a. Domestic violence

Exposure to domestic violence may serve as the basis of a 

jurisdictional finding under section 300, subdivision (b)(1). (In re 

R.C. (2012) 210 Cal.App.4th 930, 941.) “‘Both common sense and 

expert opinion indicate spousal abuse is detrimental to children.’” 

(In re E.B. (2010) 184 Cal.App.4th 568, 576, disapproved on 

another ground in Conservatorship of O.B., supra, 9 Cal.5th at 

p. 1010, fn. 7; see In re Heather A. (1996) 52 Cal.App.4th 183, 194 

[“[D]omestic 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”]; see also In re T.V., supra, 217 Cal.App.4th at p. 135 

[“[e]ven though [the child] had not been physically harmed, the 

cycle of violence between the parents constituted a failure to 

protect her”].)
16

Unlike the facts in the cases upon which Myesha relies 

(see, e.g., In re M.W. (2015) 238 Cal.App.4th 1444, 1454 [single 

incident of domestic violence more than seven years before the 

jurisdiction hearing]; In re Daisy H. (2011) 192 Cal.App.4th 713, 

717 [violence had occurred at least two, and probably seven, 

years before the filing of the dependency petition]), the violence 

here was both recent and recurring. In addition, Myesha’s claim 

to have severed her relationship with Dennis J. by the time of the 

jurisdiction hearings did not negate the continuing risk of harm 

to the children. There was evidence before the court Myesha and 

Dennis J. had a history of breaking up and reconciling; and in 

discussions with the Department Myesha even identified 

Dennis J. as part of her support network. 

Although the children had not witnessed Dennis J. striking 

Myesha, they were well aware the violence was occurring, which 

under the circumstances here was sufficient to support a 

jurisdiction finding. (See In re T.V., supra, 217 Cal.App.4th at 

pp. 134-135 [although child was not present at the time of the 

incident that led to dependency proceedings, her awareness of it 

and the likelihood of continuing domestic violence between her 

parents placed her at risk of harm].) Moreover, the fact the 

precipitating incident in these cases occurred in the presence of 

Dennis J.’s son confirmed the risk that future episodes of violence 

could occur in the direct presence of Myesha’s children.

In sum, substantial evidence supported the court’s finding 

of jurisdiction under section 300, subdivision (b)(1), based on 

domestic violence between Myesha and Dennis J.

b. Substance abuse

Myesha admitted taking ecstasy for more than two years, 

initially to help her stay awake at work; later, recreationally. As 
17

discussed, the outpatient treatment plan developed by one of her 

service providers explained she was being treated for a substance 

abuse disorder, documented amphetamine abuse and reported 

she had been smoking marijuana for 35 years. When interviewed 

for the Department’s jurisdiction/disposition reports, Myesha 

expressed her desire to continue in treatment. 

Others interviewed by the Department, as reflected in the 

jurisdiction/disposition reports, confirmed Myesha’s history of 

drug use and indicated her behavior was impacted by it. 

Dennis J. described having to take the children to school when 

Myesha overslept, which he believed was related to her drug use. 

Several of the children (particularly Evette and Evon) reported 

Myesha “got crazy” or aggressive and verbally abusive when 

intoxicated. This evidence amply supported the juvenile court’s 

findings that Myesha suffered from significant substance abuse 

issues. (See In re Rebecca C. (2014) 228 Cal.App.4th 720, 726 

[court may find parent is current substance abuser even if she 

has not been diagnosed by a medical professional and does not 

fall within one of the specific categories of substance use 

disorders identified in the Diagnostic and Statistical Manual of 

Mental Disorders]; In re Christopher R., supra, 225 Cal.App.4th 

at p. 1218 [same].) Given the evidence establishing the extended 

length and severity of Myesha’s drug problem, the court’s finding 

her recent participation in a treatment program had not 

satisfactorily resolved the problem was also adequately 

supported.

Even if she needed to continue treatment to control her 

substance abuse, Myesha contends, there was insufficient 

evidence her drug use created any specific risk of harm to the 

children. (See In re Rebecca C., supra, 228 Cal.App.4th at 
18

pp. 727-728 [physical harm to a child is not presumed from a 

parent’s substance abuse; it remains for the Department to prove 

causation and harm].) Yet, notwithstanding Myesha’s insistence 

she never used drugs in the presence of the children, the evidence 

established she often occupied the role of caregiver immediately 

after using; and the children described in detail Myesha’s 

aggressive behavior when intoxicated (whether under the 

influence of drugs or alcohol), including one incident in which 

Myesha threw an empty alcohol bottle at Dennis J. and his son as 

they drove away from her house. This conduct was a sufficient 

link between Myesha’s substance abuse and the risk of harm to 

the children to support the jurisdiction finding.11

4. There Is Insufficient Evidence To Support a Finding 

Under Section 300, Subdivision (a) as to J.G. and T.J.

Incidents of domestic violence between a child’s parents 

may support a jurisdiction finding under section 300, 

subdivision (a). (See In re Giovanni F., supra, 184 Cal.App.4th at 

pp. 598-599.) For example, if a father strikes an infant’s mother 

while she is holding the child or an older child intervenes during 

a fight to protect her mother from her father’s abuse, the injury 

or risk of harm to the child may be properly viewed as 

nonaccidental. (See, e.g., In re M.M. (2015) 240 Cal.App.4th 703, 

720.) The somewhat more common potential for accidental injury 

11 Josiah had just turned two years old at the time of the 

jurisdiction hearing. As to him, a child of “tender years,” “‘the 

finding of substance abuse is prima facie evidence of the inability 

of a parent or guardian to provide regular care resulting in a 

substantial risk of harm.’” (In re Christopher R., supra, 

225 Cal.App.4th at p. 1219; accord, In re Kadence P., supra, 

241 Cal.App.4th at p. 1385.)
19

during parents’ physically violent fights in the presence of 

bystander children, however, constitutes a failure or inability to 

protect the child, creating the potential for dependency 

jurisdiction under section 300, subdivision (b)(1) (and possibly 

section 300, subdivision (c), as well), but not subdivision (a).12

Under any domestic violence scenario, however, 

section 300, subdivision (a), applies only when the physical harm

or risk of physical harm at issue has been inflicted “by the child’s 

parent or guardian.” Here, the sustained allegation in the second 

amended complaint relating to L.G. and T.J. was that “mother’s 

male companion” had engaged in violent physical altercations 

with Myesha in which he was the aggressor. That allegation, 

even though proved, is not a proper basis for jurisdiction under 

section 300, subdivision (a). 

5. Substantial Evidence Supports the Removal Orders

Noting all the children other than Josiah are teenagers

capable of protecting themselves, Myesha argues requiring her to 

continue with her treatment programs, ordering in-home services 

and authorizing the Department to make unannounced visits 

would have been a reasonable way to protect the children without 

removing them from her physical custody. Therefore, she 

contends, under section 361, subdivision (c), it was error to order 

12 Although acts of domestic violence are themselves 

nonaccidental (see In re Giovanni F., supra, 184 Cal.App.4th at 

p. 600), section 300, subdivision (a), requires a risk of physical 

injury “inflicted nonaccidentally upon the child.” An unintended 

injury to a bystander child—for example, due to an object thrown 

by one parent at another during an argument—does not satisfy 

that statutory requirement. (But see In re Giovanni F., at 

pp. 600-601 [attacks on mother in child’s presence supported 

jurisdiction under section 300, subdivision (a)].)
20

their removal. Myesha’s suggestion might be sound if her 

substance abuse were the only issue presented to the juvenile 

court. But the children had a far greater need for protection. 

As the juvenile court emphasized, Myesha and Dennis J. 

had an extended history of domestic violence; and the final 

episode precipitating the current dependency proceedings was 

severe. This cycle of violence, combined with their history of 

separating and reconciling, created a significant risk of future 

harm to the children (In re T.V., supra, 217 Cal.App.4th at p. 135

[cycle of violence between parents constitutes a failure to protect 

their child]), a risk exacerbated by Myesha’s refusal to 

acknowledge the seriousness of the problem. (See In re V.L. 

(2020) 54 Cal.App.5th 147, 156 [parent’s denial of domestic 

violence increases the risk of it recurring]; see also In re 

Gabriel K. (2012) 203 Cal.App.4th 188, 197 [“[o]ne cannot correct 

a problem one fails to acknowledge”].) As disclosed in her 

interviews with the Department, Myesha attempted to minimize 

the significance of her violent arguments with Dennis J., 

insisting, contrary to the facts, that the children were unaware of 

them and had never seen her injuries. Indeed, the only regret 

Myesha seemed to express was that she had been unable to 

return the violence, telling the dependency investigator, “I can’t 

fight him. I’m too weak. I wish I did know how to fight. I 

would’ve got him good.” 

Combined with the not fully resolved drug problem 

(Myesha continued to test positive for marijuana use 

notwithstanding her treatment protocol calling for total 

abstinence), which Myesha conceded contributed to the domestic 

violence issues, this record, viewed as a whole, contains 

substantial evidence from which the juvenile court could find by 
21

clear and convincing evidence that there were no reasonable 

means to protect the children without removing them from 

Myesha’s custody. 

DISPOSITION

The jurisdiction finding under section 300, subdivision (a), 

as to J.G. and T.J. (19CCJP04105A-B) is reversed. In all other 

respects the jurisdiction findings and disposition orders in both 

dependency cases are affirmed. 

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.