1 

Filed 11/12/14 In re L.M. CA3 

NOT TO BE PUBLISHED 

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COPY 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(San Joaquin) 

---- 

In re L.M., a Person Coming Under the Juvenile Court 

Law. 

C072731 

SAN JOAQUIN COUNTY HUMAN SERVICES 

AGENCY, 

 Plaintiff and Respondent, 

 v. 

L.M., 

 Appellant. 

(Super. Ct. No. J05988) 

 Minor L.M. appeals from the juvenile court’s orders denying M.W. presumed 

parent status and rescinding her status as a de facto parent. We requested and received 

supplemental briefing from the parties on the adequacy of the Welfare and Institutions 

Code, section 300 (unless otherwise stated, statutory references that follow are to the 

Welfare and Institutions Code) petition to support jurisdiction and the appropriate remedy 
2 

should this court find error. We conclude that the juvenile court erred in denying M.W.’s 

petition for presumed parent status. We further conclude that the allegations in the 

section 300 petition did not support jurisdiction. Accordingly, we reverse the findings 

and orders of the juvenile court which removed the minor from M.W.’s custody and took 

jurisdiction over L.M. 

FACTS AND PROCEEDINGS

 Minor L.M.’s biological mother, D.M., has an extensive history of mental health 

and substance abuse issues. She has repeatedly failed in treatment programs, has been in 

and out of prison for years, and when not incarcerated, is transient. D.M. has a history 

with the San Joaquin County Human Services Agency (the Agency). Specifically, D.M. 

had four children prior to giving birth to L.M. Her twin sons were declared dependent 

children in 2002. D.M. failed to reunify with them and they were adopted in 2003. 

D.M.’s daughter was removed from her custody in 2004. D.M. was not provided 

reunification services and the child was placed with her father. D.M.’s fourth child was 

declared a dependent child in 2005 and D.M.’s parental rights were terminated in 2006. 

 D.M. gave birth to L.M. in September 2006. When she gave birth, she was 

incarcerated in Chowchilla State Prison and the father’s identity and whereabouts were 

unknown. While being held in county jail in 2005, she met and befriended M.W., who 

was also incarcerated at the time. D.M. asked M.W. to take and raise L.M., in order to 

avoid Agency involvement. 

 While in labor with L.M., D.M. provided the hospital with M.W.’s name, advised 

staff that M.W. was to be the child’s temporary guardian, and listed M.W. as a cousin on 

the temporary guardianship papers she provided the hospital. When the minor was born, 

D.M. gave the newborn to M.W. with the verbal agreement that M.W. would raise him. 

 In 2007, M.W. attempted to obtain legal guardianship over the minor. Her petition 

was denied because she was still on probation following her release from custody. The 
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matter was referred to the Agency on June 26, 2007, for review for a possible section 300 

petition. The investigating social worker determined that at birth D.M. had left the minor 

with provisions by making arrangements for M.W., a family friend, to care for the minor 

during her incarceration. The social worker determined that, although M.W. had been 

denied a guardianship, the minor was able to remain in M.W.’s home based on the 

agreement between D.M. and M.W. 

 D.M. had been released from prison in June 2007, as well. She resumed using 

drugs and did not make any attempt to reunify with the minor. She did see the minor 

once in 2007, shortly after her release from custody when M.W., on her own initiative, 

brought the minor to the place where D.M. was staying. On that occasion, D.M. said she 

again asked M.W. to keep the minor until she was “situated.” D.M. later admitted that 

the agreement was that M.W. was to have permanent full custody and raise L.M. as 

L.M.’s mother. The understanding was that D.M. would relinquish her rights to the 

minor but remain “in his life” to the extent that she would be permitted to visit “and 

stuff.” D.M. signed a paper stating that M.W. was to care for the minor as she was not 

able to care for him. Thereafter, D.M. was reimprisoned and released multiple times but 

had no contact with M.W. or the minor for three years. 

 In the meantime, M.W. was raising L.M. M.W. paid for all the minor’s expenses. 

She enrolled him in school and took him to medical appointments, representing herself as 

his mother. If she was questioned because her name was not on his birth certificate, she 

would explain that D.M. was the minor’s biological mother but that she was raising him. 

She had been provided the minor’s birth certificate and immunization records by hospital 

staff after the minor’s birth. 

 The minor had a speech impediment and problems following directions, so he was 

seeing a speech therapist and participating in an individualized education plan (IEP) at 

school. 
4 

 On school records, M.W. is listed as the minor’s mother. All of the minor’s 

teachers, as well as the parents of L.M.’s friends, understood M.W. to be the minor’s 

mother. M.W. did, however, explain that D.M. was the minor’s biological mother but 

that she was raising him when she enrolled him in the IEP at school because it was 

important they know such things. M.W. took the minor to church every Sunday and 

everyone at the church knew L.M. as M.W.’s son. L.M. has been involved in all M.W.’s 

family activities since his birth and, even though M.W.’s immediate family knew she was 

not his biological mother, they treated him as a family member. The minor, himself, 

refers to M.W. as his mother and had no knowledge she was not his biological mother. 

 M.W. had attempted to obtain Aid to Families with Dependent Children (AFDC) 

funds early on, but was denied because she was not related to the minor. She applied 

again in 2010, falsely claiming to be the minor’s cousin, and received aid for L.M.’s 

childcare, cash aid, and food stamps. 

 Unlike the previous times she was released from incarceration, D.M. decided to 

try to see the minor after her release in 2010, but she did not have M.W.’s contact 

information. Upon the advice of a pastor, she filed a missing person report. In response, 

both M.W. and M.W.’s probation officer called D.M. at His Way Fellowship (a 

rehabilitation program), where D.M. was staying. M.W. arranged to bring the minor to 

D.M. for a visit. They initially planned for a visit on the first weekend, but M.W. had 

previously committed to take the minor on a camping trip. When M.W. tried to call D.M. 

after the camping trip, D.M. had already left His Way Fellowship--providing no 

forwarding contact information. D.M. resumed using drugs and was reincarcerated. 

 According to D.M., the next time she saw M.W. was after her release from 

incarceration several months later. D.M. said she saw M.W. in an area known for drug 

sales. D.M. said M.W. asked her to purchase drugs for her. D.M. saw the minor was not 

in the car and asked where he was. M.W. said she did not often do drugs and was still 
5 

caring for the minor. D.M. said she purchased the drugs for M.W. D.M. was thereafter 

reincarcerated. 

 D.M. was released again from incarceration in February 2012. She reentered 

rehabilitation, discovered she was pregnant again, and decided she wanted to be involved 

in L.M.’s life. Accordingly, she contacted police. The detective knew where M.W. and 

the minor were, but contacted the Agency because of D.M.’s history with child protective 

services. 

 On May 4, 2012, a social worker and a law enforcement officer went to M.W.’s 

house and spoke with her. M.W. had been unaware that the missing person report had 

remained pending. Her home was clean but she had no food, as she was planning to 

grocery shop that day. 

 The Agency filed a section 300 petition on behalf of L.M. on May 8, 2012. The 

petition alleged the minor fell within the provisions of subdivisions (b) (failure to 

protect), (g) (no provision for support), and (j) (abuse of sibling). The specific 

allegations of the petition will be discussed post. In general, it was based upon D.M.’s 

failure to reunify with her older children, the whereabouts of L.M.’s father being 

unknown, the allegations that D.M. had mental health and drug abuse issues, and the fact 

that D.M. had not cared for the minor since his birth nor was she able to adequately do 

so. 

 M.W. applied for and was granted de facto parent status. D.M. did not contest the 

petition and the juvenile court found the allegations admitted and, therefore, true. The 

minor was subsequently placed on an extended “visit” in M.W.’s home. 

 On August 8, 2012, M.W. filed a petition for presumed parent status pursuant to 

the Uniform Parentage Act. The petition sought presumed parent status under Family 

Code section 7611, subdivision (d), which provides for presumed parent status when the 

individual receives the child into his/her home and openly holds the child out as his or her 

own. 
6 

 After hearing the testimony of M.W. and D.M., the juvenile court denied M.W.’s 

petition for presumed parent status and terminated her de facto parent status. In so ruling, 

the juvenile court found that M.W.’s application for guardianship was inconsistent with 

holding the minor out as her own because, in making the application, she admitted she 

was not the minor’s parent. Additionally, the juvenile court found that it could not 

“condone” the “fraud against the government to obtain funds,” in reference to M.W.’s 

AFDC application, or the “fraud” M.W. committed in knowing D.M. was going around 

child protective services by having M.W. raise the minor. The juvenile court stated that 

the denial of M.W.’s petition for presumed parent status and the termination of her de 

facto parent status was “all based on the fraud.” 

 The minor appeals. We deemed the predispositional order appealable. The 

juvenile court subsequently set a section 366.26 hearing, which we stayed pending 

resolution of this appeal. 

DISCUSSION

I 

Presumed Parentage 

 “Designation as a presumed parent is critical in dependency proceedings because 

it entitles the presumed parent to appointed counsel, custody absent a finding of detriment 

and a reunification plan (§§ 317, subd. (a); 361.2, subd. (a); 361.5, subd. (a)).” (In re 

Salvador M. (2003) 111 Cal.App.4th 1353, 1357 (Salvador M.).) A person may be 

presumed to be the natural parent of a child if he or she receives the child into his or her 

home and openly holds the child out as his or her natural child. (Fam. Code, § 7611, 

subd. (d) [presumed father]; In re Karen C. (2002) 101 Cal.App.4th 932, 938 [presumed 

mother].) Once the presumption of parentage arises, it may be rebutted in an appropriate 

action only by clear and convincing evidence. (Fam. Code, § 7612.) 
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 Presumptive parent-child relationships, regardless of their lack of foundation in 

biology, are protected because society has an interest in preserving and protecting the 

developed parent-child relationships that give children social and emotional strength and 

stability. (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1116.) The 

presumptions are driven by the state’s interest in the welfare of the child and the integrity 

of the family. (In re Nicholas H. (2002) 28 Cal.4th 56, 65 (Nicholas H.).) The familial 

relationship resulting from years of living together in a purported parent/child 

relationship “should not be lightly dissolved.” (Ibid.) 

 “We review a lower court’s determination of presumed [parentage] status for 

substantial evidence.” (Salvador M., supra, 111 Cal.App.4th at p. 1358.) However, to 

the extent we are called upon to review the juvenile court’s legal interpretation of the 

“receiv[ing]” and “hold[ing] out” requirements set forth in Family Code section 7611, 

subdivision (d), we shall exercise our independent legal judgment. (See Ghirardo v. 

Antonioli (1994) 8 Cal.4th 791, 799; accord S.Y. v. S.B. (2011) 201 Cal.App.4th 1023, 

1031 (S.Y.).) 

 Here, it is uncontroverted that M.W. received the minor into her home. She 

brought him to her home from the hospital as a newborn, where he lived and she was his 

sole caretaker until these proceedings were instituted. (See In re Kiana A. (2001) 

93 Cal.App.4th 1109, 1116-1117.) Thus, M.W. satisfied the first element required to 

establish presumed parent status under Family Code section 7611, subdivision (d). 

 M.W. also had to prove by a preponderance of the evidence that she held the 

minor out to be her natural child. (Fam. Code, § 7611, subd. (d).) Factors often 

considered in making this determination include the individual’s contribution to prenatal 

care, pregnancy and birth expenses; whether the person seeking presumed parent status 

promptly took legal action to obtain custody of the child or sought to have his/her name 

placed on the birth certificate; whether and how long he or she cared for the child; 

whether there is unequivocal evidence that he or she had acknowledged the child; the 
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number of people to whom he or she had acknowledged the child; whether he or she 

provided for the child after it no longer resided with him or her; whether, if the child 

needed public benefits, he or she had pursued completion of the requisite paperwork; and 

whether his or her care was merely incidental. (In re T.R. (2005) 132 Cal.App.4th 1202, 

1211.) The existence of these factors, however, are not necessary or inclusive. (E.C. v. 

J.V. (2012) 202 Cal.App.4th 1076, 1086-1087.) The essence of the inquiry is whether, 

through her conduct, M.W. demonstrated a commitment to the minor and his well-being, 

thereby distinguishing herself as someone who has entered into a familial relationship 

with the minor from someone who has not. (Ibid.) 

 Here, the evidence established that M.W. agreed to raise the minor even prior to 

his birth, was his sole caretaker, and provided for all his needs, including the arrangement 

of his special educational assistance. She openly and publicly asserted her parentage in 

various forums and to numerous people. She enrolled the minor in school and took him 

to medical appointments, representing herself as his mother. The minor’s teachers and 

the parents of the minor’s classmates all knew M.W. as the minor’s mother, as did the 

members of M.W.’s church. In fact, demonstrating the extent to which M.W. held the 

minor out as her own, the six-year-old minor did not know M.W. was not his biological 

mother until these proceedings were instituted. 

Salvador M., supra, 111 Cal.App.4th 1353, involved a three-year-old child who, 

after his biological mother was killed in a car accident, was raised by his adult half sister. 

The half sister had been raising the child, along with her biological child, for five years 

when the child entered the dependency system. The court concluded that the half sister 

had openly held the child out as her own, despite admitting to various officials that she 

was the child’s half sister. The court noted that “the most compelling evidence” that she 

held the child out as her own was that the eight-year-old child “believed appellant was his 

mother” which supported the conclusion that she held the child “out to the community as 
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her son.” (Id. at p. 1358.) Here, as demonstrated in Salvador M., the evidence is 

unequivocal that M.W. held L.M. out as her natural son. 

 The juvenile court found that M.W.’s application for guardianship was 

inconsistent with holding the minor out as her own because, in making the application, 

she admitted she was not the minor’s parent. We disagree with that conclusion. The fact 

that M.W. admitted she is not the minor’s biological mother does not necessarily mean 

that she did not hold him out as her natural child under Family Code section 7611. 

(Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 120; Nicholas H., supra, 28 Cal.4th at 

p. 65; Salvador M., supra, 111 Cal.App.4th at p. 1358.) Along similar lines, we 

explained in E.C. v J.V., supra, 202 Cal.App.4th at p. 1090, that the failure to claim a 

minor on one’s income tax returns may be appropriate evidence to consider in evaluating 

an alleged parent’s commitment to a child, but if the alleged parent is precluded by law 

from claiming the child on her tax returns, the failure to do so does not carry much 

weight. 

 Likewise, M.W.’s recognition of the limitations of her legal status, or the benefits 

of formalizing her legal rights in order to care for the minor, is more a demonstration of 

her assertion of legal responsibility and commitment to the minor than a repudiation of 

her status as his parent. (See, e.g., S.Y., supra, 201 Cal.App.4th 1023 [former partner of 

mother who initially sought but abandoned being named child’s guardian still found to be 

child’s presumed parent].) For this same reason, M.W.’s admission of her nonbiological 

relationship to the minor to IEP/school officials in arranging for the minor’s special 

education was not inconsistent with holding the minor out as her own. 

 As in Salvador M., this is not “an appropriate action” in which to rebut the 

presumption of presumed parentage with proof that M.W. is not the minor’s biological 

parent. (See, In re Nicholas H, supra, 28 Cal.4th at p. 70 [proof that a petitioner is not 

the biological parent of the child does not by itself rebut the statutory presumption where 

the result would be that the minor is left fatherless].) 
10 

 Whether D.M. intended that M.W. obtain a legal right to the minor is immaterial. 

The fact is, D.M. arranged for M.W. to parent the minor prior to his birth and continued 

to support that arrangement for years following his birth. (See S.Y., supra, 

201 Cal.App.4th at pp. 1034-1035.) M.W. voluntarily accepted all of the obligations of 

parenthood from the time of the minor’s birth and there are no competing claims to her 

being the minor’s second parent. (Id. at pp. 1036-1037; Elisa B. v. Superior Court, 

supra, 37 Cal.4th at p. 122.) “To sever this deeply rooted mother/child bond would 

contravene the state’s interest in maintaining the family relationship.” (Salvador M., 

supra, 111 Cal.App.4th at p. 1359.) 

 We next address the juvenile court’s denial of M.W.’s petition for presumed 

parent status based on the “fraud against the government to obtain funds,” in reference to 

M.W.’s AFDC application, and the “fraud” M.W. committed in knowing D.M. was going 

around child protective services by having M.W. raise the minor. Although the juvenile 

court did not mention, or otherwise refer to, the unclean hands doctrine, the Agency 

argues that the doctrine provides an appropriate foundation for the juvenile court’s ruling. 

 The doctrine of unclean hands applies to deny a plaintiff recovery when the 

plaintiff “has violated conscience, good faith or other equitable principle in his prior 

conduct.” (Lynn v. Duckel (1956) 46 Cal.2d 845, 850.) The doctrine “applies when it 

would be inequitable to provide the plaintiff any relief, and provides a complete defense 

to both legal and equitable causes of action.” (Fladeboe v. American Isuzu Motors, Inc.

(2007) 150 Cal.App.4th 42, 56.) It does not apply when the “improper conduct [is] not 

necessarily connected with the transaction particularly involved.” (Watson v. Poore

(1941) 18 Cal.2d 302, 313.) In other words, “[t]he actions of the party alleged to have 

soiled hands must relate ‘directly to the transaction concerning which the complaint is 

made; i.e., it must pertain to the very subject matter involved and affect the equitable 

relations between the litigants.’ ” (Pond v. Insurance Co. of North America (1984) 

151 Cal.App.3d 280, 290; italics added.) 
11 

 “Whether the doctrine of unclean hands applies is a question of fact.” (KendallJackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978.) We will not 

disturb that finding on appeal if it is supported by substantial evidence. (Golden West 

Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 42-43.) However, “[a] 

discretionary order that is based on the application of improper criteria or incorrect legal 

assumptions is not an exercise of informed discretion, and is subject to reversal even 

though there may be substantial evidence to support that order. [Citations.]” (Mark T. v. 

Jamie Z. (2011) 194 Cal.App.4th 1115, 1124-1125.) 

 The doctrine of unclean hands does not apply to prevent M.W. from being 

declared L.M.’s presumed parent. First, M.W.’s earlier dishonesty on her 2010 AFDC 

application, claiming to be the minor’s cousin, was not necessarily connected to her 

assertion of presumed parent status in these dependency proceedings. It did not directly 

relate to her petition, did not pertain to the same subject matter, and did not affect the 

equitable relations between the litigants in this case. (See Pond v. Insurance Co. of North 

America, supra, 151 Cal.App.3d at p. 290.) Thus, M.W.’s conduct in connection with 

her AFDC application cannot form the basis for application of the unclean hands doctrine 

in connection with her petition. 

 With respect to M.W.’s agreement to raise the minor in order to prevent the 

Agency from removing the minor from D.M.’s care, the “fraud” or unconscionable nature 

of this conduct is unclear. The Agency provides no authority for the proposition that a 

mother is not permitted to arrange for the care of her child by another when she, herself, 

is unable to provide adequate care. Indeed, it is a parent’s failure to do so that establishes 

grounds for dependency jurisdiction. (§ 300, subd. (g).) Moreover, the Agency became 

aware of the arrangement between D.M. and M.W. back in 2007, after M.W. attempted to 

obtain legal guardianship over the minor. The investigating social worker discovered that 

D.M. had left the minor with provisions by making arrangements for M.W to care for the 
12 

minor, yet the Agency took no action. The Agency cannot be permitted to claim, five 

years later, that it was defrauded and its position in this case unfairly compromised. 

 Finally, as we have explained, the purpose of the presumed parent designation is 

to protect the child’s interest in established familial relations. The relationship between 

the litigants in this matter include, primarily, the relationship between the child and his 

parents. The courts must take care in applying the unclean hands doctrine to address an 

adult’s misconduct when to do so would inflict undue harm on the child. (See generally 

In re T.R., supra, 132 Cal.App.4th at p. 1209 [“Paternity presumptions are driven . . . by 

the state’s interest in the welfare of the child and the integrity of the family”]; see also 

In re Karen C., supra, 101 Cal.App.4th at p. 936 [minor’s contention that individual is 

her presumed parent not defeated by unclean hands doctrine because no evidence minor 

ratified or participated in the parent’s misconduct].) As the California Supreme Court has 

emphasized, the familial relationship resulting from years of living together in a 

purported parent/child relationship “should not be lightly dissolved.” (Nicholas H., 

supra, 28 Cal.4th at p. 65.) Denying M.W.’s petition for presumed parent status, based 

on conduct that is marginally, if at all, morally culpable, so as to tear from the minor the 

only parent he has ever known, is an improper application of the unclean hands doctrine. 

 In sum, we conclude M.W. established an unrebutted presumption of parentage. 

Having concluded she is L.M.’s presumed parent, the appropriate resolution of this 

appeal turns on whether there is any basis in the record to support jurisdiction over the 

minor. 

II 

Jurisdiction 

 Before the juvenile court can exert jurisdiction over a minor under section 300, 

there must be allegations and evidence establishing at least one ground for juvenile court 

jurisdiction. (In re Alysha S. (1996) 51 Cal.App.4th 393, 399-400.) The section 300 
13 

petition must contain “ ‘[a] concise statement of facts, separately stated, to support the 

conclusion that the [child] upon whose behalf the petition is being brought is a person 

within the definition of each of the sections and subdivisions under which the 

proceedings are being instituted.’ ” (Id. at p. 396.) 

 Here, the section 300 petition alleged L.M. fell within the provisions of 

subdivision (b), in that D.M. could not safely care for L.M. due to her mental health 

issues, substance abuse issues, unstable lifestyle, and history of repeated incarcerations. 

D.M. has struggled with mental health issues since she was a young child. She has been 

diagnosed with depression, polysubstance dependency, borderline personality disorder, 

schizoaffective disorder, and personality disorder. She has been prescribed medication 

and counseling but she does not maintain compliance of any length of time. Her mental 

health issues have been documented throughout the years because she was, herself, a 

foster child. Her history of substance abuse include use of “crack,” but D.M. claimed to 

have been clean and sober for 37 days. D.M. is aware of resources to address her dual 

diagnosis but has failed to participate. 

 At the time the section 300 petition was filed, the social worker reported that D.M. 

was claiming she had attempted to get L.M. back, but M.W. was being elusive and she 

had been unable to locate the minor. Although D.M. testified at the hearing regarding 

presumed parent status that she had given L.M. to M.W. to raise, without restriction, she 

had told the social worker she had given the minor to M.W. to raise until she was able to 

care for him herself. Additionally, although D.M. testified at the hearing regarding 

presumed parent status that she did not object to M.W. as the minor’s continued 

caretaker, she had told the social worker that she did not so consent. 

 Accordingly, with respect to subdivision (b), the petition alleged D.M. had never 

cared for the minor, as she gave birth to him in 2006 while incarcerated and gave the 

newborn to her cellmate, M.W., who was being released from custody, in order to avoid 

Agency involvement. The minor had been in M.W.’s custody ever since. D.M. had been 
14 

released from prison in 2007 but was unable to locate M.W. She eventually saw the 

minor and M.W. on one occasion and again asked M.W. to keep the minor until she was 

“situated.” D.M. was thereafter in and out of prison but had no contact with M.W. or the 

minor until 2010. D.M. filed a missing person report in 2010. In response, M.W. 

contacted D.M. and urged her to keep “the White Man” out of it, but D.M. claimed M.W. 

gave her a false address and she had not been able to take custody of the minor. M.W. 

had also attempted to obtain legal guardianship but the petition was denied because M.W. 

was still on probation at the time. 

 The petition further alleged that D.M. has a lengthy history with the Agency and 

the juvenile dependency court, and does not have any of her other four children in her 

care. D.M. had been provided substance abuse and mental health services after her twins 

were declared dependents in 2002, but she failed to reunify with them and her parental 

rights were terminated. She was not provided services after her daughter was declared a 

dependent in 2004, and that minor was reunified with the father. She was not provided 

services after her son was declared a dependent in 2005 after two psychological 

evaluations indicated she would not benefit, and her parental rights were terminated. 

 The petition alleged the minor fell within the provisions of subdivision (g) in that 

the father’s identity and whereabouts are unknown. D.M. reported that the father might 

be a man with the street name of “Face” who had reportedly been killed, or might be a 

man she met at a shelter, for whom she had a name but no contact information. Thus, the 

father had made no provision for support. 

 Finally, the petition alleged the minor fell within the provisions of subdivision (j), 

based on D.M.’s other children having all been declared dependents, D.M.’s loss of 

custody as to all four of those children, and her loss of parental rights as to three of them. 

 The allegations in the petition are sufficient to establish that a child in D.M.’s care 

is at substantial risk of serious physical harm or illness. (§ 300, subd. (b).) The 

allegations are also sufficient to establish D.M. abused or neglected the minor’s half 
15 

siblings and there is a substantial risk that she would also abuse or neglect L.M. if he 

were in her care. (§ 300, subd. (j).) But in this case, D.M. is not the minor’s custodial 

parent. Nor are there any allegations in the petition that D.M. was assuming immediate 

custody of the minor. 

 The section 300 petition alleges that M.W., rather than D.M., is the minor’s 

caretaker. D.M. conceded jurisdiction before M.W. could establish parental status and 

contest it on the basis of being the minor’s custodial parent. But, as we have explained 

herein, it was established at the postjurisdiction hearing on M.W.’s petition that M.W. 

was, in fact, the minor’s custodial parent. There are, however, no allegations in the 

section 300 petition that the minor was at risk in M.W.’s care. Thus, the allegations of 

the petition and facts in support thereof fail to support juvenile court jurisdiction. 

DISPOSITION

 The orders of the juvenile court are reversed. The trial court is directed to grant 

M.W.’s request to be declared L.M.’s presumed parent and dismiss the section 300 

petition. Accordingly, the subsequent judgment of disposition is vacated and L.M. is to 

be returned to M.W.’s custody. Having served its purpose, the stay of the section 366.26 

hearing issued by this court on July 10, 2013, is vacated upon finality of this opinion. 

 Our disposition in this matter is without prejudice to the Agency’s filing of section 

300 petitions relating to the minor should the need arise. 

 HULL , J. 

We concur: 

 BLEASE , Acting P. J. 

 NICHOLSON , J.