1

Filed 6/22/21 In re K.D. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re K. D

. et al., Person s Coming Under the Juvenile Court Law.

ALAMEDA COUNTY SOCIAL SERVICES AGENCY , Plaintiff and Respondent,

v. Z. A. , Defendant and Appellant. A 1 61514
( Alameda County Super. Ct. Nos. JD 03251601, JD03251701)

Z.A. (Mother) appeals from a jurisdiction order declaring her daughters, K.D. and O.D. (Minors), dependents pursuant to Welfare and
Institutions Code section 300, subdivision (b)(1), and from a disposition order removing Minors from her custody

. 1 Mother contends (1) the juvenile court’s jurisdiction and disposition findings are unsupported by substantial evidence ; (2) the court failed to state the factual basis for removal as required by
section 361, subdivision (e) ; and (3) th e court abused its discretion in ordering

1 All further statutory references are to the Welfare and Institutions Code.2

re moval of Minors

. We agree in part with Mother’s first contention and

reverse

. F ACTUAL AND P ROCEDURAL B ACKGROUND A. Petition and Detention
In June 2020 , the Alameda County Social Services Agency (Agency) filed a dependency petition concerning K.D. and O.D., who were 14 and 11 years old, respectively. The petition contained a single allegation under
section 300, subdivision (b)(1) (“300(b)(1)”) , that Minors suffered, or were at
substantial risk of sufferin g, serious harm or illness as a result of Mother’s failure or inability to adequately supervise or protect them, and/or Mother’s inability to provide them regular care due to mental illness, developmental disability, or substance abuse. T he Agency alleged as supporting facts that Mother “has mental health concerns that impair her ability to provide safe, stable, and adequate care, support, or supervision to [Minors] ,” t he n enumerated specific factual allegations

. The first set of factual allegations , numbered “ B

- 1 a ,” stated that in July 2018, Mother threw O.D. across a room causing her to hit her head, O.D. refuses to return to Mother’s home because of how Mother treats her , and
Mother threatens to hit Minors . The second s et , numbered “ B

- 1b ,” alleged
that during the initial investigation, Minors were visibly upset (crying, fidgeting , rocking in their chairs ) when discussing Mother, Mother yells at
them a lot , they are afraid of Mother, and they have not been to her home
sin ce April 10, 2020 . The third set , numbered “ B

- 1c ,” asserted that Mother falsely accuses Minors’ father, David D. ( Father ), of sexually abusing Minors’3

younger siblings , 2 she accuses Minors of assisting him , and she makes various allegations against Minors and Father when she is upset

. The Agency’s detention report documented E mergency R esponse C hild
W elfare W orker (CWW) Myesha Walker

- Lillard ’s investigation of Mother,
includ ing Mother’s allegations that Father sexually abused her youngest

c hildren with Minors ’ assist ance . CWW Walker

- Lillard reported that Mother forwarded the Agency a recording showing her younger children disclosing abuse and a video of a file on Father’s old computer related to child pornography. Mother acknowledged she h ad no physical proof to support the sexual abuse allegations, but said “I just know , I have a feeling that something has happened as [the younger children ’s ] behaviors have changed. ” Mother also claimed one of her younger children told her that K.D. pushed a quarter into her “pee pee” during bath time. Mother asserted she took her younger children to the hospital and showed CWW Walker

- Lillard the hospital paperwork. T he hospital paperwork said nothing of sexual abuse or suspected sexual abuse, and only stated the children were treated for diaper rash. Father told CWW Walker

- Lillard that Mother had made these types of allegations against him for years, the allegations were all proven untrue, and he believes Mother is mentally uns table. Minors denied engaging in inappropriate sexual conduct. Specifically, K.D. denied putting quarters in her younger sibling’s “pee pee,” putting a towel in her younger siblings’ mouth s , or helping Father do inappropriate things to her younger sibli ngs

. K.D. said Mother is mad at her and makes “all sorts of allegations” when she is upset. K.D. discussed a prior

2 Aside from Minors, Mother has twins who were approximately four years old at the time the petition was filed.4

incident when her younger brother “put his legs up in the air” and yelled “look [K.D.],” to which Mother responded by telling K.D. that she needed to
have “ an adult conversation with her” and then asked if “she did anything” to her younger sibling

. K.D. said “no” then cried in her room all day afterwards

. During this inciden t , Mother went into K.D.’s room and said “she would make it hell for [K.D.] and that [K.D.] was ruining her kids .

. . .” O.D. also denied putting a towel in her younger siblings’ mouths, denied holding her siblings down so Father could do inappropriate things to them, and denied that K.D. put quarters into her younger sibling’s “pee pee

. ”
O.D. stated she does not feel safe at Mother’s home where there is “a lot of yelling” leading to “huge fights,” and while Mother does not hit her , she
threatens to hit her and does hit the younger children

. O.D. reported in July
2018 , Mother threw her across a bed causing her to hit her head , and ever since, she has not trusted Mother

. Mother also accused her of stealing and called her a “bad liar.” O.D. said she did not want to go back to Mother’s
home because of the way Mother treats her. CWW Walker

- Lillard spoke with the Oakland Police Department , wh ich reported Mother’s youngest children made no disclosures when
interviewed

. CWW Walker

- Lillard concluded Mother’s sexual abuse allega tions against Father were unfounded. CWW Walker

- Lillard stated “[t]he emotional harm related to the mother’s allegations is detrimental to [O.D. ’s ] and [K.D.’s] well

- being.” In addition to the foregoing, the detention report recounted that CWW Emily Car mona spoke with Mother’s therapist, who had been working with Mother and her younger children since late April 2020. This therapist said Mother’s youngest children were “presenting with behavioral difficulties (night terrors, physical aggression with each other and the mother, tantrums,5

bed

- wetting, defiance, sexualized behaviors, and a nxiety). ” T he sexualized
behaviors of the younger children include d the ir “ hiding from their mother and fondling each other

. ” Mother’s therapist said she did “ not doubt that the sexual abuse disclosure will present itself in her work with the family ” and

s he did not believe “[M]other’s mental health was impairing her judgment
related to the concerns a r ou nd sexual abuse.” The detention report also set out the famil y’s prior child welfare history

. T he Agency indicated it received a referral for physical abuse in February 2018 when O.D. reported Mother pushed her, causing her to fall and hit her head. The Agency closed the referral as unfounded, though O.D.
had a bu mp on the back of her head. At that time, Minors also reported Mother threatens to hit them if they do not do what she asks. Moreover, i n 2012, t he Agency investigated and concluded a n allegation that Father was sexually abusing Minors was unfounded ; Min ors did not disclose anything when interviewed, hospital staff found no evidence of abuse, and the Oakland Police Department did not find the allegations to be true

. At the detention hearing on June 30, 2020 , Mother submitted to temporary findings and the Agency’s recommendations for placement with
Father. Adopting the recommendations in the detention report, the juvenile

court detain ed Minors and f ound their initial removal was necessary because
there was a “ substantial danger to the physical health of the children, or the children are suffering severe emotional damage, and there are no reasonable means to protect the children’s physical or emotional health without

re moving them from the mother’s physical custody

. ” B. Jurisdiction and Disposition In July 2020, t he Agency filed a report prior to the jurisdiction and disposition hearing

. In it, CWW Carmona indicated she asked M other about6

prior allegations that Father sexual ly abuse d K.D

. Mother said that while
she was changing K.D.’s diaper after a visit with Father , K.D. put her legs around Mother’s neck and was laughing . This surprised Mother and prompted her to take K.D. to a ho spital

. “ CPS ” was called but the case was determined to be unfounded

. Neither the hospital nor “CALICO” found anything. Mother asserted the Oakland Police Department conducted a sexual abuse investigation at some unspecified time, ran software on Father ’s computer and found one search for “ ‘child porn , ’ ” but closed the investigation
thereafter without further intervention. CWW Carmona asked Mother about the present allegations involving Father and Mother’s youngest children. Mother apparently contin ued to
claim that Father sexually abus ed her younger children with Minors’ help

. Despite the younger children not disclosing any abuse when interviewed,
Mother believed a second interview would help them disclose it

. Mother said
she did not believe Father was currently sexually abusing Minors because he is “interested in younger children,” but she believed Father had “groomed and coached” Minors

. CWW Carmona spoke with Minors , who said they felt safe with and
wanted to remain w ith Father and did not wish to visit Mother. O.D. reported she likes Father’s house because there is “ ‘not that much yelling
and

. . . not that many fights,’ ” and the yelling at Mother’s house “ ‘hurts her ears a lot.’ ” O.D. denied anyone touching her inappropriately

. K.D. stated Father’s house is quiet, and though she always felt safe with Mother, she did not like what Mother said and did not understand why she said those things

. K.D. disclosed no concerns regarding sexual abuse.
The r eport ultimately stated the Agency believed Mother “ may have underlying and untreated mental health issues that are causing her to think7

or believe things that may not be true” or that she may be experiencing stress from raising two “very active 4 year old s.” The Agency expressed concern
about the “emotional impact ” Mother’s allegations might have on Minors , and the impact of repeated Agency involvement on Minors. T he Agency
recommended , among other things, that the juvenile court make find ings that the allegations of the petition are true , that Minors are persons described by
section 300(b)(1), and that clear and convincing evidence required removal of
Minors from Mother’s physical custody to protect them

. At a hearing o n July 24, 2020, Mother ask ed for a contested hearing,
which the juvenile court set for October 1, 2020

. After indicating there was an order for supervised visits but Minors refused to attend , Mother requested therapeutic visits with Minors

. Th e court granted Mother ’s request for therapeutic visitation , though it indicated no one could physically force
Minors to attend

. Prior to the October 1 hearing, the Agency filed an addendum report
indicat ing that Minors still did not want to visit Mother and were waiting for

an apology. The addendum also reported the following. Mother had started therapy and so did K.D. , but K.D. did not want to continue

. O.D.’s therapist
told CWW Carmona that O.D. does not feel good about herself and feels like she is walking on eggshells around Mother, and O.D. “does not explore her relationship with her mother in therapy because it is ‘super painful.’ ” Father reported an incident in mid

- September 2020, duri ng which Mother saw and
called to K.D. as K.D. was walking to a friend’s house , but K.D. got scared and ran. Mother then drove in front of K.D. and cut off her path, but K.D. ran around the car and continued to her friend’s house where she called
Father. K.D. confirmed th is incident and said she was “ ‘hyperventilating’ ” and “breathing super fast” when she saw Mother. The Agency’s8

recommendations remained the same as in the original jurisdiction and disposition report. On October 1, 2020, the juvenile court held a contested jurisdiction and disposition hearing. The court admitted the Agency’s report s into evidence , and t he Agency asked the court to adopt its recommendations and proposed custody orders

. Minors and Father agreed with the recommendations. Mother objected to the court “ making a finding based on the allegations in the petition, ” but declined to present evidence and said she would “let the [c]ourt enter a finding based on the reports.” Mother stated she agre ed with
the proposed custody orders and was aware Minors did not want to visit, and
said she would be in touch with Father regarding changes in Minors’ willingness to visit. After the parties submitted , the juvenile court discussed visitation, stating it had “ significant concern s ,” specifically about the allegation s that Mother falsely accused Father of sexually abusing Minor s ’ younger siblings
with Minors ’ help

. The court indicated it would not alter the visitation orders
at that time , as it did not want to pressure Minors into visiting Mother

. The juvenile court then adopted the Agency’s recommendations

. S pecifically, the court found that the allegations in the petition were true and
that Minors we re persons described by section 300(b)(1)

. The c ourt also found clear and convincing evidence that Minors must be removed from Mother’s physical custody because returning custody to Mother would cause substantial danger to Minors’ physical health, protection, or physical and
emotional well

- being, and th ere was no reasonable alternative means to protect the children

. The court granted Father custody of Minors and signed
written custody orders giving Mother supervised visitation with Minors on9

the first and third weekends of the month. The court then dismissed the dependency matter

. Mother filed a notice of appeal.
D ISCUSSION Mother contends substantial evidence does not support the juvenile

court ’s jurisdiction findings and its order sustaining jurisdiction pursuant to
section 300(b)(1). On this record , we agree

. Section 300(b)(1) permits a juvenile court to take dependency jurisdiction over a child if “[t]he child has suffered, or there is a su bstantial risk that the child will suffer, serious physical harm or illness , as a result of the failure or inability of his or her parent .

. . to adequately supervise or protect the child, .

. . or by the inability of the parent .

. . to provide regular

c are for the child due to the parent’s .

. . mental illness, developmental disability, or substance abuse.” (Italics added.) “A jurisdictional finding
under section 300, subdivision (b)(1), requires [the child services agency] to demonstrate the following three elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent; (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.) “As appellate courts have repeatedly stressed, ‘ “[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under
section 300, subdivision (b), there must be evidence indicating that the child
is e xposed to a substantial risk of serious physical harm or illness.” ’ [Citations.] .

. . Section 300, subdivision (b) does not provide for jurisdiction
based on ‘ “ emotional harm .” ’ ” ( In re Jesus M. (2015) 235 Cal.App.4th 104,
111

– 112 , italics in origin al and added .) We review a juvenile court’s jurisdiction findings for substantial evidence. ( In re R.T. (2017) 3 Cal.5th 622, 633.)10

In this case, even if we assum e the factual allegations in the petition

are all supported by substantial evidence , there is no substantial evidence supporting the third statutory element enumerated above, i.e., that Minors have suffered serious physical harm or illness, or that there exists a
substantial risk of such harm or illness. (§ 300(b)(1).) As Mother points out, the allegation that Mother threw O.D. in 2018
involved an incident that occurred more than two years before the contested jurisdiction and disposition hearing. There is nothing in the record , however, substantiating the existence of a substantial risk that such an incident would

recur

. “While evi dence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘ [t]here must be some reason to believe the acts may continue i n the future. ’ ” ( In re Rocco M. (1991) 1 Cal.App.4th 814, 824 ; s ee, e.g., In re Jesus M. , supra , 235 Cal.App.4th at pp. 112

– 113 [domestic violence incidents occurring more than
three years earlier were not substantial evidence supporting a section 300(b) finding where there was no evidence of current violent behavior ].) Thus,

w hile the evidence reasonably establishes that Mother’s home is
tumultuous

— e.g., O.D. reported “a lot of yelling” at Mother’s home leading to “huge fights,” and K.D. reported there is no discipline in Mother’s home

— there is no evidence that Mother has ever inflicted any serious physical injury on any of her children. 3 Indeed, O.D. reported that Mother does not

3 Although O.D. sustained a “bump” on the back of her head after the 2018 throwing incident, no further detail is provided about that injury. It is thus unclear whether this bump constituted a serious injury

.11

hit her , and K.D. reported she does not think Mother would do anything to intentionally hurt them and she always felt safe with Mother

. Although O.D. reported that Mother hit s her younger children with her hand, no further detail is provided about the nature of this hitting, such as the amount of force Mother uses or when it has occurred . As such, even if it

w ere reasonable to infer that Mother’s use of force against her younger
children poses a substantial risk that she will use force against Minors, the absence of any meaningfu l details regarding the force being used counsels against relying on the inference as establishing a current substantial risk of serious physical harm or illness to Minors. ( In re Rocco M. , supra , 1 Cal.App.4th at p. 824.)
Likewise , the allegation that Mother threate ns to hit Minors falls short of evidencing a current substantial risk that Minors will suffer serious physical harm or illness. 4 As stated, t here is no evidence Mother has ever inflicted any serious injury on any of her children. Although threat ening to
hit a child could constitute emotional abuse, the Agency alleged dependency jurisdiction only under section 300(b)(1), which does not authorize jurisdiction because of emotional harm . ( In re Jesus M. , supra , 235 Cal.App. 4th at p. 112.)
W e acknowledge the troubling nature of t he remaining allegations

— i.e., that O.D. refused to return to Mother’s home, that Minors were visibly upset (crying, fidgeting) while discussing Mother, that Mother yells at Minors

4 We acknowledge t here is substantial evidence that Mother threatens to hit O.D. Specifically , t he detention report reflects that O.D. told CWW Walker

- Lillard that Mother threatens to hit her. That said, there is no substantial evidence that Mother presently threaten s to hit K.D. Unlike O.D., the detention report does not show K.D. reporting such a threat by Mother to CWW Walker

- Lillard . Instead, K.D. stated she did not think Mother “would do anything to intentionally hurt them.”12

a lot and they are afraid of her , and that Mother falsely accuses Father and Minors of things such as sexual ly abus ing her youngest children

— and the resulting cause for concern particularly as to Minors ’ emotional well

- being

. Nonetheless , such allegations do not support a finding that Minors suffer from or at substantial risk of serious physical harm or illness. This ultimate conclusion is supported by the Agency ’s detention report and jurisdiction and disposition report . U nder the heading “Future Risk,” the reports state only that Minors “may have long

- term mental health issues (anxiety, depression, PTSD, and self

- esteem issues) if their mother continues to yell at them, make false accusations against them, and threaten them.” Unfortunately, t his case is like many others , where the courts have been “repeatedly called on to review jurisdictional findings where .

. . one parent has behaved badly, undeniably causing family trauma, but presents no
obvious threat to the children ’ s physical safety.” ( In re Jesus M. , supra , 235 Cal.App.4th at p. 112.)
I n an apparent effort to circumvent th e deficiency of the jurisdiction finding , the Agency conten ds the juvenile court could have found the “B

- 1b” and “B

- 1c” allegations true under section 300, subdivision (c) (“300(c)”)

. While that may be true, the content ion provides no basis for affirming the judgment.
A court may assert dependency jurisdiction under section 3 00(c) when

“ [t] he child is suffering serious emotional damage, or is at substantial risk of suffering serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as a result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.”13

Whether or not section 300(c) coul d have provided a basis for dependency jurisdiction, Mother’s due process rights may not be ignored. “ [A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the he aring, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations. ” ( In re Wilford J. (2005) 131 Cal.App.4th 742, 751.) Here, t he Ag ency’s only alleged ground for dependency jurisdiction was
that Minors were children described by section 300(b)(1) , and the Agency acknowledges that the dependency petition include d no allegation under
section 300(c)

. Minors and Father agreed to the Agen cy’s recommendation s that the juvenile court take jurisdiction under section 300(b)(1) , but Mother objected to the court finding jurisdiction based on the Agency’s reports

. Notably, t he court never indicated it was relying on section 300(c) in making its jurisdiction order , and n othing in the record indicates Mother had notice or opportunity to defend against a section 300(c) allegation. (See In re Andrew S. (2016) 2 Cal.App.5th 536, 543

– 544.)
We now assess whether a revers al is warranted. Reversal is appropriate only where error is prejudicial i.e., where “ ‘ “ ‘ it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. ’ ” ’ ” ( In re D’Anthony D. (2014) 230 Cal.App.4th 292, 303 .) Here, there was evidence the children were
emotion ally affected by Mother’s conduct . But a jurisdiction finding under section 300(c) requires proof by a preponderance of the evidence that the
children are su ffer ing or are at substantial risk for suffering “ serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or14

untoward aggressive behavior toward self or others .” ( § 300, subd. (c), i talics added.) Significantly, at the contested hearing, no witnesses testified, and

n one of the reports in evidence contained any statements or psychological
evaluations from medical professionals indicat ing that Minors were suffering from “ serious emotional damage ” or were at risk of such. (See Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051 , 1070 .) T o the contrary, t he addendum report filed just before the contested hearing indicated that “everything was going well ” for Minors, and that neither had any worries at
that time. Moreover, had Mother been on notice of a section 300(c) allegation, she might very well have presented expert and other evidence credibly countering any allegation of serious emotional damage

. On this record, we cannot conclude the error was harmless

. In sum , the jurisdiction findings must be reversed. Such reversal, in turn, necessitates reversal of the disposition orders

. ( In re Jesus M. , supra , 235 Cal.App.4th at p. 114. ) Having so concluded , we need not and do not address Mother’s ot her argument s concerning the juvenile court’s jurisdiction findings and the order removing Minors from Mother’s custody

. We end by noting that “[o]ur conclusion that the sustained allegations of the petition do not support jurisdiction does not mean the [Agency] cannot try again. Indeed, it is entirely possible valid grounds exist for the state to assume jurisdiction over these children and indeed it may be in the children ’ s best interests for this to happen.” ( In re Janet T. (2001) 93 Cal.App.4th 377, 392.)
D ISPOSITION The orders of the juvenile court are reversed , and the matter is remanded for further proceedings consistent with this opinion

.15 _________________________ Fujisaki, Acting P. J.

WE CONCUR:

_________________________ Ja ckson, J.

_________________________ Wiseman , J. *

A161514

* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the Californ ia Constitution.