California Court of Appeal Oct 29, 2025 No. E085750Unpublished
Filed 10/29/25 In re F.S. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re F.S., a Person Coming Under the Juvenile Court Law.
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, E085750
Plaintiff and Respondent, (Super.Ct.No. DPRI2400486)
v. OPINION
J.S. et al.,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Reversed.
William D. Caldwell, under appointment by the Court of Appeal, for Defendant
and Appellant J.S.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant K.S.
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Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy
County Counsel for Plaintiff and Respondent.
J.S. (Mother) and K.S. (Father) appeal from the juvenile court’s jurisdictional
finding and dependency disposition ordering family maintenance service to ensure F.S.
(Minor, a girl, born in December 2010) receives educational and related psychological
The Department alleged one or more of these jurisdictional grounds were satisfied
by the following factual allegations, two of which the court rejected as unfounded
(Allegations b-3 and b-5) and three of which the court sustained (Allegations b-1, b-2,
and b-4).
The court sustained Allegation b-1 as written, as follows: “The mother and father
neglect the child’s educational and developmental needs, in that the child has not attended
school since August of 2020, thereby limiting the child’s ability to maintain age-
appropriate educational services and/or necessary services to address the child’s
diagnoses of Autism and Attention Deficit Hyperactive Disorder.”
The court sustained Allegation b-2 with interlineations by the court (additions
shown by underlining), as follows: “The mother and father neglect the child’s medical
and dental needs, in that the child has not had a physical or seen a doctor for a routine
checkup since 2020, nor has had she seen a dentist before [the] Department’s
intervention.”
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The court rejected Allegation b-3 for “insufficient evidence” to support
jurisdiction at the time of the hearing. The allegation had stated: “The mother and father
neglect the health, safety, and wellbeing of the child, in that the home was found to be in
unkempt conditions, smelled foul and had limited space to move. Further, the child’s
sleeping space was covered in clothing and miscellaneous items, causing the child to
sleep on a bean bag.”
The court sustained Allegation b-4 with interlineations by the court, as follows:
“The mother suffers from unresolved mental health issues, including but not limited to
exhibiting signs of paranoia, delusions, and experiencing feelings of depression and
anxiety. These untreated conditions have prevented the mother from sending the child to
school or allowing the child to receive medical/dental care. Further, the mother has failed
to obtain treatment and/or medication to address her mental health needs, thereby placing
the child’s safety and wellbeing at risk.” (Strikethrough in original, underline added.)
The court rejected Allegation b-5 regarding Father’s mental health as unproven.
The allegation mirrored Allegation b-4 as to Mother, but without asserting he suffered
from anxiety or depression. The court explained: “(b)(5), I don’t find there’s sufficient
evidence. . . . Understanding there have been behaviors that were described by the social
worker, aside from that—or aside from those observations, there’s no indication of a
mental health diagnosis or issues. The Court doesn’t find sufficient evidence of (b)(3)
and (b)(5).”
Based on its findings regarding Allegations b-1, b-2, and b-4, the court found
Minor to be “[a] person described by Welfare & Institutions Code Section 300(b)(1).”
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The court declared Minor a court dependent and adopted DPSS’s “recommended findings
and orders with regard to family maintenance for disposition.” The court authorized
psychological assessments for both parents as requested by DPSS, finding that “there’s
observations in the report [for the hearing] that are concerning, so that [referral] will be
maintained.”
DISCUSSION
Parents contend DPSS’s dependency petition allegations and the underlying record
do not show the requisite “substantial risk” of “serious physical harm or illness” required
by section 300, subdivision (b)(1), to support juvenile court jurisdiction. (Italics added.)
They are correct.
Section 300, subdivision (b)(1), provides for juvenile court dependency
jurisdiction when a child “has suffered, or there is a substantial risk that the child will
suffer, serious physical harm or illness, as a result of” specified conduct or neglect by a
parent or guardian. These jurisdictional grounds include, as alleged by DPSS in its
petition: “(A) The failure or inability of the child’s parent or guardian to adequately
supervise or protect the child,” “(C) The willful or negligent failure of the parent or
guardian to provide the child with . . . medical treatment,” and “(D) The inability of the
parent or guardian to provide regular care for the child due to the parent’s or guardian’s
mental illness.” (§ 300, subd. (b)(1).)
An earlier version of the statute, as noted by Janet T., “required no separate
showing of concrete harm or risk of physical harm to a child.” (Janet T., supra,
93 Cal.App.4th at p. 387.) Rather, “[a] child could be declared a dependent if he or she
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was ‘in need of proper and effective parental care or control and ha[d] no parent or
guardian . . . willing to exercise or capable of exercising such care or control.’ However,
the 1987 revisions to section 300 added this [serious physical harm or illness]
requirement, indicating a legislative intention to narrow the grounds on which juvenile
court jurisdiction could be invoked.” (Id. at pp. 387-388, fns. omitted.)
The statute does not define “serious physical harm or illness,” but instead leaves
the matter to “common intelligence [to] discern what injuries fall within its reach.” (In re
Mariah T. (2008) 159 Cal.App.4th 428, 438.) Relevant here, medical treatment may
include dental care to address or prevent serious physical harm. Thus, a child’s
“need[ for] extensive dental work, including oral sedation for a tooth fracture,
11 pulpotomies[2] with steel crowns, and three fillings,” together with a finding that the
father failed to provide food or clothing for his daughters, supported a finding of
“substantial risk of serious physical harm to the girls.” (In re A.R. (2014)
228 Cal.App.4th 1146, 1152.)
The juvenile 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 S.F. (2023)
91 Cal.App.5th 696, 712-713.) 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 Cole L.
(2021) 70 Cal.App.5th 591, 602.) Still, the “basic question under section 300” for both
2 “Pulpotomy” is defined as “Removal of a portion of the pulp structure of a tooth, usually the coronal portion”; “SYN: pulp amputation.” (Stedman’s Medical Dict. (online ed. 2014) 739660.)
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the juvenile court and the appellate court on review is whether circumstances at the time
of the hearing subject the minor to the risk of harm enumerated in the statute. (In re J.N.
(2010) 181 Cal.App.4th 1010, 1022.) “ ‘Subdivision (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 exposed to a substantial risk of serious physical
harm or illness.’ ” (Janet T., supra, 93 Cal.App.4th at p. 391, fn. omitted.)
A child welfare agency petitioning for dependency jurisdiction bears the burden of
proof to establish section 300 applies, and must do so by a preponderance of the
evidence. (§ 355; In re I.J. (2013) 56 Cal.4th 766, 773.) In particular, the agency must
“present evidence of a specific, nonspeculative and substantial risk to [the child] of
serious physical harm.” (Destiny S., supra, 210 Cal.App.4th at p. 1003.)
On appeal, we review the juvenile court’s jurisdictional findings for substantial
evidence. (In re B.H. (2024) 103 Cal.App.5th 469, 480.) “ ‘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.’ ” (I.J., supra, 56 Cal.4th at p. 773.) We do not reweigh
the evidence; instead, provided there is substantial evidence supporting the juvenile
court’s decision, we affirm the order even if other evidence supports a contrary finding.
(In re M.D. (2023) 93 Cal.App.5th 836, 857.)
Substantial evidence “means evidence that is ‘reasonable, credible and of solid
value; it must actually be substantial proof of the essentials that the law requires in a
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particular case.’ ” (In re E.D. (2013) 217 Cal.App.4th 960, 966.) “Substantial evidence
is not synonymous with any evidence; a decision supported by a ‘ “mere scintilla of
evidence” ‘ need not be affirmed on appeal.” (In re G.Z. (2022) 85 Cal.App.5th 857,
876.) “On appeal, the parent has the burden of showing there is insufficient evidence to
support the order.” (In re N.M. (2011) 197 Cal.App.4th 159, 168.)
The Department concedes, as it must, that Minor’s nonattendance at school “is not
a basis for jurisdiction under section 300, subdivision (b).” (See Destiny S., supra, 210
Cal.App.4th 999; Janet T., supra, 93 Cal.App.4th 377.) As Destiny S. explained, by
statute the Legislature has determined that “[j]urisdiction under section 300, subdivision
(b) can exist ‘only so long as is necessary to protect the child from risk of suffering
serious physical harm or illness.’ ” (Destiny S., at p.1003.) Quoting Janet T., the Destiny
S. court continued: “Although missing school is a ‘serious’ problem, ‘that is not the same
as saying the failure to attend school created a “substantial risk” of suffering “serious
physical harm or illness.” ’ ” (Destiny S., at p. 1003), as required for jurisdiction.
The Janet T. court found the gap in the children’s schooling there extremely
troubling, as do we here for Minor. “Failing to attend school regularly not only deprives
. . . children of an education, but also of the social interaction and ‘peer relationships
necessary for normal growth and development,’ as alleged in the petition. It is a very
serious allegation and a factual circumstance which need[s] immediate correction.”
(Janet T., supra, 93 Cal.App.4th at p. 388.) The court acknowledged that a “lack of
education may well cause psychic or emotional or financial or social harm.” (Id. at
p. 389.) Nevertheless, jurisdiction did not follow where “there [were] no facts alleged or
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suggested by the supporting documentary evidence to indicate [the] mother’s failure to
ensure the children’s regular school attendance subjected the children to physical injury
or illness, serious or otherwise.” (Janet T., at pp. 388-389.) The same is true here
regarding Minor.
Nor do Minor’s autism or ADHD diagnoses, perhaps made when she earlier
attended school, suggest a different result than in Destiny S. or Janet T. The Department
does not argue as much. Nor does the record support such a distinction. The Department
did not obtain Minor’s IEP from her elementary school, which may have shed light on the
origin of the diagnosis regarding her neurodivergent learning challenges—and their scope
or degree. The Department also did not seek to compel Minor’s attendance at a mental
health evaluation. In any event, nothing in the record—including Minor’s engagement
with the social workers—indicated a level of severity to Minor’s autism or ADHD or any
mental health condition suggesting a risk of incurring physical harm to herself. Nor,
notably, did the Department choose in investigating or filing its petition to proceed under
subdivision (c) of section 300 for “willful failure of [a] parent or guardian to provide
adequate mental health treatment.” The record developed by the Department does not
indicate any risk of, for example, “untoward aggressive behavior toward self” that might
warrant jurisdiction under not only subdivision (c)’s “serious emotional damage”
provisions, but also subdivision (a)’s risk of “serious physical harm” threshold. (§ 300,
subds. (a), (c).)
Instead, the Department relies only on Minor’s three cavities. The Department
offers no authority that this alone is enough to constitute serious physical harm or a
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substantial risk of serious physical harm, and we have found none. As noted, in In
re A.R., one of the children needed three fillings for cavities, but that was in addition to
“extensive dental work,” which included sedation to address a tooth fracture, plus almost
a dozen pulpotomies and corresponding crowns. (In re A.R., supra, 228 Cal.App.4th at
p. 1152.) Furthermore, the juvenile court in A.R. sustained allegations that the father
sexually abused the children, failed to provide them food or clothing; that the mother
knew the father had a significant substance abuse and domestic violence history, but
nevertheless abandoned them to his care. (Id. at pp. 1149, 1152.) She did so even though
she admitted “he ‘scares the hell out of me’” and she knew he was not providing for
them. (Ibid.) There is nothing remotely close to such harm or risk of harm here.
The Department asserts that Parents “would not have made appointments to
address [Minor’s] medical and dental needs without [its] intervention.” The Department
also argues this “[l]ack of medical and dental care could have led to more serious
physical harm” for Minor. Even if the first proposition is true, jurisdiction for failure to
provide adequate medical treatment exists “only so long as is necessary to protect the
child from risk of suffering serious physical harm or illness.” (§ 300, subd. (b)(3);
Destiny S., supra, 210 Cal.App.4th at p. 1003.) Here, Parents had previously ensured
Minor had regular, routine medical and dental care before the Covid-19 pandemic; they
learned through engaging in reunification services that they could now obtain that care
without the Covid-19 vaccinations to which they objected; Minor made a habit of
brushing her teeth, providing some protection against cavities; and Parents ensured Minor
obtained medical care for an infection (her eye) when she needed it. Regarding the
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second proposition, the Department does not say what further harm “could have” been at
stake beyond just three cavities, and we also decline to speculate. Evidence supporting
jurisdiction based on risk of serious physical harm must be specific and nonspeculative.
(Destiny S., at p. 1003.)
On the record presented here, and barring mere speculation, we find the evidence
insufficient as a matter of law to demonstrate Minor faced the requisite substantial risk of
serious physical harm or illness required for dependency jurisdiction under section 300,
subdivision (b).
We are guided to this conclusion by considering the Supreme Court’s analytic
framework to assess whether a risk of harm is substantial. “ ‘Some risks may be
substantial even if they carry a low degree of probability because the magnitude of the
harm is potentially great. . . . Conversely, a relatively high probability that a very minor
harm will occur probably does not involve a “substantial” risk. Thus, in order to
determine whether a risk is substantial, the court must consider both the likelihood that
harm will occur and the magnitude of potential harm.’ ” (In re I.J., supra, 56 Cal.4th at
p. 778.)
Similarly, as Janet T. set out, “[i]n determining what constitutes a substantial risk
of serious physical harm” in section 300, subdivision (b), courts may look to language in
subdivision (a) authorizing jurisdiction when a parent or guardian has inflicted “ ‘serious
physical harm . . . nonaccidentally.’ ” (Janet T., supra, 93 Cal.App.4th at p. 388; see
§ 300, subd. (a).) Specifically, “a court may find there is a substantial risk of serious
future injury based on the manner in which a less serious injury was inflicted, a history of
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repeated inflictions of injuries on the child or the child’s siblings, or a combination of
these and other actions by the parent or guardian that indicate the child is at risk of
Here, there was no history of Parents causing injuries as serious or less serious
than Minor’s three cavities. Nor that they did so repeatedly: there was no history of
other physical harms caused by Mother or Father. Nothing in the record indicated they
were responsible for Minor’s eye infection, nor that it was severe or nonresponsive to
Parents’ treatment measures. Regarding Minor’s cavities, the Department did not present
evidence indicating whether she had others in the past or whether this type of “injury”
was newly due to Parents’ nontreatment choices during the Covid-19 pandemic. Nor,
unlike the egregious harms the children suffered in A.R., was there a combination of less
serious harms (three fillings as the least of horrific harm there) with other actions causing
serious physical harm in A.R., nor any nonspeculative substantial risk of a combination of
any specific harms harm. Nor unlike in I.J. does there appear to be any low-probability-
but-absolute-magnitude risk of harm like potential sexual abuse of the father’s sons there
after he abused his daughter. (I.J., supra, 56 Cal.4th at pp. 771, 778-780.)
In sum, measured against the degree of harm at stake, as established by the record
(three cavities in a young teenager, found after a global pandemic), and the likelihood and
magnitude of other potential, unknown harm (left unstated and only speculative by the
Department), we conclude the evidence here is too slight to establish jurisdiction under
section 300, subdivision (b).
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This is true not just as to the Department’s assertion of juvenile court jurisdiction
under section 300, subdivision (b)(1)(C) [inadequate medical treatment], as alleged by
the Department in its dependency petition, but also the Department’s alternate grounds
under subdivisions (b)(1)(A) [failure to adequately protect or supervise child] and
(b)(1)(D) [inability to care for child due to mental illnes]. Each of these subparagraphs of
section 300, subdivision (b), equally required substantial evidence of a substantial risk of
serious physical harm or illness. (§ 300, subd. (b).) The only specific, nonspeculative
evidence the Department put forward of physical harm or risk of physical harm was
Minor’s cavities. Regarding jurisdiction based on Mother’s mental health for instance,
the Department on appeal still cites only Minor being “diagnosed with having three
cavities.” That evidence being insufficient under one subprong of subdivision (b) for
lack of risk of physical harm, it is insufficient under the others as well.
We remain troubled by Minor’s education deficits, especially given her mental
health diagnoses. The record reflects Parents were still attempting to obtain Minor’s IEP
and arrange school enrollment for her at the time of the jurisdiction hearing. Father’s
representation through counsel at the hearing that he and Mother were “currently working
with the Department on trying to get [Minor] an IEP, as well as working with the
Regional Center” for mental health services suggests Parents may be receptive to
voluntary Departmental assistance to secure these essential services. As the concluding
paragraph of section 300 states, the statute “is not intended to limit the offering of
voluntary services to . . . families in need of assistance.”
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Furthermore, if on remand, concerns for Minor’s well-being have not been
resolved, our conclusion here that the evidence was insufficient to support jurisdiction on
the grounds alleged does not preclude the Department from acting to protect Minor. As
Janet T. observed there, “[I]t 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.” (Janet T., supra, 93 Cal.App.4th at p. 392.) We decide here
only that the Department “failed to prove the grounds it asserted or to assert the grounds
it might have proved.” (Ibid.) Consequently, the juvenile court’s jurisdictional order
must be reversed, as well as the dispositional order and any subsequent orders dependent
upon it. (Ibid.)
DISPOSITION
The juvenile court’s jurisdictional order, dispositional order, and subsequent
related orders, if any, are reversed, and the matter is remanded.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.
20
AI Brief
AI-generated · verify before citing
Holding. The court held that the juvenile court lacked statutory jurisdiction under Welfare and Institutions Code section 300, subdivision (b)(1), because the Department failed to present evidence of a substantial risk of serious physical harm or illness to the minor.
Issues
Whether the minor's nonattendance at school supports dependency jurisdiction under section 300, subdivision (b).
Whether the existence of three dental cavities constitutes a substantial risk of serious physical harm sufficient for dependency jurisdiction.
Whether the parents' failure to provide medical and dental care since 2020, in the absence of evidence of serious physical harm, supports dependency jurisdiction.
Disposition. Reversed
Quotations verified verbatim against the opinion
“The Department argues that three cavities discovered and filled at dental appointments before the jurisdictional hearing sufficed to show a substantial risk of serious future physical harm. No authority supports that proposition.”