California Court of Appeal Mar 12, 2026 No. E086339Unpublished
Filed 3/12/26 In re K.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 K.G. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, E086339
Plaintiff and Respondent, (Super.Ct.Nos. J301947 & J301948) v. OPINION A.G.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Steven A. Mapes,
Judge. Affirmed in part; reversed in part.
Patricia K. Saucier, under appointment by the Court of Appeal, for Defendant and
Appellant.
Laura Feingold, County Counsel, David R. Guardado, Deputy County Counsel for
Plaintiff and Respondent.
1
Defendant and appellant A.G. (Mother) appeals from the jurisdictional orders
adjudicating K.G. (female, born July 2015) and A.R. (male, born February 2009;
collectively, Minors) dependents of the court pursuant to Welfare and Institutions Code
section 300, subdivisions (b), (e) and (j)1 and the juvenile court’s dispositional order
removing Minors from Mother’s custody. Minors have a four-month-old half-sibling
R.L. (born April 2024), who was severely abused while in the custody of Mother and
R.L.’s alleged father.2 At a jurisdiction and disposition hearing, the juvenile court found
true against Mother for Minors allegations pursuant to section 300, subdivisions (b),
failure to protect; (e), severe physical abuse of R.L.; and (j), abuse of sibling. Minors
were detained from Mother, and she was granted reunification services.
On appeal, Mother contends insufficient evidence was presented to support the
juvenile court’s jurisdictional findings of the section 300, subdivisions (b), (e), and (j)
allegations against her for Minors. She also argues that the section 300, subdivision (e),
allegation was improperly included as a jurisdictional finding for Minors, and she
received ineffective assistance of counsel (IAC) for her counsel’s failure to demurrer to
the allegation. Mother also claims that the dispositional order removing Minors from her
care must be reversed and that Minors should be placed in her custody under family
maintenance services. We reverse in part and affirm in part.
1 All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
2 R.L. is not a subject of this appeal.
2
FACTUAL AND PROCEDURAL HISTORY
A. SECTION 300 PETITIONS
The family here involves three different fathers: Edward M. father of K.G.; Joe
L., father of R.L.; and Ivan R., father of A.R.
On August 27, 2024, plaintiff and respondent San Bernardino County Children
and Family Services (CFS) received an immediate response referral alleging physical
abuse to the child R.L. by an unknown perpetrator. On August 26, 2024, R.L. was
brought to Loma Linda University Children’s Hospital (LLUCH) suffering from
projectile vomiting. R.L. was admitted to LLUCH for brain bleeding that was causing
seizures; he had several healing fractures, including fractures on his ribs, both hands and
on his right ankle. R.L. was given a CT scan and was suffering from a bilateral subdural
hemorrhage.
The doctor that treated R.L reported to CFS that the injuries to R.L. were
consistent with physical abuse and him being shaken. Mother reported she did not know
how R.L. received his injuries. The injuries to R.L. were being investigated by the
police. Joe was interviewed and asked about the injuries to R.L. Joe stated he may have
picked up R.L. by his arms and legs. Joe and Mother tried to blame A.R., stating that
A.R. had anger issues. Mother later denied that A.R. would hurt R.L. It was determined
by CFS that a detention warrant was necessary for Minors and R.L. R.L. and Minors
were detained on August 28, 2024.
Mother had full custody of Minors. She had full custody of K.G. based on prior
domestic violence with Edward. She had full custody of A.R., but Ivan did visit with the
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child. Joe was subjected to a polygraph related to R.L.’s injuries but it could not be
completed as he minimized the situation stating he “may” have injured R.L. when he
picked him up by his arms and legs. Joe also stated he accidently hit R.L.’s head on a
door. He further stated he used a massage technique on R.L.’s ribs for gas relief which
he “ ‘may have done it too hard.’ ”
A.R. was interviewed. He lived with Mother, Joe, R.L. and K.G. He felt safe in
the home and had not witnessed any domestic violence between Mother and Joe. Joe was
stricter than Mother. He denied that Joe had an anger problem; he was just strict.
On August 30, 2024, CFS filed a section 300 petition for K.G. and Mother. The
alleged father was Edward. It was alleged under failure to protect against Mother under
section 300, subdivision (b), that on August 24, 2024, R.L. was found to have multiple
injuries including rib, right ankle and hand fractures, fibula fractures in both legs, a right
tibia corner fracture and had a brain bleed. The injuries were consistent with non-
accidental trauma. It was alleged that this placed K.G. at risk of suffering similar harm
(b-1). It was alleged against Edward that he had a history of domestic violence with
Mother in the presence of K.G. placing her at risk (b-2). It was also alleged that Mother
had a history of domestic violence placing K.G. at risk of abuse (b-3). It was alleged
against Edward, pursuant to section 300, subdivision (g), that it was unknown if he was
able to provide provisions of support to K.G. which put her at risk of abuse or neglect (g-
4). It was alleged pursuant to section 300, subdivision (j), abuse of sibling, that K.G.’s
half-sibling, R.L., had suffered injuries while in Mother’s care and she was unable to
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provide an explanation for the child’s injuries, placing the child at risk for similar harm
(j-5).
CFS also filed a section 300 petition for A.R. and Mother on August 30, 2024.
The alleged father was Ivan. It was alleged under failure to protect against Mother under
section 300, subdivision (b), that on August 24, 2024, R.L. was found to have multiple
injuries including rib, right ankle and hand fractures, fibula fractures in both legs, a right
tibia corner fracture and had a brain bleed. The injuries were consistent with non-
accidental trauma. It was alleged that this placed A.R. at risk of suffering similar harm
(b-1). It was alleged against Ivan, pursuant to section 300, subdivision (g), that it was
unknown if he was able to provide provisions of support to A.R., which put him at risk of
abuse or neglect (g-2). It was alleged pursuant to section 300, subdivision (j-3), abuse of
sibling, against Mother, that A.R.’s half-sibling, R.L., had suffered injuries while in
Mother’s care and she was unable to provide an explanation for the child’s injuries
placing child at risk for similar harm. There was a similar allegation that K.G.’s half-
sibling, R.L. had suffered injuries and that she faced the same risk of harm (j-4).
The detention hearing was held on September 3, 2024. R.L. was still in the
hospital. The trial court found a prima facie showing had been made that Minors came
within section 300, subdivision (b). Minors were detained from Mother and their
respective fathers.
B. JURISDICTION/DISPOSITION REPORT
CFS filed its jurisdiction and disposition report on September 19, 2024. It sought
a continuance in order to assess Edward and Ivan for placement of Minors. CFS was
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considering that the case could be dismissed with placement of Minors with their
respective fathers and dismissal with family law orders. Minors had been placed in a
nonrelated extended family member’s home.
Mother was interviewed on September 13, 2024. Mother insisted that she took
R.L. to the hospital on July 28 and July 29, 2024, to be assessed for a bump on his head.
Each time she was told that R.L. was fine and that she needed to monitor the bump. R.L.
was again assessed on August 22, 2024, and all of his results were normal. On August
24, 2024, she took R.L. to LLUCH as he was vomiting after each feeding. The prior day,
Mother reported that R.L. had appeared “lifeless” as he was not smiling or laughing.
R.L. was diagnosed with a urinary tract infection and this was thought to be the cause of
his vomiting. R.L. was admitted in order to be administered antibiotics. While in the
hospital, R.L. began twitching on the left foot and the left side of his face. It was
determined that R.L. was having seizures and had a brain bleed. The fractures to his ribs,
arms and legs were found at this time during CT scans. Mother denied she or Joe abused
R.L. and she had no explanation for his injuries. Joe had only told Mother that he had
accidentally bumped R.L.’s head on door. He also said he may have “rough played” with
R.L. and caused the injuries. Mother insisted that any injuries to R.L. were accidental;
she had never witnessed Joe abuse R.L. or Minors. Mother did not believe that Joe
would hurt Minors, but she had asked Joe to leave the family home.
Mother acknowledged domestic violence between her and Edward, but she was
the victim and not the aggressor. She immediately separated from Edward when the
domestic violence occurred and she sought family law orders for K.G.
6
Joe was interviewed again and insisted he had no idea how R.L. obtained his
injuries. He denied grabbing R.L. hard or physically disciplining him. He did engage in
“rough play” with R.L. but not hard enough to cause injury. He “accidently” hit R.L.’s
head on a door. He also said that R.L. may have obtained his injuries during diaper
changes as R.L. often fought back by kicking not wanting to have his diaper changed. He
denied that Mother or Minors caused the injuries to R.L. Joe claimed to have had moved
out of the family home.
The doctor who treated R.L. at LLUCH was interviewed. He indicated that R.L.’s
injuries were new and old healing fractures. He was unable to determine the age of the
injuries, but they were all consistent with “non-accidental blunt force trauma of physical
abuse.” The injuries were the result of multiple incidents of physical abuse. The medical
report for R.L.’s injuries was provided with the jurisdiction and disposition report.
Maternal grandmother was concerned about Minors and R.L. being in the care of
Joe. She reported he was stubborn, not patient and had caused problems between her and
Mother. A.R. was interviewed and immediately stated that “Joe messed up.” He then
explained that Mother told him Joe admitted that R.L. was accidentally injured while in
his care. A.R. expressed no concerns about being in Joe’s care; he had not witnessed Joe
be aggressive with R.L. and he had not been abused by Joe.
K.G. also stated Mother told her that Joe admitted to accidentally hurting R.L.
K.G. had never witnessed Joe be aggressive with R.L. K.G. was uncertain whether Joe
caused the injuries to R.L. on purpose. She enjoyed the time she spent with Joe.
7
CFS needed more time to interview Ivan and Edward to determine whether they
could provide support and provisions for Minors. The possibility of reunification of
Minors with Mother was “guarded.” Mother was unable to provide an explanation as to
how R.L. had been injured. She minimized the concerns of CFS by expressing that she
did not believe Joe could have caused the injuries to R.L, and even if he caused the
injuries, it was not intentional. Mother did not appear to understand the severity of the
risk to Minors if they were left in the care of Joe.
CFS was most concerned about the physical abuse inflicted on R.L. Minors
remained in out-of-home care and were doing well. They both expressed wanting to visit
with Mother, which was to occur on September 20, 2024. The matter was continued.
An amended petition was filed for K.G, Mother and Edward on October 23, 2024.
The b-1, b-2, b-3, g-5 and j-6 allegations remained the same. An additional allegation
under section 300, subdivision (e), was alleged against Mother (e-4), severe physical
abuse against a child under five years old, in that she forcefully grabbed R.L.’s arms, legs
and ribs. R.L. was treated for the blunt force trauma, which was suffered while in
Mother’s care. An amended petition was filed for A.R., Mother and Ivan. The b-1, g-3,
j-3 (renumbered j-4) and j-4 (renumbered j-5) allegations remained the same. An
additional allegation under section 300, subdivision (e), was alleged against Mother (e-2),
severe physical abuse against a child under five years old, in that she forcefully grabbed
R.L.’s arms, legs and ribs. R.L. was treated for the blunt force trauma, which was
suffered while in Mother’s care.
8
An addendum report was filed on October 24, 2024. CFS recommended that the
allegations in the two petitions be found true except for the g-2 and g-4 allegations
against Ivan and Edward. Minors were to remain in out-of-home care and family
reunification services should be granted to Edward and Ivan. CFS recommended that no
reunification services be offered to Mother and Joe. Edward and Ivan were interviewed
and reported the ability to care for Minors. Their homes would need to be assessed for
placement.
A detective from the San Bernardino County Sheriff’s Department sought to have
Mother submit to a polygraph examination but she refused. Mother’s prognosis for
reunification was poor as she continued to provide no explanation for the injuries
inflicted on R.L.; she minimized CFS’s concerns. Mother had not demonstrated
sufficient protective capacity for Minors and R.L. Further, Mother had not been
cooperative with CFS; CFS believed that Mother was aware of how the physical abuse
was inflicted on R.L. but had not been forthcoming about the abuse. The matter was
continued.
Additional information was provided to the court on December 9, 2024. Mother,
Ivan, Edward and Joe were all engaged in services. Minors were in a new placement as
of November 6, 2024. Maternal grandmother was being assessed for placement of
Minors. The matter was once again continued.
CFS submitted additional information to the court on January 31, 2025. Minors
had been placed with maternal grandmother on December 18, 2024. Since placement
with maternal grandmother, Mother had violated court orders by having unauthorized
9
visits with Minors. Mother had driven with maternal grandmother to visits. Mother had
gone to the Minors’ school without notifying CFS. Maternal grandmother was repeatedly
talking to Minors about the dependency case causing them emotional distress. Mother
had completed a domestic violence program. She was participating in a parenting class
and individual therapy, but CFS reported that the programs would have to be repeated as
Mother had failed to benefit from the classes. Mother continued to be in denial about
R.L.’s medical needs and “doubts the child’s medical state.” Mother did not understand
CFS’s concerns about protecting her children in the future.
CFS also reported that during visits between Mother, Minors and R.L., there was
tension between Minors and Mother as she focused her attention on R.L. Ivan’s home
was found unsuitable for placement of A.R. The jurisdiction and disposition hearing was
continued again. At the hearing, the juvenile court warned Mother not to have
unauthorized visits with Minors and maternal grandmother was admonished not to
discuss the case with Minors.
Another addendum report was filed on February 3, 2025. Mother had completed
her parenting classes and individual therapy. CFS was recommending that she reenroll in
therapy as she had not demonstrated that she benefitted from the therapy. Mother
continued to minimize the concerns of CFS related to R.L.’s medical issues. Further,
Mother had stated in 2024 that Joe had moved out of the family home, but it was
discovered he remained until January 2025. On March 17, 2025, the jurisdiction and
disposition hearing was again continued.
10
A report was submitted by CFS on March 17, 2025. Mother had completed
parenting classes and there was no recommendation for further classes. Ivan was
benefitting from services. Edward was doing well in services but needed more time due
to medical reasons. Visits were going well with all parents and Minors. Mother had been
following court orders. CFS continued to be concerned about Mother’s denial of R.L.’s
medical state and her denial that he needed any special health care. She disagreed that
R.L. should be considered as a client for the Inland Reginal Center (IRC). Minors had
started participating in therapy. Prior to the jurisdiction and disposition hearing, counsel
for Mother submitted a psychological evaluation of Mother that was performed by Dr.
Marina Bassili.3
C. JURISDICTION/DISPOSITION HEARING
The contested jurisdiction and disposition hearing commenced on April 23, 2025.
CFS moved into evidence all of its reports.
Dr. Bassili testified. Prior to meeting with Mother, Dr. Bassili reviewed all of the
reports in the case. Dr. Bassili met with Mother for three hours on November 12, 2024.
Dr. Bassili administered three different psychological tests on Mother. Mother was tested
as to her overall cognitive ability. She scored in the average range. Dr. Bassili did not
detect any cognitive deficits that would impede her ability to benefit from services. She
was also tested as to any learning deficit or learning disability. She had average learning
3 We do not set forth the facts in the report as Dr. Bassili testified at the jurisdiction and disposition hearing about the report and her testimony will be set forth in detail, post.
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ability and no significant learning impairment. She was also given a comprehensive
psychological assessment. There was concern that she may be underreporting. She did
appear to present herself in a favorable, almost unrealistic, light. Dr. Bassili explained
this was somewhat common in these types of cases. Her scores were elevated on an SFI
test, which was a consideration of self-importance. This could mean that Mother did not
want to admit her shortcomings or that she had a sense of self-importance or superiority.
Dr. Bassili did not think that this score was impeding Mother’s progress in therapy;
Mother’s therapist reported that Mother was open and engaged in therapy.
After Dr. Bassili’s first interview with Mother, she felt Mother lacked the insight
as to the severity of the abuse to R.L. that occurred, and she lacked insight into as to why
allegations were being brought against her. Dr. Bassili did not believe that services to
Mother would be helpful at that time since she had not acknowledged the abuse. Dr.
Bassili opined “You can’t treat something that hasn’t been acknowledged.”
Dr. Bassili met again with Mother on March 11, 2025. Mother had completed
some of her services—therapy, parenting and domestic violence classes—by the time of
the second meeting. Mother demonstrated an acknowledgment of CFS’s concerns.
Mother was more open and exhibited less depressive and anxious symptoms. Mother
also acknowledged the severity of the injuries to R.L. and his possible long-term medical
needs. It was Dr. Bassili’s opinion that Mother would benefit from participation in
services. There was no impairment that would hinder her from continuing to benefit
from services.
12
Mother had told Dr. Bassili that regardless of whether she believed that Joe did or
did not inflict the injuries on R.L., she should have been more concerned that he had not
previously told her about R.L. hitting his head on a door. Mother also wanted to give
Minors more responsibilities so their voices could be heard and they could have
independence. Dr. Bassili believed that services should mitigate the risk of abuse. Dr.
Bassili believed that Mother would benefit from continued therapy and that her treatment
should continue to be monitored by the juvenile court. Mother had provided no other
explanation as to how R.L. obtained his injuries to Dr. Bassili. Dr. Bassili clarified that
Mother had initially not acknowledged that R.L. was hurt; she had progressed in that she
now admitted the R.L. had been injured and would have long-term medical needs.
However, she had not provided an explanation as to how R.L. was injured. Mother
intended to take proactive measures by keeping a safe home and not being in contact with
Joe. Mother had never taken accountability for the abuse to R.L.
Dr. Bassili did have some concern about the veracity of Mother’s answers based
on the finding of self-importance. Dr. Bassili indicated that she could not be certain that
the changes she observed in Mother at the second meeting could be sustained over time.
Further, she considered that Mother was motivated to get her children back. She was still
concerned about the lack of protective action in preventing the abuse in the first place.
The only protective action Mother identified was no contact with Joe. Dr. Bassili would
recommend services to Mother even if she was the perpetrator of the abuse as she had
already shown a benefit from engaging in therapy and parenting classes. She
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recommended further therapy and parenting classes to address the risk factors of further
abuse to Minors or R.L.
Mother also testified. She denied that she physically abused R.L. She had sought
treatment for R.L. for the bump on his head and was initially advised there were no
concerns. She left R.L. in the care of Joe when she had to take Minors to school or run
errands. When she initially heard of the injuries R.L. had suffered, she was in shock and
was unsure how he sustained the injuries. She was “shocked” to find out that Joe had hit
R.L.’s head on the door. By the time she was interviewed for the jurisdiction and
disposition report, she believed that Joe was responsible for the injuries. She had
completed therapy, parenting classes and domestic violence classes and stated what she
had learned from each program. She admitted that she contacted Minors in violation of
the court’s order but had stopped. She acknowledged that R.L. would need long-term
care due to the injuries he sustained. She insisted she stopped living with Joe in August
2024. She never told a social worker Joe moved out in January 2025. She did not intend
to get back together with Joe. The matter was continued to May 7, 2025.
Mother continued her testimony on May 7, 2025. She had completed more
therapy sessions, which gave her more insight into how to be a protective mother and
understand R.L.’s injuries. She did not know if Joe intentionally caused R.L.’s injuries
but she did believe he caused them based on the medical reports. She had no contact with
Joe since December 2024 and would have no further contact. She once again denied she
physically abused R.L.
14
Maria Orozco, a social worker for CFS, had been assigned to the instant case in
August 2024 to determine the proper jurisdiction and disposition orders for the case. The
recommendation for Mother was no reunification services for Minors and R.L. Mother
had still not demonstrated a protective capacity for Minors and R.L. Mother told another
social worker that she was still with Joe until January 2025. Minors also advised CFS
that Mother was with Joe until January 2025. Mother had admitted that it was possible
that Joe caused the injuries to R.L. but still insisted that it was not intentional.
A.R. testified that he understood from maternal grandmother that Joe had still been
living with Mother until January 2025. A.R. did not know how R.L. sustained his
injuries.
At the end of evidence, CFS argued that it was not clear who perpetrated the abuse
of R.L. but he was in the care of Mother and Joe at the time of the injuries. Mother had
wavered as to whether the injuries were accidental despite the medical reports finding
that the injuries were the result of nonaccidental blunt force trauma and physical abuse.
Mother came to the conclusion that Joe was the one who injured R.L. in September 2024
but remained with him until at least December 2024. She had not benefitted from therapy
by continuing to consider that Joe unintentionally caused R.L.’s injuries. CFS doubted
her protective capacity. The case involved severe physical abuse that could have resulted
in death or disfigurement. CFS recommended striking the g-3 and g-5 allegations against
Ivan and Edward. The juvenile court struck the allegations and the j-5 allegation for A.R.
finding it inapplicable. Edward’s counsel requested dismissing the b-2 domestic violence
allegation. The juvenile court agreed and dismissed the allegation.
15
Mother’s counsel argued the b-3 allegation against her for domestic violence
related to K.G.’s petition should be dismissed. The juvenile court found the allegation
not true. Mother’s counsel further argued that reunification services should be granted to
Mother because there was no proof that she knew or should have known that Joe was
abusing R.L., as required to bypass services. Further, Dr. Bassili testified Mother was
benefitting from services. Minors were extremely bonded to Mother and wanted to
reunify with Mother. Minors’ counsel agreed with granting services to Mother. Minors
wanted to be placed together. CFS responded that Mother was the primary caregiver for
R.L. and there was sufficient evidence to support that she should have known about the
abuse.
The juvenile court found the b-1, e-4 and j-6 allegations in the K.G. petition to be
true. The b-1, e-2 and j-4 allegations were found true for A.R. The allegations for R.L.
were all found true. Minors were removed from the home and Mother was granted
reunification services for Minors; the juvenile court found that it was in Minors’ best
interests to have Mother receive services. The juvenile court found that they were
bonded to Mother and there was no evidence they were also physically abused. The
juvenile court indicated when discussing the findings for R.L, that it found Mother was
not a credible witness. She did not appear to be forthcoming, and it seemed that she
coached A.R. on his testimony. The juvenile court was also concerned that Mother had
violated court orders. The juvenile court believed the social worker, that Mother
admitted to being with Joe until January 2025. The juvenile court believed that Mother
was dishonest in order to get what she wanted.
16
Mother filed an appeal from the juvenile court’s jurisdiction and disposition orders
for Minors.
DISCUSSION
A. JURISDICTION
Mother contends that no substantial evidence supported the section 300,
subdivision (b), (e), and (j), allegations in the petitions for Minors.4 CFS concedes there
was not sufficient evidence of the section 300, subdivision (e), allegations for Minors.
However, the remaining jurisdictional findings support the petitions.
“Dependency adjudication ‘allows the juvenile court, within specified limits, to
assert supervision over the endangered child’s care’ [citation], and is therefore a weighty
determination with important consequences. Yet it is also true that a jurisdictional
finding is ‘a first step, and the system includes many subsequent safeguards to ensure that
parental rights and authority will be restricted only to the extent necessary for the child’s
safety and welfare.’ ” (In re N.R. (2023) 15 Cal.5th 520, 556.) “ ‘While evidence 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 child to the defined risk of
harm. Thus, previous acts of neglect, standing alone, do not establish a substantial risk of
harm; there must be some reason beyond mere speculation to believe they will reoccur.’ ”
(In re R.L. (2025) 115 Cal.App.5th 221, 230-231.)
4 Mother presents argument that the claims are not moot and that the jurisdictional findings are reviewable based on her liberty interest in Minors. Jurisdictional and dispositional orders are routinely reviewed on appeal, and such arguments are unnecessary and will not be addressed.
17
“Jurisdiction under section 300, subdivision (b), requires proof of (1) the specified
parental condition or conduct (2) that has caused (3) ‘serious physical harm or illness’ or
a ‘substantial risk’ of such harm or illness.” (In re L.W. (2025) 109 Cal.App.5th 1012,
1019; see also In re Cole L. (2021) 70 Cal.App.5th 591, 601.) “Generally, to acquire
jurisdiction under subdivision (b) of section 300, the juvenile court was obliged to find
that the child ‘has suffered, or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result’ of specified forms of parental neglect, including
substance abuse, domestic violence, and failure to protect the child.” (In re L.O. (2021)
67 Cal.App.5th 227, 237.)
An allegation under section 300, subdivision (j), provides, “The child’s sibling has
been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a
substantial risk that the child will be abused or neglected, as defined in those
subdivisions. The court shall consider the circumstances surrounding the abuse or
neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect
of the sibling, the mental condition of the parent or guardian, and any other factors the
court considers probative in determining whether there is a substantial risk to the child.”
“ ‘The court need not wait until a child is seriously abused or injured to assume
jurisdiction and take the steps necessary to protect the child.’ ” (In re I.J. (2013) 56
Cal.4th 766, 773 (I.J.).) “ ‘Subdivision (j) thus allows the court to take into consideration
factors that might not be determinative if the court were adjudicating a petition filed
directly under one of those subdivisions. [¶] The broad language of subdivision (j)
clearly indicates that the trial court is to consider the totality of the circumstances of the
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child and his or her sibling in determining whether the child is at substantial risk of harm,
within the meaning of any of the subdivisions enumerated in subdivision (j). The
provision thus accords the trial court greater latitude to exercise jurisdiction as to a child
whose sibling has been found to have been abused than the court would have in the
absence of that circumstance.’ ” (Id. at p. 774.)
Section 300, subdivision (e), provides for jurisdiction if, “The child is under five
years of age and has suffered severe physical abuse by a parent, or by any person known
by the parent, if the parent knew or reasonably should have known that the person was
physically abusing the child.”
The burden of proof at the jurisdictional hearing is a preponderance of the
evidence. (In re I.C. (2018) 4 Cal.5th 869, 876; In re B.H. (2024) 103 Cal.App.5th 469,
479-480.) “When a dependency petition alleges multiple grounds for its assertion that a
minor comes within the dependency court’s jurisdiction, a reviewing court can affirm the
juvenile court’s finding of jurisdiction over the minor if any one of the statutory bases for
jurisdiction that are enumerated in the petition is supported by substantial evidence. In
such a case, the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.” (In re Alexis E. (2009)
171 Cal.App.4th 438, 451.)
“ ‘ “We review the juvenile court’s jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether there is any
substantial evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court’s
19
orders, if possible. [Citation.] ‘However, substantial evidence is not synonymous with
any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not
be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may
consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must
rest on the evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the
whole record.” ’ ” ’ ” (In re J.A. (2020) 47 Cal.App.5th 1036, 1046; see also I.J., supra,
56 Cal.4th at p. 773.)
1. SECTION 300, SUBDIVISION (E)
CFS concedes on appeal that the section 300, subdivision (e), allegation was not
supported by the evidence, and the concession is appropriate. The allegation had no
application to the petitions alleged against Mother for Minors. It alleged that R.L. was
abused but such allegation did not provide jurisdiction over Minors. Further, it was not
alleged, and there was no proof, that Minors themselves had been physically abused and
it could not be alleged that they were less than five years old. The section 300,
subdivision (e), allegation for abuse of R.L. was not appropriately included in the
petitions related to Minors. As such, the section 300, subdivision (e), allegations for
Minors should be stricken.
2. SECTION 300, SUBDIVISIONS (J) AND (B)
The remainder of the allegations in the petitions are supported by the evidence.
The section 300, subdivision (j), allegations were supported by substantial evidence for
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Minors. “In general, the more egregious the abuse experienced by the sibling, ‘the more
appropriate for the juvenile court to assume jurisdiction over the siblings’ under section
300(j).” (In re S.R. (2024) 104 Cal.App.5th 44, 53.) “[S]ection 300 does not require that
a child actually be abused or neglected before the juvenile court can assume jurisdiction.
The subdivisions at issue here require only a ‘substantial risk’ that the child will be
abused or neglected.” (I.J., supra, 56 Cal.4th at p. 773.) “ ‘Some risks may be
substantial even if they carry a low degree of probability because the magnitude of the
harm is potentially great.’ . . . In other words, the more severe the type of sibling abuse,
the lower the required probability of the child’s experiencing such abuse to conclude the
child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is
relatively minor, the court might reasonably find insubstantial a risk the child will be
similarly abused; but as the abuse becomes more serious, it becomes more necessary to
protect the child from even a relatively low probability of that abuse.” (Id. at p. 778.)
Here, the abuse of R.L. was severe. He had multiple fractures on his limbs, he
was first admitted to the hospital because he was vomiting and could not keep any food
down, and he was found to have a brain bleed. The treating physician determined the
injuries could have only been caused by intentional blunt force trauma. It was never
disclosed by Mother or Joe how the injuries occurred. Joe made statements that he
accidentally hit R.L.’s head on a door, that he played roughly with him, that he may have
been injured during diaper changes and that he may have picked up R.L. by the arms and
legs. Joe insisted all of the injuries were not intentional, but this contradicted the medical
reports and a doctor’s determination that they were the result of intentional blunt force
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trauma injuries. There simply was no explanation for the injuries to R.L. This put
Minors at risk as the injuries could have resulted from a fit of rage by Joe or even could
have been caused or contributed to by Mother, and there was a risk that such harm could
be inflicted on Minors.
Further, the doctor noted that the injuries were in varying states of healing, which
was indicative of the abuse occurring over a period of time and not just based on a single
incident. The juvenile court reasonably could conclude Minors were at risk of similar
harm based on not knowing how these injuries were inflicted. The risk of similar harm to
Minors was prevalent and the lack of acknowledgment of how the physical abuse
occurred put Minors at substantial risk of similar harm in the future. This supported the
true finding on the section 300, subdivision (j), allegation.
Mother insists that she testified at the jurisdiction/disposition hearing that Joe
caused R.L.’s injuries “which, definitively provided an explanation for R.L.’s injuries.”
While Mother testified that Joe was the cause of the injuries, she never provided an
explanation of how these injuries were inflicted on R.L. Further, the juvenile court
expressly stated that it did not find Mother to be credible and was only stating what she
thought the court wanted to hear. The juvenile court could reasonably conclude that there
was no evidence of how these injuries occurred, and that Minors remained at risk of
similar harm despite Mother’s statements.
Mother relies on In re S.R., supra, 104 Cal.App.5th 44, to support her claim that
Minors were not at substantial risk of suffering from similar harm as R.L. In S.R., the
child was sexually abused by the mother’s fiancée. (Id. at p. 50.) The juvenile court
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found that one of the child’s siblings, a male sibling who was 15 years old, was at risk of
similar harm—sexual abuse—the child. This court reversed such finding, concluding
there was no evidence the teenage male sibling would suffer sexual abuse at the hands of
the mother’s fiancée as there was no evidence that the fiancée had a propensity to
sexually abuse teenage boys and the sibling had lived with the fiancée for eight years
without any sexual abuse occurring. No other allegations of similar harm, such as
physical abuse, were brought in the petitions, requiring reversal of the jurisdictional
findings. (Id. at pp. 51, 54-55.)
This case is not similar as it does not involve sexual abuse, but rather severe
physical abuse. The similar harm to Minors was that they were at risk of similar physical
abuse. Here, it is unknown how R.L. received his injuries so it was reasonable for the
juvenile court to consider that Minors may suffer similar physical abuse, unlike in In re
S.R. in which the evidence showed that the fiancée had sexually abused the child and this
was the single allegation: that the male, 15-year-old sibling would suffer the same harm.
This case is more akin to I.J., supra, 56 Cal.4th 766. In I.J., the father sexually
abused and raped his 14-year-old daughter. There were four younger siblings, including
three sons, and it was alleged in a petition that father’s sexual abuse of the daughter
placed all the children at risk of harm. The petition contained allegations of not only the
similar harm of sexual abuse, but also other allegations including risk of physical harm.
(Id. at p. 771.) There was no evidence that the sons were sexually abused or sustained
physical abuse. The juvenile court found jurisdiction pursuant to section 300, subdivision
(j), as to the sons. (I.J., at p. 772.) The Supreme Court upheld the ruling. It found, “The
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serious and prolonged nature of father's sexual abuse of his daughter under these
circumstances supports the juvenile court’s finding that the risk of abuse was substantial
as to all the children.” (Id. at p. 778.)
Here, R.L.’s injuries had been inflicted over some period of time. The injuries
were severe and the petitions alleged that Minors were at risk of similar harm. The
juvenile court did not find Mother credible, placing Minors at risk if she allowed Joe to
return to the home, or if Mother in fact had some culpability in the abuse of R.L.,
supporting the section 300, subdivision (j), finding.
Mother contends the true finding on the section 300, subdivision (e), allegation
“tainted” the section 300, subdivision (j), finding by the juvenile court. Mother states,
“Here, jurisdiction under section 300, subdivision (j), was premised on the abuse of A.R.
and K.G.’s half-sibling, R.L. . . . Yet, given the nature and severity of R.L.’s injuries,
once the court sustained the section 300, subdivision (e), allegations as to A.R. and K.G.
by clear and convincing evidence, it effectively predetermined the juvenile court
sustaining the subdivision (j) allegations.” The record supports that the juvenile court
reviewed all of the evidence in support of its finding on the section 300, subdivision (j),
allegation and made an independent finding as to abuse of Minors’ sibling. There is no
evidence that the true finding on the section 300, subdivision (e), allegation tainted the
findings on the section 300, subdivision (j), allegation. The juvenile court was aware that
the allegations all stemmed from the abuse of R.L. and there is no argument by Mother
that such injuries did not occur. The record contains sufficient evidence to support the
jurisdictional finding under section 300, subdivision (j), and such evidence was not
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tainted by the improper inclusion of the section 300, subdivision (e), allegations in the
petitions.
The section 300, subdivision (b), allegation was based on the failure of Mother to
protect based on R.L. being found to have multiple injuries including rib, right ankle and
hand fractures, fibula fractures in both legs, a right tibia corner fracture and a brain bleed
on August 24, 2024. The injuries were consistent with non-accidental trauma and Minors
were at risk of suffering similar harm. The section 300, subdivision (b), allegations were
supported by the same evidence as the section 300, subdivision (j), allegations and we
have found such evidence supported the jurisdictional finding by the juvenile court.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Mother contends she received ineffective assistance of counsel due to her
counsel’s failure to demurrer to the section 300, subdivision (e), allegations in the
petitions for Minors. She insists the allegation permeated the entire proceedings and she
would have received a more favorable result absent the allegation.
“A parent in a dependency proceeding is entitled to competent counsel and to
judicial review of claims of ineffective assistance of counsel. [Citations.] A parent
seeking to establish ineffective assistance of counsel must show both that counsel failed
to act in a manner to be expected of a reasonably competent attorney practicing in the
field of juvenile dependency law, and that it is ‘ “reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error.” ’
[Citation.] When a parent seeks to assert ineffective assistance of counsel on direct
appeal (as opposed to by writ of habeas corpus), appellate courts further limit their
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review to consider only those claims ‘ “where ‘there simply could be no satisfactory
explanation’ for trial counsel’s action or inaction.” ’ ” (In re M.F. (2022) 74 Cal.App.5th
86, 108-109.)
“A court need not evaluate whether counsel’s performance was deficient before
examining prejudice suffered by defendant. [Citation.] Thus, a court may reject a claim
if the party fails to demonstrate that but for trial counsel’s failings, the result would have
been more favorable to the defendant.” (In re Nada R. (2001) 89 Cal.App.4th 1166,
1180.)
Here, Mother cannot show prejudice based on counsel’s failure to object to the
section 300, subdivision (e), allegation for Minors. As shown above, the petitions were
supported by both the section 300, subdivisions (j) and (b), allegations, and we have
found that the true finding of the allegations by the juvenile court did not taint the other
findings. Mother would not have received a more favorable result if counsel had
objected to the section 300, subdivision (e), allegation and it had been stricken.5
C. DISPOSITION
Mother contends there was insufficient evidence to support the dispositional order
removing Minors from her custody.
5 In the reply brief for the first time Mother contends prejudice based on her inclusion in the California Child Abuse Central Index. We reject this argument made for the first time in the reply brief. “ ‘ “We will not ordinarily consider issues raised for the first time in a reply brief.” ’ ” (In re R.Q. (2023) 96 Cal.App.5th 462, 470.) Further, we are ordering that the section 300, subdivision (e), allegation be stricken.
26
“[I]f the court exercises jurisdiction over the minor, it must decide the appropriate
disposition. Generally, the court chooses between allowing the child to remain in the
home with protective services in place and removing the child from the home while the
parent engages in services to facilitate reunification.” (In re E.E. (2020) 49 Cal.App.5th
195, 205.) “California law . . . ‘requires that there be no lesser alternative before a child
may be removed from the home of his or her parent.’ [Citation.] But, ‘ “ ‘[t]he 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.’ [Citation.] The
court may consider a parent’ s past conduct as well as present circumstances.” ’ ” (In re
L.O., supra, 67 Cal.App.5th at pp. 244-245.)
We recognize that “past abuse of a sibling does not, on its own, justify removing a
child from their parents.” (In re E.E., supra, 49 Cal.App.5th at p. 216.) Conceivably,
Minors, who were older than R.L. could “articulate any abuse to which [they] may be
subjected.” (Ibid.) However, the juvenile court believed that Mother had coached A.R.
as to how to testify at the jurisdiction and disposition hearing. This was concerning in
that A.R. may not report if he was subjected to abuse, or if K.G. was abused, which made
returning Minors to the care of Mother, even under family maintenance, a concern as to
whether they would be safe in her care.
Moreover, there was other evidence before the juvenile court, which warranted
removal of Minors from Mother’s care. Mother initially did not acknowledge the
severity of R.L.’s injuries and the need for long-term medical care. It was only just prior
to the jurisdiction and disposition hearing that Mother stated she now understood the
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severity of R.L.’s injuries but continued to believe that they were accidentally caused by
Joe. She also stayed with Joe even after he disclosed hitting R.L.’s head on the door.
While Mother eventually had Joe move out of the house, this reflected on her capacity to
protect Minors. Further, Mother had violated court orders by seeing Minors at times
other than at supervised visits and had to be admonished by the juvenile court. This
evidence was relevant to whether a less restrictive means would be effective in protecting
Minors such as family maintenance. The juvenile court could reasonably be concerned
that she would not follow orders if awarded custody with family maintenance or other
restrictive orders. (See In re John M. (2012) 212 Cal.App.4th 1117, 1127 [the mother
twice violated court orders showing that the juvenile court could not safely place the
minor in her custody as she may not follow court orders].) Finally, Dr. Bassili herself
recommended that Mother engage in further therapy and parenting classes and the doctor
was concerned that Mother still had not acknowledged how R.L.’s injuries were inflicted.
Dr. Bassili expressed concern that Mother still did not have the protective capacity to
care for Minors. There was clear and convincing evidence before the juvenile court to
support the dispositional order removing Minors from Mother’s care and granting her
reunification services.
Mother contends that Minors were removed from her care without “even a hint of
evidence demonstrating danger in Mother’s care.” She also claims that the finding on the
section 300, subdivision (e), allegation resulted in an automatic removal from the home
under section 361, subdivision (c)(1). She insists the juvenile court did not make
concrete findings that reasonable efforts were made to prevent the removal of Minors
28
from her care or that there was clear and convincing evidence of harm if Minors were not
removed from her care.
The juvenile court reviewed all of the reports submitted by CFS. CFS never stated
that Minors should be removed automatically under section 361, subdivision (c)(1). 6
Rather, the last disposition report stated that the court should remove Minors from
Mother’s care due to “clear and convincing evidence” that there was substantial risk to
Minors if they were to remain in Mother’s custody. CFS noted that reasonable efforts
were made to prevent removal. The juvenile court adopted the recommendations of CFS.
There simply is no evidence in the record that the juvenile court order related to
disposition was based on the presumption in section 361, subdivision (c)(1).7 Further, the
juvenile court awarded reunification services to Mother, despite a finding of section 300,
subdivision (e), which would allow a bypass of services. (See § 361.5, subd. (b)(6)(A).)
While the juvenile court did not express its findings on the record regarding disposition,
substantial evidence supports the implied findings by the juvenile court that removal of
6 Section 361, subdivision (c)(1), provides in pertinent part, “The fact that a minor has been adjudicated a dependent child of the court pursuant to subdivision (e) of Section 300 shall constitute prima facie evidence that the minor cannot be safely left in the physical custody of the parent, guardian, or . . . custodian with whom the minor resided at the time of injury.”
7 We note that Mother in her ineffective assistance of counsel claim raises that she was prejudiced by the finding of the section 300, subdivision (e), allegation based on the juvenile court having no other choice but to remove Minors from Mother’s care. As noted, the juvenile court reviewed the evidence and there is no indication in the record that it relied on the section 300, subdivision (e), allegation in reaching its decision on disposition.
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Minors from Mother’s care was necessary. (In re Aurora P. (2015) 241 Cal.App.4th
1142, 1166.)
Further, the juvenile court heard the testimony from Dr. Bassili, a social worker,
and Mother. The juvenile court found Mother to not be credible. It remained concerned
that Mother could not protect Minors. The record supports the disposition finding by the
juvenile court.
DISPOSITION
The jurisdictional finding under section 300, subdivision (e), for Minors is
reversed and should be stricken by the juvenile court. The remaining jurisdictional and
dispositional orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the jurisdictional and dispositional orders in part, reversing the findings under Welfare and Institutions Code section 300, subdivision (e), while upholding the remaining jurisdictional findings and the removal of the minors from the mother's custody.
Issues
Whether substantial evidence supported the jurisdictional findings under Welfare and Institutions Code section 300, subdivisions (b), (e), and (j).
Whether the juvenile court erred in including the section 300, subdivision (e) allegation as a jurisdictional finding for the minors.
Whether the mother received ineffective assistance of counsel regarding the failure to demurrer to the section 300, subdivision (e) allegation.
Disposition. Affirmed in part; reversed in part.
Quotations verified verbatim against the opinion
“CFS concedes there was not sufficient evidence of the section 300, subdivision (e), allegations for Minors.”
“However, the remaining jurisdictional findings support the petitions.”