In re Isaiah E. CA2/7

Filed 11/7/23 In re Isaiah E. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re ISAIAH E., a Person Coming B320238
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. 22CCJP00874)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

F.E.,

Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles
County, Mary E. Kelly, Judge. Reversed.
Benjamin Ekenes, under appointment by the Court of
Appeal, for Defendant and Appellant.
 Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and William D. Thetford, Deputy
County Counsel, for Plaintiff and Respondent.
________________________

INTRODUCTION

The Los Angeles County Department of Children and
Family Services (Department) filed a dependency petition
pursuant to Welfare and Institutions Code section 300,
subdivisions (a) (serious physical harm inflicted nonaccidentally)
and (b)(1) (failure to protect), in March 2022 on behalf of Isaiah
E. (born November 2021) based on two incidents of domestic
violence inflicted on Isaiah’s mother F.E. by Isaiah’s father
Marc G.1 At the jurisdiction hearing two months later, the
juvenile court dismissed the subdivision (a) count and sustained
the subdivision (b)(1) count. The court declared Isaiah a
dependent child of the juvenile court, removed him from Marc,
and ordered continued supervision by the Department while
Isaiah remained in F.E.’s home.
F.E. appeals the jurisdiction findings and disposition
orders, contending there was insufficient evidence to support a
finding Isaiah was at substantial risk of serious physical harm by
the time of the jurisdiction hearing. We agree and reverse.

1 Undesignated statutory references are to the Welfare and
Institutions Code.

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 FACTUAL AND PROCEDURAL BACKGROUND

A. The February 2022 Domestic Violence Incidents
On February 7, 2022 the Department received a referral for
emotional abuse of Isaiah and Isaiah’s half-sibling, Mark V.,
alleging Marc pulled F.E. by her hair and displayed a gun after
F.E. refused to let him into her residence. F.E. had no visible
injuries and declined an emergency protective order.
Interviewed by a Department social worker two days later,
F.E. explained she lived with Marc’s paternal great aunt and
other paternal relatives, but Marc did not live there. She stated
that on the day of the incident, Marc showed up at the home
wanting to see Isaiah. She stepped outside and went to the front
of the home with Isaiah. After a while, she brought Isaiah back
inside. Marc insisted on continuing to talk to her and began
pulling her arm, refusing to go when his relatives told him to
leave. Marc told F.E. he wanted to continue their relationship
and called her names. His great aunt told Marc to calm down,
but he refused and dragged F.E. to the parking lot of the
apartment. With his back to his relatives, Marc lifted up his
shirt and showed F.E. a gun, pointed the gun at the ground, then
fled. F.E. called law enforcement and made a police report.
F.E. explained that she was never in a relationship with
Marc, although they had sex twice after meeting at a friend’s
home. F.E. said there was another incident a month earlier
where she was in the passenger seat in Marc’s car, and he pushed
her after she greeted a male friend. F.E. said because Marc
pushed her and lied about his age, she decided she could not be in
a relationship with him.

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 On February 16 the Department received a referral
reporting a second domestic violence incident. The referral
stated that Marc approached F.E.’s car about a block from her
residence, hit the car, cracked the windshield, and demanded she
let him inside the car. Out of fear, F.E. opened the door, Marc got
in the driver’s seat and she moved to the passenger seat. After
driving a block, Marc started punching F.E.’s face and head. F.E.
exited the car in an attempt to flee, but she fell, and Marc
stomped on her back. As a result, she had a visible injury on her
left cheek, and she complained of back pain. Interviewed by a
Department social worker the same day, F.E. confirmed the
incident, which occurred on February 15. After the incident,
Marc drove off in F.E.’s car, and F.E. called his great aunt to pick
her up. After the great aunt arrived, they found F.E.’s car
abandoned a few blocks away. F.E. called the police and was
issued an emergency protective order. Isaiah was not present for
the incident.
The same day, Marc broke into his relatives’ home through
a window, took Isaiah’s clothing, and also stole a household car.
The family called the police, but Marc left before the police
arrived. A household member reported Marc had come to the
house on February 14 brandishing a firearm and threatening to
kill F.E. The record does not reflect that F.E. and Isaiah were
present for these particular incidents.
After the second incident, F.E. moved to San Diego with
Isaiah and was residing at a confidential location with a cousin.
F.E. feared Marc and did not know when she would return from
San Diego. F.E. would not disclose the cousin’s address because
the cousin did not want to be involved.

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 On March 1 the Department informed F.E. that Marc had
been arrested and was incarcerated.2

B. Isaiah’s Detention and Release to F.E.
On March 9 the Department filed a section 300 petition
under subdivisions (a) and (b) that alleged domestic violence by
Marc and F.E.’s failure to protect.
At the detention hearing on March 14, the juvenile court
removed Isaiah from Marc, and ordered monitored visits with
him.
The next day, the juvenile court issued a temporary
restraining order protecting F.E. from Marc. On April 6 the
juvenile court issued a permanent three-year restraining order
protecting F.E. from Marc.
In an interview conducted for the Department’s risk
assessment report, F.E. conceded the domestic violence
allegations were true, but questioned how Isaiah could have been
in danger if he was not physically present during the incidents.
Regarding count b-1, F.E. disagreed with the allegations of
failure to protect because Marc was not violent with her before
the two reported domestic violence incidents, and Isaiah was not
present when Marc got in her car.
F.E. also explained she was on three years’ probation after
serving eight months in jail for attempted murder in 2021 (before
Isaiah was born), based on an incident where she was driving a

2 The record does not reflect why Marc was arrested nor how
long he was incarcerated. It is undisputed that at the time of the
jurisdiction/disposition hearing, Marc did not have an expected
release date.

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vehicle with Marc in the car when individuals began shooting at
them and he shot back. F.E. was charged because she was the
driver.
The Department risk assessment report noted F.E. had left
her home and was residing at a confidential location. The
Department’s report concluded F.E. was protective and that
Isaiah could remain with her. The Department reported F.E.
“understands the importance of keeping the child Isaiah safe and
away from any and all” domestic violence, and had “moved to a
confidential location and is accepting of services.”

C. The Jurisdiction/Disposition Hearing
On May 2 at the combined jurisdiction and disposition
hearing, the juvenile court dismissed count a-1 and sustained the
failure to protect allegation in count b-1.3 The court stated it
would sustain the failure to protect allegation for the reasons
argued by the Department. These reasons are as follows: the
restraining order was granted based on a finding Marc posed a
risk; F.E.’s understanding that he posed a risk to her and Isaiah
was only recent; F.E. had enrolled in programs only a week
earlier; F.E. rejected an emergency protective order after the
February 7 incident, even though she recounted a prior physical
incident (Marc pushing her while she was in his car) a month
earlier; F.E. showed naivety about how domestic violence places
children at risk by asking how Isaiah was at risk if he was not
present for either incident; and her claim she was unaware of

3 The Department notes that “Isaiah’s attorney asked the
juvenile court to dismiss count a-1 and sustain count b-1 after
striking mother from the count.”

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Marc’s propensity for violence was belied by the fact that he used
a firearm in her presence in an attempted murder a year earlier.
The juvenile court struck the allegation that Marc brandished a
firearm, but stated it was concerned for Isaiah’s safety due to the
evidence of gun violence.
The juvenile court declared Isaiah a dependent child of the
court, and found F.E. was the custodial parent and would retain
physical custody of the child. The court found Marc was the
noncustodial parent at the time the petition was filed, and that
Isaiah would be in substantial danger if placed in his care. The
juvenile court ordered family maintenance services for F.E.,
including a domestic violence program for victims, a parenting
class, and individual counseling. The court ordered monitored
visits and services for Marc, including a 26-week domestic
violence program for perpetrators, a parenting class, and
individual counseling.
On May 2 F.E. appealed the juvenile court’s jurisdiction
findings.4

4 The notice of appeal did not identify the juvenile court’s
disposition order. The Department did not raise this issue in its
respondent’s brief, and because F.E. appealed from a combined
jurisdiction/disposition hearing, we liberally construe the notice
of appeal to encompass the disposition order. (See In re Daniel Z.
(1992) 10 Cal.App.4th 1009, 1017 [“Liberal construction is
particularly appropriate here because the jurisdictional finding
and dispositional order were rendered simultaneously on
January 9, 1992—the date specified in the notice of appeal—and
are reflected for each child in a single written order. We shall
therefore construe the notice of appeal as properly specifying the
dispositional order.”]; see also In re Joshua S. (2007) 41 Cal.4th
261, 272 [notice of appeal shall be “‘liberally construed so as to

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 Subsequently, on November 10 the juvenile court
terminated jurisdiction, but stayed its order pending receipt of a
juvenile custody order granting sole legal and physical custody to
F.E., with monitored weekly virtual visits for Marc while
incarcerated, and three monitored visits a week upon release
from custody. On November 17 the court received and issued the
juvenile custody order.
The same day, F.E. appealed the findings and orders made
on November 10 and 17.5

DISCUSSION

A. Governing Law and Standard of Review
The purpose of section 300 “is to provide maximum safety
and protection for children who are currently being physically,
sexually, or emotionally abused, being neglected, or being

protect the right of appeal if it is reasonably clear what [the]
appellant was trying to appeal from, and where the respondent
could not possibly have been misled or prejudiced’”].)
5 Although the juvenile court terminated dependency
jurisdiction, because F.E. appealed the order terminating
jurisdiction and the custody order, her appeal of the jurisdiction
findings is not moot. (See In re Rashad D. (2021) 63 Cal.App.156,
159 [“[I]n most cases . . . for this court to be able to provide
effective relief, the parent must appeal not only from the
jurisdiction finding and disposition order but also from the orders
terminating jurisdiction and modifying the parent’s prior custody
status. Without the second appeal, we cannot correct the
continuing adverse consequences of the allegedly erroneous
jurisdiction finding.”].)

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exploited, and to ensure the safety, protection, and physical and
emotional well-being of children who are at risk of that harm.”
(§ 300.2; see In re A.F. (2016) 3 Cal.App.5th 283, 289; In re
Giovanni F. (2010) 184 Cal.App.4th 594, 599.)
Section 300, subdivision (b)(1), allows a minor to be
adjudged a dependent of the juvenile court when “‘[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm or illness, as a result of the failure or
inability of his or her parent or guardian to adequately supervise
or protect the child . . . .’ A jurisdiction finding under section 300,
subdivision (b)(1), requires the Department to prove three
elements: (1) the parent’s or guardian’s neglectful conduct or
failure or inability to protect the child; (2) causation; and
(3) serious physical harm or illness or a substantial risk of
serious physical harm or illness.” (In re Cole L. (2021)
70 Cal.App.5th 591, 601; accord, In re L.W. (2019) 32 Cal.App.5th
840, 848; In re Joaquin C. (2017) 15 Cal.App.5th 537, 561.
Section 300 requires proof the child is subject to a
substantial risk of harm at the time of the jurisdiction hearing.
(See In re Cole L., supra, 70 Cal.App.5th at p. 602; In re J.N.
(2021) 62 Cal.App.5th 767, 775; In re D.L. (2018) 22 Cal.App.5th
1142, 1146.) 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 Kadence P. (2015)
241 Cal.App.4th 1376, 1383; In re N.M. (2011) 197 Cal.App.4th
159, 165), and may consider past events in deciding whether a
child presently needs the court’s protection. (See In re J.N., at
p. 775; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1215-
1216; In re N.M., at p. 165.) A parent’s “‘[p]ast conduct may be
probative of current conditions’ if there is reason to believe that

9
the conduct will continue.” (In re S.O. (2002) 103 Cal.App.4th
453, 461; accord, In re Kadence P., at p. 1384; see In re J.N., at
p. 775 [“DCFS must establish a nexus between the parent’s past
conduct and the current risk of harm.”].) “To establish a defined
risk of harm at the time of the hearing, there ‘must be some
reason beyond mere speculation to believe the alleged conduct
will recur.’” (In re D.L., at p. 1146.)
“‘In reviewing a challenge to the sufficiency of the evidence
supporting the jurisdictional findings and disposition, we
determine if substantial evidence, contradicted or uncontradicted,
supports them. “In making this determination, we draw all
reasonable inferences from the evidence to support the findings
and orders of the dependency court; we review the record in the
light most favorable to the court’s determinations; and we note
that issues of fact and credibility are the province of the trial
court.” [Citation.] “We do not reweigh the evidence or exercise
independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.”’” (In re
I.J. (2013) 56 Cal.4th 766, 773; see In re I.C. (2018) 4 Cal.5th 869,
892.) However, “[s]ubstantial evidence is not synonymous with
any evidence. [Citation.] To be substantial, the evidence must be
of ponderable legal significance and must be reasonable in
nature, credible, and of solid value.” (In re M.S. (2019)
41 Cal.App.5th 568, 580; accord, In re J.A. (2020) 47 Cal.App.5th
1036, 1046 [while substantial evidence may consist of inferences,
any inferences must rest on the evidence; inferences based on
speculation or conjecture are insufficient].)

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B. Substantial Evidence Does Not Support the Jurisdiction
Finding Under Section 300, Subdivision (b)(1)
The parties do not dispute the two February 2022 incidents
were acts of domestic violence perpetrated by Marc on F.E. F.E.
contends, however, that there is no substantial evidence Isaiah
was at risk of physical harm at the time of the jurisdiction
hearing because he was not present during any domestic violence
incident and she took timely protective measures.
“[A]ny domestic dispute that escalates into the use of
physical force is a serious matter, appropriately addressed by the
juvenile court.” (In re Cole L., supra, 70 Cal.App.5th at p. 606.)
The focus of section 300, subdivision (b), is physical danger to the
child, requiring an evaluation of the existing risk of physical
harm to Isaiah from his parents’ conflict as of the date of the
jurisdiction hearing. (See id. at pp. 606-607.) Accordingly, in this
case the relevant inquiry is whether a significant risk of physical
injury to Isaiah existed in May 2022. “[T]o make that finding
requires evidence the earlier threatening conduct will recur.” (Id.
at p. 607; see Georgeanne G. v. Superior Court (2020)
53 Cal.App.5th 856, 869 [“a finding of risk of harm to a child
must be based on more than conjecture or a theoretical
concern”].)
Reviewing the record in the light most favorable to the
juvenile court’s determinations, no substantial evidence supports
the juvenile court’s findings. As noted above, at the May 2
hearing, the juvenile court essentially adopted the Department’s
reasoning as its own, apparently over the objections of F.E. and of
minor’s counsel. But the record contains no evidence there was a
substantial risk of recurrence of domestic violence by Marc
against F.E., much less risk of physical harm to Isaiah. There

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had been no contact from Marc since the second domestic violence
incident, and there was no reasonable likelihood of future
contact, let alone physical harm from Marc. First, Marc had been
incarcerated since March 1, and remained incarcerated at the
time of the jurisdiction hearing. Second, the juvenile court’s
April 6 permanent, three-year protective order was already in
place. Previous orders, including the February 15 emergency
protective order, and the March 15 temporary protective order,
had prohibited contact from Marc. Third, F.E. and Isaiah had
moved from Los Angeles to a confidential location in San Diego
immediately after the February 15 incident. Fourth, Isaiah was
not present during any domestic violence incident, and had been
released to F.E. by the court at the detention hearing, which
indicates the court determined he was sufficiently protected to
remain in her care. At the time of the jurisdiction hearing, Isaiah
had been living safely with F.E. for nearly two months, with no
further acts of domestic violence or threats by Marc during that
period. Additionally, F.E. was cooperative with the Department,
and enrolled in a domestic violence program, individual
counseling, and parenting programs.
The Department argues that “neither the restraining order
nor father’s incarceration eliminated all of the risk” and that
“current incarceration does not preclude risk of future harm.”
But “there ‘must be some reason beyond mere speculation to
believe the alleged conduct will recur.’” (In re D.L., supra,
22 Cal.App.5th at p. 1146.) Even assuming Marc were to be
released from incarceration in the near future, and wanted to
seek out F.E. in violation of the restraining order (speculative
assumptions unsupported by any evidence), the Department fails
to explain how Marc would be able to locate F.E., who had moved

12
to a confidential location in a different city in order to protect
herself and her child. Under these circumstances, any risk of
future harm to Isaiah is entirely speculative. (See id. at p. 1147,
fn. 2 [insufficient evidence to support finding of future risk based
on mother failing to protect child from father’s storing an
unsecured loaded rifle in the home, where father was
incarcerated at the time of the hearing with unknown release
date; “[a]ny risk of future danger to D.L. posed by father’s
keeping a loaded gun in the house would be entirely
speculative”].)
The juvenile court’s determination that F.E. did not
recognize the danger Marc posed to her and Isaiah on a timely
basis is also not supported by substantial evidence. The evidence
is undisputed that F.E. proactively sought protection and
distance from Marc. Because of the incident when Marc pushed
her, and because he had lied to her about his age, she had
already decided she could not be in a relationship with him. F.E.
had blocked him on social media and did not have his contact
information. Immediately after the February 7 incident, F.E.
contacted law enforcement and made a report. Although she
declined an emergency protective order at that time, F.E.
immediately made a law enforcement report after the
February 15 incident and accepted an emergency protective
order. F.E. also left the home of Marc’s relatives to stay with a
cousin in San Diego at an undisclosed address immediately after
the second incident. On March 11 she requested a restraining
order; the court issued the temporary restraining order on
March 15, and a permanent three-year restraining order on
April 6. This all “belies any suggestion she lacked sufficient self-
awareness or concern about [Marc]’s conduct to be able to protect

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her child[].” (In re Cole L., supra, 70 Cal.App.5th at p. 607
[mother’s “immediate request for a temporary restraining order”
after altercation with father who lived elsewhere indicated
sufficient ability to protect her children, despite her denial that
physical domestic violence had occurred and prior occasion where
police had been called].)
On appeal, the Department acknowledges F.E.’s actions
“provided a degree of protection” for Isaiah, but argues these
protective measures were not “immediately taken” after the first
reported domestic violence incident. But only nine days elapsed
between the first and second reported incidents of domestic
violence. And after the second incident, which was significantly
more violent, F.E. took immediate and decisive action. She
immediately moved to a confidential location in a different city,
accepted an emergency protective order, and requested a
restraining order. These actions demonstrate F.E. “recognized
[Marc]’s potential danger and proactively sought a restraining
order to protect herself and the child[].” (In re Cole L., supra,
70 Cal.App.5th at p. 607.) And, “there was no evidence in the
record that [the parents] had engaged in multiple acts of
domestic violence over an extended time.” (Id. at p. 605.) Rather,
even considering the incident a month earlier when Marc
“pushed” her in the car, that incident and the two reported
February incidents all occurred within less than a month and a
half of each other, and F.E.’s actions at each stage demonstrated
appropriate concern for her own and her child’s well-being, with
timely and proportional responses to Marc’s escalating conduct.
That F.E. initially declined an emergency protective order and
remained living with Marc’s relatives for nine days after the first
February incident does not constitute substantial evidence that

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Isaiah was at substantial risk of suffering serious physical harm
at the time of the jurisdiction hearing two months later, or that
he was at such risk of harm in the future.
The Department maintains that F.E.’s protective actions
“must be considered in light of the severity of the domestic
violence and father’s propensity for violence.” (See In re I.J.,
supra, 56 Cal.4th at p. 778 [“[A]s the abuse becomes more
serious, it becomes more necessary to protect the child from even
a relatively low probability of that abuse.”].) But the two
domestic violence incidents and Marc’s prior criminal conduct are
not substantial evidence that physical violence between F.E. and
Marc was likely to recur because Marc was incarcerated at the
time of the jurisdiction hearing, and the court had issued a three-
year restraining order (which is subject to renewal). Further, as
noted above, Isaiah was not present for either domestic violence
incident, and the Department does not argue that F.E.’s actions
were ineffective or that she would be unlikely to pursue
protective actions if Marc were released. The Department does
not identify a specific hazard that Isaiah would be exposed to
posing a substantial risk of serious physical harm to him. (See
In re J.N., supra, 62 Cal.App.5th at p. 776 [“[A]lthough we
acknowledge that, on an abstract level, violent crime is
incompatible with child safety, DCFS cannot use such
generalities to satisfy its burden of proving an ‘identified, specific
hazard in the child’s environment’ that poses a substantial risk of
serious physical harm to him.”].)6

6 The Department also speculates there were no further
incidents of violence, not because of the restraining order, but
because Marc was incarcerated. To the extent the Department

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 In sum, there was no substantial evidence that F.E. or
Isaiah were at substantial risk of harm from Marc at the time of
the jurisdiction hearing.

DISPOSITION

The juvenile court’s jurisdiction findings and disposition
orders are reversed. The juvenile court is directed to dismiss the
dependency petition and vacate all subsequent orders after it
assumed jurisdiction.

MARTINEZ, J.
We concur:

PERLUSS, P. J.

FEUER, J.

takes the position the restraining order was somehow ineffective
in this case (or for that matter the emergency protective order
and the temporary protective order), it is unclear why F.E.’s
immediate failure to avail herself of these remedies would be
substantial evidence supporting the court’s jurisdiction findings
and disposition orders.

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