Filed 8/7/13 In re A.F. CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR


In re A.F.,                                                                  B243058
                                                                             (Los Angeles County
a Person Coming Under the Juvenile Court Law.                                 Super. Ct. No. CK91573)


LOS ANGELES COUNTY DEPARTMENT OF
CHILDREN AND FAMILY SERVICES,

         Plaintiff, Respondent and
         Cross-Appellant,

         v.

S.J.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of Los Angeles County,
Robert L. Stevenson, Juvenile Court Referee. Reversed in part and affirmed in
part.
         Catherine C. Czar, under appointment by the Court of Appeal, for Defendant
and Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County
Counsel, and Tracey F. Dodds, Principal Deputy County Counsel, for Plaintiff,
Respondent and Cross-Appellant.
                                  INTRODUCTION
       Mother, S.J. (Mother), appeals from a dependency court order declaring her
minor son, A.F., a dependent of the court under Welfare and Institutions Code
section 300 (section 300), subdivision (b). Mother contends there is no substantial
evidence that A.F. is at substantial risk of suffering serious physical harm such that
dependency jurisdiction is appropriate under section 300, subdivision (b). We
agree and reverse the order finding dependency jurisdiction over A.F. on that
ground.
       The Los Angeles County Department of Children and Family Services
(DCFS) cross-appeals from the judgment, contending that the dependency court
erred in failing to find jurisdiction pursuant to section 300, subdivision (c), based
on severe emotional damage to A.F. Because the evidence below with respect to
emotional abuse was contradictory, we affirm the order dismissing the allegation
under section 300, subdivision (c).


                FACTUAL AND PROCEDURAL BACKGROUND
Procedural Background
       A dependency petition was filed on January 26, 2012, alleging that A.F., a
boy born February 1999, came within the provisions of subdivisions (b) and (c) of
section 300.1
       Under section 300, subdivision (b), the petition alleged that on prior
occasions, A.F. demonstrated homicidal ideation against Mother and his
grandmother, M.J. (Grandmother), resulting in his hospitalization in a psychiatric

1
       The petition also alleged that A.F.’s younger sister, Y.G., was a child described by
section 300, but ultimately such allegations were dismissed and Y.G. is not a party to this
appeal. A.F.’s father, who lives in Mexico, is also not a party to this appeal.

                                             2
facility. The petition further alleges that Mother “failed to ensure the child’s
participation in necessary mental health treatment and that the child complied with
the child’s prescribed psychotropic medication regime,” and that this medical
neglect endangered his physical health and safety and placed him “at risk of
physical harm, damage, danger and medical neglect.”
      Under section 300, subdivision (c), the petition alleged that Mother and
Grandmother emotionally abused A.F. on an ongoing basis by calling him
demeaning and derogatory names and questioning his sexual orientation, and by
cutting his hair against his will while he was sleeping. The petition alleged that the
child exhibited homicidal ideation against Mother and Grandmother resulting in
his hospitalization. The petition alleged that the ongoing emotional abuse by
Mother and her failure to protect A.F. from abuse by Grandmother, places him at
substantial risk of suffering serious emotional damage as evidenced by severe
anxiety, depression, withdrawal, and aggressive behavior towards himself or
others.
      The court found a prima facie case existed for detaining A.F. and for finding
that he was a person described by subdivisions (b) and (c) of section 300. A.F. was
released to Mother’s custody, and the court ordered a mental health assessment for
him and family maintenance services for him and Mother.
      At the adjudication and disposition hearing, the court found that A.F. has
severe mental health issues, and that Mother has not timely or adequately
addressed these issues or ensured that A.F. received the services he needed. The
court further concluded that Grandmother “creates quite a toxic environment” for
A.F. The court sustained the allegation under section 300, subdivision (b), but
dismissed the allegation under subdivision (c) on the ground that DCFS had not
satisfied its burden.

                                           3
      Mother appealed from the jurisdictional/dispositional order finding
jurisdiction under section 300, subdivision (b), and DCFS cross-appealed,
challenging the dependency court’s dismissal of the allegation under section 300,
subdivision (c).


Factual Background
      1.     Previous Allegations
      A.F. was the subject of nine referrals to DCFS between July 2006 and
November 2011 for emotional and or physical abuse by Mother and Grandmother,
who lived with the family. Besides the November 2011 report that gave rise to the
dependency petition on which the instant appeal is based, all the prior allegations
were deemed unfounded or inconclusive except one September 18, 2009 report of
physical abuse by Grandmother. On that occasion, A.F. alleged that Grandmother
had hit him with a stick that morning and reported that she would sometimes slap
his face or hit him with coat hangers and other objects. Grandmother admitted
hitting A.F. in the past, and A.F.’s younger sister confirmed that her brother got hit
with a hanger. During the 2009 investigation, A.F. admitted to grabbing a knife on
one occasion, but stated he did not want to hurt anyone, and just wanted attention.
Grandmother later stated that she believes A.F. brandished the knife while under
some sort of spell or hoax placed on him by the neighbors.
      The family agreed to a Voluntary Family Maintenance plan in place from
September 2009 to November 2010, but DCFS did not begin working with the
family until March 2010, after another incident in February 2010 when A.F. was
hospitalized after stating that he wanted to kill Grandmother because she sold his
videogame system. Two days earlier, he had threatened to put Mother in a
wheelchair. At that time, he had been suspended from school twice and engaged in

                                          4
disruptive behavior and displayed poor impulse control at school. A mandated
reporter stated that the school had repeatedly referred A.F. for counseling and
Mother failed to follow through, negated everything, and stated A.F. was fine.
         A.F. admitted saying he was going to kill Grandmother but insisted he did
not really mean it. He denied feeling depressed. A.F. was diagnosed with
Disruptive Behavior Disorder Not Otherwise Specified and Impulse Control
Disorder, Not Otherwise Specified. He was directed to follow up with mental
health services and was prescribed Clonidine for hyperactivity and poor impulse
control, and Abilify for mood swings, irritability, aggression, hostility, and
paranoid grandiose ideations. His prognosis was listed as fair to good with
treatment, but poor without treatment. During the first five months, A.F. was
cooperative with treatment, but during August and October 2010 he refused
therapy and medication and was verbally aggressive towards Grandmother. He
was referred to Full Service Partnership services (FSP), but it is unknown whether
he participated in these services. Mother was referred for counseling and parenting
classes, but she refused to participate with FSP or any other services.
         When interviewed about the February 2010 incident on February 21, 2012,
A.F. stated that he did not like taking the medication prescribed for him because it
made him sleepy. He said the doctor told Mother that he did not need it anymore.
Mother also stated that the medication made him too drowsy and that the
psychiatrist told her he could stop. She also reported that the psychiatrist told her
that A.F. does not have mental health problems, but just does not like to follow
rules.




                                           5
      2.     November 2011 Referral and Ensuing Investigation
      A mandatory reporter alleged on November 1, 2011 that Grandmother and
A.F.’s stepfather, G.N. (Stepfather), were emotionally abusing A.F., and
Grandmother was physically abusing him. Grandmother reportedly hit A.F. with
clothes hangers and called him “gay, crazy, and retarded.” A DCFS caseworker
added allegations of emotional abuse and general neglect by Mother.
      An emergency caseworker visited the family’s apartment on November 3,
2011 and found it clean, but she noted a large, six-foot shrine to a saint in the
living room area containing beer cans, candles, and idols. Mother, Grandmother,
and Stepfather all denied the allegations of abuse and denied calling A.F.
derogatory names. Mother said that when A.F. does not listen to her, she threatens
to call law enforcement to report his misconduct in the home, and at times has
called the police to have them speak to her son. Mother stated that she and her
family have always been falsely accused of mistreating the children, and she and
Grandmother stated they were tired of having social workers in their home.
Mother explained that A.F. would be receiving counseling in school for his school
behaviors. She refused all other services mentioned by the caseworker and would
not let A.F. be medically examined, but indicated that A.F. had just received a
physical examination on October 27, 2011 and the physician said he was healthy.
      A.F. denied current physical or emotional abuse, but stated that
Grandmother used to hit him with sandals, belts, and hangers and called him “gay,
crazy, and retarded.” His younger sibling Y.G. denied any abuse of A.F.
      When the caseworker returned to the home to interview Stepfather,
Grandmother opened the door and said the caseworker had no business returning
there. Mother said the visit was unnecessary as they knew who the reporting party
was and would be handling all matters with them. Stepfather denied any abuse of

                                           6
the children and said no one in the home uses inappropriate language. When the
caseworker tried to speak to the children, Grandmother yelled at her, told her they
did not have time to talk about false allegations, and told her to leave the home.
When the caseworker left, Grandmother slammed the door.
      The caseworker spoke to Sylvia Navarro, the psychiatric social worker at
A.F.’s middle school, who stated she had known A.F. and his family for a couple
of years. She explained that A.F. had longstanding behavioral issues, including
being disrespectful to teachers and acting out in class. She had never seen any
marks or bruises on A.F., but knew there was name-calling in the home. A.F. had
reported that Mother and Grandmother said the dog was better-behaved than him,
and Mother threatened that A.F. would go to jail if he did not behave. Mother had
asked Ms. Navarro to tell A.F. that if he does not behave, he is going to jail.
Mother had a history of coming to the office to seek help for her son, but she never
followed through with the recommendations given to her and would not accept the
therapeutic services offered to A.F. She also invited Mother to participate in a
parenting program, but Mother attended only one session. Mother subsequently
denied that Ms. Navarro had referred her to a parenting class.
      On January 18, 2012, the caseworker interviewed A.F. in private at his
school. He explained that the name-calling had started again, and that
Grandmother called him “gay” because he was letting his hair grow out. This
made him angry and he would leave the home with his skateboard to avoid
problems. He alleged that Grandmother and Mother had cut his hair while he was
sleeping. He later corrected the story and said Grandmother, who reportedly
practices Santeria, had put a sticky spray in his hair as part of her witchcraft. As a
result, he had to get his hair fixed at the barbershop, where Grandmother took the
razor from the barber and buzzed all his hair off much shorter than he wanted.) He

                                           7
also said that he often argues with Grandmother because she cares for “her saints”
more than him; for instance, she would not let him play electric guitar at home or
go outside because this would disturb the saints. A.F. denied any current thoughts
of wanting to hurt himself or others.
      In a February 21, 2012 interview, A.F. again stated that Grandmother called
him gay, and said he must be “doing favors” for a friend who gave him money to
buy junk food at the store. These comments made A.F. “really mad.” Also,
Mother and Grandmother would tell him that his father, who lived in Mexico, was
gay, which upset A.F. He again denied any current suicidal or homicidal thoughts.
He stated that two months earlier he had gotten in a fight at school with a “really
big” eighth-grader, which made Mother and Grandmother “scared” because they
realize he had gotten much stronger.
      On February 21, 2012, Mother indicated her belief that A.F. needed
treatment due to his ongoing behavioral issues, but she thought A.F.’s main
problem was that he wanted to rebel and do whatever he wants. She had scheduled
a psychiatric appointment for the following month. (On March 6, 2012, DCFS
confirmed that A.F. was scheduled to be seen for a psychological evaluation.)
Grandmother stated her opinion that A.F. needs help and should be on medication.
She denied cutting A.F.’s hair. A.F.’s younger sister said that A.F. would get mad
and curse at Mother and Grandmother, that he hated them, and he had once told her
he wanted to “break their heads.” She stated that everyone treated A.F. well and
did not yell at him. Stepfather also said the family does not call him derogatory
names. He said no one can control A.F., who yells frequently and gets violent; he
had hit Mother and Grandmother a few times. Although Stepfather thought A.F.
was “mostly a good kid” and was not presently a danger to anyone in the home, he
worried that as A.F. gets older he would get even more out of control. Stepfather

                                          8
wanted A.F. to get help so that it did not “get to the point where he does something
worse.”
      A July 23, 2012 Last Minute Information report indicated that DCFS had
received two more referrals, dated April 25, 2012 and May 22, 2012, alleging
abuse of A.F. An allegation of emotional abuse by Mother that was the subject of
the first referral was deemed substantiated, but the other allegations were deemed
unfounded.
      The Last Minute Information also stated that according to Mother, A.F. had
missed some mental health appointments in March and April 2012 because he
refused to go and Mother felt physically threatened by him. However, A.F. had
received school-based therapy services in June 2012 until those services ended
because A.F. began FSP services. The FSP team recommended that A.F. have a
mental health assessment, family therapy, and parenting classes for Mother and
Grandmother. A.F. was reportedly in the process of receiving a psychiatric
assessment and Mother stated she was scheduled to begin parenting classes soon.
      Mother had been “somewhat cooperative” in allowing A.F. to receive
medical attention and counseling services but had not been fully cooperative with
DCFS. On multiple occasions, she failed to show up for scheduled appointments
to discuss issues in the case. On one occasion, the DCFS dependency investigator
called Mother to confirm she was going to show up for a scheduled appointment,
and Grandmother told her that Mother was not at home because she had gone to
the hospital due to nerves and back pain. The investigator made an unannounced
visit to the home shortly thereafter and Mother answered the door, laughing, and
said she did not know why Grandmother had said she was not home. When the
investigator asked why she was not being cooperative and making her children
available to the investigator, Mother said, “ I don’t care. I don’t care. You can talk

                                          9
to my attorney if you want because I don’t care. I was told that it was up to me if I
want [A.F.] to receive services and if I don’t feel like it, I don’t have to make him
available; none of that was ordered.”
      A.F. indicated that Mother and Grandmother were no longer hitting him
because he had learned to hit back, but they still constantly verbally abused him.
Grandmother would call him “retarded” and “useless.” A.F. said he wanted both
Mother and Grandmother to receive parenting counseling and to leave him alone.
“I’m behaving now and I listen, but they still treat me the same way. It’s just
verbal abuse. Sometimes when I’m really mad, I don’t know what to do and I feel
like these four corners come at me and it gets smaller and smaller and I feel like
I’m going to erupt. I don’t want to hurt anybody, but I don’t know what to do. I
end up yelling into my pillow and punch the pillows because I’m so mad. I want
them to stop embarrassing me in public. They scold me in public and in front of
my friends too. I just want them to get some help!”
      On one occasion in July 2012, Mother told DCFS she no longer wanted to
care for A.F. as he continued to misbehave and she would consider giving him up
for adoption or sending him to a foster home. She then said she does not want to
send A.F. away permanently, but she would like the court to consider sending him
to a boot camp where he could learn to behave better.


                                   DISCUSSION
      In order to assert jurisdiction over a minor, the juvenile court must find that
he or she falls within one or more of the categories specified in section 300. (In re
Veronica G. (2007) 157 Cal.App.4th 179, 185.) DCFS bears the burden of proving
by a preponderance of the evidence that the minor comes under the juvenile court’s
jurisdiction. (Ibid.) “On appeal from an order making jurisdictional findings, we

                                          10
must uphold the court’s findings unless, after reviewing the entire record and
resolving all conflicts in favor of the respondent and drawing all reasonable
inferences in support of the judgment, we determine there is no substantial
evidence to support the findings. [Citation.] Substantial evidence is evidence that
is reasonable, credible, and of solid value.” (Ibid.) “A mere ‘scintilla’ of evidence
is not enough. [Citation.]” (In re B.T. (2011) 193 Cal.App.4th 685, 691.) Any
inferences we draw must be reasonable and logical; “‘inferences that are the result
of mere speculation or conjecture cannot support a finding [citations].’ [Citation.]”
(Ibid.)


Section 300, subdivision (b)
          Dependency jurisdiction may be asserted under section 300, subdivision (b)
where DCFS establishes that “[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, or the willful or negligent failure of the child’s parent or guardian to
adequately supervise or protect the child from the conduct of the custodian with
whom the child has been left, or by the willful or negligent failure of the parent or
guardian to provide the child with adequate food, clothing, shelter, or medical
treatment, or by the inability of the parent or guardian to provide regular care for
the child due to the parent’s or guardian’s mental illness, developmental disability,
or substance abuse.” (§ 300, subd. (b).)
          A jurisdictional finding under section 300, subdivision (b), thus requires:
(1) neglectful conduct by the parent in one of the specified forms; (2) causation;
and (3) serious physical harm or illness to the child, or a substantial risk of such
harm or illness. (In re James R. (2009) 176 Cal.App.4th 129, 135.) “While

                                             11
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
minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814,
824, italics omitted.) “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 Ricardo L. (2003) 109
Cal.App.4th 552, 565.)
      DCFS contends that jurisdiction is justified under section 300, subdivision
(b) because “[t]his is a case of a child in severe emotional pain, and Mother had not
followed through with appropriate treatment.” However, under section 300,
subdivision (b), emotional harm is not sufficient to assert jurisdiction. (In re Daisy
H. (2011) 192 Cal.App.4th 713, 718.)
      Accordingly, we focus solely on whether DCFS has proffered substantial
evidence that “at the time of the jurisdictional hearing the child is at substantial
risk of serious physical harm in the future.” (In re Savannah M. (2005) 131
Cal.App.4th 1387, 1396, italics added.) Despite the evidence that Grandmother hit
A.F. was hit with clothes hangers, belts, shoes, and other objects in the past, by the
time of the jurisdictional hearing, A.F. consistently denied any ongoing physical
abuse, because he claimed that Grandmother and Mother were scared now that he
had gotten stronger and had learned how to hit back. No evidence was presented
of a substantial risk of serious physical harm at the hands of Grandmother.
      Nor did DCFS present substantial evidence that A.F. was at risk of serious
physical harm based on Mother’s failure to ensure that he complied with a mental
health regimen of therapy and medication. The record contains no evidence that
A.F. has ever had thoughts of harming himself or that his mental health problems
endangered his physical health. He always denied feelings of depression. He was

                                           12
hospitalized for homicidal ideations directed at Mother and Grandmother, but such
aggression towards others does not form a basis for jurisdiction under section 300,
subdivision (b).
      We conclude that there is no substantial evidence that A.F. is at substantial
risk of suffering serious physical harm such that dependency jurisdiction is
appropriate under section 300, subdivision (b). We therefore reverse the order
finding dependency jurisdiction over A.F. on that basis.


Section 300, subdivision (c)
      DCFS challenges the dependency court’s determination that DCFS did not
satisfy its burden to prove the allegation under section 300, subdivision (c), based
on emotional harm suffered by A.F. Because the issue on appeal turns on whether
DCFS met its burden of proof, the question for this court is whether the evidence
compels a finding in favor of DCFS as a matter of law, that is, whether DCFS’s
evidence was “‘uncontradicted and unimpeached’” and “‘of such a character and
weight as to leave no room for a judicial determination that it was insufficient to
support a finding.’” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.)
      Section 300, subdivision (c) provides for dependency court jurisdiction
when “[t]he child is suffering serious emotional damage, or is at substantial risk of
suffering serious emotional damage, evidenced by severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or others, as a result of
the conduct of the parent or guardian or who has no parent or guardian capable of
providing appropriate care.” “The statute thus sanctions intervention by the
dependency system in two situations: (1) when parental action or inaction causes
the emotional harm, i.e., when parental fault can be shown; and (2) when the child
is suffering serious emotional damage due to no parental fault or neglect, but the

                                         13
parent or parents are unable themselves to provide adequate mental health
treatment.” (In re Alexander K. (1993) 14 Cal.App.4th 549, 557; see In re
Nicholas B. (2001) 88 Cal.App.4th 1126, 1136, fn. 11.)
      In its petition seeking dependency jurisdiction under section 300,
subdivision (c), DCFS alleged only that A.F. suffered emotional damage as a result
of the conduct of his parent, and did not allege that he had no parent capable of
providing appropriate mental health care.2 Therefore, we focus solely on whether
DCFS established the following three elements: “(1) serious emotional damage as
evidenced by severe anxiety, depression, withdrawal or untoward aggressive
behavior or a substantial risk of severe emotional harm if jurisdiction is not
assumed; (2) offending parental conduct; and (3) causation.” (In re Brison C.
(2000) 81 Cal.App.4th 1373, 1379; see In re Alexander K., supra, 14 Cal.App.4th
at p. 557.)
      The dependency court found that A.F. was suffering from “severe mental
health issues” and had been “crying out.” The record demonstrates that he was
hospitalized in 2010 for homicidal ideation against Mother and Grandmother, and
on several other occasions had threatened to harm them. Uncontradicted evidence
demonstrates that A.F. continued to feel rage towards them as of the time of the
jurisdictional hearing, as A.F. told DCFS in July 2012, “I feel like I’m going to
erupt. I don’t want to hurt anybody, but I don’t know what to do. I end up yelling
into my pillow and punch the pillows because I’m so mad.” The record suggests
that his aggressive behavior towards Mother and Grandmother continued in 2012

2
       On appeal, DCFS argues that the dependency court should have sustained the
allegation under section 300, subdivision (c) because it found that Mother had failed to
provide appropriate mental health treatment. However, DCFS does not acknowledge the
limited grounds on which it sought jurisdiction under subdivision (c). Due process
considerations restrain us from sustaining dependency jurisdiction on statutory grounds
that were not alleged before the dependency court.
                                            14
and that Stepfather worried he would become more dangerous as he got older. No
evidence contradicted the evidence proffered by DCFS showing that A.F. suffered
serious emotional damage, manifested by his aggressive behavior towards his
family members.
      However, the more problematic issue here is whether Mother’s alleged
emotional abuse of A.F., and her failure to protect A.F. from Grandmother’s
emotional abuse, caused A.F.’s emotional problems. There is ample evidence in
the record suggesting that Mother and Grandmother emotionally abused him. Had
the dependency court sustained the allegation under section 300, subdivision (c),
we would have had little difficulty concluding that DCFS had proffered substantial
evidence of emotional abuse. However, as discussed above, because the court
dismissed the petition, and DCFS bore the burden of proof, the question on appeal
is whether the evidence of emotional abuse by Mother was “‘uncontradicted and
unimpeached.’” (In re I.W., supra, 180 Cal.App.4th at p. 1528.) As Mother points
out, there was contradictory evidence in the record with respect to whether she and
Grandmother called A.F. derogatory names and abused him emotionally, with
Mother, Grandmother, Stepfather, and A.F.’s little sister denying such
mistreatment. Given the conflicting evidence, we cannot find that the only
reasonable conclusion was that Mother’s treatment of A.F. or her failure to protect
him was the cause of his emotional and psychological issues. Therefore, we affirm
the order dismissing the allegation under section 300, subdivision (c).




                                         15
                                   DISPOSITION
             The order dismissing the allegation under section 300, subdivision (c)
is affirmed. The jurisdiction and disposition orders finding jurisdiction under
section 300, subdivision (b) are reversed and the matter is remanded with
directions that the juvenile court vacate those orders and issue new orders:
(1) finding that A.F. is not a dependent child within its jurisdiction under section
300; and (2) dismissing the section 300 petition as to A.F.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             SUZUKAWA, J.




                                          16
