Filed 3/13/15
                        CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                        SECOND APPELLATE DISTRICT

                                    DIVISION FOUR


In re JESUS M., JR. et al., Persons
Coming Under the Juvenile Court Law.

LOS ANGELES COUNTY                              B256537
DEPARTMENT OF CHILDREN AND                      (Los Angeles County
FAMILY SERVICES,                                Super. Ct. No. DK00871)

        Plaintiff and Respondent,

        v.

JESUS M., SR.,

        Defendant and Appellant.


        APPEAL from orders of the Superior Court of Los Angeles County, Stephen
Marpet, Court Commissioner. Reversed.
        Joseph D. Mackenzie, under appointment by the Court of Appeal, for
Defendant and Appellant.
        Office of the County Counsel, Richard D. Weiss, acting County Counsel,
Dawyn R. Harrison, Assistant County Counsel and Jacklyn K. Louie, Deputy
County Counsel, for Plaintiff and Respondent.
      Jesus M., Sr. (Father) challenges the juvenile court’s order asserting
jurisdiction over his two children, Jesus M., Jr. (Jesus) and Gissel M., under
Welfare and Institutions Code section 300, subdivision (b), on the ground that
substantial evidence did not support it.1 We hold that the court’s finding that
Father’s conduct -- harassing the children’s mother in violation of a family law
restraining order and denigrating the mother to the children -- placed the children
at risk of emotional, but not physical injury, could not support assertion of
jurisdiction under subdivision (b), which requires proof of physical harm or
substantial risk of such harm. Accordingly, we reverse the court’s jurisdictional
order and the dispositional and custody orders that derived from it.


              FACTUAL AND PROCEDURAL BACKGROUND
      A. Family Law Proceedings
      Elda M. (Mother) and Father were married in 2000 and separated in 2009 or
2010.2 Under a family law order, Mother had legal and physical custody of the
children; Father had visitation three weekends per month. In June 2010, the family
court issued a three-year restraining order, prohibiting Father from harassing
Mother or contacting Mother except to facilitate visitation with the children, and
requiring him to stay 100 yards away from her, her home, her workplace and her
vehicle. In June 2013, Mother submitted a declaration in support of renewal of the
restraining order. She stated that Father contacted her through calls and texts
“every day,” although she had changed her number several times to avoid him;
followed her when she was driving; came to her house and tapped on the window
on one occasion; waited outside her house on other occasions; harassed her when

1
      Statutory references are to the Welfare and Institutions Code.
2
      Mother is not a party to this appeal.

                                              2
he saw her in the street; picked up the children without informing her; and
denigrated her to the children.3 The restraining order was renewed and made
permanent in July 2013.


       B. Original Report and Detention Hearing
       Jesus and Gissel came to the attention of the Department of Children and
Family Services (DCFS) in August 2013, when Jesus was 12 and Gissel was 10.
DCFS received a report that Mother had left the children at home unsupervised on
multiple occasions and allowed them to ride their bicycles around the
neighborhood unsupervised. By the time of the referral, Mother and Father had
been separated for more than three years. In interviewing Mother, the caseworker
learned of domestic violence committed by Father prior to the separation. The
caseworker also learned that Father had repeatedly violated the restraining order
Mother had secured by leaving her inappropriate voice mails and texts and by
coming within the proximity of Mother and her home. In addition, Father
encouraged the children to question Mother about her conduct and report back to
him, and induced Jesus to call her names. Mother said Father’s violation of the
restraining order was traumatizing to the children, especially when she called the
police to report it. Mother reported that when they were together, Father was good
to the children and did not mistreat them.

3
        A police report from April 2013 stated that Father had come to Mother’s house
and knocked on her bedroom window. Mother also told officers she was receiving
offensive text messages and voice mails on a daily basis. A police report from May 2013
stated that Father had arrived at Mother’s home on a non-visitation day and demanded to
see the children. He called several times after he left, issuing threats and stating he did
not care about the restraining order. In June 2013, Father was charged with violation of
Penal Code section 166, subdivision (a) (contempt of court). In February 2014, he pled
guilty to a violation of Penal Code section 415, subdivision (2) (willfully and maliciously
disturbing another) and was placed on probation for one year.

                                             3
      The children showed no signs of physical abuse, and denied that either
parent abused them or made them feel unsafe. Gissel recalled Father throwing a
telephone at Mother when they were living together, years earlier. Jesus did not
recall observing any physical altercations between his parents, but did recall
hearing Mother and Father argue and seeing pictures of injuries suffered by
Mother.4 Both children confirmed Mother’s report that Father had violated the
restraining order by coming around Mother’s home. Gissel was undergoing
therapy at the time. Gissel’s therapist reported that she was “regressing” due to
“all of the tension in the family.” Jesus had been in therapy before, and his
therapist confirmed that Father denigrated Mother to the children and interrogated
the children about her actions.
      Father was interviewed and reported that the children were often allowed to
play outside unsupervised, and that he went by Mother’s home to check up on
them. He also stated he would take the children to a park if he saw them playing
unsupervised and occasionally picked up his son at school to give him a ride home.
      In September 2013, DCFS filed a petition alleging under section 300
subdivisions (a) (serious physical harm) and (b) (failure to protect) that the parents’
“history of engaging in violent altercations, in the children’s presence” endangered
the children’s “physical health and safety” and placed the children “at risk of
physical harm, damage and danger.” Referring to incidents that had occurred in
2010 and earlier, the petition alleged that Father “grabbed [Mother’s] arm,
inflicting marks and bruising,” “grabbed [Mother’s] head and moved [it] back and
forth,” “struck [Mother], inflicting a bleeding laceration to [her] lip[],” and “threw


4
       A police report from 2010 stated that Father had grabbed Mother’s face and arm,
leaving a large bruise on her arm. The responding officer had taken photographs of
Mother’s injuries.

                                           4
objects at [Mother].” The petition further alleged that “[o]n prior occasions,
[Mother] threw objects at [Father].” The only factual allegation of recent conduct
stated that in 2013, Father violated the restraining order. DCFS’s detention report
recommended that the children be detained from Father and that Father be
restricted to monitored visitation. At the hearing on September 12, 2013, the court
ordered Father to abide by the restraining order, but allowed the unmonitored visits
to continue as permitted by the family law order.


      B. Jurisdictional and Dispositional Hearing
      Interviewed prior to the jurisdictional/dispositional hearing, the children
described in greater detail the past incidents of domestic violence that had occurred
when Mother and Father were together, more than three years earlier. They said
that when such incidents occurred, they became scared and hid under their bed.
Mother stated that Father had physically abused her throughout their relationship.
In approximately 2005, Father participated in a domestic violence program, which
improved his behavior for a period of time, but he physically abused her again on
one occasion in 2010, shortly before she filed for divorce and obtained the original
restraining order. Mother reported that the prior week, Father had followed her in
his car while she was running an errand, and that her landlords had observed Father
standing in front of her apartment. Although he had not recently attempted to
physically harm her, she feared that he would.5 In its jurisdictional/dispositional
report, DCFS again recommended that the court restrict Father to monitored visits.




5
      Father did not make himself available to be interviewed by the caseworker.

                                          5
       In March 2014, DCFS filed a “last minute information” for the court
renewing its request that the court detain the children from Father.6 The
caseworker stated that Father “does not respect boundaries and wants to continue
controlling [Mother] through intimidation and harassment,” and that he “repeatedly
violated the restraining order by showing up at [Mother’s] window and showing up
in the laundr[omat] where [Mother] does her laundry.” The court did not order the
children detained, but instead instructed DCFS to set up a visitation schedule for
Father that included unmonitored weekend visits.
       In April 2014, DCFS again filed another last minute information for the
court seeking restrictions on Father’s visitation. This time DCFS stated that no one
knew where Father was living or would be taking the children for visits, as he had
not made himself available for an interview. It also stated that Father was sharing
an apartment with an unknown male, and that the children and Father all slept in
the same bed during visits.7 The report attached letters from the children’s
therapists. Gissel’s therapist reported that Gissel had made “little progress during
the first two years of services,” but had begun making progress recently, during the
period Father was not visiting. Jesus’s therapist stated that Jesus had “learned
coping skills of emotional expression, seeking support, relaxation skills, problem
6
        The March hearing had been scheduled by Father’s counsel to clarify Father’s
visitation rights. In November 2013, at a hearing to determine whether Mother could
take the children to visit relatives in Mexico, the court had erroneously issued an order
stating: “[Father’s] visits remain monitored as previously ordered.” At the March
hearing, Father’s counsel represented that Father had not been seeing the children
because he had been informed he would have to pay for a monitor. DCFS’s counsel
confirmed that DCFS had been under the misimpression that Father could not visit
without a monitor.
7
       As the report acknowledged, Father had not had any recent visits with the
children. It later became clear that he had last visited sometime between September and
November 2013. Consequently, the time period in which the described incidents
occurred was not clear.

                                             6
solving, and positive communication skills,” and had “shown improvement in his
functioning in social and family environments.” The children told the caseworker
they sometimes wanted to visit Father and sometimes did not, and reported that
Father denigrated Mother to them. DCFS recommended that visitation be
modified because “[Father] is not visiting with the children and the children are
reporting feeling uncomfortable when they visit with him due to his negative
feeling toward [Mother]” and because “his negative behavior and attitude toward
[Mother] in front of the children is emotionally devastating to them.”
       At the hearing, counsel for the children stated they had had no recent contact
with Father, but she supported DCFS’s request for restricted visitation based on the
“emotional abus[e]” of Mother, which counsel asserted was causing the children
“secondary trauma.” The court continued the hearing, instructing DCFS to file a
comprehensive report explaining in detail the basis for recommending that Father’s
visitation be monitored.
       In May 2014, DCFS filed a new detention report, a report under section 385,
and two last minute informations for the court.8 The reports stated that the need for
detention was based on the past incidents of domestic violence, Father’s repeated
violations of the restraining order, his refusal to cooperate with DCFS, and a new
report from Mother that Father had threatened to flee with the children to Mexico.9
The report made clear that the information communicated by the children in April

8
        Section 385 provides that “[a]ny order made by the court in the case of any person
subject to its jurisdiction may at any time be changed, modified, or set aside, as the judge
deems meet and proper, subject to such procedural requirements as are imposed by this
article.”
9
        It is unclear when Father made this alleged statement or when Mother reported it,
as the reports do not indicate that the caseworker conducted a new interview of Mother.
All the other statements attributed to Mother in the reports appear to have been from
interviews conducted prior to the original detention hearing in September 2013.

                                             7
about Father’s living arrangements referred to past visitations, and had since
changed.
      At the May 5, 2014 hearing, counsel for Father pointed out that the
information in the new detention report was based primarily on old interviews, and
that DCFS had provided no new information to support the requested change in
visitation. Counsel for the children argued that the failure to detain the children
from Father at that time had been an error, although no party had sought review.
The court scheduled a trial on the issue of modifying the visitation order, and
ordered Father’s visits monitored in the interim.
      At the May 19 and 20, 2014 hearings, a combined hearing on jurisdiction,
disposition, and the request to modify the original “non-detention” order, Jesus
testified that he would like to visit Father “sometimes” and was not afraid of him.
Gissel similarly testified she would like to visit Father “sometimes.” She said she
was afraid of him when he got angry, but she denied he became angry during their
visits. Mother testified to the specific incidents of domestic violence occurring
during their relationship, viz., Father hitting her lip in 2005 and grabbing her arm
and head in 2010.
      The court sustained the allegations of the petition asserting that Father and
Mother had a history of engaging in violent altercations in the children’s presence,
specifically, that Father had grabbed Mother’s arm, inflicting marks and bruising,
grabbed Mother’s head, and lacerated her lip, and that the parents had thrown
objects at each other. The court also sustained the allegation that in 2013, Father
violated the restraining order put in place to protect Mother. The sustained
allegations were those pled under section 300, subdivision (b), asserting that
Father’s conduct “endanger[ed] the children’s physical health and safety” and
“place[d] [them] at risk of physical harm, damage and danger.” At the hearing,
however, the court expressly found that “this is not a case of domestic violence
                                          8
. . . [t]his is a case where there has been domestic violence in the past,” resulting in
the issuance of a permanent restraining order. The court found that as a result of
Father’s violations of the restraining order, “these children . . . have been injured
emotionally, not physically, but emotionally.”10
         After making its jurisdictional findings under subdivision (b) of section 300,
the court detained the children from Father and terminated jurisdiction, issuing a
family law order granting sole legal and physical custody to Mother.11 Father was
permitted monitored visitation of two hours, twice per month.12 Father appealed.


                                       DISCUSSION
         The court found jurisdiction appropriate under section 300, subdivision (b).
Father contends substantial evidence did not support the court’s jurisdictional
finding. On this record, we must agree.
         Section 300, subdivision (b) provides a basis for assertion of dependency
jurisdiction if “[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 . . . to adequately supervise or protect the child.” “‘A
jurisdictional finding under section 300, subdivision (b), requires: “‘(1) neglectful

10
         The court dismissed the allegations pled under subdivision (a) (serious physical
harm).
11
       When a juvenile court terminates jurisdiction over a dependent child, it is
empowered by section 362.4 to make orders affecting custody and visitation known as a
“family law,” “exit” or “custody” orders, which become part of the family law
proceeding and will remain in effect until they are terminated or modified by the family
court. (In re Chantal S. (1996) 13 Cal.4th 196, 202-203; In re T.H. (2010) 190
Cal.App.4th 1119, 1122-1123; In re John W. (1996) 41 Cal.App.4th 961, 970.)
12
       The court also ordered Father to complete a 26-week domestic violence program
for perpetrators and undergo individual counseling to address the effects of domestic
violence on the family.

                                              9
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.’ [Citation.]” [Citations.] The third element “effectively requires a
showing that at the time of the jurisdictional hearing the child is at substantial risk
of serious physical harm in the future (e.g., evidence showing a substantial risk that
past physical harm will reoccur).” [Citation.]’” (In re A.G. (2013) 220
Cal.App.4th 675, 683, quoting In re James R. (2009) 176 Cal.App.4th 129, 135.)
        As appellate courts have repeatedly stressed, “‘[s]ubdivision (b) means what
it says. Before courts and agencies can exert jurisdiction under section 300,
subdivision (b), there must be evidence indicating that the child is exposed to a
substantial risk of serious physical harm or illness.’” (In re Alysha S. (1996) 51
Cal.App.4th 393, 399, quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 823;
accord, In re John M. (2013) 217 Cal.App.4th 410, 418; In re Noe F. (2013) 213
Cal.App.4th 358, 366; In re David H. (2008) 165 Cal.App.4th 1626, 1642; In re
Janet T. (2001) 93 Cal.App.4th 377, 391.) Nonetheless, we are repeatedly called
on to review jurisdictional findings where, as here, one parent has behaved badly,
undeniably causing family trauma, but presents no obvious threat to the children’s
physical safety. There was evidence to suggest the children were suffering
emotionally, but rather than allege emotional abuse under subdivision (c) of
section 300, DCFS asserted jurisdiction under subdivision (b), presented vague
evidence of emotional distress, and persuaded the court to assert jurisdiction in the
absence of substantial evidence of a risk of serious physical harm.13 As the court

13
        Subdivision (c) provides for assertion of jurisdiction where the child is suffering or
at risk of suffering “emotional damage,” but only if it is “serious” and “evidenced by
severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or
others.” (§ 300, subd. (c); see, e.g., In re Daisy H. (2011) 192 Cal.App.4th 713, 715,
717-718 [juvenile court’s finding that children were at risk of “‘emotional harm’”
because father had choked and threatened to kill mother years before and had recently
(Fn. continued on next page.)

                                             10
found, Father had committed acts of domestic abuse years ago, but thereafter
restricted his misconduct to harassing Mother and denigrating her to the children.
Accordingly, as the court recognized, the evidence supported “emotional[], not
physical[]” injury. Subdivision (b) does not provide for jurisdiction based on
“‘emotional harm.’” (In re Daisy H., supra, 192 Cal.App.4th at p. 718.)
Accordingly, the court could not properly assert jurisdiction over Jesus and Gissel
under subdivision (b) of section 300.14
       Respondent contends the subdivision (b) finding was supported by the
evidence of domestic violence. Courts have held that “domestic violence in the
same household where children are living . . . is a failure to protect [them] from the
substantial risk of encountering the violence and suffering serious physical harm or
illness from it.” (In re Heather A. (1996) 52 Cal.App.4th 183, 194; accord, In re
T.V. (2013) 217 Cal.App.4th 126, 135; see In re R.C. (2012) 210 Cal.App.4th 930,
941-942 [“‘Children can be “put in a position of physical danger from [spousal]
violence” because, “for example, they could wander into the room where it was
occurring and be accidentally hit by a thrown object, by a fist, arm, foot or leg

made derogatory statements about mother to children, including calling her “‘bitch, hoe
[sic] and prostitute,’” held insufficient to establish jurisdiction under subdivision (c)]; In
re Brison C. (2000) 81 Cal.App.4th 1373, 1377-1380 [evidence of conflict between
parents causing child to suffer “upset, confusion and gastrointestinal distress” and to
express “deep dislike and fear” of father, held insufficient to establish jurisdiction under
subdivision (c) of section 300]; see In re Patrick S. (2013) 218 Cal.App.4th 1254, 1261-
1263 [evidence that child who had no established relationship with father, experienced
“anxiety” at the thought of living with him and suffered from “adjustment disorder” did
not support juvenile court’s finding that placing child with father would be detrimental].)
14
       DCFS’s section 300 petition did not include an allegation under section 300,
subdivision (c). Nor does it seek remand to assert and prove such an allegation. Neither
DCFS nor the minors’ counsel presented evidence to support “severe anxiety, depression,
withdrawal, or untoward aggressive behavior toward self or others” as required under
subdivision (c), and DCFS does not argue on appeal that the evidence was sufficient to
sustain such a finding had it been pled.

                                              11
. . . .”’”].) Here, the parents had long been separated, the two incidents Mother
could recall had occurred more than three years earlier, and there was no evidence
of current violent behavior. More important, the court expressly disavowed the
incidents of domestic violence as a basis for assertion of jurisdiction, finding they
had occurred “in the past,” and that the current problem was Father’s violation of
the restraining order and its effect on the children. A reviewing court may not
“consider whether there is evidence from which the dependency court could have
drawn a different conclusion,” but is limited to determining whether “there is
substantial evidence to support the conclusion that the court did draw.” (In re Noe
F., supra, 213 Cal.App.4th at p. 366.)
      Respondent emphasizes that Father had a history of physical violence
against Mother and a current pattern of harassing her in flagrant disregard of the
restraining order. Reprehensible as such conduct was, it did not demonstrate a risk
of physical harm to the children justifying the assertion of jurisdiction under
subdivision (b) of section 300. Dependency proceedings are designed not to
prosecute a parent or “for the reproof and improvement of erring parents,” but to
protect children. (In re A.J. (1969) 274 Cal.App.2d 199, 202; see In re Mary S.
(1986) 186 Cal.App.3d 414, 418-419.) The court expressly found that the injury,
and by implication the risk of injury, to the children was “not physical[].”
      To be sure, Father behaved in a way that was both illegal and detrimental to
the emotional welfare of his children. Had DCFS believed Father’s conduct posed
a risk of inflicting severe emotional damage, its duty was to allege that in a petition
asserting jurisdiction under subdivision (c) of section 300. It did not do so, the
court made no findings under that subdivision, and respondent does not argue that
the court’s jurisdictional finding could be sustained on that basis.
      Finally, we note that Mother was not without options other than resort to
dependency proceedings. By the time of DCFS’s intervention, she had already
                                          12
obtained a permanent restraining order in family court and had sought police
protection when Father violated it. Criminal proceedings had been instituted, and
Father was on probation, facing a risk of incarceration should he violate the
restraining order again. Mother also remained free to seek restrictions on Father’s
visitation in family court, which is authorized to limit a parent’s visitation to
monitored, or to prevent it entirely, upon a showing that “visitation would be
detrimental to the best interest of the child.” (Fam. Code, § 3100, subds. (a)-(b).)
A juvenile court may not intervene, however, absent substantial evidence of at
least a risk of physical injury or serious emotional harm to a minor. Neither was
established by the evidence presented below. Accordingly, we must reverse the
court’s jurisdictional order. In the absence of jurisdiction, the court had no
authority to issue a dispositional order or the family law custody order. (In re
Precious D. (2010) 189 Cal.App.4th 1251, 1261; In re R.M. (2009) 175
Cal.App.4th 986, 991; see § 362.4.)




                                           13
                                   DISPOSITION
      The May 20, 2014 jurisdictional and dispositional orders and the May 30,
2014 custody order are reversed.
      CERTIFIED FOR PUBLICATION




                                            MANELLA, J.


We concur:




EPSTEIN, P. J.




WILLHITE, J.




                                       14
