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In re Jesus M.

California Court of Appeals, Second District, Fourth Division

March 13, 2015

In re JESUS M., JR. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
JESUS M., SR., Defendant and Appellant.

APPEAL from orders of the Superior Court of Los Angeles County No. DK00871, Stephen Marpet, Court Commissioner.

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Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant.

Richard D. Weiss, acting County Counsel, Dawyn R. Harrison, Assistant County Counsel and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.

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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.


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 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.

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B. Original Report and Detention Hearing

Jesus and Gissel came to the attention of the Los Angeles County 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.

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 ...

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