Opinion
B295878
04-01-2020
In re N.S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. CHRISTINA A, Defendant and Appellant.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Aida Aslanian, under appointment by the Court of Appeal, for Respondent Shane S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 18LJJP00702A) APPEAL from an order of the Superior Court of Los Angeles County. Steven Ipson, Commissioner. Reversed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant. Aida Aslanian, under appointment by the Court of Appeal, for Respondent Shane S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
____________________
In this juvenile dependency case, Christina A. (Mother) challenges the juvenile court's jurisdictional findings pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), and the court's dispositional orders removing her child, N.S., from her physical custody under section 361, subdivision (c), ordering monitored visits, and terminating jurisdiction following the removal order.
Undesignated statutory references are to the Welfare and Institutions Code.
Respondent Los Angeles County Department of Children and Family Services (the Department) takes no position on the court's order terminating jurisdiction but argues that substantial evidence supported the juvenile court's findings that Mother placed the child at substantial risk of suffering serious physical harm. The Department further argues that because Mother has failed to accept and understand how her conduct placed N.S. at risk, the orders removing N.S. from her and for monitored visits were necessary for the child's protection.
Respondent Shane S. (Father) contends substantial evidence supported the court's dispositional orders and the incorporated jurisdictional findings as to Mother. He further maintains that the juvenile court properly terminated jurisdiction and returned the case to family court with exit orders designed to protect N.S.
We reverse.
BACKGROUND
The Family
The family involved in these dependency proceedings consists of N.S., born December 2011, Mother, and Shane S. Mother has six other children with different fathers, four of whom were still minors in 2018, ranging in age from one to 16 years old. Mother's other children are not the subject of these dependency proceedings.
Although Shane S. is not N.S.'s biological father, he signed her birth certificate, raised her since birth, and was declared the presumed father in family and dependency proceedings.
Pursuant to a family court order dated July 27, 2018, Mother and Father shared joint legal and physical custody of N.S. Among other proscriptions and requirements, the family law order specified that Mother was restrained from having Kevin Hayes in the home while N.S. was present until Hayes had "been evaluated by a stipulated evaluator or the Court, and further order of the Court." The order further provided that if Mother and Hayes needed to meet to exchange their child while N.S. was present, the exchange was to take place in a public location, and N.S. was not to interact with Hayes. The family court ordered the parties not to refer to anyone other than Shane S. as N.S.'s father or biological dad until the issue had been jointly discussed with a therapist.
Hayes was, at that time, Mother's male companion and the father of Mother's youngest child, Dylan.
Prior Referrals and Investigations
The August 24, 2016 referral
The first referral regarding N.S.'s safety was made on August 24, 2016, alleging possible sexual abuse by Father based on N.S.'s complaint to her mother that she experienced pain during bowel movements. Mother had N.S. examined at the hospital, but no injury was found, and the child was diagnosed with possible constipation. According to Mother, N.S. said Father had touched her bottom, but when she was interviewed, N.S. denied having been touched. In the absence of any evidence of abuse or neglect, the referral was closed.
The August 31, 2016 referral
The Department received another referral on August 31, 2016, for emotional abuse with allegations that Father hit N.S. and her half sibling, J.A., and called them names. Mother stated that Father physically abused N.S., and N.S.'s visits with Father were causing the child emotional distress. Mother explained that Mother and Father had a history of domestic violence and that during their relationship Father was emotionally abusive toward Mother and her children. However, N.S. denied being afraid of Father, and she reported being happy with both parents. She stated that she took baths alone and cleaned herself and denied that anyone had touched her private areas. Finding insufficient evidence that N.S.'s safety or well-being was at risk, the Department closed the referral.
The February 6, 2017 referral
On February 6, 2017, the Department received a referral alleging emotional abuse by Father of N.S., J.A., and three of Mother's other children. The Department opined that the referral appeared to be the result of the parents' inability to co- parent N.S. and concluded there was no evidence of abuse or neglect.
The April 3, 2017 referral
Another referral on April 3, 2017, alleged general neglect of N.S. by Father based on Mother's reports to a service provider that Father was not N.S.'s biological father and N.S. slept in the same bed as Father. Mother also stated that N.S. had reported that Father showers with her and N.S. had complained on two occasions that her bottom hurts. Mother reported that N.S. was born with a labial fusion, and Father had been trying to pull the labia apart. Mother repeated concerns that N.S. was afraid to go to Father's house. The referral was deemed inconclusive.
The November 6, 2017 referral
On November 6, 2017, allegations of sexual and emotional abuse of N.S. by Father were received.
Mother reported that when N.S. returned from a visit with Father she said her vaginal area hurt because she had sat on a toy. But N.S. told her mother, " 'I cannot tell you what happened [because] I will get in trouble.' " Mother suggested N.S. bathe the area, but when N.S. was in the shower, she started screaming in pain. N.S. told Mother that Father had hurt her by touching her but did not clarify what he had done. Mother examined the area but could not see anything. Mother took N.S. to the hospital for further examination.
Father categorically denied ever touching N.S. inappropriately, much less sexually abusing her. He reported that his daughter hurt her vaginal area when she accidentally sat on a toy while visiting him. He did not touch N.S., but only asked her if she was okay. After going to the bathroom to check her private area herself, N.S. said she was fine. N.S. confirmed that she had hurt her vaginal area when she sat on a toy. After she checked herself it stopped hurting. Later at Mother's home, when N.S. was in the shower it started to hurt again and she screamed.
The forensic medical examiner at Antelope Valley Hospital reported that this was the second time Mother had brought N.S. to the hospital forensic unit alleging that Father was sexually abusing the child. The examiner reported that N.S. has a common labial fusion, which Mother should have been treating with estrogen cream to loosen the skin. The medical examination showed parallel bilateral lacerations to the lower labia minora, but no bruising or penetration of the fused labia. The medical examiner reported she had never seen an injury like this in a sexual assault case, and after peer review the conclusion of the examination was updated to indeterminate cause rather than suspected abuse.
At the conclusion of its investigation the Department determined the allegations of general neglect/emotional abuse by Father were unfounded, and the allegation of sexual abuse by Father or an unknown perpetrator were inconclusive. The referral was closed.
The June 7 and 14, 2018 allegations
Allegations of physical and emotional abuse of N.S. by Father arose on June 7, 2018. Following its investigation, the Department expressed concerns about N.S.'s mental health and the fact that she was not receiving therapy services. The allegations of physical abuse by Father were deemed inconclusive, while the emotional abuse allegations against him were initially substantiated and later reversed.
Mother reported that she found a drawing by N.S. which depicted Father pointing a gun at N.S. and shooting her. When Mother asked N.S. about the gun, N.S. told her she had seen Father's gun on two separate occasions in January 2018, once when N.S. woke up to find the gun on her bed, and another time when N.S. picked the gun up off the floor. Mother immediately reported these incidents to law enforcement, but the matter was not investigated.
N.S. confirmed drawing pictures of Father pointing a gun at her and spanking her, as well as seeing a gun at Father's house. She reported that she was fearful of him and does not " 'like going to his house 'cause he's mean' " and she was afraid he would shoot her.
Mother was willing to participate in co-parenting classes with Father. A voluntary family maintenance case was opened, but only Mother participated.
The June 14, 2018 allegations of physical and emotional abuse and general neglect by Father were deemed inconclusive. N.S. denied seeing any guns in Father's home since January 2018 but said she did not feel safe in his home. She reported that Father has told her to say things like, " 'I don't love you' " to Mother, and he "has made her refer to his girlfriends as 'mom.' " N.S. told the social worker that she dreamed Father cut off her head.
The Section 300 Petition
On August 29, 2018, the Department received a referral alleging general neglect of N.S. by Mother and emotional abuse by the paternal grandmother. The ensuing investigation produced several concerns about N.S.'s safety and well-being, and on October 26, 2018, the Department filed a non-detain section 300 petition on behalf of N.S. Pursuant to subdivisions (a), (b)(1), and (j), the petition alleged Father physically abused N.S. and J.A., and Mother created a detrimental home environment by allowing Kevin Hayes to reside in the child's home in violation of the existing family law order.
Count b-3 of the petition alleged: "The child, [N.S.]'s mother, Christina [A.], created a detrimental and endangering home environment for the child by allowing the mother's male companion, Kevin Hayes, to reside in the child's home in violation of the existing family law order dated 02/23/2018 [sic]. Such a detrimental and endangering home environment established for the child by the mother endangers the child's physical health and safety and places the child at risk of serious physical harm, damage and danger."
The Jurisdiction/Disposition Report
In the jurisdiction/disposition report filed November 14, 2018, the Department reported that Mother had already told N.S. that Jerome M., not Shane S., is her biological father. However, Mother claimed that she had told N.S. about Jerome M. well before the commencement of dependency proceedings. Mother also admitted that before the dependency case had begun, she violated the family law order by allowing Hayes to remain in the home. She explained that she felt the order was inappropriate and unfair because it restricted Hayes's contact with his own biological son. There had never been any allegations that Hayes presented any danger to N.S. or Mother's other children. Nevertheless, Mother stopped allowing Hayes to come over as soon as the dependency case was opened to avoid jeopardizing the joint physical custody arrangement. Father also stated he did not believe Hayes was a danger to N.S.
The First Amended Section 300 Petition and Subsequent Reports
On November 29, 2018, the Department filed a first amended section 300 petition, which added new allegations under subdivisions (b)(1) and (c) that Mother's conduct in making unsubstantiated abuse allegations against Father placed N.S. at substantial risk of emotional harm.
Counts b-4 and c-1 both alleged: "The child, [N.S.]'s mother, Christina [A.] has engaged in ongoing conduct that places the child at substantial risk of suffering serious emotional damage. Mother, Christina [A.] has made repeated unsubstantiated claims of child abuse against the father, Shane [S.] Since August of 2016, over 6 referrals have been called into the child abuse hotline alleging physical abuse, emotional abuse, general neglect, and sexual abuse of child, [N.S.] which has resulted in [N.S.] being subjected to repeated interviews often about the same or similar allegations. In addition, child, [N.S.] has been subjected to repeated sexual abuse exams as a result of mother, Christina [A.'s] repeated unsubstantiated claims that Father, Shane [S.] has sexually abused child, [N.S.] Further, Mother, Christina [A.] has informed child, [N.S.] that Father, Shane [S.] is not her biological father, violating the previous Family Law Order. The mother's conduct and the ongoing stress of the custody battle has resulted in [N.S.] being referred for mental health services. Such conduct by the mother places the child at risk of serious emotional harm."
In the supplemental report filed on December 13, 2018, the Department reported that Mother had responded to the amended petition allegations with an e-mail in which she stated that N.S. had had three vaginal exams, and she described the circumstances of each. Mother explained that the first examination was performed at Antelope Valley Hospital on November 5, 2017 because N.S. was unable to shower due to pain in her vaginal area. Mother further stated that it was Father, and not she, who had subjected N.S. to an unauthorized and unwarranted vaginal exam on August 17, 2018. And Mother asserted that the forensic examination performed in July or August had been ordered by the Department over Mother's objection. The social worker responsible for referring N.S. for the forensic examination explained that the Department was aware of the previous exams, but Mother had continued to report concerns that Father was being sexually inappropriate with N.S. The social worker noted that Mother had consented to the exam.
On December 5, 2018, the Department received a referral alleging that Father was a felon in possession of guns, and N.S. had disclosed the day before that she had woken up to find a gun on her bed. The caller reported the mother had disclosed sexual abuse concerns involving Father, who was not N.S.'s biological father. The caller was a mandated reporter with whom Mother had consulted, and although she was aware the allegations had already been investigated, she was concerned that N.S. was "falling through the cracks." The referral was closed as having already been investigated.
The Removal Order and Detention Hearing
On December 28, 2018, the juvenile court authorized the Department to detain N.S. from Mother.
In the detention report filed January 3, 2019, the Department reported Father received a phone call from N.S. after Mother had failed to bring the child for a scheduled visit. N.S. told Father she did not want to go to his house that day. Mother then got on speaker and started yelling at Father that N.S. did not love him, that N.S. hated him, that N.S. was not his child, and N.S. was afraid of him. The Department also reported that Father had told the social worker he believed Hayes had been present at N.S.'s drop-off on December 25, 2018.
N.S. said that she loved both parents and had no fear of either of them. She wanted to live with both of them.
The Department stated that Mother's repeated reporting of past allegations of child abuse and neglect by Father amounted to emotional abuse of N.S. In addition, Mother's violation of the family law order by allowing Hayes to have contact with N.S. evidenced a failure to protect N.S. The Department concluded that Mother's "conduct endangers the physical and emotional well-being of the child such that the child is at risk of suffering emotional or physical harm," and advocated N.S. be removed from Mother and remain in the care of Father.
The January 9, 2019 Adjudication Hearing
At the adjudication hearing the Department filed a new first amended petition. The petition was amended by interlineation to strike all of the physical abuse allegations against Father. The amendment left intact the allegations against Mother that she placed N.S. at risk of serious physical harm by allowing Hayes to reside in the child's home in violation of the family law order, and she placed N.S. at substantial risk of suffering serious emotional damage by making repeated unsubstantiated claims of child abuse against Father, by telling N.S. that Shane S. is not her biological father, and by maintaining a custody dispute that resulted in N.S. being referred for mental health services.
Mother testified at the adjudication hearing that all of her concerns had been based on reports to her or others by N.S. Mother admitted she had violated the family law order before the dependency case by allowing Hayes to have contact with N.S. But since Mother spoke with the investigator on this case, Hayes has not lived with Mother and has had no contact with N.S. at all. Mother also admitted she had told N.S. about her biological father but testified that N.S. knew about him before the family law order was put in place.
Mother denied that N.S. underwent a forensic examination in 2016 when Mother took her to the hospital due to N.S.'s complaints of pain in her bottom. Mother testified that N.S. did have a sexual abuse physical examination when N.S. complained of pain in her vaginal area after sitting on a toy. The pain was so bad that Mother found N.S. lying in the bathtub in a fetal position screaming and crying. At the hospital the forensic nurse performed a visual examination of N.S.'s genitals and saw two internal lacerations. According to Mother, the next forensic examination, conducted in July or August, was at the request of the Department.
Mother denied alleging sexual abuse by Father in an e-mail she sent to the Children's Bureau in July 2018. Rather, the e-mail concerned Father having N.S. subjected to an unnecessary vaginal examination under the pretense of taking her to the doctor for a cough. Mother also denied being aware of an August 2018 referral about N.S.'s internal vaginal lacerations.
Mother further testified that she had never said that Father touched N.S. in a sexual manner. She denied that she had concerns regarding sexual abuse, but only wanted clarification as to how N.S. suffered her injuries. Mother was not comfortable with Father showering with N.S. and still wiping her, and she had discussed these issues with Father. In addition, N.S. had told Mother she was not comfortable with Father's girlfriend and family members holding N.S. when she was not clothed and used the rest room.
The Department requested that all counts against Mother be sustained, that N.S. be placed in Father's home with full physical custody, and that the dependency jurisdiction be terminated with exit orders that Mother abide all family law and juvenile court orders. Conceding that Hayes presented no safety risk to the child, counsel for N.S. submitted on count b-3, but argued that count b-4, based on Mother's multiple unsubstantiated referrals, be sustained. Minor's counsel further urged the court to strike count c-1 (based on the same conduct by Mother as alleged in count b-4) for lack of evidence of severe anxiety, depression, withdrawal or untoward aggressive behavior.
The juvenile court found N.S. to be a person described by section 300, subdivision (b)(1), sustaining counts b-3 and b-4 against Mother. The court struck count c-1 under subdivision (c) for serious emotional damage, as well as all the allegations against Father.
The February 15, 2019 Disposition Hearing
Prior to disposition the Department withdrew its recommendation that dependency jurisdiction be terminated and recommended instead that the court order six months of family maintenance services for Father and family enhancement services for Mother.
The juvenile court declared N.S. a dependent of the court under section 300, subdivision (b). The court found clear and convincing evidence to remove N.S. from Mother based on all of the sustained language of the petition, including that N.S. was subjected to repeated interviews and sexual abuse examinations. The court further found a substantial danger to the minor's "physical health, safety, protection, physical and emotional wellbeing" if she were returned to Mother, and "there are no reasonable means by which the physical and emotional health could be protected without removing the child from the mother's custody." The court noted "[r]easonable efforts were made to prevent and eliminate the need for removal."
The juvenile court awarded joint legal custody to Mother and Father, granted sole physical custody to Father, and ordered monitored visits for Mother. Over the Department's and Mother's objection, the court terminated dependency jurisdiction.
DISCUSSION
Substantial Evidence Did Not Support the Juvenile
Court's Jurisdictional Findings that Mother Placed the
Child at Substantial Risk of Suffering Serious
Physical Harm
A. Applicable Law and Standard of Review
Section 300, subdivision (b) targets " 'serious physical harm or illness' " to a child; it does not cover nonphysical or emotional harm. (In re Jesus M. (2015) 235 Cal.App.4th 104, 112 (Jesus M); In re Daisy H. (2011) 192 Cal.App.4th 713, 718 (Daisy H.).) Rather, the statute allows a juvenile court to assert dependency jurisdiction and declare a child to be a dependent of the court upon finding 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 . . . to adequately supervise or protect the child." (§ 300, subd. (b)(1); see In re R.T. (2017) 3 Cal.5th 622, 626-627.)
Proof of three elements is required to establish jurisdiction based on subdivision (b) of section 300: " '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness.' " (In re Travis C. (2017) 13 Cal.App.5th 1219, 1225; Jesus M., supra, 235 Cal.App.4th at p. 111.) " ' "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).' " ' " (Jesus M., at p. 111, quoting In re A.G. (2013) 220 Cal.App.4th 675, 683.) Appellate courts have emphasized that " '[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 John M. (2013) 217 Cal.App.4th 410, 418; Jesus M., at p. 111.)
The Department has the burden of proving by a preponderance of the evidence that the child comes within the juvenile court's jurisdiction. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.) " '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." ' " (In re I.J., at p. 773.)
"Substantial evidence, however, is not synonymous with any evidence. [Citation.] 'A decision supported by a mere scintilla of evidence need not be affirmed on appeal.' [Citation.] Although substantial evidence may consist of inferences, those inferences must be products of logic and reason and must be based on the evidence. Inferences that are the result of mere speculation or conjecture cannot support a finding." (In re James R. (2009) 176 Cal.App.4th 129, 135.) Rather, " '[s]ubstantial evidence is evidence that is "reasonable, credible, and of solid value" ' " such that would support a reasonable trier of fact's findings. (In re L.W. (2019) 32 Cal.App.5th 840, 848.) In conducting our review, we neither reweigh the evidence nor exercise independent judgment, but review the whole record in the light most favorable to the judgment to determine if there are sufficient facts to support the findings of the trial court. (In re I.J., supra, 56 Cal.4th at p. 773.)
B. Substantial Evidence Did Not Support the Juvenile Court's Finding that Mother's Conduct Placed N.S. at Substantial Risk of Suffering Serious Physical Harm Under Section 300 , Subdivision (b)(1)
Our review of the record in this case reveals insufficient evidence to support the juvenile court's jurisdictional findings under section 300, subdivision (b) that N.S. has suffered or that there is a substantial risk that she will suffer serious physical harm due to Mother's conduct.
Count b-3
The sole basis for the court's jurisdictional finding on count b-3 was that Mother had allowed Hayes "to reside in the child's home in violation of the existing family law order" thereby creating an "endangering home environment" and placing N.S. at risk of serious physical harm. We have combed the record and found no evidence to support this allegation.
First, there was no showing that Mother's violation of the family law order ever exposed N.S. to serious physical harm because there was no evidence whatsoever that Hayes had ever caused or even threatened any physical harm to N.S. Indeed, Father stated that N.S. had never reported any concerns about Hayes, and although he did not care for the man, Father did not believe Hayes presented any danger to N.S. For her part, N.S. reported no fear of living in Mother's home, and wanted to live with both parents as she had before. Second, there was no evidence to contradict Mother's statements and testimony that Hayes had not resided in the home and had had no contact with N.S. since these dependency proceedings were commenced. Thus, the necessary inference that Mother's past misconduct would reoccur to create a future risk of serious physical harm was far too tenuous and speculative to support dependency jurisdiction. (In re James R., supra, 176 Cal.App.4th at p. 136 ["Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300"].)
Count b-4
The juvenile court also found jurisdiction under count b-4 which alleged that Mother's conduct "places the child at risk of serious emotional harm." That conduct included making "repeated unsubstantiated claims of child abuse" against Father thereby subjecting N.S. to multiple interviews and sexual abuse examinations, telling N.S. that Shane S. is not her biological father in violation of the family law order, and pursuing a prolonged custody battle over N.S. However, emotional harm, even serious emotional harm to a child does not provide a basis for jurisdiction under section 300, subdivision (b). (Jesus M., supra, 235 Cal.App.4th at p. 112; Daisy H., supra, 192 Cal.App.4th at p. 718.) And contrary to respondent's contention, our review of the record reveals no evidence that Mother's conduct caused or posed a substantial risk of causing any physical harm to N.S. in the future.
As it did below, the Department attempts to characterize "[M]other's willingness to have her child subjected to repeated intrusive medical examinations" as placing the child at substantial risk of serious physical harm within the meaning of section 300, subdivision (b)(1). The evidence simply does not support this claim.
According to the January 4, 2019 detention report, N.S. underwent four vaginal/forensic examinations: (1) On or around August 24, 2016, the child was seen at Antelope Valley Hospital because Mother reported N.S. had complained of "pain while 'pooping' " and had told Mother that Father had touched her there. However, N.S. denied all forms of sexual abuse, and the problem was diagnosed as constipation; (2) N.S. was examined on November 6, 2017, for sexual abuse-related concerns when Mother brought her to the Antelope Valley Hospital due to N.S.'s complaints of pain in her vaginal area. N.S. reported that she had hurt herself by sitting on a toy, and denied that Father, Mother, or anyone else had touched her; (3) Another vaginal examination was conducted on August 17, 2018, when Father brought N.S. to Kaiser Permanente for a medical appointment. Father stated that the examination was unplanned and had nothing to do with any allegation of sexual abuse. Rather, it was requested by the doctor to determine whether N.S.'s labial adhesion had corrected itself; (4) The last forensic examination was requested by the Department because of Mother's repeated reports of concern that Father had sexually abused N.S. The examination occurred on September 11, 2018, at the High Desert Regional Health Center. Mother was initially opposed to another examination of N.S., but ultimately agreed.
It is clear from the Department's own summary that N.S. has not been subjected to repeated unnecessary sexual abuse examinations because of Mother's unsubstantiated concerns. Indeed, it appears that only one of these examinations, which was requested by the Department as part of its investigation, was prompted by Mother's sexual abuse allegations. Two others were occasioned by the child's specific complaints of pain, which the mother speculated might have been caused by inappropriate touching. And Mother had nothing to do with the medical appointment at which Father consented to another vaginal examination. Moreover, there is no evidence that N.S. has suffered any physical harm as a result of three physical examinations conducted by medical professionals at the Antelope Valley Hospital and the High Desert Regional Health Center between August of 2016 and August of 2018.
Our review of the record in this case has thus revealed no evidentiary support for dependency jurisdiction based on a substantial risk of physical harm to the child under section 300, subdivision (b)(1). Rather, we are confronted here with an extremely acrimonious and harmful custody battle in which one parent has sought to gain an advantage in that battle through allegations of sexual abuse founded on little more than suspicion and mistrust of the other parent. While the evidence shows one parent's bad behavior has likely subjected the child to emotional trauma, there appears no evidence of a threat to the child's physical safety. (See Jesus M., supra, 235 Cal.App.4th at p. 112; In re Noe F. (2013) 213 Cal.App.4th 358, 366; Daisy H., supra, 192 Cal.App.4th at pp. 716-717; In re Janet T. (2001) 93 Cal.App.4th 377, 390-391; In re Alysha S. (1996) 51 Cal.App.4th 393, 399.) "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." (Jesus M., supra, at pp. 113-114.)
In the absence of any evidence that N.S. had exhibited severe anxiety, depression, withdrawal, or aggressive behavior, the juvenile court struck the allegation under section 300, subdivision (c) for serious emotional damage.
We therefore reverse the juvenile court's jurisdiction order.
The family court, of course, retains jurisdiction to address Mother's violations of the family law order and make other findings and orders as appropriate for the best interests of the child. (Fam. Code, § 3011; see also Fam. Code, § 3100, subd. (a).)
C. In the Absence of Jurisdiction, the Court's Removal, Dispositional and Custody Orders Cannot Stand
Without jurisdiction, the juvenile court lacked authority to issue the removal, dispositional, and custody orders. (Jesus M., supra, 235 Cal.App.4th at p. 114; In re R.M. (2009) 175 Cal.App.4th 1251, 1261.) Thus, in light of our reversal of the jurisdictional order, all of the juvenile court's subsequent orders must be reversed as well.
DISPOSITION
The orders of the juvenile court are reversed. The court is ordered to dismiss the remaining counts of the petition and return the child to the shared physical custody of both parents, unless new circumstances would justify a new finding of jurisdiction.
NOT TO BE PUBLISHED.
LUI, P. J. We concur:
CHAVEZ, J.
HOFFSTADT, J.