Mother’s six children were declared dependents of the juvenile court under Welfare and Institutions Code section 300 (b)(1) based upon a “failure to protect.” The trial court determined it had jurisdiction over the children because it found true the allegation that Mother has a history of engaging in domestic violence. It also amended the Department of Children and Family Services petition to state Mother had a history of mental health issues even though “the court found no evidence Mother currently had any mental health problems.” The Court of Appeal reversed the trial court’s findings relating to four of the children.

Mother married Father H. in 2019 but separated in April 2023 after an incident of domestic violence where Father H. destroyed property in the house and pushed Mother. In June 2023, Father H. was arrested for driving under the influence of alcohol with their two minor children in the car. Despite Mother telling the social worker she would not allow Father H. to drive the children, she allowed him to do so the next day. When Father H. was late returning the children, Mother contacted him and he sounded intoxicated. Mother, “went looking for” him and saw him driving. When Father H. was stopped at a stoplight, Mother approached him and “when it seemed to [M]other that [F]ather H. was about to drive off, she hit him the face and got the keys out of the ignition.” Here, the department alleged both parents engaged in domestic violence, Father H. had a history of alcohol abuse, and mother had “ongoing mental health problems.”

Mother had also been married to Father M., but they divorced in 2016. The parties shared two minor children. In 2015, Father M. was incarcerated for a domestic violence incident against Mother. Here, the department alleged Father M. had engaged in domestic violence and Mother had “ongoing mental health problems.”

The Court of Appeal allowed Mother to challenge the domestic violence jurisdictional allegations sustained against Father M., because those allegations directly affected Mother’s parental rights. The Court of Appeal separately noted that because the parents had “coexisted without incident” since their 2016 divorce, there was no ongoing risk of domestic violence to support removal of the children from the survivor’s custody.

Importantly, this is the first case to state that having a protective order, such as a DVRO, is not sufficient evidence of ongoing domestic violence to support dependency jurisdiction. The Court of Appeal also found that Mother had responded “with appropriate and effective action to protect both herself and the children” in previous incidents of domestic violence by Fathers H. and M., which weighed against a finding of dependency jurisdiction.

This is also the first case to clarify that a “colloquial, non-expert evaluation” of a parent’s mental health issues should not be the basis for allegations in a dependency petition. The Court of Appeal found that Father M.’s assertion that Mother was “crazy” and Father H.’s claim that Mother was “bi-polar” were not evidence of Mother having a diagnosed mental health issue. The Court of Appeal also emphasized the need for a nexus of harm to the children, as “harm may not be presumed from the mere fact of a parent’s mental illness.”

Statutes used or affected: Family Code sections 6211, 6300, 6301, 6320; Welfare and Institutions Code sections 213.5, 300 (b)(1), 348, 355, 362; Code of Civil Procedure section 430.80