IN RE ETHAN C.Appellant, William C., Petition for ReviewCal.Oct 26, 2010ye os . 9 SUPREME COURTOF THE STATE OF CALIFORNIA IN RE ETHANC., et al., ) Minors Coming Under ) SUPREME CQURE°° COURT the Juvenile Court Law, ) NO. ana ) LOS ANGELES COUNTY ) DEPARTMENT OF CHILDREN ) ork AND FAMILY SERVICES, ) i Plaintiff and ) Respondent, ) Case No. B-219894. — V. ) ) Superior Court No. WILLIAM C., ) CK-78508 Defendant and ) (LOS ANGELES Petitioner. ) (COUNTY) ) PETITION FOR REVIEW BY PETITIONER WILLIAM C. AFTER A PUBLISHED DECISION THE COURT OF APPEAL, SECOND APPELLATEDISTRICT, DIVISION ONE, AFFIRMING A JUDGMENT MAKING HIS MINOR CHILDREN DEPENDENTSOF THE THE JUVENILE/SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLESHERI SOBEL, REFEREE CHRISTOPHER BLAKE, #53174 4455 LamontStreet, #B San Diego, California 92109 P.O. Box 90218 San Diego, CA 92169 (858) 274-1772 E-mail: email@example.com Attormey for Petitioner, WILLIAM C. (Under Appointment by the Court of Appeal California Appellate Project Independent Case System) TOPICAL INDEX PAGE TABLE OF AUTHORITIES PETITION FOR REVIEW REASON FOR GRANTING REVIEW. STATEMENT OF THE CASE AND FACTS POINTS AND AUTHORITIES IN SUPPORT OF PETITION I - REVIEW MUST BE GRANTED AND THIS COURT MUST HOLD THAT THE NEGLIGENCE OR ABUSE CONTEMPLATED BY SUBDIVISION(f) OF SECTION 300 MUST BE CRIMINAL IN NATURE RATHER THAN “ORDINARY”OR CIVIL. Il - REVIEW MUST BE GRANTED TO CLARIFY THAT CRIMINAL NEGLIGENCE REQUIRES THAT DEATH OR INJURY MUST BE A “NATURAL AND PROBABLE” RESULT OF A “RECKLESS, AGGRAVATED OR FLAGRANTLY NEGLIGENT ACT.” Il - REVIEW MUST BE GRANTED TO SETTLE THE QUESTION OF WHETHER THERE MUST BE A PRESENT RISK OF HARM TO A MINOR BEFORE JURISDICTION UNDER SUBDIVISION(f) OF SECTION 300 MAY BE FOUND. IV - CONCLUSION. CERTIFICATE OF NUMBER OF WORDSIN BRIEF. EXHIBIT - OPINION OF THE COURT OF APPEAL PROOF OF SERVICE il 13 19 23 24 25 26 TABLE OF AUTHORITIES PAGE CASES Bernard v. Foley (2006) 39 Cal.4th 794 8 California School Employees Association v. Governing Board ofthe Marin Community College District (1994) 8 Cal.4th 333 22 De Young v. San Diego (1983) 147 Cal.App.3d 11 11 In Re A. M. (2010) 187 Cal.App.4th 1380 2, 3, 9, 19, 20, 22, 23 In Re Alexis M. (1997) 54 Cal.App.4th 848 12 In Re Corrine W. (2008) 42 Cal.4th 522 8 In Re D.R. (2007) 155 Cal.App.4th 480 19 In Re J.N. (2010) 181 Cal.App.4th 1010 17, 18, 22 In Re Jorge M. (2000) 23 Cal.4th 866, 873). 16 In Re Reeves (2005) 35 Cal.4th 765 10 In Re Robert L. (1998) 68 Cal.App.4th 789 19 il In Re Young (2004) 32 Cal.4th 900 10 In Re Zimmerman (1962) 206 Cal.App.2d 835 19 Jorgelina E. v. Superior Court D-048461, decided August 30, 2006 2 MardardoF. v. Superior Court (2008) 164 Cal.App.4th 481 12, 21 People v. Caldwell (1984) 36 Cal.3d 210 15 People v. Kinkhead (2000) 80 Cal_App.4th 1113 9 People v. Peabody (1975) 46 Cal.App.3d 43 16 People v. Penny (1955) 44 Cal.2d 861 8 People v. Wong (1973) 35 CalApp.3d 812 15 Sea Horse Ranch,Inc., v. Superior Court (1994) 24 Cal.App.4th 446 8 Somers v. Superior Court (1973) 32 Cal.App.3d 961 16 United States v. Freed (1971) 401 U.S. 601 16 iil STATUTES Penal Code §20 Penal Code §7 Vehicle Code §27360 Welfare and Institutions Code §300.2 Welfare and Institutions Code §300(b) Welfare and Institutions Code §300(e) Welfare and Institutions Code §300(f) Welfare and Institutions Code §300(1) Welfare and Institutions Code §300(j) Welfare and Institutions Code §355 Welfare and Institutions Code §361.5(b)(4) OTHER AUTHORITIES BAJI 3.10 CACI 401 California Rules of Court, Rule 8.200(a)(5) 16 7, 13, 16 3, 19, 20 10 10 passim 2, 5, 19, 20 10 10 9 7,12, 21 23 Senate Committee on Judiciary, Analysis of Assembly Bill No. 2679 (1995-1996 Regular Session) as amended May 14, 1996 Statutes 1987, chapter 1485, section 4 Witkin, California Criminal Law, 4" Ed., Elements, section 17 iv 9, 10 9 17 SUPREME COURT OF THE STATE OF CALIFORNIA IN RE ETHANC., et al., ~ — _ Minors Coming Under ) SUPREME COURT the Juvenile Court Law, ) NO. ) LOS ANGELES COUNTY ) DEPARTMENT OF CHILDREN ) AND FAMILY SERVICES, ) Plaintiff and ) Respondent, ) Case No. B-219894 Vv. ) ) Superior Court No. WILLIAM C., ) CK-78508 Defendant and ) (LOS ANGELES Petitioner. ) (COUNTY) a e PETITION FOR REVIEW BY PETITIONER WILLIAM C. AFTER A PUBLISHED DECISION THE COURT OF APPEAL, SECOND APPELLATEDISTRICT, DIVISION ONE, AFFIRMING A JUDGMENT MAKING HIS MINOR CHILDREN DEPENDENTS OF THE THE JUVENILE/SUPERIOR COURT OF LOS ANGELES COUNTY HONORABLE SHERI SOBEL, REFEREE TO THE HONORABLE RONALD M. GEORGE, CHIEF JUSTICE AND THE HONORABLEASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA: WILLIAM C.hereby petitions the California Supreme Court for Review after a published decision by the Court of Appeal, Second Appellate District, Division One, of a judgment making and continuing his children as dependents of the juvenile court. These judgments were rendered by the Superior Court of Los Angeles County,sitting as a juvenile court. REASON FOR GRANTING REVIEW. The first issue is whether a petition filed under Welfare and Institutions Code section 300, subdivision (f), alleging that certain minors are at risk because their parent “caused the death of another child through abuse or neglect” may besustained solely uponthebasis that the “neglect” involvedis “ordinary” negligence rather than “criminal” negligence. As the majority opinion in this case noted, this issue has not been addressed in any previous published opinion. Aspetitioner noted in his briefing in the Court ofAppeal, there was one unpublished opinion, Jorgelina E. v. Superior Court, case no. D-048461, decided August 30, 2006, that held that, as a matter of statutory interpretation andhistory, the negligence required was“criminal negligence.” While this case was pending, anothercase, In Re A. M. (2010) 187 Cal.App. 4th 1380, impliedly agreed that “ordinary” negligence was sufficient to establish jurisdiction although it did not expressly so hold. Review has been sought in that case both by the father and the minors as Case No. S-186493, Petition for Review filed October 1, 2010; the respondent agency has, as of this date, indicated a desire to file a response to the petitions for review and, in fact, did so on or about October 20, 2010. Obviously, there is a question in the appellate courts as to whether “ordinary” negligence or “criminal” negligence is required to establish Jurisdiction under subdivision (f) of section 300. Petitioner submits that the history of subdivision (f) is that “criminal”negligence is required but that the social services agency may prove that the parent was “criminally” negligent using the standard of preponderance of the evidence (the normal standard of proofforjurisdiction underthejuvenile dependency law)rather than the more rigorous standard ofproofbeyond a reasonable doubt that would be neededto sustain a criminal conviction. In addition, there is a second reason for granting review. Thatissueis whether, assuming that the parent, did cause the death of a child by “abuse or negligence,” there must be a present risk of harm to the parent’s surviving children. The Court of Appeal in this case and in A. M., concluded that Jurisdiction was proper even if there was no present risk of harm. The dissenting opinion in this case concluded that Welfare and Institutions Code section 300.2 requires that there be a “present risk” of harm to the minors before dependencycan be established for any reason. Petitioner believes that the dissent in this case properly analyzes section 300.2 and that the clear intention ofthe dependencylaw requiresthat there be a “present risk” ofharm to a minor before the court may assert dependencyjurisdiction over the minor. Asnoted, review has been sought in A. M. on both of these issues and petitioner believes that uniformity of decision is essential for both of these questions, neither of which have been answered by appellate courts of this state, in published opinions until now. Because these questions are both novel and far reaching,it is for this Court to answer them rather than leave these questions with conflicting answers from the appellate courts in both published and unpublished opinions. STATEMENT OF THE CASE AND FACTS. The facts and proceduralaspectsofthis caseare set forth in the brief of the petitioner in the Court of Appeal. The case a be summarizedas follows. Specific.references to the transcripts may be found in petitioner’s opening brief in the Court of Appeal. In the event that this Court grants review, petitioner specifically reserved the right to file a more complete summary of the facts and case as may be appropriate. Petitioner William C. and Kimberly G.are the parents ofthree children. Two of them are the subject of this appeal. The older one is Ethan, now almost five years old (DOB 1/28/06). The younger oneis Jesus, who is now two (DOB 11/17/09). Their third child was Valerie (DOB 11/28/07). Valerie died in an automobile accident that occurred on June 17, 2009. The circumstances surrounding this accident are what really led to the filing of the petition on August 16, 2009. At the time of the accident, Kimberly and petitioner were separated but the children were living with petitioner. On June 17, petitioner returned home and discovered that Valerie had injured her arm. Petitioner was concerned and decided to seek medical attention. Apparently, there was somedifficulty in locating a child restraint car seat so petitioner drove to the hospital without one. Valerie was being held by her paternal aunt and grandmother. Aspetitioner was lawfully driving up the roadway, anothercarran a stopsignat a great rate of speed and “t-boned” him, spinning his car around and causing him to strike at least one other vehicle. Valerie wasfatally injured in the accident. The accidentreports are part of the record on appeal. The mosttelling aspect of these reports is the diagram of the accident prepared by the investigating officers. It shows that petitioner (driving V-2) was headed northbound on Avalon Boulevard and had entered the intersection at 90" Street; 90" Street had a stop sign; Avalon had 4 noneso petitioner clearly had the right of way. The driver ofV-1 entered the intersection unlawfully andstruck petitioner’s car at a speed sufficiently fast to cause it to spin around andstrike another vehicle; a fourth vehicle then struck petitioner’s car and that vehicle sped off without stopping. There has never been any dispute but that the driver of the other vehicle wassolely at fault for the accident andpetitioner has no legal responsibility for the accident. Further investigation showedthat petitioner and Kimberly engaged in various acts ofdomestic violence with Kimberly being the primary aggressor; Kimberly had some mental health issues in that she was borderline retarded and had a personality disorder. The petition was filed on August 16, 2009. The allegations included ones involving domestic violence and Kimberly’s mental health issues. However, one allegation was filed under Welfare and Institutions Code section 300, subdivision (f) — an allegation that William had caused the death of Valerie through abuse or neglect thus rendering him potentially ineligible for reunification services. Bythe time of the disposition hearing on October 22, 2009, petitioner had found new accommodations but respondent had yet to determineif they were suitable. He wasparticipating in visits with his children on a regular basis, was attending grief therapy, anger management and domestic violence classes. Both petitioner and Kimberly submitted on the basis of the social worker’s reports although petitioner made an argumentthat the evidence was insufficient to support a finding on the subdivision (f) allegations on the basis that petitioner’s negligence was not criminal in nature but, rather, civil in nature and thus could not be the basis for that kind of a petition. The court sustained the subdivision (f) allegations and the ones based on Kimberly’s use of domestic violence and her mental health issues. Both petitioner and Kimberly were granted monitored visitation and were offered reunification services. Only petitioner appealedthetrial court’s decision. The decision of the Court was rendered on September 24, 2010. A copy of that opinion is attached hereto as Exhibit “A.” POINTS AND AUTHORITIES IN SUPPORT OF PETITION I. REVIEW MUST BE GRANTED AND THIS COURT MUST HOLD THAT THE NEGLIGENCE OR ABUSE CONTEMPLATED BY SUBDIVISION (f) OF SECTION 300 MUST BE CRIMINAL IN NATURE RATHER THAN “ORDINARY”OR CIVIL. Ethan and Jesus were made dependentsofthe juvenile court primarily based upon the events that led up to Valerie’s death — namely that petitioner had failed to properly secure her in a child car seat as required by Vehicle Code section 27360. Petitioner became involved in an accident and Valerie was killed in the accident; everyone, including respondent concluded that petitioner had no legal responsibility for the accident; rather the driver of the other car wassolely at fault. Nevertheless, the trial court made true finding under subdivision (f) of Welfare and Institutions Code section 300 that Ethan and Jesus should be made dependents. Subdivision (f) permits a court to adjudgea child to be a dependentchild if the court if “if the child’s parent or guardian caused the death of another child through abuse or neglect.” The type of abuse or neglect — civil or criminal — is not specified. Furthermore, once the court makesthat finding, it may then decide not to grant the parent reunification services. Welfare and Institutions Code section 361.5, subdivision (b), subsection (4), states that the trial court need not provide reunification services if “the parent or guardian has caused the death of another child through abuseor neglect.” Again, the type of abuse or neglect — civil or criminal — is not specified. However, it may be notedthat the operative language ofboth subdivision (f) of section 300 and subdivision(b), subsection (4) of section 361.5, is identical in all meaningful respects and, therefore, under general rules of statutory construction, ifthe Legislature uses the same languagein closely related contexts,it intends that the same meaning 7 shall be accorded to the words. This is knownas the principle of ejusdem generis. (In Re Corrine W. (2008) 42 Cal.4th 522, 531; Bernard v. Foley (2006) 39 Cal.4th 794, 806-807). The law recognizes twobasic types ofnegligence — ordinary negligence which governs most civil acts andis a lack ofordinary or reasonable care. The standard BAJI instruction 3.10 defines it as follows: “Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably pru- dent person would do...It is the failure to use ordinary or reasonablecare...Ordinary or reason- able care is that care which persons of ordinary prudence would use in order to avoid injury to themselvesor others. The CACTIinstruction 401 uses similar language: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or byfailing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the samesituation orfails to do somethingthat a reasonably careful person would do in the same situation.” The other form of negligence is criminal negligence. Penal Code section 7 defines criminal “neglect/negligence”as a “want ofsuch attention to the nature or probable consequencesofthe act or omission as a prudent man ordinarily bestows in acting in his own concerns.” Criminal negligence requires a greater degree of culpability than ordinary or civil negligence. (People v. Penny (1955) 44 Cal.2d 861, 879; Sea Horse Ranch, Inc., vy. Superior Court (1994) 24 Cal.App.4th 446, 454). The facts must be such that the consequences of the negligent act or acts could reasonably have been foreseen and it must appearthat the death or danger to humanlife was not the result of inattention, mistaken judgment or misadventure but the natural and probableresult ofan aggravated, reckless or flagrantly negligent act. (People v. Kinkhead (2000) 80 Cal.App.4th 1113, 1123). This petition, as does the petition in A. M., squarely presents the issue of what sort of “negligence” is required under subdivision (f) — mere civil negligence or the muchstricter form of criminal negligence. Thestatute is silent. However, the statutory history clearly suggests that the Legislature intendedthat only “criminal” negligence or abuse could trigger an application of subdivision (f). While both the majority opinion in this case and the court in A. M., give lip service to the statutory history, neither really looks at the history in any meaningful manner. Prior to 1997, jurisdiction was authorized only if a parent had been convicted of causing the death of another child through abuse or neglect. (Statutes 1987, chapter 1485, section 4). Asoriginally enacted then, the type of abuse or neglect had to criminal in nature. In 1996,the Legislature reenacted subdivision (f) in its present form. There were two basic concerns. First was that a jurisdiction hearing in a dependency case almost always occurred before a conviction could occur in a criminal case thus making it almost impossible to sustain a petition under subdivision (f) if the death of the other child occurred close in time to the detention ofthe living children. Second, the Legislature was concerned about imposing the criminal standard of proof beyond a reasonable doubt in dependency proceedings which are generally governed bythe lesser standard of preponderance of the evidence. (Welfare and Institutions Code section 355). (Senate Committee on Judiciary, Analysis of Assembly Bill No. 2679 (1995-1996 Regular Session) as amended May14, 1996,p.o., hereafter Bill 9 Analysis). The Legislature obviously wanted subdivision (f) to have the same standard of proofthat is required in the other subdivisions. The Legislature was also concerned aboutthe effects ofany findings of fact made by the juvenile court might have on any criminal proceedings involving the deceased child — “care must be taken that the juvenile court action doesnotcreate a bar (collateral estoppel) as to any issues offact.” (Bill Analysis). In other words, the Legislature did not want the juvenile court’s finding that the parent acted with negligence in causing the death of the child to have any effect on any pending criminal case that might be broughtagainst the parent. It may be noted that subdivisions (b), (e) and (i) of section 300 permit dependency jurisdiction when “the parent or guardian knew or reasonably should have known”ofa household member’s abuseor neglectofthe parent’s child. This phrase is conspicuously absent from subdivision (f). When a critical word or phrase is present in some subdivisions of a statute, omission of that phrase or word from another showsa different legislative intent. (In Re Reeves (2005) 35 Cal.4th 765, 786; In Re Young (2004) 32 Cal.4th 900, 907). The phrase “knew or reasonably should have known” connotescivil negligence; its absence from subdivision (f) strongly suggests that the Legislature did not intend to import ordinary standards ofcivil negligence into subdivision (f) and this Court should so hold. Furthermore, the fact that the Legislature made no attemptto redefine the phrase “abuse or neglect” in its amendments to subdivision (f) back in 1996 further underscores that it intended that the original definition which clearly used the criminaldefinition ofneglect and abuse remain in place under subdivision (f) as it would renderit almost indistinguishable from subdivision () which permits dependency jurisdiction when siblings/half siblings are 10 abused.’ A court will not interpret a statute so as to render it meaningless or largely duplicative of another statute. (De Young v. San Diego (1983) 147 Cal.App.3d 11, 17). In other words, the amendments to subdivision (f) were intended to accomplish limited purposes — to allow a dependency court to adjudge a minor to be a dependent of the court when his/her parent has caused the death of another child through criminal negligence but with the proviso that the dependency court could make that finding by a mere preponderance of the evidence. Perhapsthe strongest evidenceofthis is the concerns expressed in the legislative history about collateral estoppel effects that the findings of the juvenile court might have on any criminal proceedings. If the dependency court could make a true finding under subdivision (f) based upon mere “ordinary”or “civil” negligence, there would have been no concerns about any collateral estoppel effects on the criminal case as “ordinary” or “civil” negligence cannot support a criminal conviction. Thus, the concernsthat are foundin the legislative history regarding collateral estoppel only make sense ifthe Legislature had intendedthat criminal negligence was requiredfor a true finding under subdivision (f) because then there could be some concern that the juvenile court’s finding of “criminal negligence” might have collateral estoppel effect on criminal proceedings. ' The only difference would bethat subdivision (f) would apply to instances in which the parent caused the death of anon-sibling. Typically, since non-siblings are not part ofthe same household asthe “surviving children,” it might well make sense to impose a higher standard under subdivision (f) than under subdivision (j) which basically incorporates the standards ofsubdivisions(a), (b), (d), (e) and (i) of section 300. This only supports a conclusion that subdivision (f) incorporates the criminal standards of neglect and abuserather thanthe civil standards. 11 Another reason for finding that the Legislature intended that only criminal neglect be the basis for a true finding under subdivision (f) is that a finding under subdivision (f) can be the basis for denying a parent reunifica- tion services under subsection (4) of subdivision (b) of section 361.5, which, as noted, uses the exact same language. A decision to deny reunification services under this provision can only done if the misconductor neglect is serious (Mardardo F. v, Superior Court (2008) 164 Cal.App.4th 481, 488) or if the misconductis “too shocking to ignore.” (In Re Alexis M. (1997) 54 Cal.App.4th 848, 851). Such language clearly goes far beyond “ordinary”or “civil” negligenceand clearly reunification services can only be deniedifthere has been criminal negligence. It is clear that sections 300, subdivision (f), and 361.5, subdivision (b), subsection(4), are intendedto coveressentially the same ground and the same construction must be given to the terms employed by both as the languageis the same. These twoprovisions are parallel provisions and must be read as having the same basic requirements — criminal neglectis required for both. The majority in this case as well as the A. M. court ignored these basic principles and incorrectly held that mere civil or “ordinary” negligence is enoughtojustify jurisdiction under subdivision (f) of section 300. This Court must grant review and hold thatjurisdiction under subdivision (f) requires a finding that the parent was“criminally” negligentin the death ofanotherchild. In other portions of this petition, petition will demonstrate that any other interpretation of the statute will lead to absurdresults. Petitioner will also demonstratethat his actions did not involve “criminal” neglect as that term is understoodin the law. 12 I. REVIEW MUST BE GRANTED TO CLARIFY THAT CRIMINAL NEGLIGENCE REQUIRES THAT DEATH OR INJURY MUST BE A “NATURAL AND PROBABLE” RESULT OF A “RECKLESS, AGGRAVATED OR FLAGRANTLY NEGLIGENT ACT.” If, as petitioner, contends,a true finding under subdivision (f), requires a finding that the parent wascriminally negligent in causing the death of a child, the further question of whether petitioner’s acts constituted criminal negligence muststill be addressed by this Court. Petitioner recognizes that this is a question that is better answered in briefing on the merits once this Court elects to grant review on the more vital question of whether criminal negligenceis requiredin the first instance. Petitioner also recognizesthat the Court of Appeal declined to answer the question of whether petitioner’s actions constituted criminal negligence as it concluded that “ordinary” negligence wassufficient to meet the test under subdivision (f). Nevertheless, petitioner believes it important for this Court to understandthat his actions did not constitute criminal negligenceas that term is understood in the law. Such an understandingis essential to place the primary question in proper perspec- tive. Thefirst question is whetherthe failure to use a child restraint car seat is a flagrantly negligent act. Petitioner has found no case on point. However, commonsensetells us that it is not. First, any failure to use such a deviceis but an infraction punished by little more than a nominal fine of $100.00.” Vehicle Code section 27360 is what is known as a regulatory offense. It is not * Very often,it is treated as a “fix it” ticket, that is, the offending parent goesto court, demonstratesthat he/she has an appropriate car seat and the matteris dismissed sometimes with a stern warning from the bench. 13 a malum in se offense or “evil in itself’ but merely malum prohibitum or wrong because wesay it is. At any given time, there are hundreds, if not thousandsofviolations ofthis statute. Very few ofthese violations, well less than one-tenth of 1% — result in any harm to the child in question. Society did not see fit to mandatethe useofchild restraint car seats until 1982. Doubtless, most baby boomers when they were babies and/or toddlers (andtheir parents) were transported in cars without the use of such devices but were held by an adult or older sibling. They survived. Petitioner submits that a violation of section 27360 is not, in andofitself, so flagrant, so aggravated orso reckless as to constitute criminal negligence. It may be civilly negligent but it is not criminally negligent. Another wayto lookat it is that any failure to use a child car restraint seat, like a failure to usea seatbelt, is not highly likely to result in any injury. There muststill be an intervening cause ~ someonespeeding, someonedriving intoxicated, someonerunning a stop sign and so on that causesa collision (or near collision) before injury occurs. In and ofitself, a failure to use a child restraint car seat causesnoinjuries. It increases the risk ofinjury in case ofan intervening cause but, in andofitself, it causes no injuries. It is unlike hitting a child with a bullwhip — thatwill alwayscause an injury.It is unlike throwing a baby at a wall — the baby will always be injured. There is a difference between taking all prudent measures that will decrease the risk of injury or death should untowardevents occurandactively engagingin activity that will always (or almost always) cause injury without any intervening activity by third parties occurring. Failure to use a child carrestraint seat is simply not an activity that will inevitably result in injury or death or even likely result in injury or death in andofitselfunless some intervening unforeseenact occurs. It is prudent to use them as this case demonstrates; it may well be civilly 14 negligent not to use them butit is simply not criminally negligentto fail to use them. In addition to the neglect, there must be a causal connection between the parent’s acts or omissions and the death ofthe child in question that must be more than tenuous or speculative. It must be a substantial contributing cause. Under criminal stands, “the death must be the probable consequence naturally flowing from the commission of the unlawful act or the criminal negligence.” (People v. Wong (1973) 35 Cal.App.3d 812, 830). It must be substantial and not tangential. (People v. Caldwell (1984) 36 Cal.3d 210, 220). It is not enoughto say that petitioner could have done something to lessen the likelihood of Valerie’s death in the event ofa collision; his actions muststill be a substantial factor. Here, we know what caused Valerie’s death. It was the decision of a driver to run a stop signat a significant rate of speed. There is no question that petitioner was driving in a safe and prudent mannerandneitherthe investigat- ing officers nor respondent ever contended otherwise. Perhaps Valerie might have survived the accident had she beenin a child restraint car seat. Perhaps she mightstill have died. It is wholly speculative to say one way or the other. What wecansayis that there was nothingin the way thatpetitioner drovethat caused this tragic accident. But for the reckless and grossly negligent conduct of another driver, this accident would never have occurred. Valerie would have been treated for her injured arm and taken back home safe and sound. Thesole cause ofthe accident was the other driver. Petitioner’s failure to use the child restraint car seat was, at most, a tangential or secondary cause and, even at that, it is wholly speculative to say that Valerie would have survived had one been used. Causation has not been established within the meaning of cases like Caldwell. 15 Petitioner also notes that the failure to use a child restraint seat is an offense that is classified as a “public welfare”or “regulatory” offense and,as such, does not require a mens rea. Mens rea isa basic concept in criminal law. It has been held that “true crimes” as opposed to “regulatory” or “public welfare” offenses require a mens rea. Penal Code section 20 states it clearly ~ “In every crime or public offense there must exist a union orjoint operation of act and intent or criminal negligence.” However, the concept applies only to “true crimes”or, to use law school jargon, crimes that are malum in se — evil in and of themselves. Public welfare offenses — or malum prohibitum offenses do not require a mens rea. (United States v. Freed (1971) 401 U.S. 601 [91 S.Ct. 1112, 1117, 28 L-Ed2d 356]; In Re Jorge M. (2000) 23 Cal.4th 866, 873). Hence, if an offense does not require a mens rea ofany sort,beit specific intent, malice, general intent, knowledge and soon, a violation ofthe statute cannot form the basis for a finding ofcriminal negligence ascriminal negligence is a form of mens rea. (People v. Peabody (1975) 46 Cal.App.3d 43,47). However,as petitioner developed supra — criminal negligence goes far beyond merecivil negligence andit is not determined by the nature ofthe harm that ultimately resulted. (Somers v. Superior Court (1973) 32 Cal.App.- 3d 961, 969 — fact that victim died as a result ofnegligence doesnot, in and of itself, show that the negligence was criminal in nature as opposedtocivil in nature). If no mens rea is required for a violation of Vehicle Code section 27360, then it would be impossibleto establish that petitioner’s conduct fell within the scope of subdivision (f) which requires the criminal mens rea of “criminal negligence.” This Court, in Jorge M., listed a numberofpotential factors that could be used to determine if a particular offense was a “true crime”or merely a public welfare offense. One importantfactoris whetherthe 16 statute itself requires a mens rea. Clearly section 27360 does not. Another one, perhaps the most important one, is the severity of the punishment — all things being equal, the greater the punishment, the morelikely that some fault is required. (/d., at 873). Obviously, a $100 fine is a token punishmentatbest. Another factor would be thedifficulty for the prosecution in proving a mental state — the more difficult it would be to prove a mental state, the greater the likelihood that no mental state is required. Again, trying to prove a mental state for failing to use a child restraint seat would be very difficult to prove. Another factoris the purpose ofthe statute; is it designed to punish perpetra- tors or protect the innocent? Obviously, the purpose of section 27360 is not to punish perpetrators but to encourage them to use a safety device to protect children. Furthermore, as Professor Witkin notes, most minor traffic infractions are considered public welfare offenses not requiring a criminal mens rea. (Witkin, California Criminal Law, 4" Ed., Elements, section 17). Based uponall of these factors, petitioner submits that a mere failure to use a child restraint seat, in and ofitself, is not enough to justify a true finding under subdivision (f). Perhaps combined with someotherfactor such as careless driving, it might arise to that level but, as even respondent has tacitly conceded, petitioner’s driving was not a contributing cause of the accident; the accident was causedsolely by another individual running a stop sign at a relatively high rate of speed. Here,it may be noted that even driving intoxicated with the children in the car may not even be enough to justify dependency jurisdiction. In the case ofIn Re J. N. (2010) 181 Cal.App.4th 1010, both parents werein a car with the father driving; both parents were highly intoxicated (the father’s blood alcohol level was .20 or 2% times the legal limit), the children were not properly secured in their car seats and the father drove into a pole causing 17 minorinjuries to one ofthe children. There was nootherevidencethateither parent had a substance abuse problem. The Court ofAppeal held, despite the fact that the parents were intoxicated and that they had failed to properly secure the children in a car seat, that was not enoughto justify dependency proceedings. (/d., at 1023-1036). Clearly, the conductofthe parentsin that case was far more egregious than waspetitioner’s conductin this case. Not only wasthe father responsible for the accident, he wascriminally responsible for the accident. Driving while highly intoxicated is an act that carries with it a criminal mens rea ofat least “criminal negligence”involving, as it does, conduct that is highly likely to result in danger of harm or death to the driver or to others. In addition,the parents did the exact same thing petitioner failed to do, secure the children in child safety seats but, as noted, they did considerably more — they were responsible for the accident and were highly intoxicated. If dependency could not be established on those facts, they cannot be established on these facts which showa far lesser degree of culpability. The only difference is that the children in J. N. suffered only minorinjuries; here Valerie died. However, the important thing is that petitioner had no legal responsibility for the fatal accident whereasthe parents in J. N. had full and sole legal responsibility for the accident. Petitioner submits that the totality of the evidence amply demonstrates that respondent failed to meet its burden under section 300, subdivision(f), to show that petitioner’s surviving children should have been made dependents under that code section. Review mustbe grantedandthis Court must so hold. 18 Ill. REVIEW MUST BE GRANTED TO SETTLE THE QUESTION OF WHETHER THERE MUST BE A PRESENT RISK OF HARM TO A MINOR BEFORE JURISDICTION UNDER SUBDIVISION(f) OF SECTION 300 MAY BE FOUND. Both the majority opinion in this case and the Court in A. M. concluded that the respondent agency wasnot required to show a presentrisk ofharm to the minors before jurisdiction could be found under subdivision (f). (Slip Opinion at p. 11; In Re A. M., supra, at 1387). Neither case considered the impact ofsection 300.2 of the Welfare and Institutions Code. Thedissent in this case, however, considered the impact of that provision whichstates, in relevant part, as follows: “Notwithstanding any other provision of law,the purpose ofthe provisions of this chapterrelating to dependent children is to provide maximum safety and protection for children whoare cur- rently being physically, sexually or emotionally abused, being neglected or being exploited and to ensure the safety, protection and physical and emotional well-being of children whoareat risk for that harm.” This provision does nothing more than codify certain long accepted principles of law, namely that exercise of dependency jurisdiction must be based upon existing and reasonably foreseeable future harm to the welfare of the child. Un Re D. R. (2007) 155 Cal.App.4th 480, 486, citing to In Re Robert L. (1998) 68 Cal.App.4th 789, 794). These principles of law go back to at least 1962 when the court stated that, before terminating custody and control of parents who “are morally depraved” requires such condition of moral lapse be found to exist at the time of the hearing. (in Re Zimmerman (1962) 206 Cal.App.2d 835, 844). 19 Petitioner submits that the dissent in this case “gotit right.” Before dependencyjurisdiction may be asserted over any child, there must either be present harm from whichthe child suffers or a substantial risk of future harm to the child based on presently existing conditions. The A. M. court came to the conclusion that subdivision (f) did not require a finding of present risk because the language of other provisions of section 300, notably subdivisions(b), (c), (d) and (j) contained languageto the effect that the child be “at substantial risk,” or has suffered harm. (/d., at 1387). In contrast, the dissentin this case found that unpersuasive becausethe Legislature’s failure to use the past tense language in subdivision(f) is all the more reasonto interpret subdivision (f) as requiring proofofa currentor future risk of harm. (Slip Opinion, Rothschild, J., dissenting, p. 2, fn. 4). However,as noted, both the majority opinion and the A. M. court failed to consider the impact of section 300.2 which clearly applies to all parts of section 300 and which does require a risk of future harm to the child before dependencyjurisdiction may be found. Review mustbe granted andthis Court must squarely hold that section 300.2 requires a presentrisk of future harm to the minor before dependency jurisdiction may be sustained under any provision of section 300, including subdivision(f). A good illustration is found in Mardardo F. v. Superior Court, supra, in which jurisdiction was based upon the fact that the father, when he was fifteen, had murdered and raped a 13 year old child; he spent ten years in CYA and wasthen dishonorably discharged; he was determined to be a dangerto society and to the child and was diagnosed with an antisocial personality disorder. (/d., at 484). These facts, which squarely fall within the scope of subdivision(f), under any theory, werethe sole basis for sustainingthe petition 20 as to the father.’ The issue on appeal was whether the father could be denied reunification services under section 361.5, subdivision (b), subsection (4), which, as noted, is a parallel provision to subdivision (f), containing the precise same language. The issue on appeal was whetherthe father had to be a parent at the time he causedthe death ofthe child in question. The Court of Appealheldthatit was not necessary that the individual be a parentat the time . that he causedthe death ofthe child, only that he be a “present danger”to the safety of the child at the time reunification services are denied. Ud., at 491- 492). Although Mardardo F. dealt with the issue of reunification services rather than the establishmentofjurisdiction ab initio, it neverthelessillustrates the principle that the provisions of subdivision(f) andits parallel provisions ofsubsection (4) ofsubdivision (b)ofsection 361.5 both require a presentrisk of harm to the child before they can be applied. Furthermore, commonsenserequires a presentrisk ofharm to the child before subdivision (f) can be applied. If one accepts the lower court’s interpretation of subdivision (f) as (1) only requiring “civil” or “ordinary” negligence in causing the death ofa child and (2) no presentrisk ofharm to the minor before dependency jurisdiction may be found,then truly absurdresults can occur. Take a very ordinary situation. When Ms. Jones was19 years old, she was involved in an automobile accident at which she was clearly at fault; perhapsherattention wasdistracted from the road because she was chatting with a passengeror perhaps she took a very wide turn. In any event, a child died as a result thereofand a court found hercivilly liable. Ten yearslater, she gives birth to her own child. Under the construction of subdivision (f) as * There wereallegations under subdivisions (a) (b) and (j) as to the mother but those allegations did not pertain to the father. 21 advanced by the Court of Appeal, a trial court would have no choice butto make her child a dependent of the juvenile court based upon the events of some ten years earlier. In fact, the accident need not have occurred ten years earlier but, perhaps, only a year earlier (or even a monthearlier) andthetrial court would still be required to make a true finding under subdivision (f). A one time lapse in judgmentis no basis for finding that a child must be made a dependent ofthe juvenile court. (See, In Re J. N., supra — onetimeincident ofdrunk driving even with an accident in which a child improperly restrained and wasslightly injured not enoughto sustain dependency jurisdiction). Another examplewill illustrate the need to have a presentrisk element in subdivision (f). A homeowner has a pool; the fence around the poolis defective and a neighborchild sneaksinto the backyard and drowns. Clearly, the homeowneris negligent and responsible for the death ofthe child. But are his children “presently at risk” for future harm if he immediately repairs the fence? Of coursenot! The above examplesillustrate the absurdity ofthe extreme application of subdivision (f) that advancedin this case and in A. M. Courts will avoid absurd interpretationsofstatutes. (California SchoolEmployeesAssociation v. Governing Board of the Marin Community College District (1994) 8 Cal.4th 333, 339, 342). Limiting the extreme provisions of subdivision (f) to instances in whichthe parent has acted with criminal negligence and in which there is a “present risk” of future harm to his/herchild avoids any possibility ofabsurd results yet preservesthe originalintent ofthe legislation. This Court must grant review and so hold and give a commonsenseinterpretation to subdivision (f). 22 IV. CONCLUSION. For these reasons, petitioner respectfully submits that this Court must grant review. Both this case and In Re A. M. present extremeinterpretations ofsubdivision (f) that must be avoided. Subdivision (f) should be applied only when (1) the parent has caused the death of a child by “criminal abuse or neglect” and (2) there is a present risk of danger to the parent’s own children by reasonofthat “criminal abuseor neglect.” This Court should grant review in this case and in A. M. Because the twocasespresent significantly different scenarios, both should bebriefed on the merits with separate opinionsbutit may be prudent to have them orally argued on the same day. In any event, review mustbe grantedto clarify the true meaning ofWelfare andInstitutions Code subdivision (f) and avoid the potentially absurd results that the interpretations advocated by the majority opinion in this case and by A. M.* Dated: October 25, 2010 LbChile HRIST@PHER BLAKE,#53174 Attorney for Petitioner, WILLIAM C. * To the extent practicable, petitioner incorporates the briefing filed by the appellant and the minor in A. M., in this Court in support of review in that case as part ofhis petition for review in this case. As noted, supra, A. M. is pending before this Court as case S-186493. This is done pursuant to California Rules of Court, Rule 8.200, subdivision (a), subsection (5). 23 CERTIFICATE OF NUMBER OF WORDSIN BRIEF. I hereby certify that this brief consists of 6,599 words, including footnotes, as counted in the word count function of WordPerfect X4, the computer program usedto prepare this brief. Dated: October 25, 2010 ws RISTOPHER BLAKE 24 EXHIBIT (1) PUBLISHED OPINION OF THE COURT AFFIRMING THE DECISION MAKING PETITIONER’S MINOR CHILDREN, ETHANC. AND JESUS C., DEPENDENTS OF THE JUVENILE COURT AND CONTINUING THEM AS DEPENDENTS OF THAT COURT DATED SEPTEMBER24, 2010. 25 Filed 9/24/10 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE In re ETHANC.et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant, v. WILLIAM C., Defendant and Appellant. B219894 (Los Angeles County Super. Ct. No. CK78508) APPEALSfrom an order of the Superior Court of Los Angeles County, Sherri Sobel, Juvenile Court Referee. Affirmed in part; reversed in part. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Appellant. Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant. A father drove his toddler daughter after failing to secure the child in a car seat. The father became involvedin traffic accident, and the child was thrown from the car and died. The father’s other two children were detained by Department of Children and Family Services (DCFS). The father contends dependencycourt jurisdiction was improperly asserted because, although he negligently failed to secure his daughter in a car seat, his undisputed negligence did notrise to the level of criminal negligence heclaims is required by Welfare and Institutions Code section 300, subdivision (f).! We affirm. DCFSfiled a cross-appeal, arguing the juvenile court erred by dismissing allegations under section 300, subdivision (b), which refer to the father’s neglect of his daughter which resulted in her death. Theseallegations are a necessary predicate to sustain identical allegations under section 300, subdivision (j), which the juvenile court sustained. We agree the juvenile court erred in this respect; the dismissed allegations must be reinstated and sustained. FACTUAL AND PROCEDURAL BACKGROUND Appellant William C. and his wife Kimberly G. (whois not a party to this appeal) are the parents of three children, Ethan C. (born January 2006), Jesus C. (born November 2008), and the now-deceased Valerie C. (born November 2007). On June 17, 2009, 18- month-old Valerie died in an automobile accident. The circumstances surrounding that accidentled up tothe filing of the Welfare and Institutions Code section 300 petition in this action by DCFS. In Marchor April,? William and Kimberly separated. The children lived with William and numerous membersof his extended family in their paternal grandmother’s home, which was described as very crowded and unkempt. On June 17, William left Valerie in the care of her paternal grandmother and a paternal aunt. When hereturned, he noticed Valerie’s arm was injured,? and he decided 1 Undesignated statutory referencesare to the Welfare andInstitutions Code. * Unspecified date referencesare to 2009. 2 to take herto the hospital to have the arm checked out. His car, which had a child’s car seat, was being used by someoneelse. William was unableto get anothercar seat from Kimberly so he drove his daughterto the hospital unsecured by any child safety restraint. Valerie traveled in the car sitting on the lap of her aunt or paternal grandmother. As William, who hadthe right-of-way, drove into an intersection, another car traveling ata high rate of speed ran through a stop sign and struck William’s car, causingit to spin into another car. William’s car was then struck by a fourth vehicle. As a result of the collisions, Valerie was thrown from the car and landed on her head. The coroner concludedthe cause of Valerie’s death was accidental, and due to blunt force injury. An early DCFSreport indicated that criminal charges would likely befiled against William and the driver who ran through the stop sign; no criminal charges have beenfiled against William. About a weekafter Valerie’s death, DCFS received a referral claiming Ethan and Jesus were the victims of general neglect by their parents. The children’s hygiene was reportedly quite poor, and their paternal grandmother’s home wasallegedly filthy, with food, feces andtrash strewn everywhere. Although a DCFS investigation revealed the conditionsat the paternal grandmother’s home werenotas severeas reported, the home was unsanitary, noneoftheutilities were working properly, the children lacked cribs or appropriate sleeping arrangements, and there appeared to be an excessive number of people (20 or more) living in the home. Ethan and Jesus were dirty and they ran around the yard with no one paying any noticeable concernfortheir safety. Kimberly told DCFS she wasnot sure William had ever had any carseats. Kimberly seemed detached from her emotions, and had difficulty understanding and responding to questions. Kimberly’s mother(the children’s maternal grandmother), told DCFS Kimberly had cognitive impairments: she was 20 yearsoldat the time, but had the mental capacity of an 11 year old. The maternal grandmother said Kimberly’s 3 The child, left unsupervised, had fallen out of bed. Until William returned, no one had noticed Valerie’s injury. impairments became morenoticeable after she, William andtheir children began living with William’s relatives, whotreated Kimberly poorly and were sometimesphysically abusive to her. Shortly before Valerie’s death, the maternal grandmother had taken Jesus to live with her because she worried that he had been neglected, isolated andthat his medical needs were going unmet. After Valerie died, the maternal grandmotherbrought Ethan to her home too. Shebelievedall the children had beenseriously neglected by William’s family, and that Ethan would be in dangerif he stayed with his paternal relatives. When the maternal grandmother took Ethan to her home, his diaper contained a bowel movementso firmly stuck to his buttocks the child had to be bathed in order to soften and remove the feces. Ethan, who wasthenthree years old, did not know how to use utensils to feed himself (he ate using his hands), was confused about the difference between day and night, and lacked language skills. He also displayed what appearedto be signs of developmental delays, and had several rotten teeth that required extraction. Additional investigation revealed the children’s parents had engagedin acts of domestic violence in the home. Kimberly wasthe primary aggressor. On various occasions, Kimberly had hit William with objects and had cursedat, slapped, socked and threatened him. William attributed Kimberly’s behavior to emotionalinstability and his wife’s extreme jealousy. He told DCFSthat three times the behavior had escalatedto a point that Kimberly wanted to harm herself. William took her in for mental health services, but Kimberly hadnot consistently complied with her treatmentplans. Kimberly admitted she got angry at and sometimeshit or threw objects at William, but she said she did “‘not physically abuse him,just like a punch.’” She did not believe her punches were abusive, or that William had not been physically hurt because she “‘did not give hima black eye or nothing.’” Kimberly conceded she haddifficulty controlling her anger, but said she had neverhit her children and never would. There was evidence Kimberly had been diagnosed with borderline personality disorder, had a history of suicide attempts and generally functioned at a level no greater than a 13 year old. A psychologist expressed serious reservations abouther ability to care for young children. 4 DCFSandthe parents agreed the family wouldparticipate in a voluntary reunification plan. Nevertheless, DCFS decided the children should be detained due to, amongother things, safety concerns about inappropriate adult supervision that had resulted in Valerie’s initial arm injury, the apparent lack of children’s cribs or car seats, and the unacceptable conditionsat the paternal grandmother’s house. The boys were placed in foster care, and the parents were given monitored weekly visitation, and agreed to participate in psychological assessments. Beginning in late June, William and Kimberly began participating in parenting classes, and William started grief counseling. But William still had not moved out of paternal grandmother’s homeintoa clean, safe, less populated residence into which DCFScould safely restore the children to his care. In addition, the criminal investigation surrounding Valerie’s death remained open. In mid-August, the LAPD informed DCFSit planned to ask the District Attorney to charge William with child neglect and endangerment, but was waiting for more information beforeit did so. A psychological evaluator told DCFS William continued to experience difficulty dealing with his grief overthe death of his daughter, and as a result had somenegative and violentinteractions with Kimberly. William wasalso taking painkillers for back pain he suffered as the result of anothertraffic accident in which he had been involved in 2008. DCFSdeterminedit was not feasible to consider whether the children could safely be returned to William’s care within the time parameters provided by the Voluntary Family Reunification program. Otherlimitations inhibited DCFS’s ability to consider returning the children to Kimberly. Her limited cognitive abilities and acknowledged need for assistance to help herproperly care for and supervise her children presented a serious impediment. It was clear the parents loved their children. Nevertheless, DCFS had continued and significant concernsthat the children would remain at physical and emotionalrisk in either parent’s care. DCFS opinedthat the issues could be “worked through,” and the “family would greatly benefit from supportive services.” Accordingly, it recommended the juvenile court detain and assert its jurisdiction overthe children. 5 A section 300 petition wasfiled on August 18. As ultimately sustained, the petition alleged that Ethan and Jesus were at substantial risk of suffering serious harm due to Kimberly’s inability to provide regular care, as a result of her mental impairments or developmental disability, that the parents’ history of domestic violence endangered the children’s physical and emotionalhealth andsafety, and Kimberly hadsignificant cognitive impairments which would require extensive services in order to enable herto appropriately care for and supervise her children. (§ 300, subd. (b).) The petition also alleged that William had created a detrimental, endangering andabusivesituation by driving Valerie in a car andfailing to place her in a carseat, thereafter becoming involved in an accident that resulted in her death. Valerie’s death, which was alleged to have occurred due to William’s choiceto drive her without securing her in a car seat, also created a potentially detrimental, endangering and abusiveor neglectfulsituation for her brothers, endangering their physical and emotional health andsafety, and placing them at risk of physical and emotional harm, damage, danger and death. (§ 300, subds. (f), G).) Atthe detention hearing the juvenile court found a prima facie case for detention was shown. The boys were temporarily placedin foster care, and the parents were given monitored visitation. The contestedjurisdictional hearing,initially set for early September, was conducted on October 22. In interviews conducted in preparation for that hearing, the police told DCFS William wouldlikely be charged with “[c]hild [e]ndangerment,” although he was unlikely to be sentencedto jail time, because his record was “not bad” and he had not caused the deadly traffic accident. Kimberly continued to acknowledge that she easily became sad, upset and emotionaland that she had thrown objects at and hit William. Her anger management problemsarose primarily from her extreme jealously and possessiveness toward William. Kimberly admitted she sometimes thought about (but would never actually commit) suicide. Kimberly continued to have concerns about her parenting skills, but expressed a desire to reunite with her husband and sons, so they could live together again as a family. The maternal grandmother told DCFSshe thought 6 Kimberly could take care of her sons, as long as she received a great deal of guidance and assistance. William told DCFS he wouldparticipate in any services in order to reunify with his sons. He said he waslookingfora place of his own to live. DCFS wasnot willing to release the boys back into the homeoftheir paternal grandmother, which remained overcrowded, unkempt and unsanitary, and where they had not been appropriately supervised. In its report, DCFS observed that the action,filed under section 300, subdivision(£), in part, satisfied the statutory criteria for the court’s denial of reunification services. (§ 361.5, subd. (b)(4).) It was “clear that [William’s] negligence caused/contributed to the death of ... Valerie. [William] failed to use properrestraints whentransporting the child.” Although his extreme negligencein choosing not to use a car seat “costthe life” of and “directly contributed to” Valerie’s death, it did “not appear that [William’s]} intent was to harm,injure or kill the children’s sibling. [William] exercised extremely poor judgment whichresulted in a horrific consequence.” DCFS informed the court that William was extremely remorseful, and had been compliant since the case came to DCFS’s attention. Thus, although he was not necessarily entitled to them, by virtue of section 361.5, subdivision (b)(4), DCFS opined that the case involving William’s family was one of the rare instances in which the family could benefit from reunification services. At the hearing on October 22,the parties informed the juvenile court the parents agreed to submit on all counts allegedin the petition, except the count alleged under section 300, subdivision (f). William argued that count should be dismissed because, although he had admittedly been negligent by failing to secure Valerie into a car seat, and she died as a result of injuries sustained as a result of his failure to do so, his conduct did notrise to the level of “criminal negligence” which he argued was necessary to meet the requirements of section 300, subdivision(f). Thetrial court disagreed. It observedthat section 300, subdivision (f) provides for assertion ofjuvenile court jurisdiction in cases in which “the child’s parent or guardian 7 caused the death of another child through abuse orneglect.” In light of the fact that “the law is absolutely clear about buckling a child in a safety seat,” which William had clearly neglected to do for his one-year-old daughter, the court observedthatit couldn’t “even imagine what the argument could possibly be”that the requirements of section 300, subdivision (f) were not met. The court foundby a preponderance of evidence that Ethan and Jesus were dependentsof the juvenile court within the meaning of section 300, subdivisions (b), (f) and (j), and sustained the petition, as amended. Thecourt also found, by clear and convincing evidence, that there were no reasonable meansto protect the boys short of removal, and placed them in DCFS custody. The parents were given reunification services and monitored visitation. William appealed. DCFSfiled a cross- appeal. DISCUSSION 1. William ’s appeal a. Thejuvenile courtproperly sustainedallegations premised on William’s failure to secure Valerie in a car seat A child may comewithin the juvenile court’s jurisdiction ifhis “parent or guardian caused the death of anotherchild through abuseor neglect.” (§ 300, subd. (f).) William maintains that the “abuse or neglect” contemplated bythis statute must rise to the degree of culpability encompassed within the concept of criminal negligence, andthat ordinary civil negligence will not suffice. Focusing onlegislative changesto the statute, William contendsthe juvenile court applied the wrong legal standardin sustaining the jurisdictional allegations under section 300, subdivision (f). Before 1997, dependency jurisdiction was authorized undersection 300, subdivision(f) only if the juvenile court found the child’s parentor guardian hadalready been convicted of causing another’s child’s death through abuse or neglect. (Historical and Statutory Notes, 73 West’s Ann. Welf. & Inst. Code (2008 ed.) foll. § 300, p. 266; see 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 547, p. 671.) In 1996, the statute was amendedtoits current form, deleting the requirement of a criminal 8 conviction. The reasons underlying the change were twofold: First, jurisdictional hearings in dependencyactions are almost uniformly held long before the criminal charges arising from a child’s death are resolved. The previously lengthy delay prevented a juvenile court from making jurisdictional findings under section 300, subdivision (f) until the parent causing a child's death had actually been convicted of the crime. The shift from requiring a conviction to a merely causal relationship eliminated that problem. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2679 (1995-1996 Reg. Sess.) as amended May 14, 1996, § 2-E, p. 0.) The second express goal of the amendment wasto “lower the standard of proof by which the parent’s causeofthe other child’s death is found,” from the higher “beyond a reasonable doubt” criminal standard, to the lower mere “preponderanceof the evidence” standard required in a civil action. ([bid.) William contendsthat although an express purpose ofthe statutory revision wasto lowerthe standard of proofto the civil measure, the Legislature intended tolimit application of section 300, subdivision (f) solely to those cases in whichthe parent acts with criminal negligence. He submits that his failure to put Valerie in a car seat (an infraction in violation of Vehicle Code section 27360), was simply not the sort of 99: 66 “flagrant,” “aggravated”or “reckless” sort of act that rises to the level of extreme criminal negligence contemplated by thestatute. Our task in construing statute is to ascertain the intent of the legislators to effectuate the purpose of the statute. (Day v. City ofFontana (2001) 25 Cal.4th 268, 272.) If the language is clear and unambiguous,the plain meaningrule applies: we presume the Legislature meant whatit said. (/bid.) The languageofthestatute is simple and clear. A child is within juvenile court jurisdiction if the actions ofhis “parent ... caused the death of anotherchild through . . . neglect.” Wefind no ambiguity in this language, and nothingin the statute compels us to analyze the Legislature’s intended meaning of “negligence.” (People v. Thomas (1996) 42 Cal.App.4th 798, 801.) Hadthe legislature intended section 300, subdivision (f) to be predicated on criminal 9 negligence, we believe it would have expressly said so. (/bid.) But, to the extent an ambiguity maybesaidto exist, it is readily clarified by the legislative history which specifically provides that the purpose of the 1996 revision wasto Jessen the evidentiary burden, and “expand [the] provision by eliminating the requirement of a conviction of the death of another child, and instead simply provide that the parent has caused the death of another child.” (Analysis of Assem. Bill No. 2679, p. c.) Nowhereis there an indication the Legislature intended to require a finding of criminal negligence. Not surprisingly, neither we nor William have found any published cases holding that an allegation undersection 300, subdivision (f) cannot be sustained in the absence of evidence of criminal neglect. William relies primarily on two cases to support his assertion that criminal negligence is the standard; neither is on point. In Patricia O. v. Superior Court (1999) 69 Cal.App.4th 933 (Patricia O.), a mother’s boyfriend physically abused her baby, who died of blunt force trauma. The boyfriend had inflicted chronic injuries on the child that would have caused obvious pain and symptoms,suchasa spinal fracture that wasas old as six weeks, injuries to the baby’s humerusthat had healed, as well as other injuries that were weeksold, and bruises of varying ages. (Jd. at pp. 936, 938.) Another child told DCFS he had told his mother “‘1,000 times’”that her boyfriend regularly hit the baby (and mother’sother children), but “she didn’t listen.” (/d. at p. 937.) Juvenile court jurisdiction was notat issue. Rather, in Patricia O. the challenge was whetherthere was clear and convincing evidence demonstrating mother’s total and complete disregard for her child’s welfare, sufficient to justify the juvenile court’s decision to deny her reunification services under section 361.5, subdivision (b)(4). The appellate and juvenile courts agreed mother’s neglect had been pervasive;it rose to the level of “criminal culpability” and she could easily have been prosecuted for murdering herchild, so that her claim that reunification services under section 361.5, subdivision (b)(4) had improperly denied “border[ed] on frivolous.” (/d. at pp. 940, 942.) Jurisdiction was also notat issue in In re Ethan N. (2004) 122 Cal.App.4th 55 Ethan N.). There the victim was a newborn whodiedastheresult of a “golf ball-sized 10 wad of paper lodged deep in his esophagus.” (/d. at p. 61.) He also had severeinjuries to his rectum and anus, a dozen broken ribs, facial injuries and other obvious wounds suffered as the result of “repeated and extensive abuse.” (/bid.) The mother failed to seek medical care for her child. The appellate court found the juvenile court had abused its discretion by failing to conducta best interest analysis, and by ordering reunification services undersection 361.5, subdivision (c) for mother. As a parent responsiblefor the death of a child, it was mother’s responsibility to demonstrate by clear and convincing evidence that reunification was in her other child’s best interest; she had not metthat burden. (/d. at pp. 63-69.) Both Patricia O. and Ethan N. had advanced beyondthe jurisdictional phase, at whichthe allegations undersection 300, subdivision (f) were sustained. (See Patricia O., supra, 69 Cal.App.4th at p. 938; Ethan N., at pp. 59-60.) Furthermore, the one published decision to address whether section 300, subdivision (f) contains a requirementthat children be currently suffering harm or currently at risk of harm holds against such interpretation. In Jn re A.M. (Aug. 11, 2010, D056196)_ Cal.App.4th [2010 Cal.App. Lexis 1518], our sister court addressedthis question and squarely rejected the proposition that a current harm or current risk requirementis implied in subdivision (f) despite the fact that the plain languageofthe statute itself contains no such requirement: “When‘the statutory language is unambiguous, “we presumethe Legislature meant whatit said, and the plain meaningof the statue governs.” [Citation.]’ (Whaleyv. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 485.) Section 300, subdivision (f), makes no mention and does not require that a minorbe at risk of harm for the court to take jurisdiction over the minor. Thestatute states that the court has jurisdiction over a minorif the court finds by a preponderanceof the evidencethat‘[tJhe child's parent or guardian caused the death of another child through abuseor neglect.’ (§ 300, subd. (f).) The language of section 300, subdivision(f), does not require a finding of currentrisk. ll “The languageofthe statute is in contrast to the remaining subdivisionsto section 300. In looking at the language of the remaining subdivisions, including subdivisions(a), (b), (c), (d) and (j), we see that these subdivisions specifically provide provisions allowing a court to take jurisdiction over a minor when a minorisat risk of harm. (bid) “Where statute on a particular subject omits a particular provision, the inclusion of such a provision in another statute concerning a related matter indicates an intent that the provision is not applicable to the statute from which it was omitted.” (In re Connie M. (1986) 176 Cal.App.3d 1225, 1240.) Thus, we conclude the court did not need to make findings that D.M. posed a risk to the minors under the languageofthe statute.” Wefind this reasoning to be sound. Moreover, William ignores the fundamental principle that dependency proceedingsarecivil in nature, not criminalor punitive. (In re Malinda S. (1990) 51 Cal.3d 368, 384.) The purpose of dependencylawis to protect children, not to prosecute their parents. (/bid.) Based on the foregoing, we find no support for William’s assertion that criminal negligence must be shown to sustain an allegation undersection 300, subdivision (f), and thus noerror in the court’s finding sustaining the allegations under that subdivision. dz Remaining allegations William also asserts there is insufficient evidence to support the court’s findings sustainingthe allegations of section 300, subdivision (b) regardingtherisk of harm to Ethan and Jesus dueto historical domestic violence between their parents and Kimberly’s cognitive limitations. He is mistaken. First, apart from his attorney’s representations at the hearing, the record contains no evidence of William’s attendance, progress or completion of the court-ordered programs designed to help him alleviate the problems whichled to juvenile court intervention. Nor is there any evidencehe has obtained appropriate housingfree ofthe unsatisfactory and unsanitary conditions found at the paternal grandmother’s home. Arguments and representations made by counsel donot constitute evidence. (Du Jardin 12 v. City ofOxnard (1995) 38 Cal.App.4th 174, 179; In re Heather H. (1988) 200 Cal.App.3d 91, 95 [“Evidence”is testimony, writings, material objects, or other things presented to the senses and offered to prove the existence or nonexistence ofa fact; “unsworn testimony does not constitute ‘evidence’”].) There is substantial evidencethat domestic violence has been a significant part of the life of William and Kimberly’s family for quite some time. William and Kimberly werestill living together, at least intermittently, in paternal grandmother’s homeaslate as three weeks before Valerie’s death in June 2009. Evenif the parents were living apart by the time of the October hearing, fewer than four months had passed bythetime ofthat event, and at least Kimberly wasstill clearly desirous of reuniting with William. Thus, it was not unrealistic for the juvenile court to concludethat William’s claim the parties were permanently separate was premature. The effects of domestic violence in the home form a sufficient basis for jurisdiction undersection 300, subdivision (b), even if a child is not physically harmed. “[D]omestic violence in the same household where children are living is neglect;it is a failure to protect [the children] from the substantial risk of encountering the violence and suffering serious physical harm orillness from it. Such neglect causes the risk.” Un re Heather A. (1996) 52 Cal.App.4th 183, 194.) As for the allegations regarding the impact of Kimberly’s cognitive impairments on herability to care for and supervise the boys, there is no evidence much haschanged. By her own admission, Kimberly continues to experience anger management problems, and still needs help controlling her temper and jealousy. Although Kimberly wantsto reunite with her children and with William, she has also expressed significant reservations aboutherability to provide adequate care and supervision for her sons. There is sufficient evidence to support the juvenile court’s findings sustaining the allegations under section 300, subdivision (b), counts b-2 and b-3.4 4 We need not address William’s argumentthat the allegations of section 300, subdivision (j) must be dismissed. That argumenthinges on dismissal of the allegations of section 300, subdivision (f), for which wefind ample evidentiary support. 13 2. DCFS’s appeal: Thejuvenile court erred by dismissing the allegations under section 300, subdivision (b), count b-1] The juvenile court sustained the allegation of the petition under section 300, subdivision (j) which stated that William had created a detrimental and endangering situation by driving Valerie without securing the child in a car seat, an act which resulted in her death. This detrimental and endangering situation in which William negligently placed his daughter wasalleged also to have similarly endangered the health andsafety of his sons, placing them at risk of physical and emotional harm, damage, danger and even death. This sustained allegation wasidentical to the one alleged undersection 300, subdivision (b), count b-1, which the juvenile court inexplicably struck when it amended the petition. A sustained count undersection 300, subdivision (j) requires, as a predicate, and as relevant here, sustained counts under section 300, subdivisions (a) or (b).5 (§ 300, subd. (j).) Accordingly, the portion of section 300, subdivision (b) relating to William as a cause of Valerie’s death (for which there is ample evidentiary support as discussed above), must be reinstated andsustained as predicate support for the sustained count under section 300, subdivision(j). > The court struck the allegations under section 300, subdivision (a) regarding the parents’ domestic violence. Thatrulingis not at issue. 14 DISPOSITION The order dismissing the allegation of the petition undersection 300, subdivision (b), count b-1 is reversed. The matter is remanded with instructionsto reinstate that count. In all other respects, the orderis affirmed. CERTIFIED FOR PUBLICATION. JOHNSON,J. I concur: MALLANO,P.J. 15 ROTHSCHILD,J., Dissenting. Because the evidence does not show that either Ethan or Jesusis currently being neglectedorat risk of being neglected as the result of William’s failure to buckle Valerie into her car seat or due to past domestic violence between William and Kimberly, I disagree with the majority that sufficient evidence supports the finding as to William under Welfare andInstitutions Code section 300, subdivisions (b) or (f)! IL JURISDICTION BASED ON DEATH CAUSED BY NEGLECT The court based jurisdiction in part on section 300, subdivision (f), which defines a dependent child as one whose “parent or guardian caused the death of anotherchild through abuse or neglect.” William contends that the “neglect” referred to in subdivision (f) must be criminal negligence not ordinary negligence as found by the juvenile court.2 The majority agree with the trial court’s conclusion that a showing of ordinary negligence is sufficient. In my view,resolution ofthat issue is unnecessary becausejurisdiction under subdivision (f) fails for an independent reason. Section 300.2, added in 1996,3 states in relevant part: “Notwithstanding any other provision oflaw, the purposeofthe provisions of this chapterrelating to dependent children is to provide maximum safety andprotection for children who are currently being physically, sexually, or emotionally abused[or] being neglected . . . and to ensure the safety, protection, and physical and emotional well-being of children who are atrisk of harm.” (Italics added.) Byits plain language (“notwithstanding any other provision of law”) section 300.2 applies to all subdivisions of section 300 including subdivision (f) and requires a showing in all cases that the children are currently suffering harm orcurrently at risk of harm. 1 All statutory references are to the Welfare and Institutions Code. 2 Criminal negligence is negligence that is “‘aggravated, culpable, gross, or reckless... .’” (People v. Penny (1955) 44 Cal.2d 861, 879.) 3 Stats. 1996, ch. 1084, § 2. The Legislature’s choice ofthe italicized language was not accidental. By requiring a showingofcurrent risk under section 300.2, the Legislature has created a safety net to avoid removal where the conduct leading to a child’s death does not create a current risk of harm to another child. In an opinion written by the Presiding Justice of this Division, we recognizedthat section 300.2 “‘declares what case law had previously determined:that exercise of jurisdiction must be based upon existing and reasonably foreseeable future harm to the welfare of the child.” (in re D.R. (2007) 155 Cal.App.4th 480, 486, quoting from Jn re Robert L. (1998) 68 Cal.App.4th 789, 794; and see, e.g., In re Melissa H. (1974) 38 Cal.App.3d 173, 175 [dependencyjurisdiction requires that “unfitness exist at the time of the hearing”; In re Morrow (1970) 9 Cal.App.3d 39, 56 [before terminating parental custody and control “[i]t is reasonable to consider . .. whether the conditions which gave rise to the cruelty or neglectstill persist”); In re Zimmerman (1962) 206 Cal.App.2d 835, 844 [terminating custody and control of parents who “‘are . . . morally depraved’ [requires] such condition of moral lapse be foundto exist at the time of the hearing”].)4 The majority relies on In re A.M. (2010)___Cal-App.4th=,_——_swhichheld that dependency jurisdiction under section 300, subdivision (f), does not require a finding of current risk because, unlike other subdivisions of section 300, there is no such explicit requirementin subdivision (f). Jn re_A.M., however, made no mentionofsection 300.2 4 Thereis a split of authority as to whetherproof ofa current or future risk of harm is required before jurisdiction can be found under section 300, subdivision (b), which refers in part to a child who “has suffered” serious physical harm. (Cf. In re J.N., supra, 181 Cal.App.4th at pp. 1021-1025 [evidence must show currentrisk] with In re Adam D. (2010) 183 Cal.App.4th 1250, 1261-1262 [currentrisk not required].) That issue is irrelevant to the determination ofjurisdiction under subdivision (f) because subdivision (f) does not contain the past tense (“has suffered”) language of subdivision (b). If anything, the Legislature’s failure to use the past tense languagein subdivision(f) is all the more reason to interpret subdivision (f) as requiring proofof a currentor future risk of harm. “‘It is a well recognized principle of statutory construction that whenthe Legislature has carefully employed a term in one place and has excludedit in another, it should not be implied where excluded.’” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725, citation omitted.) and thus failed to note that the statutory languageofthat sectionis unambiguous and applies across the board to all the subdivisions ofsection 300. Cases may arise in which a parent’s negligence in causing the death of a child is sufficient by itself to support an inference that the surviving children are currently suffering harm or at risk of harm. In re A.M., supra,is such a case. There, a newborn died from suffocation while sleeping in the same bed with his father, mother and older brother. The father heard the baby crying and “making soundslike he was struggling to breathe”but instead of checking on the child he just rolled over and went back to sleep. (nre A.M. supra, Cal.App.4th atp.___.) (Maj. opn.ante, pp. 11-12.) This is not such a case. The risk that William’s negligence posed to Valerie was the same whetheror not an accident occurred yet no one would seriously contend that the risk posed by a single instance offailing to place a child in a car seatis a sufficientbasis for imposing juvenile court jurisdiction over the child and her siblings. Indeed, in Jn re J.N. (2010) 181 Cal.App.4th 1010, the court reversed a finding of dependency jurisdiction under section 300, subdivision (b), on facts showing a much moreserious lapse in judgment than William’s but without the fatal result. In In re J.N., three children were declared dependents of the court under section 300, subdivision (b), after their father, driving with a 0.20 blood-alcohollevel, crashed the family car into a light pole. One ofthe children, who was not fastened in a car seat, received ninestitches for a laceration to her head. (In re J.N,, supra, 181 Cal.App.4th at pp. 1014, 1017.) The mother, who wasalsoin the car, and drunk, allegedly failed to prevent the intoxicated father from driving. The Court of Appeal reversed the judgment of dependencyasto all three children. Asrelevantto our case, the court observed that “[d]espite the profoundseriousnessof the parents’ endangering conduct on the one occasion in this case, there was no evidence from which to infer thereis a substantial risk that such behaviorwill recur.” (/d. at p. 1026.) William’s single lapse in judgment with respect to Valerie does not support jurisdiction over his other two children undersection 300, subdivision (f). 3 II. JURISDICTION BASED ON DOMESTIC VIOLENCE A child comes within section 300, subdivision (b), if the 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 . . . her parent or guardian to adequately supervise or protect the child, or the willful or negligentfailure 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 beenleft, 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 mentalillness, developmental disability, or substance abuse.” A child continues to be a dependentchild under subdivision (b) “only so long as is necessary to protect the child from risk of suffering serious physical harm orillness.” (bid.) The court sustained the petition under section 300, subdivision (b), with respectto William on the groundthat “mother and father have a history of domestic altercations. Onprior occasions, the motherand father struck each other. Such altercations endangers [sic] the children’s physical and emotional health and safety and places them at risk of harm.” William does not dispute the evidence of domestic violence between Kimberly and him, but contendsthereis no evidencethat either child suffered or was at substantial risk of suffering “serious physical or emotional harm”as a result of these altercations as required by subdivision (b).5 The record supports William. The record contains no evidence showing that Ethan or Jesus suffered any physical harm asa result of the physical and verbal!altercations betweentheir parents or that they 5 Thepetition alleged that the parents’ domestic violence placed the childrenat risk of emotional as well as physical harm. Therisk of emotional harm requires proof of “serious emotional damage, evidenced by severe anxiety, depression, withdrawal, or untoward aggressive behavior toward self or others, as the result of the conduct of the parent or guardian or who has no parent or guardian capable of providing appropriate care.” (§ 300, subd. (c).) Neither the majority nor the DCFS contend there was sufficient evidence to sustain the petition on the ground of risk of serious emotional damage. 4 wereat risk of suffering such harm in the future. Instead of relying on evidence, the DCFSrelies on dictum in Jn re Heather A. (1996) 52 Cal.App.4th 183, 194 (Heather A.) that children are at risk of harm astheresult of their parents’ physical violence because they run a “substantial risk of encountering the violence and suffering serious physical harm orillness from it.” Although the court in Heather A. entertained the possibility that mere exposure to domestic violence mightsatisfy the jurisdictional requirements of section 300, subdivision (b), the court upheld the juvenile court’s jurisdiction under subdivision (b) because the record contained evidence of actual physical injury to one of the children resulting from a fight between the parents. “During oneof the incidents, Father smashed a glass vase and one of the minors cut herfinger and foot on the glass and needed medical attention.” (/d. at p. 188.) The court found that “it was the domestic violence which caused both the breaking of the vase and the delayin cleaning up the broken glass.” (/d. at p. 194, fn. 9.)6 Even if exposure of children to any domestic violence could alone establish jurisdiction under section 300, subdivision (b), the DCFS hasnotcited any evidencethat such exposure occurred in this case and a review of the record has disclosed none, either before or after the detention hearing. Further, the record contains no evidence of any domestic violence between the parents since they have lived apart. Nor doesthe record contain any other evidence of William participating in domestic violence that might reasonably suggest the children would be exposed to such violencein the future. Unlike the father in In re Heather A,, supra, relied upon by the DCFS,there is no evidence that William has been abusive to any other person. In contrast in Heather A. the court affirmed the removal of the children from their father’s custody based in part on evidencethat the father “move[d] from one domestic relationship to another” and had a “long history of disruptive emotional 6 It is not necessary in this case to decide whethera single incident of harm is sufficient to support jurisdiction under subdivision (b). (See In re J.N., supra, 181 Cal.App.4th at p. 1023.) In the case before us, there were no incidents of harm to the children. relationships with women.’” Thus, the court concluded, even if the father had no further contact with the mother or stepmother, “there was good reason to believe he would enter into another domestic relationship with someoneelse and his pattern of domestic abuse would continue.” (Heather A., supra, 52 Cal.App.4th at pp. 194-195.) Because the record contains insufficient evidence that the children have suffered or are at risk of suffering serious physical harm there is nobasis for jurisdiction under section 300, subdivision (b). The Legislature expressed a preference that children be raised by their parents unless very good reasons, and only those expressly provided by legislation, demandthat they be raised by others. Thus weare boundbytheprovisions of section 300, subdivision (b), which do not permitthe juvenile courtto assert jurisdiction over a child in the absence of actual physical harm or a substantial risk of such harm and then “only so long as is necessary to protect the child from risk of suffering serious physical harm or illness.” And the recordin this case, as to William, shows that the evidence does not support jurisdiction undersection 300, subdivision (b), on the groundsalleged.” ROTHSCHILD,J. 7 Although there maybe sufficient evidence to support jurisdiction over Ethan and Jesus under subdivision (b) based on William’s neglect of the children’s health and well-being, neglect was not charged in the original petition nor wasthe petition amended to add that charge, so William did not have notice of that groundor the alleged facts supporting it. Nevertheless, nothing would prevent the DCFS on remand from amendingthepetition to allege different factual grounds forjurisdiction so long as William is given reasonable notice and opportunity to defend. PROOF OF SERVICE I, CHRISTOPHER BLAKE,declare: Tam citizen ofthe United States, over 18 years of age, and not a party tothis action. Mybusiness address is 4455 LamontStreet, #B, San Diego, California 92109. Onthis date, I served one copy of the attached document,to wit: PETITION FOR REVIEW on each of the individuals below byplacing in the course of Messenger Service, addressed as follows, or in the course of Delivery by United States Mail, first class postage, prepaid, as follows: Clerk of the Court Court of Appeal Second Appellate District Division One 300 South Spring Street Los Angeles, CA 90013 Respondent Office of the County Counsel Juvenile Division 201 Centre Plaza Drive, Suite #1 Monterey Park, CA 91754 Counsel for Minor(Trial) Diane Coto CLC - One 210 Centre Plaza Drive, #7 Monterey Park, CA 91754 Counsel for Father (Trial) Morgan Spector LADL- Two 1000 Corporate Center Drive, #430 Monterey Park, CA 91754 Clerk of the Superior Court Los Angeles County Juvenile Division 201 Centre Plaza Drive, #3 Monterey Park, Ca 91754 California Appellate Project 520 S. Grand Avenue, 4" Floor Los Angeles, CA 90071 Petitioner William C. 1786 Plaza del Amo Torrance, CA 90501 Counsel for Mother(Trial) Rebeccah Siporen LADL- One 1000 Corporate Center Drive, #410 Monterey Park, CA 91754 Party of Interest (Counsel for Petitioner in S-186493, In Re A. M.). Cristina G. Lechman 6977 Navajo Road, #303 San Diego, CA 92119 I declare under penalty of perjury that the foregoing is true and correct. Executed at San Diego, California.