Filed 8/3/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Miguel J., a Person Coming B339932
Under the Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. 24PSJP00031A)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
E.J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Stacy Wiese, Judge. Affirmed.
Rita Himes, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Kimberly Roura, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________________
INTRODUCTION
E.J. (Father) appeals from the juvenile court’s
jurisdictional findings and dispositional order, declaring his
minor child, Miguel J., a dependent of the court under Welfare
and Institutions Code section 300,1 subdivisions (a) and (b), and
removing the child from Father’s custody. As to the jurisdictional
findings, Father argues the juvenile court erred in exercising
jurisdiction under section 300, subdivision (a), based on the
parents’ domestic violence because that subdivision does not
apply to accidental harm that is inflicted on a child during a
physical altercation between the parents. Father also asserts the
language of the sustained section 300 petition does not accurately
reflect that his physical contact with Miguel during a domestic
violence incident with the child’s mother was accidental. As to
the dispositional order removing Miguel from his custody, Father
contends there was no substantial evidence that the child was at
risk of serious physical harm if returned to Father’s care.
In our original opinion filed on September 22, 2025, we
affirmed the jurisdictional findings and dispositional order.
We concluded the evidence was sufficient to support jurisdiction
under section 300, subdivision (a), and the language in the
sustained petition adequately reflected the juvenile court’s
factual findings. We further concluded there was substantial
evidence to support the order removing the child from Father.
Following the issuance of our original opinion, we granted
Father’s petition for rehearing and invited supplemental briefing
on the proper interpretation of the mental state required for a
1 Unless otherwise stated, all further undesignated statutory
references are to the Welfare and Institutions Code.
2
jurisdictional finding under section 300, subdivision (a). After
considering the supplemental briefing and oral argument of the
parties, we hold that section 300, subdivision (a), may apply to
domestic violence between a child’s parents where one parent
intentionally engages in an act of violence against the other
parent in the child’s presence, and the child’s exposure to such
violence either inflicts serious physical harm upon the child or
places the child at risk of serious physical harm. We further hold
that the juvenile court properly asserted jurisdiction under
section 300, subdivision (a), based on Father’s intentional acts of
domestic violence against Miguel’s mother while she was
pregnant with Miguel or holding the child in her arms. We
accordingly affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Section 300 petition
Father and Maria O. (Mother) are the married parents of
Miguel, a boy born in November 2023. On March 10, 2024, the
Los Angeles County Department of Children and Family Services
(DCFS) received a referral alleging that the police were called to
the family’s home due to a domestic violence incident. According
to the reporting party, after Father arrived home that morning
highly intoxicated, Mother confronted him about his drinking.
During a physical altercation between the parents, Father
accidentally struck Miguel in the face while Mother was holding
the child in her arms. Miguel did not sustain any injuries. As
the parents continued to argue, Mother cut her foot on a glass
object that fell to the floor. She also suffered a laceration to her
lip when Father slapped her. After the police arrived, Mother
was granted an emergency protective order, but she did not want
Father to leave the home because she relied on him to pay rent.
3
Father was arrested for domestic violence and child
endangerment. In her statement to the police, Mother reported
that Father used his hands to pull her, push her, and hit her
approximately five times in the face, and that at some point
during the altercation, he accidentally slapped the child.
In a March 19, 2024 interview with DCFS about the
domestic violence incident, Mother indicated that she was upset
because Father had been out drinking, which he often did on
weekends. According to Mother, when Father came home, they
began arguing in the bedroom while she was holding Miguel.
Father slapped Mother in the face. Father also accidentally hit
Miguel in the face with an open hand when he hit Mother, but he
did not injure the child. After Mother placed Miguel on the bed,
she and Father continued fighting. Father struck Mother in the
face, head, and other parts of her body, and she fought back to
defend herself. At one point, Mother tried to call the police, but
Father took away her cell phone. She also attempted to open the
window coverings to call outside for help, but Father kept her
from doing so. Mother sustained a cut on her foot when she
stepped on a broken ceramic mug. She then ran out of the home,
and upon seeing Mother, the apartment manager called the
police. After receiving medical treatment, Mother stayed at a
shelter with Miguel and obtained a seven-day protective order.
The following week, both Mother and Father returned to the
family’s home.
In her initial interview with DCFS, Mother also described
prior acts of domestic violence perpetrated by Father. She
recounted that, on December 24, 2023, Father slapped her
multiple times in the face with an open hand while she sat on the
bed breastfeeding Miguel. On that occasion, Father was drunk
4
and upset that Mother did not prepare a holiday dinner. Mother
also reported that Father slapped her several times when she
was pregnant with Miguel. Mother did not believe, however, that
Father would hurt her after their most recent altercation because
he started to attend church and promised not to drink again. In
describing the domestic violence between her and Father, Mother
did not claim that Father ever targeted Miguel when he hit her.
In a March 22, 2024 interview with DCFS, Father stated
that, the night before the domestic violence incident, he drank
several beers and used a small amount of methamphetamine.
He slept on the floor, and then tried to crawl into the bed with
Mother and Miguel the next morning. In response, Mother began
to kick Father and yell at him for coming home late. She also
scratched Father, ripped his shirt, and attempted to pull the
blinds from the bedroom window. Mother cut her foot when she
broke a ceramic item and stepped on the broken pieces. Father
initially denied hitting Mother during the incident. However,
when DCFS referenced the police report documenting that
Mother was seen bleeding from her lip, Father admitted that he
slapped her. In response to DCFS’s inquiry about whether he
struck Miguel while slapping Mother, Father said that he had no
recollection of hitting the child. Father further denied any prior
incidents of domestic violence. During the interview, Father
agreed to submit to an on-demand drug test, which was negative
for drugs and alcohol.
On April 2, 2024, DCFS filed a dependency petition for
Miguel. As later amended, the petition alleged Miguel was at
substantial risk of harm under section 300, subdivisions (a) and
(b), based on the parents’ history of violent altercations in the
child’s presence. It also alleged Miguel was at substantial risk of
5
harm under section 300, subdivision (b), based on Father’s abuse
of methamphetamine and alcohol.
On April 17, 2024, the juvenile court held a detention
hearing for Miguel. At the request of Father’s counsel, the court
admitted into evidence a letter showing that Father enrolled in a
domestic violence program two days earlier. The court detained
Miguel from Father and released the child to Mother. The court
also ordered monitored visitation for Father to take place outside
the family’s home. The court set an adjudication hearing on the
section 300 petition.
2. Jurisdictional and dispositional report
For its jurisdiction/disposition report, DCFS conducted
additional interviews with Father and Mother about the
allegations in the petition. In his interview, Father again
indicated that Mother was the aggressor in the March 2024
domestic violence incident. As described by Father, Mother
kicked him out of the bed because she was upset that he drank
alcohol the night before. She later grabbed him by his shirt,
scratched his back, and threw a ceramic mug onto the floor.
Mother also pulled down the window curtains, and Father had to
cover Miguel so that the curtains did not hit him. Father
admitted that he slapped Mother during their altercation, but
stated that “it wasn’t much.” He maintained that he did not hit
Miguel. He further denied that there were any other incidents of
domestic violence between him and Mother. However, Father
later stated that sometimes he would “move her to the side” when
Mother hit him, but he could not recall when this occurred.
While Father acknowledged that he used to drink alcohol and use
methamphetamine, he asserted he was always sober when he
6
arrived home. He claimed that he had not used alcohol or drugs
since the March 2024 incident.
In her interview, Mother stated that, during the March
2024 incident, she argued with Father because he stayed out all
night and then arrived home smelling of alcohol. She admitted
that she kicked Father out of the bed and hit him on his back in
anger. She also admitted that she threw a cup onto the floor and
cut her foot on the broken pieces. Mother asserted that she and
Father each slapped the other during the altercation, but she
denied that he ever hit Miguel. She claimed that she lied to the
police when she told them that Father accidentally hit Miguel
because she was afraid they would take the child away. Mother
further denied that they previously engaged in domestic violence,
and asserted that she lied to the social worker about any prior
altercations because she was angry at Father. Mother indicated
that she knew Father drank alcohol, but was not aware that he
used drugs. While Mother planned to continue the relationship,
she acknowledged that Father needed to remain sober in order to
return to the family’s home.
DCFS also spoke with a maternal uncle and a paternal
uncle who resided in the home. Neither relative was aware of
any domestic violence between the parents prior to the March
2024 incident. In its report, DCFS noted that both Father and
Mother were participating in domestic violence programs, and
that Father continued to test negative for drugs and alcohol.
Father was appropriate and attentive to Miguel during his
monitored visits, but he was not consistent in his visitation.
DCFS further noted that, despite Mother’s recent denials, she
disclosed that Father accidentally hit Miguel during the March
2024 incident in her prior statements to law enforcement, the
7
hospital social worker, and the medical hub clinic that examined
the child. The hospital social worker also reported that, on the
day of the incident, Miguel’s face appeared to be red from being
hit, and that Mother admitted this was not the first time Father
hit her while she was holding the child. DCFS recommended
that the juvenile court sustain the petition, remove Miguel from
Father, and order services for both parents.
3. Jurisdictional and dispositional hearing
On June 12, 2024, the juvenile court held a combined
jurisdictional and dispositional hearing. Counsel for DCFS and
counsel for Miguel joined in asking the court to sustain the
domestic violence counts in the petition under section 300,
subdivisions (a) and (b), and the substance abuse count under
subdivision (b). As to the domestic violence counts, counsel for
DCFS argued that the child was within a zone of danger during
the parents’ physical altercations because Father actually hit
Miguel during the March 2024 incident, and Mother disclosed
there were other occasions when Father hit her while she was
holding the child in her arms. As to the substance abuse count,
counsel for DCFS asserted that Father admitted to using alcohol
and methamphetamine the night before the March 2024 incident,
and that Mother disclosed the domestic violence occurred when
Father was under the influence of alcohol.
Mother’s counsel requested that the court dismiss the
domestic violence counts in the petition because Mother’s most
recent statements to DCFS showed that the March 2024 incident
was an isolated occurrence, that Miguel was never hit or placed
within a zone of danger, and that Mother acted appropriately by
calling the police and taking the child with her to a shelter.
Father’s counsel asked the court to dismiss the petition in its
8
entirety. As to the domestic violence counts, Father’s counsel
argued that Mother admitted she lied when she initially claimed
that Father hit Miguel during the March 2024 incident and
engaged in other acts of domestic violence against her. Father’s
counsel also asserted that, while both parents admitted to
slapping one another during the March 2024 incident, Mother
instigated the altercation because she was angry at Father for
staying out all night. As to the substance abuse counts, Father’s
counsel argued that there was no nexus between Father’s drug
use and a risk of harm to Miguel because Father never cared for
the child while he was under the influence of alcohol or drugs.
After hearing the argument of counsel, the juvenile court
sustained the domestic violence counts in the section 300 petition
under subdivisions (a) and (b) of the statute, and the substance
abuse count under subdivision (b). The court found Mother’s
initial description of the March 2024 altercation, including her
statement that Father accidentally slapped Miguel when he
slapped her, to be “extremely credible.” The court also credited
Mother’s initial account that Father committed other acts of
domestic violence against her when she was pregnant with
Miguel and later when she was breastfeeding the child.
In addition, the court found that Father’s use of alcohol and
methamphetamine was a “direct link to the abuse that was
caused in this case” because Father was under the influence of
those substances when he engaged in the March 2024 altercation
with Mother.
Turning to disposition, the juvenile court declared Miguel a
dependent of the court under section 300, subdivisions (a) and (b),
removed the child from Father’s custody, and released him to
Mother under the supervision of DCFS. The court ordered family
9
maintenance services for Mother and enhancement services for
Father. Father’s case plan included drug and alcohol testing, a
52-week domestic violence program, parenting education, and
individual counseling to address case issues.
On August 12, 2024, Father filed an appeal from the
jurisdictional findings and dispositional order.
4. Postappeal orders
Father requests this court take judicial notice of various
documents that he asserts are related to whether his appeal is
moot. We grant Father’s request for judicial notice of the juvenile
court’s December 13, 2024, and March 14, 2025 minute orders in
this case, but deny the request as to the remaining documents
because they are not relevant to the mootness issue. (Evid. Code,
§§ 452, subd. (d), 459, subd. (a).) These orders reflect that, at a
six-month review hearing held on December 13, 2024, the
juvenile court returned Miguel to both parents under the
continued jurisdiction of the court. Then, on March 14, 2025, the
juvenile court terminated dependency jurisdiction over Miguel
with the child remaining in the custody of both parents.
DISCUSSION
On appeal, Father challenges the jurisdictional findings
based on his domestic violence with Mother and the order
removing Miguel from his custody. Father argues the domestic
violence count under section 300, subdivision (a), must be set
aside because accidental harm inflicted on a child during an
altercation between the parents does not support jurisdiction
under subdivision (a) of the statute. Father further asserts the
sustained domestic violence counts under both subdivisions (a)
and (b) of the statute must be modified because they do not
adequately reflect that his contact with Miguel during the
10
March 2024 altercation with Mother was accidental. In addition,
Father contends the removal order was not supported by
substantial evidence that showed a high probability that Miguel
was at risk of serious harm if returned to Father’s care. We
conclude that none of Father’s claims has merit.
1. Mootness of Father’s appeal
We first address Father’s argument that his appeal is not
moot. “A case becomes moot when subsequent events ‘ “render[]
it impossible for [a] court, if it should decide the case in favor of
[the appellant], to grant him any effect[ive] relief.” ’ ” (In re D.P.
(2023) 14 Cal.5th 266, 276.) While an order terminating
jurisdiction generally renders an appeal from a prior order in a
dependency proceeding moot, “ ‘dismissal for mootness in such
circumstances is not automatic.’ ” (In re T.R. (2024)
107 Cal.App.5th 206, 214.) Rather, a reviewing court must
“ ‘ “decide on a case-by-case basis whether subsequent events in a
juvenile dependency matter make a case moot and whether [its]
decision would affect the outcome in a subsequent proceeding.” ’ ”
(In re D.P., at p. 276.) Even where a case is moot, the court has
discretion to reach the merits if the challenged order “ ‘could be
prejudicial to the appellant or could potentially impact the
current or future dependency proceedings,’ or ‘ “could have other
consequences for [the appellant], beyond jurisdiction.” ’ ” (Id. at
p. 285.)
Here, the juvenile court made jurisdictional findings that
Father does not challenge on appeal. Moreover, the court has
since returned Miguel to Father’s custody and terminated its
jurisdiction over the child. Father nevertheless contends his
appeal is not moot because (1) the challenged findings could
permit a bypass of reunification services if Miguel or another
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child of Father is removed for physical abuse in a future
dependency case; and (2) DCFS likely will refer Father for
inclusion in the Child Abuse Central Index (CACI) based on the
challenged findings in this case.
As the California Supreme Court recently held, a parent’s
appeal from a jurisdictional finding is not moot where the parent
shows that the allegation underlying the finding is subject to
inclusion in the CACI, even if a CACI report has not yet been
made. (In re S.R. (2025) 18 Cal.5th 1042, 1048, 1053.) In this
case, DCFS concedes Father’s appeal should not be dismissed as
moot because a CACI report could be made in the future based on
the sustained allegations in the current petition. Under these
circumstances, we agree that Father’s appeal is not moot.
2. Jurisdictional findings based on the parents’
domestic violence
In exercising jurisdiction over Miguel, the juvenile court
sustained the following language in counts a-1 and b-1 of the
section 300 petition: “[Mother and Father] have a history of
engaging in violent altercations, in the child’s presence. On
03/10/2024, the father repeatedly struck the mother’s face with
the father’s hand, pushed and pulled the mother and pulled the
mother’s hair, while the mother held the child, resulting in the
father striking the child’s face. The mother sustained a bleeding
laceration to the mother’s lip. On 12/23/2023, the father
repeatedly struck the mother’s face with the father’s hand. On
prior occasions, the [father] struck the mother with the father’s
hand, when the mother was pregnant with the child. On
03/10/2024, the mother pulled the father’s shirt, scratched and
kicked the father, inflicting scratch marks to the father’s face and
neck. The mother struck a dresser during the violent altercation,
12
causing a mug to fall to the ground and break, resulting in the
mother stepping on the broken glass, inflicting an injury to the
mother’s foot. On 03/10/2024, the father was arrested for Inflict
Corporal Injury Spouse/Cohabitant/Dating Relationship and
Child Abuse: Great Bodily Injury/Death. Such violent conduct
on the part of the mother and the father endangers the child’s
physical health and safety, creates a detrimental home
environment and places the child at risk of serious physical
harm, damage and danger.”
2.1 Governing law
Section 300, subdivision (a), provides that a child comes
within the jurisdiction of the juvenile court if “[t]he child has
suffered, or there is a substantial risk that the child will suffer,
serious physical harm inflicted nonaccidentally upon the child by
the child’s parent.” (Ibid.) Under section 300, subdivision (b), the
juvenile court may assert jurisdiction if “[t]he child has suffered,
or there is a substantial risk that the child will suffer, serious
physical harm or illness, as a result of … [¶] … [t]he failure or
inability of the child’s parent … to adequately supervise or
protect the child.” (Id., subd. (b)(1)(A).) “Although section 300
requires proof the child is subject to the defined risk of harm at
the time of the jurisdiction hearing [citations], the court need not
wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child.
[Citations.] The court may consider past events in deciding
whether a child presently needs the court’s protection.” (In re
Cole L. (2021) 70 Cal.App.5th 591, 601–602 (Cole L.).) “ ‘A
parent’s “ ‘[p]ast conduct may be probative of current conditions’
if there is reason to believe that the conduct will continue.” ’ ”
(In re J.A. (2020) 47 Cal.App.5th 1036, 1048.)
13
We review challenges to the sufficiency of the evidence
underlying jurisdictional findings for substantial evidence.
(In re I.J. (2013) 56 Cal.4th 766, 773.) “ ‘ “In making this
determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency
court; we review the record in the light most favorable to the
court’s determinations; and we note that issues of fact and
credibility are the province of the trial court.” ’ ” (Ibid.)
2.2 Substantial evidence supported jurisdiction
under section 300, subdivision (a)
Father argues count a-1 in the sustained petition must be
set aside because section 300, subdivision (a), requires the
nonaccidental direct application of force upon the child by the
parent, whereas Father’s only direct application of force against
Miguel during the domestic violence incidents with Mother was
accidental. DCFS asserts section 300, subdivision (a), does not
require that the parent specifically intend the consequences of his
or her violent acts, and Father’s act of striking Miguel during a
violent attack on Mother was sufficient to support jurisdiction
under subdivision (a) of the statute. We conclude section 300,
subdivision (a), may apply to domestic violence between a child’s
parents where one parent intentionally engages in an act of
violence against the other parent in the child’s presence, and the
child’s exposure to such violence either inflicts serious physical
harm upon the child or places the child at risk of serious physical
harm. We further conclude the evidence in this case was
sufficient to support jurisdiction under section 300, subdivision
(a), because the juvenile court reasonably could find that Father’s
intentional acts of violence against Mother while she was
14
pregnant with Miguel and/or holding Miguel in her arms placed
the child at risk of suffering serious physical harm.
“ ‘ “ ‘When we interpret a statute, “[o]ur fundamental task
… is to determine the Legislature’s intent so as to effectuate the
law’s purpose. We first examine the statutory language, giving it
a plain and commonsense meaning. We do not examine that
language in isolation, but in the context of the statutory
framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment. If the
language is clear, courts must generally follow its plain meaning
unless a literal interpretation would result in absurd
consequences the Legislature did not intend. If the statutory
language permits more than one reasonable interpretation,
courts may consider other aids, such as the statute’s purpose,
legislative history, and public policy.” [Citation.] “Furthermore,
we consider portions of a statute in the context of the entire
statute and the statutory scheme of which it is a part, giving
significance to every word, phrase, sentence, and part of an act in
pursuance of the legislative purpose.” ’ ” ’ ” (In re N.R. (2023)
15 Cal.5th 520, 538–539 (N.R.).)
Section 300, subdivision (a), authorizes jurisdiction where
“[t]he child has suffered, or there is a substantial risk that the
child will suffer, serious physical harm inflicted nonaccidentally
upon the child by the child’s parent or guardian.” (Ibid.) Neither
section 300 nor any other provision within the statutory scheme
for dependency proceedings defines the term “nonaccidentally” or
“nonaccidental.” While the term does not appear in any of the
leading dictionaries that we consulted, “accidental” is generally
defined as “unintentional.” (See, e.g., American Heritage Dict.
(5th ed. 2022) <https://www.ahdictionary.com/word/search.html?q
15
=accidental> [as of July 20, 2026] [defining “accidental” as
“[o]ccurring unexpectedly, unintentionally, or by chance”];
Merriam-Webster Dictionary (2026) <https://www.merriam-
webster.com/dictionary/accidental> [as of July 20, 2026] [defining
“accidental” as “occurring unexpectedly or by chance” or
“happening without intent or through carelessness and often with
unfortunate results”]; Oxford English Dictionary (2026) <https://d
oi.org/10.1093/OED/2445581469> [as of July 20, 2026] [defining
“accidental” as “[t]hat happens by chance, unintentionally, or
unexpectedly”]; Black’s Law Dictionary (12th ed. 2024)
<https://www.westlaw.com/Document/Ifd1be683808411e4b391a0
bc737b01f9/View/FullText.html?transitionType=Default&context
Data=(sc.Default)&VR=3.0&RS=cblt1.0> [as of July 20, 2026]
[defining “accidental” as “[n]ot having occurred as a result of
anyone’s purposeful act”].) It is thus reasonable to infer that the
plain meaning of the term “nonaccidentally” is “intentionally.”
Interpreting “nonaccidentally,” as used in section 300,
subdivision (a), to mean “intentionally” is consistent with the
California Supreme Court’s description of this provision in In re
R.T. (2017) 3 Cal.5th 622 (R.T.). In R.T., the Supreme Court
considered whether subdivision (b)(1) of section 300 required a
finding that a parent was neglectful or otherwise blameworthy
for the “ ‘failure or inability’ ” to adequately supervise or protect
his or her child. (R.T., at p. 624.) In concluding that parental
culpability was not required, the Supreme Court distinguished
section 300, subdivision (b)(1) from surrounding provisions in the
statute, explaining that “several provisions in section 300 require
that a parent have acted intentionally or willfully to support a
juvenile court’s dependency jurisdiction. (See § 300, subds. (a)
[parent ‘inflicted nonaccidentally’ ‘serious physical harm’ on
16
child], (c) [child is suffering, or is at substantial risk of suffering,
serious emotional damage ‘as a result of the conduct of the
parent’], (d) [parent’s sexual abuse of child], (e) [child under five
years old has suffered ‘severe physical abuse’ by parent], (i) [child
subjected to act(s) of cruelty by parent].)” (R.T., at pp. 629–630,
italics added.) Because section 300 did not define the statutory
terms at issue, the Supreme Court also considered the common
meaning of those terms as defined in the dictionary, recognizing
that “[a]lthough not binding, it can be useful to refer to the
dictionary definition of a word in attempting to ascertain the
meaning of statutory language.” (R.T., at p. 627.) Here,
considering the common meaning of the term “nonaccidentally,”
as well as this guidance from the Supreme Court, we construe
section 300, subdivision (a), as requiring an intentional act on the
part of the parent.
However, that does not end the analysis. While
section 300, subdivision (a), requires that a parent act
intentionally, acts of domestic violence are, of course, intentional.
The question in this case is whether the parent’s intentional act
of violence must be directed at the child, and not at the child’s
other parent, to support jurisdiction under subdivision (a). None
of the provisions in section 300 specifically identify domestic
violence between a child’s parents as a basis for dependency
jurisdiction. Rather, “ ‘[s]ection 300 defines jurisdiction in terms
of serious harm suffered by a child or the substantial risk of such
serious harm to a child. Although the harm or risk of harm to the
child must generally be the result of an act, omission or inability
of one of the parents or guardians, the central focus of
dependency jurisdiction is clearly on the child rather than the
parent.’ ” (R.T., supra, 3 Cal.5th at p. 626.) On appeal, Father
17
does not dispute that the juvenile court properly asserted
jurisdiction under section 300, subdivision (b), based on Father’s
domestic violence against Mother. Father contends, however,
that jurisdiction was not proper under section 300, subdivision
(a), because the Legislature intended subdivision (a) to be limited
to abuse, and subdivision (b) to more broadly apply to neglect.
Section 300 was amended in 1987 to add subdivisions (a)
through (j), setting forth 10 specific grounds for declaring a child
a dependent of the juvenile court. (Stats. 1987, ch. 1485, §§ 4,
4.5, pp. 5603–5605.) “ ‘The purpose of this change was to limit
court intervention to situations in which children are threatened
with serious physical or emotional harm in an effort to ensure
more uniform application of the law.’ ” (R.T., supra, 3 Cal.5th at
p. 631.) As our Supreme Court explained, the amended language
“was developed by a task force that had been charged by statute
with reviewing the laws relating to child abuse reporting,
dependent children, and child welfare services, and had been
directed to ‘identify problem areas in the law’ and recommend
‘statutory revisions to strengthen and compliment the child
welfare system in California.’ [Citation.] Among its findings, the
task force determined that section 300, as it existed prior to 1987,
provided ‘very little guidance to investigating and petitioning
agencies, to judges, attorneys or to parents as to what actions or
harms justify state intervention. …’ [Citation.] The Legislature
hoped that legislation developed by the task force would ‘more
clearly define the conditions under which a child could be
removed from the family home.’ ” (N.R., supra, 15 Cal.5th at
p. 547.)
The legislative history further reflects that in defining the
type of harm that would justify intervention under section 300,
18
subdivision (a), the task force sought to distinguish “physical
abuse” from “corporal punishment.” (See Sen. Select Com. on
Children & Youth, SB 1195 Task Force Rep. on Child Abuse
Reporting Laws, Juvenile Court Dependency Statutes, and Child
Welfare Services (Jan. 1988) p. 6.) The task force explained that
“[s]ection 300(a) specifies that in order for a court to assume
jurisdiction, it must find that a child has been injured by a parent
or that the child is at ‘substantial risk’ of injury,” and that
“corporal punishment (‘spanking’) of a child is not, in and of itself,
grounds for intervention.” (Ibid.) The task force did not,
however, indicate that physical abuse was the only type of harm
that was intended to be covered by subdivision (a). Nor did it
address what subdivision applied where the harm to the child
resulted from acts of domestic violence occurring in the child’s
presence. As our Supreme Court observed, in amending
section 300, “the Legislature sought to clarify the grounds for
assertion of dependency jurisdiction … . But it is also evident
that the Legislature implemented its intent in a manner that
would ‘provide maximum protection for children who are
currently being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to protect children who are at
risk of that harm … .’ [Citation.] Insofar as some bases for
dependency jurisdiction could be precisely specified without
depriving children of this protection, they were. But as a matter
of necessity, some grounds for jurisdiction had to be phrased in
more general terms.” (N.R., supra, 15 Cal.5th at p. 548.) As a
result, despite the Legislature’s intent to more clearly define the
grounds for jurisdiction, no subdivision of section 300 speaks
specifically to the risk of harm posed by domestic violence.
19
Although section 300 does not identify domestic violence as
a ground for dependency jurisdiction, California appellate courts
consistently have recognized that domestic violence that takes
place in a child’s presence may serve as a valid basis for declaring
the child a dependent of the juvenile court. (See, e.g., Cole L.,
supra, 70 Cal.App.5th at pp. 602–603; In re Nathan E. (2021)
61 Cal.App.5th 114, 121–122; In re M.M. (2015) 240 Cal.App.4th
703, 719–720 (M.M.); In re Giovanni F. (2010) 184 Cal.App.4th
594, 598–601 (Giovanni F.).) “Although many cases based on
exposure to domestic violence are filed under section 300,
subdivision (b) [citations], section 300, subdivision (a) may also
apply” under certain circumstances. (Giovanni F., at p. 599;
accord, Nathan E., at pp. 121–122; M.M., at p. 720.)
In Giovanni F., for instance, the father’s violent conduct
included punching and choking the child’s mother while he was
driving a car and the child was in the backseat. (Giovanni F.,
supra, 184 Cal.App.4th at p. 600.) Once the parents arrived
home, they physically struggled over the child’s car seat while the
child was still in it. (Ibid.) On a prior occasion, the father also
attacked the paternal grandmother while he was holding the
child in his arms. (Id. at p. 599.) In concluding that jurisdiction
was proper under section 300, subdivision (a), the Court of
Appeal reasoned: “Domestic violence is nonaccidental. When it
occurs in a moving vehicle, the potential for injury inherent in
the violence is dramatically increased by the likelihood of a
collision that could prove fatal. By driving with one hand on the
steering wheel, and using his other hand to hit and choke [the
mother], [the father] placed [the child], a passenger, at
substantial risk of suffering serious physical harm. Any harm
[the child] suffered would have resulted from [the father’s]
20
nonaccidental conduct. [The father’s] assertion that his behavior
did not endanger [the child] is incorrect. His assertion that he
did not intend to hurt [the child] is immaterial. [The father’]s
violence in the car would have been sufficient, by itself, to
support jurisdiction under section 300, subdivision (a).”
(Giovanni F., at pp. 600–601.)
Similarly, in M.M., the Court of Appeal concluded that the
evidence was sufficient to support the juvenile court’s finding
that the parents’ domestic violence placed their child at risk of
serious harm under section 300, subdivision (a). (M.M., supra,
240 Cal.App.4th at pp. 720–721.) In that case, the record showed
that the child was not only present during a domestic violence
incident between the parents, but that “he was ‘at their feet’
during most of the incident and that during some of the incident,
father was actually holding [the child] while mother was hitting
father and while father was choking mother.” (Id. at p. 720.)
On another occasion, the father pushed the mother when she was
pregnant with the child, causing her to fall to the floor. (Ibid.)
Although none of the violent conduct was directed at the child,
the Court of Appeal determined that there was “ample evidence
in the record to support the juvenile court’s finding there was a
substantial risk [the child] will suffer serious physical harm
‘inflicted nonaccidentally’ by mother or father.” (Ibid.)
In Cole L., the Court of Appeal also observed that, “[u]nder
certain circumstances incidents of domestic violence between a
child’s parents, if they occur in the child’s immediate presence,
may support a jurisdiction finding under section 300, subdivision
(a).” (Cole L., supra, 70 Cal.App.5th at p. 603.) As an example,
the court explained that “if a father strikes an infant’s mother
while she is holding the child or an older child intervenes during
21
a fight to protect her mother from her father’s abuse, the risk of
harm to the child may be properly viewed as nonaccidental.”
(Ibid.) But the court then appeared to draw a distinction
between domestic violence that occurs in “the child’s immediate
presence,” and domestic violence that occurs in “the presence of
bystander children.” (Ibid.) The court stated that because “a
finding under section 300, subdivision (a), requires evidence of a
risk of physical injury ‘inflicted nonaccidentally upon the
child[,]’ ” “[a]n unintended injury to a bystander child that results
from an intentional act directed at another—for example, due to
an object thrown by one parent at another during an argument—
does not satisfy that statutory requirement.” (Ibid.) In drawing
this distinction, the court criticized Giovanni F. and similar cases
as “fail[ing] to recognize the fundamental difference between a
failure to protect a child from the unintended consequences of
intentional behavior and the deliberate (that is, ‘nonaccidental’)
infliction of injuries upon the child … .” (Cole L., at p. 603, fn. 7.)
However, under Cole L.’s analysis, it is unclear why a child
at risk of being struck by a parent while being held in the other
parent’s arms would fall under section 300, subdivision (a), while
a child at risk of being struck by an object thrown by one parent
at the other would fall under subdivision (b). In both cases, there
is a risk of an unintended injury to the child that results from an
intentional act directed by the parent at another, while the child
is present in the room and close enough to the violent act to be at
substantial risk of serious physical harm. We therefore disagree
with Cole L. to the extent it holds that an unintended injury to a
bystander child as a consequence of his or her exposure to
domestic violence can never serve as a valid basis for jurisdiction
under section 300, subdivision (a). Instead, consistent with
22
Giovanni F. and M.M., we conclude that where a parent
intentionally engages in violent conduct toward the other parent
in the child’s presence, and the child’s exposure to that conduct
either inflicts serious physical harm upon the child or places the
child at risk of serious physical harm, then jurisdiction may be
proper under subdivision (a) of the statute, even if it is also valid
under subdivision (b). While the exact location of the child
relative to the act of violence (i.e., in the same room, at a parent’s
feet, in a parent’s arms) may be a significant factor to consider in
assessing the risk of harm posed to the child, the totality of the
circumstances ultimately will determine whether the child’s
exposure to domestic violence supports jurisdiction under
section 300, subdivision (a).
The concurrence interprets section 300, subdivision (a), as
requiring that the parent act with a specific mental state with
respect to the child. Relying on the four mental states—purpose,
knowledge, recklessness, and negligence—set forth in the Model
Penal Code, the concurrence adopts recklessness as the one that
best aligns with the term “nonaccidentally” as used in
section 300, subdivision (a). However, when a parent commits
domestic violence in the presence of the child, that conduct may
place the child at risk of serious physical harm regardless of
whether the parent’s mental state with respect to the child was
purposeful, knowing, reckless, or negligent. Of course, depending
upon the facts of the case, the parent’s conduct in exposing the
child to domestic violence will often meet the definition of
recklessness as that term is commonly understood. In both
Giovanni F. and M.M., for example, the parents engaged in
conduct that could be properly described as reckless, but neither
decision suggested that a parent must act with a specific mental
23
state with respect to the child to warrant jurisdiction under
section 300, subdivision (a). Rather, both decisions focused on
the risk of harm that the child faced as a consequence of the
parent’s intentional act of violence toward the other parent.
(Giovanni F., supra, 184 Cal.App.4th at pp. 599–601; M.M.,
supra, 240 Cal.App.4th at pp. 720–721.) Moreover, it has been
over a decade since Giovanni F. and M.M. were decided, and the
Legislature has not amended section 300, subdivision (a), to
clarify the meaning of the term “nonaccidentally” or to impose a
mental state requirement on the parent’s conduct with respect to
the child. Unless and until the Legislature sees fit to amend
section 300, subdivision (a), to provide that the parent’s mental
state must have at least been reckless with respect to the injury
to the child, we decline to read such a requirement into the
statute.
In this case, the juvenile court reasonably could find that
Father and Mother engaged in multiple acts of domestic violence
in Miguel’s presence, and that Miguel’s exposure to those violent
acts placed him at risk of suffering serious physical harm within
the meaning of section 300, subdivision (a). In her initial account
of the March 2024 incident, which the juvenile court found to be
“extremely credible,” Mother explained that she was holding
Miguel in her arms during the altercation, and that Father
accidentally hit the infant in the face with an open hand when he
hit Mother. Mother also disclosed that the March 2024
altercation was not the first instance of domestic violence
between the parents. In her initial interview with DCFS, Mother
reported that Father slapped her several times when she was
pregnant with Miguel. Mother also recounted that, in December
2023, Father repeatedly hit her with an open hand while she was
24
breastfeeding Miguel because he was upset that she did not
prepare a holiday dinner. When Mother spoke with the hospital
social worker shortly after the March 2024 altercation, she
similarly disclosed that there were other occasions when Father
hit her while she was breastfeeding or holding the baby.
Accordingly, the domestic violence that occurred in this
case falls squarely within the type of conduct that may support a
finding of jurisdiction under section 300, subdivision (a). (See
Cole L., supra, 70 Cal.App.5th at p. 603; M.M., supra,
240 Cal.App.4th at p. 720; Giovanni F., supra, 184 Cal.App.4th at
p. 601.) The evidence showed that Miguel was not merely
present in the home when the parents engaged in violent physical
altercations. Rather, the child was at risk of suffering serious
physical harm during the altercations because Mother was
pregnant with Miguel or holding him in her arms on occasions
when Father hit her. While it is undisputed that Father did not
target Miguel for abuse during any of the domestic violence
incidents, the juvenile court found that Father accidentally
slapped the child when he slapped Mother during the March
2024 altercation. Although Mother later recanted her statements
that Father hit Miguel during that incident and committed prior
acts of violence against her, the juvenile court found Mother’s
earlier accounts to law enforcement and DCFS to be more
credible. As a reviewing court, “ ‘ “[w]e do not reweigh the
evidence, evaluate the credibility of witnesses or resolve
evidentiary conflicts.” ’ ” (M.M., at p. 721.) On this record, the
juvenile court’s exercise of jurisdiction under section 300,
subdivision (a), was supported by substantial evidence.
25
2.3 The sustained domestic violence counts do not
require modification
Father asserts that, if this court affirms the jurisdictional
finding under section 300, subdivision (a), we must modify the
language of counts a-1 and b-1 to state that Father accidentally
hit Miguel during the March 2024 incident. Father argues that
such modification is necessary because the sustained language is
ambiguous about whether the hit was accidental, and substantial
evidence does not support a finding that Father nonaccidentally
struck Miguel. DCFS contends that Father forfeited his claim by
failing to request a modification in the juvenile court, and in any
event, the sustained counts accurately reflect the court’s findings.
Even assuming, without deciding, that Father did not forfeit this
claim by failing to object, we conclude that it lacks merit.
The sustained language in counts a-1 and b-1 states that
“[o]n 03/10/2024, the father repeatedly struck the mother’s face
with the father’s hand, pushed and pulled the mother and pulled
the mother’s hair, while the mother held the child, resulting in
the father striking the child’s face.” In seeking a modification,
Father claims that this language is ambiguous about whether his
contact with Miguel’s face was intentional or accidental. We
disagree. The sustained counts do not suggest that Father was
targeting Miguel when he struck the child in the face. Rather,
language reflects that Father was targeting Mother, and that his
act of striking Miguel resulted from Father striking, pushing, and
pulling Mother while she was holding the child in her arms. This
language was consistent with Mother’s initial statements to the
police and DCFS that Father used his hands to hit, push, and
pull her during the March 2024 altercation, and that Father
accidentally slapped the child in the face when he slapped
26
Mother. This language also was consistent with the factual
findings made by the juvenile court at the jurisdictional and
dispositional hearing. As the court found in crediting Mother’s
original account, “They got into a fight, she had Miguel, Father
smacked her and, unfortunately, slapped Miguel in the process.”
Thus, while the sustained language in counts a-1 and b-1 did not
include the word “accidental” in describing Father’s contact with
the child, it adequately reflects the evidence and findings at the
hearing.
Father nevertheless contends that the domestic violence
counts must be modified to protect him from unfair prejudice in a
future dependency or CACI proceeding. For instance, he argues
that, if Miguel or another child is removed from his custody in a
future dependency case due to physical abuse, the juvenile court
might misconstrue the sustained language in the current petition
to imply that Father physically abused Miguel, and rely on such
language to bypass reunification services for him under
section 361.5, subdivision (b)(3).2 Father also asserts that the
domestic violence counts could be misconstrued as establishing
that he engaged in conduct that constitutes child abuse or severe
neglect that must be reported to CACI. However, Father’s claim
that the jurisdictional findings in this case might be
misinterpreted in a hypothetical future case is purely speculative.
The record reflects that, in sustaining counts a-1 and b-1 in the
2 Section 361.5, subdivision (b)(3), permits the bypass of
reunification services if “the child or a sibling of the child has
been previously adjudicated a dependent … as a result of
physical or sexual abuse,” and following the return of the child to
parental custody, the child is again “being removed … due to
additional physical or sexual abuse.”
27
section 300 petition, the juvenile court found that Father struck
Miguel in the face when he intended to strike Mother during a
violent physical altercation between the parents. Because the
sustained language in the petition is consistent with the findings
and the evidence in this matter, no modification is necessary.
3. Dispositional order removing Miguel from Father’s
custody
3.1 Governing law
“ ‘At the dispositional hearing, a dependent child may not
be taken from the physical custody of the parent under
section 361 unless the court finds there is clear and convincing
evidence there is or would be a substantial danger to the child’s
physical health, safety, protection, or physical or emotional well-
being if returned home, and that there are no reasonable means
to protect the child’s physical health without removing the
child.’ ” (In re D.P. (2020) 44 Cal.App.5th 1058, 1065.) In
determining whether to remove a child, the court “may consider
the parent’s past conduct and current circumstances, and the
parent’s response to the conditions that gave rise to juvenile court
intervention.” (In re D.B. (2018) 26 Cal.App.5th 320, 332.)
The court “must also consider whether there are any reasonable
protective measures and services that can be implemented to
prevent the child’s removal from the parent’s physical custody.”
(Ibid.) “The parent need not be dangerous and the minor need
not have been harmed before removal is appropriate. The focus
of the statute is on averting harm to the child.” (In re T.W. (2013)
214 Cal.App.4th 1154, 1163; accord, In re D.B., at p. 328.)
We also review challenges to the sufficiency of the evidence
supporting dispositional orders for substantial evidence. (In re
I.J., supra, 56 Cal.4th at p. 773.) “When reviewing a finding that
28
a fact has been proved by clear and convincing evidence, the
question before the appellate court is whether the record as a
whole contains substantial evidence from which a reasonable fact
finder could have found it highly probable that the fact was true.”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1011.) “The
appellant has the burden of showing there is no evidence of a
sufficiently substantial nature to support the findings or orders.”
(In re E.E. (2020) 49 Cal.App.5th 195, 206.)
3.2 Substantial evidence supported the removal
order
Father challenges the sufficiency of the evidence
supporting the dispositional order removing Miguel from his
custody. He contends that the evidence was insufficient to
establish that there was a high probability that Miguel faced a
substantial risk of harm if returned to Father’s care, and that
there were no reasonable means to protect the child other than
removal. We conclude that the order removing Miguel from
Father was supported by substantial evidence.
The evidence showed that Father and Mother had a history
of violent physical altercations that placed Miguel at substantial
risk of harm. These incidents of domestic violence between the
parents included Father hitting Mother several times when she
was pregnant with Miguel, Father hitting Mother while she was
breastfeeding the baby in December 2023, and Father hitting
Mother while she was holding Miguel during their March 2024
altercation, which resulted in Father accidentally hitting the
then four-month-old baby in the face. As of the June 2024
jurisdictional and dispositional hearing, Father was participating
in a domestic violence program and testing negative for drugs
and alcohol. He also had moved out of the family’s home to
29
comply with the juvenile court’s detention order. However,
throughout the dependency proceedings, Father continued to
minimize his role in the domestic violence and to accuse Mother
of being the aggressor in their physical altercations.
In his initial interview with DCFS, Father denied that he
hit Mother during the March 2024 altercation, and only admitted
to slapping her after the social worker pointed to the police report
documenting that Mother was seen bleeding from her lip. In a
subsequent interview, Father admitted that he slapped Mother
during that incident, but he downplayed his conduct by asserting
that “it wasn’t much.” Moreover, in each of his interviews with
DCFS, Father denied that he hit Miguel, or engaged in any prior
acts of domestic violence against Mother. While Mother initially
reported that Father accidentally hit Miguel as he was hitting
her during the March 2024 altercation, she later recanted these
statements. Mother also recanted her statements that Father hit
her on previous occasions when she was pregnant with Miguel or
holding the baby in her arms.
On this record, the juvenile court reasonably could infer
that, as of the jurisdictional and dispositional hearing, neither
Father nor Mother had accepted responsibility for their actions in
placing their young child at substantial risk of harm. The court
also reasonably could infer that, since Mother and Father
intended to maintain their relationship, there was a strong
likelihood that the violence between them would continue.
“Indeed, in a domestic violence situation, past violence is highly
probative of the risk that violence may recur.” (In re L.B. (2023)
88 Cal.App.5th 402, 411.) Moreover, “[a] parent’s denial of
domestic violence increases the risk of it recurring.” (In re V.L.
(2020) 54 Cal.App.5th 147, 156.) Under these circumstances,
30
there was substantial evidence to support the juvenile court’s
finding that Miguel would be at substantial risk of serious harm
if returned to Father’s care, and that removal was the only
reasonable means of protecting the child from such risk.
DISPOSITION
The jurisdictional findings and dispositional order are
affirmed.
VIRAMONTES, J.
I CONCUR:
STRATTON, P. J.
31
WILEY, J., Concurring in the result.
The majority reasoning stretches the jurisdiction of the
Department of Family and Children Services to an extent the
Department has not requested and may never have imagined. I
doubt this unprecedented stretch is warranted. The majority
reasoning also creates two avoidable ambiguities:
1. What is meant by “intentionally”?
2. What is the required mental state regarding “the child’s
presence”?
I offer a preferable solution.
I
The majority apparently holds that the Department has
jurisdiction under subdivision (a) of section 300 of the Welfare
and Institutions Code if:
1. One parent “intentionally” engages in an act of violence
against the other parent;
2. This parent engages in an act of violence in the child’s
presence, with or without the violent parent’s awareness of
the child’s presence; and
3. The child’s exposure to such violence either inflicts serious
physical harm upon the child or places the child at risk of
serious physical harm, even if the violent parent had no
culpable mental state regarding the child.
This holding is new. No precedent has stated this rule in
these terms. Recognizing the novelty of this holding is not
necessarily criticism, for this case requires us to break new
ground in some way. But I would prefer to break this ground in a
way creating clarity rather than ambiguity.
1
II
When defining the mental state this statute requires, we
should be using the best tools for the job. We should avoid
ambiguity, which is the problem we are supposed to be solving.
Our problem is to define the appropriate mental state,
which is the plain English version of the Latin legalism mens rea.
Mental state matters. Children know the difference between “I
didn’t mean to hurt you” and “I hurt you on purpose.” Even dogs
know it, wrote Holmes. (Holmes, The Common Law (1881) p. 3
[“even a dog distinguishes between being stumbled over and
being kicked”].)
The actor’s state of mind determines the level of
culpability—which is to say blameworthiness. Issues about
mental state routinely arise throughout the law because, in every
field, differing levels of culpability can matter.
Our nation’s finest legal minds have been whittling on this
culpability stick for more than 70 years, and by now its point is
good and sharp. We should take advantage of their efforts. It
would benefit all Californians for judges to use state-of-the-art
analysis to write precisely about mental state issues wherever
they arise. Dependency law is no exception.
The majority’s result is right. The analysis, however, can
use the help the American Law Institute is offering.
When it comes to defining mental states, the gold standard
is the Model Penal Code’s four-part system: purpose, knowledge,
recklessness, and negligence. (See Cel-Tech Communications,
Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163,
173 (Cel-Tech) [“four distinct culpable mental states”: purpose,
knowledge, recklessness, and negligence]; see Model Pen. Code,
§ 2.02 [precisely defining purpose, knowledge, recklessness, and
2
negligence]; Rest.(3rd) Torts: Liability for Physical and
Emotional Harm §§ 1–3 [further fine-tuning the definitions of
purpose, knowledge, recklessness, and negligence].)
The basic idea is easy to grasp. Four examples from this
case’s dependency law context illustrate the four grades of
culpability, in decreasing order.
1. A father acts with purpose if his goal is to hit his child.
2. A father acts knowingly with respect to injuring the child if
the father wants to hit the mother, she holds up the child
as a shield, and the father swings through the child to get
at the mother. The father’s purpose is not to hit the child,
but the father knows his swing will strike the child. The
father might prefer his child remained uninjured, but he
swings anyway.
3. A father acts recklessly with respect to injuring the child if
the car mechanic tells the father that he should get the
brakes serviced because they will fail soon, yet the father
ignores the warning and drives away with the child as
passenger. At the first stoplight the brakes fail and the
crash injures the child. The father has disregarded a
substantial risk of harm to the child that he either
appreciated or that would have been obvious to another
person in the father’s situation.
4. A father acts negligently with respect to injuring the child if
he drives but forgets to ensure the child’s seat belt is
buckled. The father failed to take reasonable care.
That is the basic idea: purpose, knowledge, recklessness,
and negligence.
This basic idea started with the American Law Institute: a
non-partisan group of lawyers, judges, and professors dedicated
3
to law reform in the public interest. “In the early part of the
1920’s a group of prominent American judges, lawyers and law
teachers, organized as ‘The Committee on the Establishment of a
Permanent Organization for the Improvement of the Law,’
reported to the members of the legal profession that the ‘two chief
defects in American law are its uncertainty and its complexity.’ ”
(Goodrich (1951) The Story of the American Law Institute, 1951
Wash. U.L.Q. 283, 283, italics added (hereafter Goodrich).)
The Institute held its first annual meeting in 1923. Early
leaders included Learned Hand, Benjamin Cardozo, Harlan Fiske
Stone, Charles Evans Hughes, Arthur Corbin, John Henry
Wigmore, Roscoe Pound, and Samuel Williston. (Goodrich, supra,
at p. 284; Gold & Gordon (2023) The American Law Institute: A
Centennial History 1 (hereafter Centennial).)
The Institute proved an enduring movement for legal
reform, exemplary not only for its non-partisan influence, but
also its longevity. After a century, it remains an enterprise in
full vigor, with an enormous number of projects completed and an
impressive array of projects in forward motion. (Centennial,
supra, at pp. 7–8.) Most lawyers and judges are familiar with the
intellectual power, the legal authority, and the political
neutrality of Institute works like the Restatements of Torts and
Contracts. Reporters on these projects were Prosser, Corbin, and
Williston. These are storied names in the law.
Early on, the Institute set its sights on the common law
confusion over how to define culpability. This work began in the
context of criminal law, where the puzzlement was acute and the
stakes are so high. Before the advent of this effort, often “courts
used epithets to identify the culpable state required, epithets
such as willfully, maliciously, wantonly, or corruptly.” (Kadish,
4
Fifty Years of Criminal Law: An Opinionated Review (1999) 87
Cal. L.Rev. 943, 952.) The vagueness of these labels and others
like them created a “long tradition of dizzying uncertainty … .”
(Ibid.) The Supreme Court of the United States echoed this
criticism: “The common law traditionally used a variety of
overlapping and, frankly, confusing phrases to describe culpable
mental states … .” (Voisine v. United States (2016) 579 U.S. 686,
698, italics added (Voisine).) This mental-state system was best
described as “obscure.” (Ibid.)
“Obscure” is not good. Law best serves the public when it is
clear and precise. Judges, when they write opinions deciding
cases, should not make law obscure, for clarity and precision
make law predictable and accessible to all. Obscurity and
ambiguity create uncertainty benefiting no one.
The American Law Institute proposed tackling this
problem of obscurity in 1951. (Ferzan, From Restatement to
Model Penal Code, in Centennial, supra, at p. 299.) The Model
Penal Code, which the Institute promulgated in 1962, became
widely influential. It appeared in essentially every criminal law
coursebook in widespread use in American law schools. (Id. at
303; see People v. Canales (2024) 106 Cal.App.5th 1230, 1256,
1261–1262 (Canales) [surveying past generations of major
criminal law casebooks].)
Today, online materials for law students explain this
fundamental development:
“If the Common Law of mens rea was a misty landscape of
vague terms like ‘malice’ and ‘wickedness,’ the Model Penal Code
(MPC) is modern architecture: crisp, functional, and rigorously
structured. [⁋] For the aspiring lawyer, the transition to the
MPC represents a shift from moral ambiguity to analytical
5
precision. Under the Common Law, judges often asked, ‘Did the
defendant have a guilty mind?’ broadly speaking. The MPC
rejects this holistic approach. Instead, it demands Element
Analysis. It asks: ‘ What was the defendant’s level of culpability
specifically regarding the conduct, the result, or the surrounding
circumstances?’ ” (Lexplug, Model Penal Codes Level of
Culpability Outline <https://www.lexplug.com/outlines/criminal-
law/the-general-part-elements-of-a-crime/mens-rea-the-guilty-
mind/model-penal-code-levels-of-culpability> [as of July 31,
2026], archived at <https://perma.cc/BB9Q-EW7G>.)
This four-part system—purpose, knowledge, recklessness,
and negligence—was designed to solve the problem of statutory
interpretation. By standardizing the mental states into four
precisely-defined hierarchical levels, this system sought to match
legal consequences with the actor’s exact state of mind in a
predictable and user-friendly way.
The power of this analytical method impressed judges even
in jurisdictions that had not legislatively enacted the Model
Penal Code. The federal government is a prime example:
Congress, like the California Legislature, never passed the Model
Penal Code. Yet federal judges came to appreciate this four-part
approach to mens rea was the leading judicial tool for improving
precision when solving statutory mental-state problems. Judges
do not need legislative authorization to think and write clearly.
In 1969, for instance, the Supreme Court of the United
States used this method “as a general guide” when interpreting a
federal statute. (Leary v. U.S. (1969) 395 U.S. 6, 46, fn. 93
[adopting the Model Penal Code’s definition of “knowledge”].)
The high court later wrote that the Model Penal Code
“enumerates four possible levels of intent—purpose, knowledge,
6
recklessness, and negligence.” (United States v. United States
Gypsum Co. (1978) 438 U.S. 422, 444.)
The court likewise explained that the ambiguity in past
mens rea definitions led to the “new approach, exemplified in the
American Law Institute’s Model Penal Code, [which was] based
on two principles. First, the ambiguous and elastic term ‘intent’ is
replaced with a hierarchy of culpable states of mind. The
different levels in this hierarchy are commonly identified, in
descending order of culpability, as purpose, knowledge,
recklessness, and negligence.” (U.S. v. Bailey (1980) 444 U.S.
394, 403–404, italics added (Bailey).)
We shall return to this quote about the ambiguous and
elastic term “intent.” But first, note how more recent decisions
prefer this attractive path.
In a tort case, the Supreme Court of the United States
adopted the Model Penal Code’s definition of recklessness.
(Farmer v. Brennan (1994) 511 U.S. 825, 837, 839.) This
definition was a “familiar and workable standard.” (Id. at p.
839.)
In the 2016 decision in Voisine, Justice Kagan’s majority
opinion cited the Model Penal Code and distinguished between
purpose, knowledge, and recklessness. (Voisine, supra, 579 U.S.
at pp. 691–692.) Negligence was not at issue. Justices Thomas
and Sotomayor vigorously dissented on other grounds but
followed the same four-part method of analysis. (Id. at pp. 704–
705.)
This is important: ten years ago, both the majority and the
dissent had concluded the four-part analysis was the way to go.
The high court continued this uniform allegiance in Borden
v. United States (2021) 593 U.S. 420 (Borden). Justice Kagan,
7
again writing for the majority, began “by setting out four states of
mind, as described in modern statutes and cases, that may give
rise to criminal liability. Those mental states are, in descending
order of culpability: purpose, knowledge, recklessness, and
negligence.” (Id. at pp. 425–426.)
Justice Kavanaugh wrote a spirited dissent, but he also
spoke in terms of the four-part hierarchy. (Borden, supra, 593
U.S. at pp. 451, 462–464, 467.) Justice Kavanaugh referred to
these grades of culpability as “background principles of mens
rea.” (Id. at p. 465.)
In short, the Supreme Court of the United States has long
subscribed to this four-part approach as the best way to define
the mental state a statute requires. This approach is an
enlightened and improved way to think and speak clearly. It is a
method of exact communication that allows differing perspectives
to get to the true nub of statutory controversies.
The benefit of this method is not limited to the criminal
law. The method has utility whenever the question of culpability
arises, in every field of law.
For this reason, the American Law Institute has expanded
its use of the four-part method beyond criminal law. The 2005
Restatement Third of Torts echoed and incrementally adapted
this four-part mental state format. (See Rest.(3d) Torts: Physical
and Emotional Harm § 1 [purpose and knowledge], § 2
[recklessness], § 3 [negligence].) Earlier this year, the American
Law Institute approved a new draft in a different field that also
followed this template. (See Rest.(3d) Torts: Defamation and
Privacy Tentative Draft No. 1 § 14 [approved May 20, 2026].)
Judges too have deployed the versatile exactitude of the
four-part hierarchy beyond the criminal law. (E.g., Bullock v.
8
BankChampaign, N.A. (2013) 569 U.S. 267, 273–274 (Bullock)
[bankruptcy]; Cel-Tech, supra, 20 Cal.4th at p. 173 [unfair
competition]; People v. Freetown Holdings Co. (2024) 100
Cal.App.5th 1195, 1212–1213 (Freetown) [public nuisance].)
These cases offer concrete examples of the prevalence of
mental state issues outside the criminal context.
In the bankruptcy field, for instance, a federal statute
states that a person cannot obtain a bankruptcy discharge from a
debt for “defalcation.” What does “defalcation” mean? The
Supreme Court of the United States concluded “the term requires
an intentional wrong. We include as intentional not only conduct
that the fiduciary knows is improper but also reckless conduct of
the kind that the criminal law often treats as the equivalent.
Thus, we include reckless conduct of the kind set forth in the
Model Penal Code.” (Bullock, supra, 569 U.S. at pp. 273–274,
italics added.)
In unfair competition law, the California Supreme Court
used the four-part method. The high court had to construe
statutes outlawing sales of products “at less than cost.” (Cel-
Tech, supra, 20 Cal.4th at p. 175, 173 [quoting statutes].) To gain
new customers, L.A. Cellular sold telephones below cost, losing
money on telephone sales but recouping losses with increased
sales of services. Competitors sued L.A. Cellular for selling
phones below cost. Mental state was the crucial issue in the case:
what mental state did the statutes require? Our high court
wrote, “ ‘[p]urpose’ has a precise meaning. As an illustration, we
may turn to the Model Penal Code. In that code, the American
Law Institute drafters defined four distinct culpable mental
states. None of the definitions uses the ambiguous word
‘intent.’ The code’s two highest mental states are to act
9
‘purposely’ and to act ‘knowingly.’ ” (Id. at p. 173.) The court
ruled the statute required purpose, and that exonerated L.A.
Cellular, which knew its below-cost sales would hurt competitors.
But that was not its purpose, which was simply to increase its
sales and profits. (Id. at pp. 175, 177, bold font added.)
Knowledge was not enough.
In nuisance law, a place used to sell illegal drugs is subject
to injunction. (Health & Safety Code, § 11570.) The government
sought to enjoin the operation of a liquor store where drug
vendors routinely sold narcotics within and in front of the store.
The liquor store owner claimed to be unaware of these sales.
This presented a state-of-mind issue: what mental state did the
government have to prove to get an injunction? Citing the Model
Penal Code, the court held the decisive “ ‘reason to know’
standard is recklessness, not knowledge.” (Freetown, supra, 100
Cal.App.5th at p. 1212.) “According to the esteemed authority of
the American Law Institute, the four culpable mental states are
purpose, knowledge, recklessness, and negligence. (Model Pen.
Code, § 2.02, subd.(2).) [⁋] Courts consult these definitions
because they offer clarity in a field long plagued by imprecision.
… [The Model Penal Code’s] pathbreaking precision of mental
state definitions originated in the criminal context, but the
advance was of general utility because many areas of law turn on
an actor’s state of mind. Previous confusion on this score had not
been confined to criminal law. Courts thus employ this guidance
in the civil context as well.” (Ibid.)
Bankruptcy law, unfair competition law, and nuisance law
all have goals and policies that can differ considerably from
criminal law. The same is true of dependency law. Yet the four-
part system fits them all with ease, for it is not keyed to any goal
10
other than clear thinking and precise expression. Nothing about
dependency law makes it vital to communicate only in ambiguous
terms.
This body of decisions illustrates how the four-part system
is straightforward and easy to use.
Consider a man with soapy hands who loses his grip on a
plate, which falls, shatters, and cuts his wife. (See Voisine,
supra, 579 U.S. at p. 693.) This is at most negligence.
It is not recklessness. A person acts recklessly when
engaging in conduct if: (a) the person knows of the risk of harm
created by the conduct or knows facts that make the risk obvious
to another in the person’s situation, and (b) the precaution that
would eliminate or reduce the risk involves burdens that are so
slight relative to the magnitude of the risk as to render the
person's failure to adopt the precaution a demonstration of the
person’s indifference to the risk. (Rest.(3rd) Torts: Physical and
Emotional Harm § 2.)
Washing plates is not known to be a risky business: no one
knowingly undertakes a dangerous risk when washing up after a
meal. People regard washing dishes as a routine and harmless
chore. The man’s mental state is not reckless.
“But now suppose a person throws a plate in anger against
the wall near where his wife is standing.” (Voisine, supra, 579
U.S. at p. 693.) That hurl counts as reckless, “even if the
husband did not know for certain (or have as an object), but only
recognized a substantial risk, that a shard from the plate would
ricochet and injure his wife.” (Ibid.)
Another illustration is “if a person lets slip a door that he is
trying to hold open for his girlfriend.” (Voisine, supra, 579 U.S.
at p. 693.) If the swinging door hurts the girlfriend, again, the
11
man is at most negligent. No one thinks holding a door open for
another involves the conscious assumption of risk. This is the
same as the soapy plate accident.
But if the same person slams the door shut with his
girlfriend following close behind, then he has acted recklessly.
This is so “regardless of whether he thinks it absolutely sure or
only quite likely that he will catch her fingers in the jamb.”
(Voisine, supra, 579 U.S. at p. 693.) The man has acted
recklessly because he “knows facts that make the risk obvious to
another in the person’s situation.” (Rest.(3rd) Torts: Physical and
Emotional Harm § 2, subd. (a).)
Reckless behavior—acts undertaken with awareness of
their substantial risk of causing injury, as in our hypo about
hurling the plate—is more culpable than merely negligent
conduct. (Voisine, supra, 579 U.S. at p. 694.)
The Supreme Court of the United States has written that
“[r]ecklessness and negligence are less culpable mental states
[than knowledge and purpose] because they instead involve
insufficient concern with a risk of injury. A person acts
recklessly, in the most common formulation, when he ‘consciously
disregards a substantial and unjustifiable risk’ attached to his
conduct, in ‘gross deviation’ from accepted standards. Model
Penal Code § 2.02(2)(c); see Voisine v. United States, 579 U. S.
686, ––––, 136 S.Ct. 2272, 2277, 195 L.Ed.2d 736 (2016). That
risk need not come anywhere close to a likelihood. Speeding
through a crowded area may count as reckless even though the
motorist's ‘chances of hitting anyone are far less [than] 50%.’ 1 W.
LaFave, Substantive Criminal Law § 5.4(f) (2018) (citing cases
involving low-probability events). Similarly (though one more
step down the mental-state hierarchy), a person acts negligently
12
if he is not but ‘should be aware’ of such a ‘substantial and
unjustifiable risk,’ again in ‘gross deviation’ from the norm.
Model Penal Code § 2.02(2)(d). There, the fault lies in the
person’s simple ‘failure to perceive’ the possible consequence of
his behavior.” (Borden, supra, 593 U.S. at p. 427, emphasis
added.)
For the sake of clarity and to serve the public, we should
use this four-part method to construe this statute. Statutory
language often “permits, even requires, judicial interpretation.”
(People v. Chun (2009) 45 Cal.4th 1172, 1181.) When the issue is
mental state, this four-part approach is time-tested and reliable.
The majority interprets this statute, but it does not do so in
a clear manner. It needs the precision of the four-part method.
III
Today’s holding is doubly imprecise. What does the
majority mean by “intentionally”? And what mental state must
the violent parent have regarding “the child’s presence”? By
leaving these questions unanswered, the majority needlessly and
unfortunately creates ambiguity.
A
What does the holding mean by “intentionally”? The
majority’s standard states it applies when “one parent
intentionally engages in an act of violence against the other
parent … .” “Intentionally,” however, is ambiguous when left
undefined.
“Intentionally,” “intention,” and “intent” are all forms of the
same word: intent. The Supreme Court of the United States
labels the term “intent” “ambiguous and elastic.” (Bailey, supra,
444 U.S. at p. 404.) The California Supreme Court agrees. (See
Cel-Tech, supra, 20 Cal.4th at p. 173.)
13
“Intent” is ambiguous because there are four mental states.
Which level of “intent” does the majority intend? None of
the four, apparently. We see this by asking this question: what
possibly could be an “unintentional” act of violence? Presumably
it would be an involuntary act like an arm jerking suddenly in
the throes of a grand mal seizure. This type of issue is most
easily and clearly treated by imposing a requirement of voluntary
action across the board and ruling out involuntary action as a
possible basis for assigning any culpability at all. The
“paradigmatic” involuntary acts are when “a person physically
forces the movements of another or in which one’s body is in the
grip of a spasm or reflex.” (Kadish & Schulhofer, Criminal Law
and Its Processes (6th ed. 1995) p. 175; see also Model Pen. Code,
§ 2.01, subd. (1) [people cannot be culpable unless their liability is
based on conduct that includes a voluntary act]; People v.
Freeman (1943) 61 Cal.App.2d 110, 115, 117–118 [epileptic loss of
consciousness is a defense, because one is not culpable if at the
time “he is not conscious thereof”]; People v. Newton (1970) 8
Cal.App.3d 359, 376 [unconsciousness is a complete defense to
criminal liability].)
Involuntary actions occur without the application of human
will. If a grand mal seizure made the father’s arm jerk
uncontrollably and violently hit his child, this would be an
involuntary and thus an “unintentional” act of violence. The
same would be true if a passing runner on the street collided with
the father, causing him to lurch forward and violently strike his
child. Aristotle gave the example of gusting wind causing an
involuntary act. (Aristotle, Nicomachean Ethics (Kegan Paul etc.
4th ed. 1891) p. 58.) That reflexive jerk or falling strike or wind-
blown hit would not satisfy the statute; it would be
14
unprecedented for the Department to invade parental rights
because one parent suffered epilepsy or had been struck by a
runner or been blown by the wind. The Department would have
no jurisdiction because the father would lack all culpability.
Rewording the majority’s rule under this analysis, then,
produces this standard: “section 300, subdivision (a) may apply
to domestic violence between a child’s parents where one parent
voluntarily engages in an act of violence against the other parent
in the child’s presence, and the child’s exposure to such violence
either inflicts serious physical harm upon the child or places the
child at risk of serious physical harm.”
Perhaps this is the real meaning of the majority’s use of
“intentionally.” We cannot be sure, because the majority does not
clarify the point. Or perhaps, following the section one of the
Restatement Third of Torts: Physical and Emotional Harm, the
majority equates “intentionally” with knowledge or purpose. If
so, that would rule out reckless domestic violence, as in the
examples of the thrown plate and the slammed door. But why do
that? Why this uncertainty?
B
What does the majority mean by “in the presence of the
child”? What mental state, if any, must the violent parent have
regarding whether the child is present?
The majority implies no mental state is needed regarding
whether the child is present. This is the apparent meaning of the
majority’s statement that, “when a parent commits domestic
violence in the presence of the child, that conduct may place the
child at risk of serious physical harm regardless of whether the
parent’s mental state with respect to the child was purposeful,
knowing, reckless, or negligent.”
15
This rule stakes out an expansive jurisdiction for the
Department. To appreciate the extent of this interpretation,
consider two examples.
Example one supposes that, at the end of a family hallway,
the father hits the mother at night when the child usually is
asleep. Neither parent is aware their child is, however, awake
and peering through a key hole in the door at the end of the hall.
When the child sees the father strike the mother, the child steps
back in shock, stumbles, falls down, and suffers injury. With
respect to injuring the mother, the father’s mental state is
purposeful, which is the highest level of culpability. But with
respect to whether the child is present, the father’s mental state
would seem not even negligent. The majority’s ambiguous
formulation apparently, and perhaps inadvertently, would
encompass this situation.
Example two supposes the father shoves the mother
against the wall, which knocks over the grandfather clock on the
other side of the wall. With respect to harming the mother, the
father was purposeful—the highest level of culpability. But
unbeknownst to father, his napping child in the adjoining room
woke up thirsty, got out of bed, and is heading to get water, only
to walk near the path of the falling clock and thus risk physical
injury. The father had no idea the child was awake or near the
clock. Yet again the majority’s ambiguous formulation
apparently, and perhaps inadvertently, would encompass this
situation, because the father’s actions against the mother
exposed the child to the risk of serious physical harm.
The Department has not sought this extent of jurisdiction.
But the majority apparently has given this unrequested
16
prosecutorial bonus to agencies throughout the state of
California.
IV
The straightforward construction of this statute would
require recklessness, in my view. First I present my conclusion,
and then I trace the road to it.
A
Using the four-part taxonomy of purpose, knowledge,
recklessness, and negligence, I interpret subdivision (a) of section
300 to read:
The Department may assume jurisdiction over a child if a
parent inflicted serious physical harm on the child or exposed the
child to a substantial risk of serious physical harm. That parent’s
mental state must have been at least reckless with respect to injury
to the child.
This wording clearly and precisely specifies the required
mental state under subdivision (a) of section 300. If further
elaboration is needed, the Restatement Third of Torts gives it:
“A person acts recklessly in engaging in conduct if:
(a) the person knows of the risk of harm created by the
conduct or knows facts that make the risk obvious to another in
the person’s situation, and
(b) the precaution that would eliminate or reduce the risk
involves burdens that are so slight relative to the magnitude of
the risk as to render the person’s failure to adopt the precaution a
demonstration of the person’s indifference to the risk.” (Rest.(3d)
Torts: Physical & Emotional Harm § 2.)
B
The road to this conclusion starts, as does every exercise of
statutory interpretation, with the text of the statute.
17
I italicize the two key statutory words: “A child who comes
within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a
dependent child of the court: (a) The child has suffered, or there
is a substantial risk that the child will suffer, serious physical
harm inflicted nonaccidentally upon the child by the child’s
parent or guardian.” (Welf. & Inst. Code, § 300, subd. (a) (Section
300(a)).)
The statutory word “nonaccidentally” refers to the state of
mind of the parent or guardian. But what does this mental state
word mean? That is the crux of this case. (I also italicized “risk,”
and I will come back to that. Readers, please remember that
word “risk.”)
The sensible approach is to use the American Law
Institute’s four-part method to construe this word
“nonaccidental.” This approach is better than relying on Black’s
Law Dictionary or on nonlegal dictionaries.
“[D]ictionaries must be used as sources of statutory
meaning only with great caution. ‘Of course it is true that the
words used, even in their literal sense, are the primary, and
ordinarily the most reliable, source of interpreting the meaning of
any writing: be it a statute, a contract, or anything else. But it is
one of the surest indexes of a mature and developed
jurisprudence not to make a fortress out of the dictionary; but to
remember that statutes always have some purpose or object to
accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.’ Cabell v. Markham, 148 F.2d 737,
739 (2d Cir.1945) (L. Hand, J.). ‘[T]he choice among meanings [of
words in statutes] must have a footing more solid than a
dictionary—which is a museum of words, an historical catalog
18
rather than a means to decode the work of legislatures.’ …
Dictionary definitions are acontextual, whereas the meaning of
sentences depends critically on context, including all sorts of
background understandings … . A sign in a park that says ‘Keep
off the grass’ is not properly interpreted to forbid the grounds
crew to cut the grass.” (U.S. v. Costello (7th Cir. 2012) 666 F.3d
1040, 1043–1044.)
These sound observations are by Judge Posner. When you
get Judge Posner quoting Judge Learned Hand, it is worth
paying attention.
Rather than relying on dictionaries, I suggest starting with
the American Law Institute’s background understanding. Over
the course of generations, the American Law Institute repeatedly
has devoted highly skilled resources to solving the very problem
we confront today: what is the best way to define the mental
state a statute requires? This interpretive tool is steadfastly
impartial, dead on point, and first rate. It is free. Let’s use it.
Beginning, then, with this four-part taxonomy, we observe
the Legislature did not define “nonaccidentally.” So we must.
And “nonaccidentally” fits easily into the four-part system of
purpose, knowledge, recklessness, and negligence.
“Nonaccidental” requires more than negligence. The typical case
involving an accident is the classic negligence suit about whether
the traffic light was red or green, and so forth. Therefore,
“nonaccidental” must be different from negligence. Negligence is
not enough. We must ascend the ladder of culpability. But how
far should we climb? The next rung is recklessness, and that
candidate is worthy.
The statute includes the word “risk,” and the mental state
category of recklessness is consonant with this concept.
19
“Recklessness” best embodies this legislative intent. A fortiori,
knowledge and purpose would be more than enough.
Using recklessness makes perfect sense of precedent. A
pair of precedents give textbook examples of reckless conduct
satisfying this statute.
The first precedent is In re Giovanni F. (2010) 184
Cal.App.4th 594, 598–601 (Giovanni F.). There the one-year-old
child was a passenger in the back seat. The father drove with
one hand on the steering wheel and used his other hand to hit
and choke the mother. The father thereby put the child at
substantial risk of serious physical harm, because the father
risked a crash. The father’s mental state was recklessness.
When you are preoccupied with trying to strangle and beat
your wife, you are chancing a wreck that could injure everyone,
including your child passenger. The danger is plain. The father
“knows facts that make the risk obvious to another in the
person’s situation.” (Rest.(3d) Torts: Physical & Emotional
Harm § 2, subd. (a).)
The father in Giovanni F. was more culpable than
negligent. His driving was more blameworthy than a merely
careless driving. But the father’s state of mind regarding injury
to the child also was less culpable than a father who knowingly or
purposely harms the child.
The father did not act “knowing that the consequence is
substantially certain to result,” which is the standard for a
knowing state of mind. (Rest.(3d) Torts: Physical & Emotional
Harm § 1, subd. (b), italics added.) A car crash was not a
“substantially certain” consequence. It was merely a risk. It was
a serious and dangerous risk. But it was not substantially
20
certain, and that is the wording the American Law Institute has
worked out as the definition of knowing culpability.
Nor did the father have the purpose of hurting the child.
The person he was trying to hurt was the mother. He could well
have the goal of hurting the mother but be unhappy that his
actions were endangering the child.
The conduct thus was merely reckless.
Giovanni F. held the father’s conduct satisfied the statute.
Without stating it in so many words, Giovanni F. effectively held
reckless conduct was enough to trigger this statute.
We thus see that this four-part tool allows us to zero in on
culpability with impressive precision. Our analysis has
determined the exact level of culpability in Giovanni F., and it
was enough for Section 300(a).
The second precedent is In re M.M. (2015) 240 Cal.App.4th
703, 720 (M.M.). Both parents in that case were reckless with
respect to injury to their child. The “mother hit father while he
was holding minor.” (Ibid.) The father also was reckless with
respect to injuring the child. When the mother was pregnant, the
father pushed her, “causing her to fall to the floor. Mother
confided she was afraid of losing her baby as a result of this
incident.” (Ibid.) And both parents were mutually reckless: the
“domestic violence included father choking mother while holding
minor; father throwing mother into a piano, a table and onto the
floor while minor was ‘at their feet’; father pinning mother on the
floor at least two times; father breaking mother’s phone; and
mother hitting and kicking father and shredding his shirt.” (Id.
at p. 706, italics added.) Battling each other while your child is
at your feet poses a risk of harm to the child. That is reckless:
both parents knew facts that make the risk to the child obvious to
21
another in that situation. (Rest.(3d) Torts: Physical & Emotional
Harm § 2, subd. (a).)
In effect but without expressly saying so, M.M. also held
that reckless conduct satisfied Section 300(a).
Precedent thus supports identifying recklessness as the
required mental state for this statute. I am aware of no contrary
case law.
The recklessness standard also meshes with the decision in
In re Cole L. (2021) 70 Cal.App.5th 591 (Cole L). In that case, a
witness gave this description: “It was not an altercation to the
extent that the police made it out to be. They were having an
argument over a phone. [The mother] was trying to take the
phone away from [the father] … . [T]hey were going back and
forth and some pushing was going on. The children were asleep
in another room, not even in their presence.” (Id. at p. 598, italics
added.) Obviously, the parent’s mental state was not purposeful,
knowing, or reckless with respect to injury to children asleep in
another room. This standard fits the facts of Cole L.
In sum, the apt statement of the required mental under
Section 300(a) is this:
The Department may assume jurisdiction over a child if a
parent inflicted serious physical harm on the child or exposed the
child to a substantial risk of serious physical harm. That parent’s
mental state must have been at least reckless with respect to injury
to the child.
* * * * *
22
I join the result because the father’s assault on his wife
recklessly endangered the child. I do not join the reasoning,
which creates ambiguity and which grants more jurisdiction to
the Department than it has requested.
WILEY, J.
23