IN RE: B.B. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Francesca B., mother of B.B. and Ian B. (hereinafter Mother), appeals from the juvenile court's jurisdiction and disposition order.   Mother argues that substantial evidence did not support the court's sustaining of jurisdiction over B. under Welfare and Institutions Code section 300,¹ subdivision (b), and over Ian, under subdivision (j).  We reverse in part.

BACKGROUND

I. Petition and arraignment hearing, July 1, 2010

On July 1, 2010, the Los Angeles County Department of Children and Family Services (DCFS) filed a nondetained petition under section 300 regarding B. and Ian, her infant half brother.   The petition alleged that B. (then a four-year-old girl) told Mother on May 12, 2010 that Christopher J., Mother's brother and B.'s uncle, who lived in the family home, put a broom in B.'s vagina.   The petition alleged jurisdiction over B. under section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse), and over Ian under subdivision (j) (abuse of sibling).

A petition also was filed regarding Mother's then seven-year-old severely developmentally disabled daughter, Bethany G., alleging that Bethany's legal guardian, maternal aunt Deborah S., had failed to protect Bethany under section 300, subdivisions (b), (d), and (j).  Deborah became Bethany's legal guardian after Bethany's great-grandmother, who had been her primary caregiver, died.   Bethany had a seizure disorder, brain malformation, respiratory distress syndrome, and cerebral palsy.   She was fed through a gastronomy tube and was nonverbal and unable to change position on her own.²

Mother had noticed redness and irritation on B.'s genitals and took her to the hospital, where medical staff told Mother to call the police and request a sexual assault examination.   Mother reported that B. told her that Christopher had thrown her on the bed and then placed a broom handle into her vagina.   On May 14, 2010, B. was found to have trauma to her genitals.

On May 17, Mother said she could not make decisions regarding “who could live where and whether or not Christopher would be in contact with the children.”   Christopher was arrested when Mother reported the sexual abuse and then released because there was insufficient evidence to file charges.   Christopher returned to the family home on May 18.   Christopher was seen leaving the porch on May 24, 2010, although Mother and maternal aunt, Deborah, both reported that Christopher did not enter the house, that they had called the police, who did not respond, and “under no circumstances would they allow Christopher [J.] to return to the home in order to protect the children residing there.”

The social worker believed “the family has shown a tendency to be deceptive and flee in order to avoid working with DCFS to ensure the safety of their children.”   Mother was indecisive, and showed a lack of empathy.   The family presented no plan to protect the children and did not appear to believe B., and “[i]t was stated that the family is in denial about what Christopher did to [B.].” Mother did not report the sexual abuse until the hospital told her to, at which time she acted appropriately and called the police.

The family agreed on May 26, 2010, not to allow Christopher to return to the home or have contact with the children.   As of June 30, 2010, Mother had not enrolled B. in counseling.   Mother and Deborah had requested that their counsel be present at all meetings with DCFS, and wanted the advice of counsel before they signed any forms.  “Based on the lack of appropriately protective behaviors and inappropriate supervision for the children by mother,” the social worker concluded “there is a ‘high’ substantial risk of future abuse and neglect to the children [B.] and Ian.”

Mother told the social worker on May 17 that she could not make decisions regarding “who could live where” and whether the children would have contact with Christopher until Deborah had spoken to her mother.   Mother did not know what to believe about the allegations, and when Christopher was released from jail, she did not know whether he would have contact with the children, as they all lived in the same home.   She often deferred to someone else when asked how to protect her children.   On May 26 Mother told the social worker that Christopher had been at the home, but that she and Deborah did not let him enter.

Kurtis P., Ian's father, did not live with Mother and was not the father of B. or Bethany.   Kurtis stated that he had been concerned about Christopher because he talked about violent things, including saying that “someone should take Bethany out because he would never let a child live like she does.”   Kurtis was frustrated that Mother did not take Ian to his well baby checkup on time, and believed that he saw Christopher exit the home on May 24.   Kurtis also said that the first time Christopher returned to the home, he was allowed inside with the children present and “brandished a knife in front of the children while acting aggressively.”   There was no current restraining order against Christopher.

The police report stated that in the late evening of May 13, 2011, officers responded to a call from Mother at the family home.   Mother told the police she believed Christopher had sexually assaulted B. with a broomstick.   B. had not been her usual happy active self.   When Mother asked her several times what was wrong, B. would cover her eyes and say she didn't want to talk about it.   At about 9:00 p.m. on May 12, 2010, Mother noticed swelling, redness, and a bump to the left of B.'s vagina.   Kurtis and Mother immediately brought B. to the hospital, but the hospital required a police report.   Kurtis told the officers he had also observed the injury to the vaginal area, and that at the hospital B. said, “Christopher hurt my stinky” with a broomstick on the bed.   The broomstick was in a corner of the dining room, and the police recovered it.   The officer asked B. who touched her “stinky,” and she said Christopher did.   Christopher was arrested and booked.

The police took Mother, Kurtis, and B. to Santa Monica/UCLA Medical Center for B.'s examination, where B. repeated to the nurse that Christopher “put a stick in my stinky.”   The forensic medical report, dated May 14, 2011, indicated redness, swelling, and a small laceration in B.'s genital area.

An addendum report recommended the children be detained in Mother's home if Mother complied with the DCFS case plan, and added as a reason for detention that in May 2010 Mother placed Ian in a “detrimental and endangering situation in that the mother left the then three week old infant home alone without adult supervision with the child's developmentally delayed seven year old sibling Bethany [G.] ․ who is unable to communicate.” ³

At the arraignment hearing, also on July 1, 2010, the court found that Kurtis was Ian's presumed father.   There was a safety plan barring Christopher from the home or any contact with the children.   DCFS argued there was prima facie evidence to detain the children from Mother and the legal guardian, as Mother had shown reluctance to sign papers or allow unannounced visits without her lawyer present and had not demonstrated she would enforce the restraining order and keep Christopher out of the home.   The court declined to detain any of the children away from Mother and the legal guardian, but found a prima facie case for jurisdiction over B. and Ian under section 300, subdivisions (b), (d), and (j).  B. was released to Mother, and Ian to Mother and Kurtis.   The court also ordered that Christopher was “not to come even remotely near any of the children or be anywhere near the home” and that Mother was to allow access to DCFS. No prima facie case had been established against Kurtis.   Mother and Kurtis, who had an existing family law custody order, were to work out an arrangement to share custody of Ian pending the jurisdictional hearing.   The court ordered that B. “receive age appropriate therapy ASAP;  DCFS to assess whether a S.A.T. [sexual abuse treatment] program is appropriate.”

II. Jurisdiction/disposition report, August 4, 2010

The jurisdiction/disposition report, dated August 4, 2010, repeated the sexual abuse allegation as to B. and Ian under subdivisions (b), (d) and (j), and added under subdivisions (b) and (j):  “In May of 2010 the child [B.B.] and Ian [B.]'s mother ․ placed the child Ian in a detrimental and endangering situation in that the mother left the then three week old infant home without adult supervision with the child's developmentally delayed seven year old sibling Bethany [G.] who is unable to communicate.   The child's Ian [B.]'s father, Kurtis [P.]] knew of the mother's conduct and failed to protect the child.”   This endangered Ian's physical and emotional safety and placed Ian and B. “at risk of harm, damage, danger and failure to protect.”   In interviews on July 15 and 21, B. was extremely shy and made only one statement:  “ ‘Christopher hurt my “stinky” with a broom.   It hurt.’ ”   B. “appeared to be frightened to say anything” and “showed signs of anxiety and trauma.”   In interviews on the same dates, Mother stated that she knew nothing about Christopher's abuse of B. until Mother gave her a bath and when drying B. off noticed redness and a bump around her vagina.   Mother asked B. what happened and she did not respond.   Mother told Kurtis and they went to the hospital, where they were told B. had a bacterial infection and B. told the doctor that Christopher had hurt her vagina with a broom.   The doctor told Mother she had to go to another doctor and to call the police to make a report of sexual abuse.   Mother called the police and reported the incident, and B. was taken to the doctor in Santa Monica.   Mother said she never suspected Christopher of other sexual abuse and Christopher did not babysit B. or the other children.   This explanation was inconsistent with the earlier statement that Mother and Kurtis both noticed the redness and bump when B. was lying on the bed with her underwear on.

Mother also stated that when Bethany and Ian were left alone she was across the street for only a few minutes and came back to the house.   She had earlier denied leaving any of the children home alone, and had argued with Kurtis about leaving the children alone, stating, “ ‘I only did it for a couple of minutes' ” and clamming up when the social worker asked her about it.

The maternal aunt and Bethany's legal guardian, Deborah, initially blamed B. because she saw B. “humping a chair and rubbing herself on objects,” and had told Mother, who did nothing.   Deborah spoke with Christopher's father and told him that Christopher is never to come back to the home.   Before Ian was born, Mother would leave B. at home for days at a time, but after Ian was born Mother was “a little more responsible.”

Kurtis stated that he had seen the marks on B. when she was sleeping on the bed and pointed them out to Mother, who said there was nothing wrong, and Deborah said the same.   He tried to wake B. up but she was sound asleep.   The next morning when he came over to pick up Ian he asked B. about “her private part and why it was red,” and B. covered her face and said she did not want to talk about it.  “I was the only one concerned.”   He told Mother he was taking B. to the doctor, but the doctor referred B. to the hospital and he had to go to work.   After work, Kurtis took B. to the hospital and that was when B. told him that Christopher had hurt her with a broomstick on the bed.   The doctor told Mother to call the police, and when they went home, Mother did not do anything, so Kurtis dialed the number and handed Mother the phone.

Kurtis had reported the incident when Mother left Ian and Bethany alone.   He called Mother at noon and said he would be over at about 1:00 p.m. to pick up Ian. When he arrived about 1:00 p.m. he knocked and there was no answer.   He called the house number and heard the phone ring but no one answered.   He waited two minutes, and when he turned around he saw Mother walking from across the street.   She told him she had gone across the street.   They entered the house and found Ian and Bethany alone.   Kurtis remonstrated with Mother and called the social worker, leaving a message reporting what had happened.   He learned the next day from the social worker that Mother denied it.   He then filed for custody of Ian. Meanwhile Kurtis and Mother had worked out a custody plan;  Kurtis had Ian from 8:00 a.m. on Saturday until 5:00 p.m. Tuesday.

The report also stated that a child advocate at the sexual abuse examination stated that she had concerns about a perceived lack of attachment between B. and Mother, who was “very robotic” with B. and did not hold her when she began to cry, and was not able to state what she would do to protect B. if Christopher were released from jail.   Bethany now had nursing care for 20 hours a day.   Mother indicated she would like to participate in individual counseling and parenting classes.   She also stated she would protect B. by calling the police because she had a restraining order against Christopher.

B. would not talk about Christopher.   She was eligible for special education services, as she was developmentally delayed.   On July 20, 2010, Mother took B. for intake regarding sexual abuse counseling.   She reported that B. was on a wait list, which had been confirmed by DCFS.

The report expressed “serious concerns” about Mother's truthfulness, lack of empathy, and overall lack of attachment to B. Mother should have taken B. to the hospital during the day after discovering the redness instead of waiting until Kurtis came home from work, and B.'s behavior should have concerned Mother.   Mother was provided with counseling referrals for B. on May 17, and did not follow through until July 20.   This was further evidence of Mother's lack of empathy and understanding about the traumatic effects of sexual victimization.   Mother also was dishonest about leaving Bethany and Ian alone, finally admitting on July 15 that she was across the street for only a few minutes.   DCFS recommended that Mother receive family maintenance services, participate in parenting classes and individual counseling, allow no contact with Christopher, and not leave the children alone without an agreed-upon plan of care.

III. Section 385 hearing, August 4 and 6, 2010

At a hearing on August 4, 2010, the court heard DCFS's motion under section 385 to detain the children from Mother's home.   Counsel for B. and Ian argued that mother showed little empathy for B. and was dishonest and untrustworthy, in part because she had not fully discussed why she left the children alone.   The court saw no evidence that Mother was allowing Christopher to come onto the property or have any contact with B. and Ian, and thought it reasonable to assume that Mother would not leave the children alone again.   Mother's “not being well connected with the child or not being perhaps sympathetic or, you know, not being perhaps the mother we think a mother should be—I don't necessarily know if that rises to jurisdictional levels, and it doesn't in my mind present a substantial risk of danger.”   The children's counsel argued that Mother did not make a phone call for B.'s therapy until July 21, and “[n]ow [B.] is on a waiting list.”   Mother's counsel pointed out that no facts supported the claim that Mother was dishonest, and “unfortunately even the best efforts place children on waiting lists.”   The court observed that it was new information that Mother did not call for therapy until July 21.   Mother testified that she had gotten a restraining order in court in Inglewood against Kurtis and that she and Ian were protected persons.   The court advised her that any such order should be filed with the dependency court.

At the continued hearing on August 6, the court stated that it was taking over the restraining order against Kurtis.   DCFS indicated that it believed the children could safely stay with Mother as long as social workers had access and Christopher was not going to the house.   The court vacated and quashed the restraining order against Kurtis.   The court stated, “We are not looking for perfect parents.   We are not even looking for good parents, neither of which you are.   Frankly, from what I can tell, the only issue is whether or not there's any substantial risk of danger for these children while they're in your care.   And I don't believe a showing has been made that there is.  [¶] I do think you have some credibility issues.   I do think you have some issues about recognizing certain things.”   Stating, “I did think it was a close, close detention” and “[w]e are looking for parents that can protect their children from substantial risk of serious physical harm or illness.   And I think so far from what I have seen you could barely qualify to do that, which is fine,” the court denied the section 385 motion.

Mother stated that she had to wait three months for B. to get into counseling, and she needed to go through counseling before the court would prosecute Christopher.   The court ordered that DCFS was “to make all good faith reasonable efforts to get [B.] into age appropriate counseling as soon as possible,” and upon a request by DCFS, before the next hearing.   DCFS would ensure that Ian got his immunizations, and the parents had agreed on a custody schedule.

IV. Jurisdictional/dispositional hearing, September 29 and October 1, 2010

At the adjudication on September 29 and October 1, 2010, Kurtis testified that when he pointed out the redness in B.'s groin area on May 13, Mother said it was nothing to worry about.   The redness covered about three and a half inches, horizontal and vertical.   Kurtis asked Deborah, who said B. “got it from school.”   The next morning, Kurtis picked up Mother and B. after dropping Ian off with a babysitter, drove them to the doctor's office, and went to work.   At noon, Mother called and said there was an insurance conflict, so Kurtis took Mother and B. to the hospital emergency room after work.   At the hospital, B. told Mother and Kurtis that Christopher had hurt her “thingy” with a broomstick, and repeated it in front of the doctor.   The doctor told them to call the authorities.   They went home, and Kurtis dialed the police and gave Mother the phone.   Christopher was arrested, and released the next Monday.   When Kurtis returned to pick up Ian, he saw that Christopher's belongings had been moved.   Mother told him Christopher had been there a day or two after his release, grabbed his knife and pants, and left.   Kurtis told Mother to dial 911 if Christopher ever returned.

When Kurtis returned to pick up Ian at about 7:30 a.m. the following week, he saw Christopher coming from the front porch down the grass and the driveway.   Christopher crossed the street and stood behind Kurtis's truck.   Kurtis tried to call the social worker but she didn't pick up, so he called 911, who told him they could do nothing without a restraining order.   Kurtis said there was none, because he did not know that one was in place.   Christopher tried to talk to Kurtis but he did not engage.   Kurtis went to the house, and Mother and Deborah answered the door.   Christopher was behind Kurtis asking to talk to Deborah.   When Kurtis picked up Ian, Christopher spoke to Deborah, and then was walking down the street.   When Kurtis put Ian in his truck, Christopher was on the corner talking on his cell phone.

Also in May, Kurtis called Mother at home at 12:00 noon to tell her he would be there in an hour to pick up Ian. He arrived at 1:00 p.m. and no one answered the doorbell, so he called the house phone and no one picked up.   Mother answered her cell phone and came from across the street, saying Ian was inside.   She opened the door, and Bethany and Ian were inside.   Kurtis picked up Ian and told Mother not to leave the children alone.   Kurtis reported this to the social worker.   Overall, it was a couple of minutes from when Kurtis arrived to when Mother returned.

On cross-examination, Kurtis testified that when he left Mother's home after observing the redness, he was concerned but did not speculate that B. had been molested.   At the hospital, the doctor told Kurtis that Mother had to call the police, because he was not B.'s father.   Before Kurtis saw the redness, his concerns about Christopher were that he appeared to be unstable and “thought too much ․ nothing bodily harmful or anything like that.”   Kurtis worried that Mother might again leave Ian alone, although Mother told him she wouldn't let it happen again.   The social worker told Kurtis that Mother denied leaving Ian and Bethany alone.   Mother also told Kurtis that when Christopher arrived to pick up his things, she did not open the door but when he began to bang on the windows and “become disturbing,” she let him in.

Counsel for the children made an offer of proof that the social worker on the case believed that B. and Ian should have been detained because of Mother's months of delay in getting B. treatment after she was abused, and her hesitation to take B. to the doctor after her injuries were apparent.

Deborah testified that at first she did not believe B. that Christopher had abused her, but after B. repeated it she had to believe her.   On May 24, when Christopher knocked on the door Deborah told him he was not to be there, and she was going to call the police.   She called the police.   This was before they had the restraining order for Bethany.   Deborah was shown a restraining order signed and dated May 24, 2010 to refresh her memory.   She stated that the order was still in effect.   Christopher had not been in the home since Deborah spoke to a social worker on May 26.

Mother testified that she left Ian and Bethany alone, and that she told that to the social worker at the hospital.   She had left the home to go across the street to ask her elderly neighbor to babysit, which she normally did.   Deborah had taken B. out with her to run errands, and Mother did not have the neighbor's phone number.   She needed to go to the store to buy baby supplies.   She was gone no more than five minutes.

In May, the social worker told Mother it was very important to get B. into therapy and gave Mother some referrals.   Mother took B. for an interview at a guidance clinic where they had waiting lists, but Mother needed the help of the social worker, who told her she would tell the clinic it was a DCFS case and get B. off the waiting list, but had not done so.   Yesterday was B.'s fourth session at the clinic.   Mother no longer left the children alone, because there were nurses in the home and she and Deborah worked together to keep the children safe.   She had no contact with Christopher, and would not allow him to come to the house.   She let him come in on May 18 because she was unable to reach her mother or aunt, and Christopher would not listen to her and she did not yet have the restraining order.   Christopher had a key at the time, but the locks had since been changed.

Mother stated that she was training to be a registered nurse.   She knew what a bacterial infection was.   When Kurtis pointed B.'s redness out to Mother, she thought it was a bacterial infection, not sexual abuse.   She did not remember Kurtis wanting to go to the hospital that night, but they went to the doctor the next morning.   After she had the insurance conflict, that evening Kurtis and she took B. to the hospital.   The hospital said B. had a bacterial infection, but if Mother believed it was foul play, the hospital could not diagnose molestation or rape, and they would have to go elsewhere.   It was at the hospital where B. said Christopher had done something.

The hospital referred Mother to the police, so they went home and called the police from there.   At the second hospital, B. was diagnosed with “a broken labia and torn hymen.”   The report of the diagnosis did not arrive for two weeks.   Mother's reaction to B.'s initial disclosure was hesitant because “I'm not thinking that someone close to me would be capable of that, and, you know, before I take any actions, I want to think about what I'm doing because there's no turning back.   And, you know, it's not that I don't believe my daughter․  [Y]ou are telling me that not only has my daughter been violated, but someone who I am protective of and someone who I love that I would go to bat for has done something as heinous as that.”   The court agreed that there was no evidence that Mother should have known that Christopher would molest B., and had “no problem with her initial reaction.”

The day that Mother left the children alone, she could see her house from across the street, and when she saw Kurtis's car pull up, she answered her phone and let him know where she was.   Both Bethany and Ian were asleep when she left, but when she and Kurtis entered the house they were both awake.

Mother had gotten a temporary and permanent restraining order against Christopher on her own, without the social worker's help.   Mother had also gone to a few of the counseling referrals, but B. needed one that specialized in sexually abused children of B.'s age and there was a waiting list at that clinic.   Mother stated that she needed an advocate to get off the waiting list, and DCFS should have contacted the therapist.

DCFS argued that although it understood why Mother did not want to believe that Christopher had sexually abused B., if DCFS had not gotten involved “probably [Christopher] would be back living at the home right now.”   The court could draw the reasonable inference that Christopher had been at the home on other occasions after he was released.   Mother was “not really ․ forthcoming” about leaving Bethany and Ian alone and initially denied it, which hurt her credibility, and “I would imagine, by the way she was defending the action, that it was a practice of hers and she doesn't see anything wrong.   She simultaneously, oddly enough, admits that it was wrong to do․”  DCFS filed the petition on July 1 when it discovered that Mother had not enrolled in any programs.   DCFS still believed that the minors could safely live with Mother and Deborah as long as social workers were involved.   The children's counsel continued to argue that B. should not be left in Mother's care, arguing that Mother took the stand and “gave excuses and she fabricated.”   Mother did not get B. into treatment until September, and showed little remorse or concern, strong evidence that she was unable to protect B.

Mother's counsel argued that Mother was merely reserved in nature, thought the injury was a bacterial infection (which the doctor confirmed), and took B. for an examination with Kurtis's assistance and support.   Christopher only reentered the house once, used his own key to get in, took his belongings, and left.   When he came back the next time, he no longer had a key and they only opened the door, and Mother did not leave the children unattended.   Mother's counsel further contended that the day that Mother left the children alone, it was perfectly reasonable that she knew Kurtis was coming over to get Ian, so she would run across the street to get the neighbor to babysit the other two children.   She was within shouting distance, could see the house, and both children were asleep.   All Mother's needs could be addressed in a good individual counseling course, and both children should be left home with mother.

The court indicated that it found Kurtis credible and responsible.   Although the court understood Mother's initial denial, it commented that “there seems to be a disconnect or lack of remorse that I've seen, even though maybe she's the kind of person that internalizes instead of showing her emotion,” and noted Mother's defensiveness and constant excuses.   Although good parents might go across the street when a baby is sleeping, this is different because it involved a newborn baby, a severely handicapped child, and “the brother still lurking out there.”

The court declared B. a dependent under section 300 subdivisions (b) and (d), and Ian a dependent under subdivision (j).  Although there was a substantial danger under section 361, subdivision (c) if B. were left in Mother's care, there were reasonable means to protect B. without removing her from Mother's care, which included individual counseling for B. and Mother and parenting education for Mother.   Mother was to reside with Deborah or in some other DCFS-approved residence.   The court denied Kurtis request for full custody of Ian, and ordered Ian placed in the homes of parents, with Kurtis and Mother to have joint legal and physical custody.   The court ordered Mother and Kurtis to mediation to work out a visitation arrangement.   At a subsequent hearing on October 26, 2010, the court ordered that Ian be with Kurtis roughly half of the time.

DISCUSSION

Mother challenges the court's conclusion that jurisdiction over B. existed under section 300, subdivision (b) (“[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child․”)  Mother also challenges the court's conclusion that jurisdiction over Ian existed under subdivision (j) ( “[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions”).

I. Substantial evidence did not support jurisdiction under section 300, subdivision (b), over B.

Mother does not challenge the juvenile court's finding of jurisdiction over B. under section 300, subdivision (d) (“[t]he child has been sexually abused ․ by ․ a member of his or her household․”).  When (as here) a dependency petition alleges multiple grounds for asserting jurisdiction, we may affirm the juvenile court's finding of jurisdiction “if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence.   In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence.  [Citations.]”  (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.)   Because the unchallenged finding that B. was sexually abused by a member of the household is enough to sustain the court's exercise of jurisdiction, the sufficiency of the evidence supporting the failure to protect findings under subdivision (b) is technically moot.   (See ibid.)   Nevertheless, a reviewing court ordinarily will not dismiss as moot a challenge to a jurisdictional finding that could adversely affect a parent if, in the future, dependency proceedings are ever initiated or even contemplated.  (In re J.K. (2009) 174 Cal.App.4th 1426, 1431–1432.)   The finding that Mother failed to protect B. also served as a basis for the trial court's finding of jurisdiction over Ian under subdivision (j).  We therefore address Mother's contentions regarding the failure to protect allegations.

Mother argues that substantial evidence did not support the court's finding of jurisdiction over B. under section 300, subdivision (b).  The court sustained the amended allegation under subdivision (b) that B. “was sexually abused by the maternal uncle in May[ ] 2010, by placing a broom in the child's vagina.   After the mother knew or should have known of said sexual abuse, the mother failed to adequately protect the child, as follows:  (a) She failed to take immediate and appropriate action to seek proper medical attention [for] the child;  (b) She failed to take reasonable and appropriate action to report this abuse to law enforcement;  (c) She still allowed the maternal uncle to visit her home, with the children being present in the home;  (d) She left some of her children unattended in the home, without any responsible person present;  and (e) She has failed to take reasonable and appropriate action to seek age-appropriate therapy for [B.]. These actions (or inactions) by the mother, constitute[ ] a substantial risk that [B.] will suffer serious physical harm.   Additionally, [B.] has suffered serious physical harm, as described in D–1, infra.”   Under subdivision (d), the court sustained the allegation that B. “has been sexually abused, as defined in subdivision (b) of section 11165.1 of the Penal Code, by a member of the child's household, to wit, the maternal uncle, Christopher.”

A finding that a minor is a person described in section 300 must be supported by a preponderance of the evidence. (§ 355.)   We apply the substantial evidence test on appeal, and we affirm if the record shows “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion;  it is evidence which is reasonable in nature, credible, and of solid value.  [Citation.]”  (In re J.K., supra, 174 Cal.App.4th at p. 1433.)  “The substantial evidence standard is a difficult hurdle for an appellant․  ‘If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.’  [Citation.]  A reviewing court is in no position to judge the credibility of witnesses or reweigh the evidence, and therefore must resolve all evidentiary conflicts in favor of the juvenile court's findings.”  (D.M. v. Superior Court (2009) 173 Cal.App.4th 1117, 1128.)  “ ‘[A] trial court's determination will not be disturbed unless it exceeds the bounds of reason.  [Citation.]  ․ ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ”  (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393–1394.)   While substantial evidence may consist of inferences, such inferences must rest on the evidence;  inferences that are the result of speculation or conjecture cannot support a finding.   (In re James R. (2009) 176 Cal.App.4th 129, 135.)

“A jurisdictional finding under section 300, subdivision (b) requires:  ‘ “(1) neglectful conduct by the parent in one of the specified forms;  (2) causation;  and (3) ‘serious physical harm or illness' to the minor, or a ‘substantial risk’ of such harm or illness.”  [Citations.]  The third element ‘effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will reoccur).  [Citation.]  [¶] ․ Evidence of past conduct, without more, is insufficient to support a jurisdictional finding under section 300.   There must be some reason beyond mere speculation to believe the alleged conduct will recur.   [Citation.]’'  (In re James R., supra, 176 Cal.App.4th at pp.   135–136.)

A. Failure to seek prompt medical attention

Mother argues that substantial evidence does not support the conclusion that she failed to seek appropriately prompt medical attention for B. We agree.   Mother and Kurtis testified that they discovered the redness and bump on B.'s vaginal area in the evening of May 12, 2010 at around 9:00 p.m. or 10:00 p.m. Kurtis testified that he tried to wake B. up, and she did not respond, so he did not take B. to the hospital that night.   Mother testified that she believed it was a bacterial infection and did not suspect sexual abuse.   While DCFS argues that Mother should have taken B., then four years old, to the hospital that night, Kurtis agreed that he could not rouse B. and, lacking a suspicion of sexual abuse, did not feel immediate attention was required.   The court found Kurtis credible and responsible.   In the absence of a finding that Mother knew or should have known that B. had been sexually abused before B. disclosed it at the hospital,⁴ Mother cannot be found, on precisely the same evidence, to have failed to seek prompt medical attention.

B. Failure to take reasonable action to report the abuse to police

We also agree with Mother that substantial evidence does not support the conclusion that she failed to take reasonable action to report the sexual abuse to the police (and DCFS does not argue this point on appeal).   While Mother did not call the police at the emergency room, she called the police when she returned home, with some prompting by Kurtis, on the same evening that B. stated that Christopher had sexually abused her with a broomstick.   The trial court stated that it understood Mother's initial reaction of denial that Christopher had done such a “horrific” thing, and reporting the abuse to the police the same evening was reasonable.

C. Allowing Christopher to visit the home with the children present

DCFS does not argue that this ground for jurisdiction under subdivision (b) was supported by substantial evidence.   We agree with Mother that it is not.   The only time that Christopher was in the home was on May 18, after his release from custody.   Mother testified that Christopher still had a key and came by to pick up his clothing, and he would not listen to her so she called her aunt and her mother.   On May 24, Mother and Deborah told Christopher he could not come in from the front porch, and Deborah called the police.   Mother filed for a restraining order against Christopher regarding herself, B., and Bethany on May 20, 2010 and testified that she subsequently went to court and got a permanent restraining order that remained in effect at the time of the hearing on September 29, 2010.   Substantial evidence does not support the conclusion that Mother allowed Christopher to visit the home with the children present.

D. Leaving Bethany and Ian unattended in the home

DCFS argues that substantial evidence supports the conclusion that Mother's leaving Bethany and Ian unattended on one occasion while Mother was across the street presented a risk to B. at the time of the jurisdictional hearing, because Ian was only three weeks old and Bethany was severely disabled.   Mother admitted that she left the sleeping children to ask an elderly neighbor to babysit while she went to the store to buy supplies for Ian, and that it was a mistake.   Although DCFS argues that the court could disbelieve Mother and infer that she was gone longer than five minutes or that Mother left for a different reason, there is no evidence that Mother was gone longer than five minutes and no indication that the court drew such an inference.   In any event, an inference based on speculation or conjecture cannot constitute substantial evidence.  (In re James R., supra, 176 Cal.App.4th at p. 135.)   Further, Mother explained that Bethany now had nurses, so that someone is there to watch the children if she needs to leave briefly.   Mother's past conduct alone, without more, is not sufficient evidence to support a finding of jurisdiction.  “There must be some reason beyond mere speculation to believe the alleged conduct will recur.  [Citation.]”  (Id. at p. 136.)

E. Failure to take reasonable actions to get appropriate therapy for B.

DCFS does not argue that this finding was supported by substantial evidence, and again we agree that it is not.   Mother testified that at the end of May 2010 the social worker told her to get B. into therapy and gave Mother referrals.   Mother took B. to a clinic and was told there was a waiting list, and although Mother expected help from DCFS to get B. off the wait list, DCFS did not.   At the arraignment hearing on July 1, 2010, the court ordered DCFS to assess whether a sex abuse treatment program was appropriate for B., and the court ordered DCFS in August 2010 to arrange age-appropriate counseling for B. as soon as possible, but there is no indication in the record whether DCFS complied.   By the time of the jurisdictional hearing at the end of September, 2010, B. was in counseling and had completed her fourth session.   There was not sufficient evidence to support a finding that Mother failed to take reasonable actions to procure therapy for B. or that any failure presented a risk at the time of the jurisdictional hearing.

We conclude that substantial evidence did not support the trial court's finding of jurisdiction over B. under section 300, subdivision (b).

II. The jurisdictional finding over Ian under subdivision (j) must be reversed.

Mother also argues that substantial evidence does not support sustaining jurisdiction over Ian under subdivision (j).  The court sustained the amended allegation:  “The child Ian's sibling ( [B.B.] ) has been abused or neglected, as defined in subdivision (b) and (d), and there is a present substantial risk that the child Ian will be abused or neglected by any of the subdivisions enumerate[d] in ․ section 300(j).”  Subdivision (j) provides for jurisdiction when “[t]he child's sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.   The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”

We concluded above that substantial evidence did not support the trial court's finding of jurisdiction over B. under section 300, subdivision (b), which was the basis for the trial court's finding of jurisdiction over Ian under subdivision (j).⁵  We therefore reverse the jurisdictional finding as to Ian. As subdivision (j) was the only basis for jurisdiction over Ian, the dispositional orders and all subsequent orders as to Ian are moot.  (In re Ricardo L. (2003) 109 Cal.App.4th 552, 569.)

DISPOSITION

The jurisdictional order declaring B. a dependent of the court under Welfare and Institutions Code section 300, subdivision (b) is reversed.   The jurisdictional order declaring Ian a dependent of the court is reversed, and the dispositional order as to Ian is vacated as moot.   In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All subsequent statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FN2. Bethany's case involved her legal guardian, Deborah, and the disposition in Bethany's case is not before us on this appeal..  FN2. Bethany's case involved her legal guardian, Deborah, and the disposition in Bethany's case is not before us on this appeal.

FN3. The petition initially stated that Kurtis “knew of the mother's conduct and failed to protect the child,” but DCFS later found this allegation not to be true..  FN3. The petition initially stated that Kurtis “knew of the mother's conduct and failed to protect the child,” but DCFS later found this allegation not to be true.

FN4. DCFS does not argue that Mother's subsequent conduct showed a failure to seek prompt treatment, and the trial court stated that it had no problem with Mother's initial reaction of denial to B.'s statement that Christopher had sexually abused her.   Nor does DCFS argue that Mother knew or should have known of B.'s injury before the night of May 12..  FN4. DCFS does not argue that Mother's subsequent conduct showed a failure to seek prompt treatment, and the trial court stated that it had no problem with Mother's initial reaction of denial to B.'s statement that Christopher had sexually abused her.   Nor does DCFS argue that Mother knew or should have known of B.'s injury before the night of May 12.

FN5. The only remaining basis for jurisdiction over Ian's sibling, B., is subdivision (d) (sexual abuse by Christopher), and the court made no finding (and DCFS does not argue) that Ian faced a present substantial risk of sexual abuse by Christopher so as to support jurisdiction over Ian under subdivision (j)..  FN5. The only remaining basis for jurisdiction over Ian's sibling, B., is subdivision (d) (sexual abuse by Christopher), and the court made no finding (and DCFS does not argue) that Ian faced a present substantial risk of sexual abuse by Christopher so as to support jurisdiction over Ian under subdivision (j).

MALLANO, P. J. CHANEY, J.