Guns and Small Children Do Not Mix Well

On February 9, 2017, Father [F] was arrested for carrying a loaded firearm in public. Twelve days later, the Los Angeles County Department of Child and Family Services [DCFS] received an anonymous tip stating that police had found a loaded rifle, bulletproof vest, gun parts, and ammunition on the floor in a closet in F’s two-year-old daughter’s [D] bedroom. The closet had no door, only a curtain that did not reach the floor. DCFS later discovered that F was a member of a street gang.

At the time of F’s arrest, he was living with D and her Mother [M].

While he was still in jail awaiting trial on weapons charges, a DCFS social worker interviewed M. M stated that she did not know about any weapons in their house and she had never seen any weapons around D. M also told the social worker that she and F had broken up and he was not allowed in her home.

The social worker also interviewed F while he was still in jail. He told her that he carried a gun for protection because he had been shot in 2010. He also told he that if allowed to see D again, he would either not have weapons, or lock them up so D would not have access to them.

By the time of juvenile hearing to determine whether D should go into protective care, F had been released from jail and was spending numerous nights at M’s home with M and D. DCFS argued that D should be placed in foster care because of M’s failure to take F’s weapons case seriously.

The juvenile court noted that some of DCFS’s concerns were speculative, but declared D a dependent of the court, “…and (1) removed her from F’s custody, (2) placed her with M, (3) ordered M to receive family maintenance services, and (4) ordered F’s visits to remain monitored.”

M appealed contending the juvenile court’s findings of substantial risk of future harm because of the prior presence of a gun and ammunition were not supported by substantial evidence. The Appellate Court agreed with M:

“The three elements for jurisdiction under California Welfare and Institutions Code section 300, subdivision (b) are: (1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) serious physical harm or illness to the [child], or a substantial risk of such harm or illness. The third element, however, 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).” (Emphasis added)

Because F no longer possessed a weapon, and M was monitoring F’s behavior around D, the trial court was wrong to determine that D was in substantial risk of serious physical harm.

Categories: Child Custody, Family Law
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