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
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.