Opinion
Siblings Yolanda L. and Javier L. were declared dependent children pursuant to Welfare and Institutions Code section 300, subdivision (b), removed from appellant Juan G. (father) and placed with the mother (mother).
FACTUAL AND PROCEDURAL BACKGROUND
In September 2015, four-year-old Yolanda and six-month-old Javier lived with mother and father in Montebello. Mother worked as a teacher in the Montebello school district. Father was a licensed security guard and had a permit to carry an exposed firearm, but he had been unemployed for several years and was the children’s primary caretaker. Unbeknownst to the family, father was the subject of a narcotics investigation by a multi-agency task force including the Drug Enforcement Agency (DEA). That investigation brought the family to the attention of the Los Angeles County Department of Children and Family Services (DCFS) on September 29, 2015. That morning, the family home was under surveillance by a task force team with a search warrant already in their possession. The team observed three vehicles registered to that location, including a Ford F-150 truck, parked in the driveway. Father was observed leaving the house, getting into the Ford truck and driving away. Father was on the northbound 605 Freeway when he was
When the social worker arrived, the younger child, Javier, was inside the home in the care of paternal grandmother, who was visiting from Mexico. Father was being detained in a car parked in front of the house. Father admitted participating in a narcotics transaction but told the social worker that mother had no knowledge of his illegal activities. Father said this was the second time he had picked up a box containing illegal narcotics in exchange for $100. The social worker was still at the family home when mother arrived with daughter Yolanda. Mother said she had been told that father was under arrest for being in possession of illegal narcotics; mother did not use drugs and had never seen any illegal drugs at the house. Mother agreed to immediately relocate with the children to somewhere safe and to cooperate with DCFS. After discussing the matter with the law enforcement officers at the scene, the social worker concluded that mother did not know about father’s illegal activities. The children were taken into protective custody and released to mother.
At the detention hearing on October 2, 2015, father was declared the children’s presumed father. The juvenile court found a prima facie case of section 300, subdivision (b) dependency jurisdiction had been established based on father’s arrest for methamphetamine possession and the discovery of the loaded handgun in the hall closet, and that removal was the only reasonable means to protect the children. The children were released to mother and a jurisdiction hearing was set for November 2015. That hearing was continued, eventually to February 22, 2016.
According to the jurisdiction/disposition report, mother and the children were living with maternal grandparents and the children were doing well. Mother told the social worker she never suspected father was involved in drug trafficking. She knew father owned a gun but father told her it was in a lock box; she did not know it was in the hall closet or that it was loaded (mother said that paternal grandmother told mother she observed police
Father did not appear at the jurisdiction hearing on February 22, 2016.
The juvenile court explained that storing a loaded handgun “in a hallway closet on a low shelf accessible to the children in the residence” posed “an enormous risk to children, and these are young children who, just by their sheer curiosity at their age level, are placed at great risk. [¶] Furthermore, the house was being observed by law enforcement, and three pounds of metham-phetamines were recovered from father’s car. Father admitted to being involved in other narcotics transactions, and his activities with such an enormous amount of methamphetamines and all of the paraphernalia that was located makes father’s activities and conduct inherently dangerous. [¶] And, therefore, the children are persons described by Welfare and Institutions Code section 300, subdivision (b).”
Regarding disposition, father objected to any drug testing condition. He argued the case plan should be narrowly tailored to address the issues that led
DISCUSSION
A. Standard of Review
At the first stage of dependency proceedings, the juvenile court determines whether the child is subject to juvenile court jurisdiction; DCFS has the burden to prove jurisdiction by a preponderance of the evidence. (§ 355, subd. (a).) At the second stage, the juvenile court must decide where the child will live while under juvenile court supervision; to support removal from parental custody, DCFS has the burden to prove by clear and convincing evidence that there is a risk of substantial harm to the child if returned home and the lack of reasonable means short of removal to protect the child’s safety. (§ 361, subd. (c); In re Lana S. (2012)
On appeal, we review both the jurisdictional and dispositional orders for substantial evidence. (In re D.C., supra,
Father contends the jurisdiction order is not supported by sufficient evidence. He argues the evidence of three pounds of methamphetamine found in his car and a loaded handgun found stored in a location at the family home that was accessible to the children, was not sufficient to establish that the children were at any risk of harm at the time of the jurisdiction hearing five months later. According to father, “Protecting the children from potential criminal acts of retaliation is a function of law enforcement—not the function of’ DCFS. (Original underscoring.) Father is incorrect.
The section 300 circumstance that supports dependency jurisdiction relevant here is when “[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 [the] parent to adequately supervise or protect the child . . . .” (§ 300, subd. (b)(1).) The three elements of a jurisdictional finding under section 300, subdivision (b)(1) are (1) neglectful conduct by the parent; (2) causation; and (3) “serious physical harm or illness” or a “substantial risk” of serious physical harm or illness. (See In re Cole Y. (2015)
A section 300, subdivision (b) jurisdictional finding may not be based on a single episode of endangering conduct in the absence of evidence that such conduct is likely to reoccur. (In re J.N. (2010)
1. The methamphetamine
It is undisputed that father’s possession of methamphetamine on September 29th was not an isolated event. It was at least the second time father had transported illegal narcotics. The evidence that father was involved in drug trafficking was strong: he was the subject of a drug trafficking investigation by a multi-agency task force, a large amount of narcotics was found in his possession on September 29th, he admitted he had engaged in similar conduct at least once before, his loaded gun was stored in a hall closet in the family home, and a police dog “alerted” to a couch in the living room. The juvenile court could reasonably conclude father was more deeply involved in drug trafficking than he acknowledged to the social worker. This evidence also supported the finding that the conduct was likely to recur, and was thus sufficient to support section 300, subdivision (b) dependency jurisdiction based on such conduct.
We are not persuaded by father’s argument that there was no evidence his drug trafficking activities put the children at any risk of harm because they had not been exposed to the narcotics found in his truck. The truck was one of three vehicles registered at the family home. Even assuming only father used the truck, it was undisputed that he was the children’s primary caretaker. Under these circumstances, it was reasonable for the juvenile court to infer that father’s use of the truck to engage in large-scale drug trafficking exposed the children to a risk of harm because they were sometimes in the truck. Further, from the evidence that father stored a loaded gun in an easily accessible location in the family home, and a police dog “alerted” to a couch in the living room, the juvenile court could reasonably conclude that father’s drug trafficking activities did not occur only in the truck, but sometimes in the family home.
2. The loaded gun
Our independent research has found no published case, and the parties cite to none, discussing dependency jurisdiction based on a child’s access to an
Our conclusion is supported by analogous case law involving a child’s access to drugs. In Rocco M., supra,
By analogy to the drug access cases, we hold that section 300, subdivision (b) dependency jurisdiction may be based on evidence that the parent stored a loaded gun in such a manner that it could be accessed by a child. Such conduct indicates “a gross lack of attention to the child’s welfare” with potentially greater repercussions than leaving drugs and paraphernalia within a child’s reach. (Kristin H., supra,
New York courts have held that a parent endangers a child by leaving a firearm within reach of a child. In the Matter of Tajani B. (N.Y.App.Div. 2008)
Other jurisdictions have reached the same conclusion. (See In re K.T. (Ohio Ct.App., Aug. 31, 2015, No. 2014-L-134)
We reject father’s argument that the gun did not present a risk of harm to the children because (1) it was in a bag and would therefore not arouse the children’s curiosity, and (2) the children were too small to reach the gun. Concealing an item in a bag would not deter a normal four-year-old from seeking to find out the contents of that bag. In addition, the average four-year-old can reach a shelf that is only four feet from the floor, and is capable of scooting a chair over and climbing up on it to reach items placed up high.
Nor are we persuaded by father’s argument that the children were not at future risk from guns because law enforcement had removed his handgun from the home. Firearms are “ ‘ “ ‘tools of the trade’ ” ’ ” in the “ ‘ “narcotics business,” ’ ” and, as stated above, the evidence supported the trial court’s finding that father’s drug trafficking activity was likely to reoccur. (People v. Glaser (1995)
On this record, the evidence was sufficient to support dependency jurisdiction based on such conduct.
C. Disposition
Father contends the juvenile court “erred when it made a removal order from [father] while allowing the non-offending mother ... to retain custody of the children with a plan that demonstrates she is able to protect.” The gist of his argument is that when both parents are custodial when the petition is initiated, removal from the offending parent and placement with the non-offending parent violates section 361, subdivision (c)(1) because removal is not necessary to protect the child; under the statute, placement with the non-offending custodial parent is a reasonable alternative to removal. The
In all cases in which a child has been adjudged a dependent child within the meaning of section 300, the juvenile court “may limit the control to be exercised over the dependent child by any parent” but only to the extent necessary to protect the child. (§ 361, subd. (a)(1).) “A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence” that there “is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s physical health can be protected without removing the minor from the minor’s parent’s or guardian’s physical custody. . . . The court shall consider, as a reasonable means to protect the minor, each of the following: [¶] (A) The option of removing an offending parent or guardian from the home. [¶] (B) Allowing a nonoffending parent... to retain physical custody as long as that parent. . . presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.” (§ 361, subd. (c)(1).)
In Michael S., our colleagues in Division One explained that “[slection 361, subdivision (c)(1)(A) clearly requires the court to consider the ‘option’ of removing an offending parent from the home as a possible alternative to removal of the child from the parent. However, that subdivision does not state that the option of removing a parent from the home will necessarily be sufficient to protect the child in all cases even if ordered. It does not, by its terms, preclude the possibility of ordering both removal of the parent from the home and removal of the child from the parent.” (Michael S., supra,
Under Michael S., the juvenile court in this case could reasonably conclude that it was appropriate to remove Yolanda and Javier only from father and allow them to remain with mother. There was substantial evidence that mother was unaware of father’s negligent conduct until September 29th, and once made aware of it, was committed to doing what was necessary to protect the children from such conduct in the future.
DISPOSITION
The jurisdiction and disposition orders are affirmed.
Notes
All future statutory references are to the Welfare and Institutions Code.
Father, still in custody, appeared on January 13, 2016, when the jurisdiction hearing was continued to February 22, 2016; father answered affirmatively when asked whether he understood that he was ordered to appear at the continued healing. When father did not appeal' on February 22, his attorney asked for a continuance so that he could contact father, who had apparently been released from custody. The juvenile court denied the request, noting that father had been present on January 13, when he was ordered to appeal' on February 22. On appeal, father does not challenge the order denying a continuance.