In re Yolanda L.

Filed 1/24/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re YOLANDA L. et al., B271130
Persons Coming Under the
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK13635)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JUAN G.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County. Marilyn Martinez, Commissioner. Affirmed.
Landon Villavaso, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel and Jacklyn K. Louie, Deputy County
Counsel for Plaintiff and Respondent.
_____________________________
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 mother.1 Father contends: (1) the jurisdiction order
was not supported by sufficient evidence and (2) the removal
order was “not authorized by statute.” We affirm.
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
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 pulled over by the task force, which
found three pounds of crystal methamphetamine in the truck.
Father told Detective Steve Anderson that there was a gun in a
bag in a hall closet at the family home. During a search of the
family home that day, Detective Anderson found a black nylon
1 All future statutory references are to the Welfare and
Institutions Code.
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bag in a closet in a hall between the kitchen and the bedrooms;
the bag contained a loaded 9-millimeter semi-automatic
handgun, extra magazines and loose ammunition; the gun bag‟s
location on the third shelf from the bottom, about four feet up
from the ground, was accessible to the children. Also during the
search, a police dog “alerted” to a living room couch but “further
investigation yielded negative results.” Law enforcement
referred the matter to DCFS for a felony child endangerment
investigation and DEA agents accompanied a DCFS social worker
to the family home that same day.
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
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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 officers load the gun). Mother was not sure about
the future of her relationship with father. She agreed that she
would not allow father to live with the family if DCFS believes it
would not be appropriate. Father told the social worker that he
did not know about the methamphetamine found in his car;
father thought he was transporting painting supplies for a friend.
In any case, because the drugs were never in the house, father
believed his possession of those drugs never jeopardized the
children‟s safety. Father did not think the gun was loaded.
Father did not appear at the jurisdiction hearing on
February 22, 2016.2 The juvenile court admitted into evidence
2 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
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the Detention Report, the Jurisdiction/Disposition Report and a
Last Minute Information For Court Officer dated January 13,
2016, which does not appear to be in the appellate record. There
was no live testimony and father, through his appointed counsel,
submitted on the petition. The trial court sustained an amended
petition which based section 300, subdivision (b) dependency
jurisdiction on the following grounds:
“[Father] created a detrimental and endangering home
environment for the children in that a loaded handgun was found
in the children‟s home within access of the children. On
09/29/2015, the children‟s father possessed three pounds of
methamphetamine in the family vehicle. Such a detrimental and
endangering home environment established for the children by
the father endangers the children‟s serious physical health,
safety and well being and places the children at risk of physical
and emotional harm.”
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
methamphetamines were recovered from father‟s car. Father
admitted to being involved in other narcotics transactions, and
hearing. When father did not appear 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 appear on February 22. On
appeal, father does not challenge the order denying a
continuance.
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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 to dependency jurisdiction – father
engaging in criminal activity and not properly storing items.
Since jurisdiction was not based on any drug use, father argued
the drug testing condition was inappropriate. DCFS countered
that a drug testing condition was reasonable because the criminal
activity in which father was engaged was possession and
transportation of large amounts of illegal narcotics. The juvenile
court found by clear and convincing evidence that there was a
substantial danger to the children and no reasonable means to
protect them other than removal from father‟s custody; it ordered
the children removed only from father and remain placed with
mother with family maintenance services. Father was ordered to
participate in random, on-demand drug testing; if father missed a
test or tested “dirty,” he would have to participate in full drug
rehab program with random testing. In addition, father was
ordered to participate in a parenting program and individual
counseling to “address case issues.” Father was given monitored
visits. Father timely appealed.
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
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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) 207 Cal.App.4th 94, 103, 105; see also In re D.C.
(2015) 243 Cal.App.4th 41, 51, 54.)
On appeal, we review both the jurisdictional and
dispositional orders for substantial evidence. (In re D.C., supra,
243 Cal.App.4th at p. 55.) In doing so, we view the record in the
light most favorable to the juvenile court‟s determinations,
drawing all reasonable inferences from the evidence to support
the juvenile court‟s findings and orders. Issues of fact and
credibility are the province of the juvenile court and we neither
reweigh the evidence nor exercise our independent judgment. (In
re I.J. (2013) 56 Cal.4th 766, 773.) But substantial evidence “is
not synonymous with any evidence. [Citations.] A decision
supported by a mere scintilla of evidence need not be affirmed on
appeal. [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.‟ [Citation.]” (In re Savannah M. (2005)
131 Cal.App.4th 1387, 1393-1394, italics omitted.)
B. Jurisdiction
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
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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. (Emphasis in original).
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. (In re Cole Y. (2015) 233 Cal.App.4th 1444, 1452.)
When the jurisdictional allegations are based solely on risk to the
child, that risk must be shown to exist at the time of the
jurisdiction finding. (In re J.K. (2009) 174 Cal.App.4th 1426,
1435.) The juvenile court need not wait until a child is seriously
injured to assume jurisdiction if there is evidence that the child is
at risk of future harm from the parent‟s negligent conduct. (In re
N.M. (2011) 197 Cal.App.4th 159, 165.)
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) 181 Cal.App.4th 1010 [jurisdiction could not be based
on single incident of driving under the influence where there was
no evidence that parents had ongoing substance abuse issues].)
But evidence of past conduct may be probative of current
conditions. (In re James R. (2009) 176 Cal.App.4th 129, 135–
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136.) To establish a defined risk of harm at the time of the
hearing, there “must be some reason beyond mere speculation to
believe the alleged conduct will recur. [Citation.]” (Id. at p. 136.)
Leaving drugs or drug paraphernalia within the child‟s reach is
an example of negligent conduct that will support section 300,
subdivision (b) dependency jurisdiction. (In re Kristin H. (1996)
46 Cal.App.4th 1635, 1651 (Kristin H.) [drug paraphernalia]; In
re Rocco M. (1991) 1 Cal.App.4th 814, 825 (Rocco M.) [“allowing
access to drugs, with nothing to prevent [child] from succumbing
to the temptation to ingest them”].)
Here, section 300, subdivision (b) dependency jurisdiction
was based on two forms of neglectful conduct by father:
(1) storing a loaded handgun in a location that was accessible to
the children and (2) possessing the three pounds of
methamphetamine found in his car. Both forms of neglectful
conduct put the children at substantial risk of suffering serious
physical harm. And although the conduct was discovered on
September 29, 2015, there was substantial evidence from which
the juvenile court could infer that the conduct was likely to recur
and did not represent a momentary lapse in judgment.
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
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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 improperly stored, loaded firearm. It
takes little to persuade us that a young child with access to a
loaded gun is at substantial risk of serious physical harm.
Our conclusion is supported by analogous case law
involving a child‟s access to drugs. In Rocco M., supra,
1 Cal.App.4th 814, an 11-year-old child testified at a
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jurisdictional hearing that he had found illegal drugs and
paraphernalia in the bathroom of his home. (Id. at p. 817.) The
court held that, as matter of law, a child‟s ingestion of illegal
drugs constitutes “serious physical harm” for purposes of section
300. (Id. at p. 825.) The court further concluded that evidence
mother left the drugs in a location where they were available to
the child supported the finding the child was exposed to a
substantial risk of serious physical harm. (Ibid.; see also
Kristin H., supra, 46 Cal.App.4th at p. 1651 [“leaving drug
paraphernalia within [the child‟s] reach, indicated a gross lack of
attention to the child‟s welfare”].)
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. (In re Kristin H., supra, 46 Cal.App.4th at
p. 1651.)
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) 49 A.D.3d 876, the mother
appealed from the trial court‟s finding she neglected her children.
The appellate court affirmed, finding “the evidence . . . was
sufficient to prove that the mother left a loaded gun on a bed
accessible to her then three-year-old son and next to her then
five-month-old daughter who was in a crib, thereby creating an
imminent danger that their physical, mental, and emotional
health would be harmed. [Citation.]” (Ibid.; see also Matter of
Ninoshka M. (N.Y. App. Div. 2015) 125 A.D.3d 567 [parental
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neglect supported by evidence parent “was storing illegal guns in
the home where the children . . . had access to them.”]; Matter of
Kevin N. (N.Y. App. Div. 2014) 113 A.D.3d 524 [finding of
parental neglect supported by evidence the father kept “a loaded
semi-automatic gun . . . in a plastic bin near where the child
slept”]; Matter of Leah M. (N.Y. App. Div. 2011) 81 A.D.3d 434[finding of parental neglect supported by evidence that “gun and
ammunition [ ] were within reach of the children” in the family
home].)
Other jurisdictions have reached the same conclusion. (See
In re K.T. (Ohio Ct. App., Aug. 31, 2015, No. 2014–L–134) 2015
WL 5096005, *4 [finding dependent children at risk where they
had “access to guns”]; In re De. S. (D.C. 2006) 894 A.2d 448, 452
[finding of parental neglect supported by evidence “there was a
weapon and ammunition, unsecured” in the child‟s home];
Richmond v. Department of Health and Rehabilitative Services
(Fla. Dist. Ct. App. 1995) 658 So.2d 176, 177 [affirming an
adjudication of dependency where mother “le[ft] a loaded
handgun near [the child]” thereby “endanger[ing]” the child].)
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
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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) 11 Cal.4th 354, 367; see also People v. Bland (1995)
10 Cal.4th 991, 1005 [“Drug dealers are known to keep guns to
protect not only themselves, but also their drugs and drug
proceeds; ready access to a gun is often crucial to a drug dealer‟s
commercial success”].) In addition, father‟s lack of insight into
the danger posed by the loaded gun in the home provided support
for the potential of future risk. (See In re Gabriel K. (2012)
203 Cal.App.4th 188, 197 [“One cannot correct a problem one fails
to acknowledge.”].)
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 three 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
identical argument was recently rejected in In re Michael S.
(2016) 3 Cal.App.5th 977 (Michael S.). We find the reasoning of
that case persuasive and adopt it here.
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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 non-offending 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 “[s]ection 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, 3 Cal.App.5th at p. 984.) “By its language,
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section 361 appears to contemplate removal from one parent only.
While that section is somewhat inconsistent in its use of the
singular and plural, it does refer in places to the possibility of
removal from only one parent.” (Ibid.) “[I]f only one parent
engages in the conduct underlying a dependency petition, the
juvenile court might conclude that it is appropriate to remove the
child only from the offending parent and allow the child to
remain in the other parent's custody.” (Id. at p. 985.)
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.
Father‟s reliance on In re Damonte A. (1997)
57 Cal.App.4th 894, In re Andres G. (1998) 64 Cal.App.4th 476and In re N.S. (2002) 97 Cal.App.4th 167, for a contrary result is
misplaced. As the Michael S. court explained, those cases “do not
hold that a child may never be removed from only one custodial
parent. Rather, those cases held that the statutory scheme does
not permit removing a child from a parent and then immediately
returning that child to the same parent.” (Id. at p. 986, italics
added.) Damonte A., Andres G. and N.S. are inapposite because
in this case, Yolanda and Javier were never removed from mother
and were not returned to father.
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DISPOSITION
The jurisdiction and disposition orders are affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
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