Filed 8/31/17; Certified for Publication 9/13/17 (order attached)
Received for posting on 9/20/17




        IN THE COURT OF APPEAL OF THE STATE OF
                      CALIFORNIA

                     SECOND APPELLATE DISTRICT

                                    DIVISION ONE


In re C.V., a Person Coming Under                                   B278331
the Juvenile Court Law.                                             (Los Angeles County
                                                                    Super. Ct. No. DK18967)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JAZMIN V. et al.,

         Defendants and Appellants.


     APPEAL from an order of the Superior Court of Los
Angeles County, Philip L. Soto, Judge. Reversed.
      Roni Keller, under appointment by the Court of
Appeal, for Defendant and Appellant Jazmin V.
      Suzanne Davidson, under appointment by the Court of
Appeal, for Defendant and Appellant Richard V.
      Mary C. Wickham, County Counsel, R. Keith Davis,
Assistant County Counsel, and Kim Nemoy, Principal
Deputy County Counsel, for Plaintiff and Respondent.
                     ——————————
      Jazmin V. (mother) and Richard V. (father) appeal
from the disposition order of the juvenile court finding
jurisdiction over C.V. We reverse.
      A petition filed August 26, 2016 alleged that under
Welfare and Institutions Code section 300, subdivision (b),1
father and mother failed to protect then three-month-old
C.V. and put him in danger of harm “in that a rifle and
ammunition were found in the child’s home within access of
the child.” Mother knew father possessed the firearm and
ammunition in the home, and father had a criminal history
involving firearms and had been arrested for felon in
possession.
      When the social worker responded to an immediate
response referral at mother’s home (the home of the
maternal grandparents) on August 16, a deputy informed
her that father had been arrested for violation of probation
and would be in custody for a “ ‘good amount of time.’ ” Law


     1All further statutory references are to the Welfare
and Institutions Code.




                             2
enforcement had confiscated a bag containing a .22-caliber
rifle and live ammunition, which they found next to the bed
in mother’s bedroom, where mother and father slept with
C.V. There were no additional concerns regarding abuse or
neglect by mother.
       Mother told the social worker that father did not live
with her but spent the night once or twice a week. She knew
father was a gang member, and recently learned father had
been unfaithful. The day before mother had told him to
leave, but he refused; she also knew about the rifle and had
asked father to get rid of it. Mother signed a safety plan
stating she would not allow father onto the premises, and an
affidavit stating she would not have any weapons in the
home, which was otherwise free from hazards. D.V. showed
no signs of neglect or abuse. Mother understood the hazards
of sleeping with the baby and promised to obtain a crib.
       The police report stated that Father was detained and
arrested while running out of the back of the house. When
the deputies opened a backpack “wedged in between the
mattress on the floor and the south wall” of the bedroom
where mother and father slept with C.V., they found a rifle
in working condition with a sawed-off barrel and stock, a box
of ammunition, and a magazine with seven live rounds.
Father told the deputies he bought the rifle from a homeless
man and sawed off the barrel and stock the day before. He
needed the gun because he was a member of the Pomona
“12th Street Sharkies,” was covered with gang tattoos, and
did not get along with gang members in Los Angeles.




                              3
Mother told the deputies that she knew nothing about the
rifle or the ammunition, and promised she would not allow
father in the home when he was released. She agreed
father’s items should be removed from the home.
       The social worker believed further supervision was
necessary as “[a]ll the items located in the home were in
complete and unlimited access to the children in the home.
Additionally, the father is an active gang member who
reported that he does not get along with gang members in
the Los Angeles area and exposing his family to danger and
retaliation by rival gang members. Living under the care of
father can be categorized as ‘Very High’ for future risk of
general neglect.”
       An addendum report recommended that C.V. be
detained in mother’s custody with monitored visits for
father, and that mother and father participate in individual
and family counseling, parenting classes, and substance
abuse rehabilitation programs.
       At the detention hearing on August 26, 2016, the court
detained C.V. in mother’s custody, found father was the
presumed father, and ordered Department of Children and
Family Services (DCFS) to assess visits for father while in
custody, with monitored visits for father once released.
       In the October 5, 2016 jurisdiction and disposition
report, mother stated that when father visited she had
trouble sleeping, “ ‘scared that someone would come and
shoot or go through the window.’ ” She allowed him to visit
because it was the only time he could see C.V., and he told




                              4
her he would try to do better and would have his face tattoos
removed. The night before father was arrested he showed
her the gun outside, and told her it belonged to friends.
Mother told him she didn’t want the gun in the house and
she wanted him to “go back where he had come from,” and
Father said he would leave in the morning. She did not
know the gun was next to the bed. If father showed up again
she would tell him to leave.
      Father, interviewed in custody, said he had recently
bought the gun from a homeless man and planned to sell it,
denying that he and mother fought about it. He was a gang
member and “ ‘on the run from probation.’ ” Although he
had considered getting his face tattoos removed, he was
afraid that if he went in they would report him. He loved his
son and before his arrest he had gone back and forth
between mother’s home and his sister’s house, where he
planned to stay after his release.
      The report concluded that mother failed to protect C.V.
from father’s criminal activity, and “although the mother
may not have been aware [of] the gun she lied to law
enforcement stating that father was not at the residence.”
Father’s gang activity made mother fearful when he stayed
at the home. Mother continued to live with her parents,
which provided some protection for C.V. DCFS
recommended that the court sustain the petition, provide
family maintenance services for mother and family
reunification for father, monitored visitation for father, and
parent education and counseling for both parents.




                              5
      Mother and father were present at the jurisdiction
hearing on October 5, 2015. Counsel for DCFS and for C.V.
submitted on the recommendations in the report. Father’s
counsel stipulated that he had been convicted and sentenced
to 32 months.
      Father’s counsel asked the court to dismiss the case.
Father was under a 32-month sentence and did not pose a
risk to C.V., who was safe with mother. C.V. was only five
months old and could not access, and was not endangered by,
the rifle or ammunition. Father did not live with mother,
and she did not know where the rifle and ammunition were.
“I don’t believe that every time there’s a criminal case we
need a correlating dependency case.” Mother’s counsel
agreed. No drugs were in the home. Father was simply in
violation of probation, the police found a gun, and he had
been convicted. The gun was not within C.V.’s access, and
there was no current risk to C.V.
      The court asked, “Is she willing to give up on this man
or is he willing to give up on this child? Is she willing to
have me consider a permanent restraining order for five
years so he stays away from her and the child?” Mother’s
counsel explained that because father was in custody she
had not discussed a restraining order with mother, who had
told father he could not be in the home. The court continued,
“But it’s not just that. It’s his whole criminality, his
background, his lack of stability, his bringing—putting this
child in a position where this child can be put at risk even if
he does not come back with a gun.” Although father would




                              6
be in jail for 32 months, the court insisted on a five-year
restraining order before it would consider closing the matter:
“[Y]ou can train somebody not to use drugs. You can’t train
someone not to have a gun. Either they are going to have a
gun, or they are not going to have a gun.” Guns would be
prohibited by a restraining order, and “[t]his court will not
close this case unless I know that this mother and the child
are protected.”
      Father’s counsel protested that there was not enough
evidence for a restraining order, as there had been no
domestic violence, the only issue was father’s possession of
the firearm, and he had been sentenced to almost three
years imprisonment, which was typically the longest period
for restraining orders in juvenile court. Mother’s counsel
stated that mother would not request a restraining order
because father had been trying to straighten out his life and
she did not feel he was a danger to her: “He made a mistake
and tried to make money by selling the gun.”
      The court stated that Father had violated the
probation condition that he not possess a firearm, and no
programs could keep him from having an illegal weapon.
Because father was not supposed to have the gun, “I can’t
trust him. Frankly, I can’t trust the mom really if she
believes this kind of thing. [¶] It sounds to me like as soon
as he gets out, he’s going to be right back in this house with
this baby, and we are very likely going to have a situation
where he’s going to bring some criminality into the house
that puts the child at risk again.” The court sustained the




                              7
petition as to both mother and father, and released C.V. to
mother, warning her not to let father visit: “We are going to
be doing unannounced home visits. If they find him there,
the first thing they will do is take the child away. If they
can’t find a relative or a family friend to give the child to,
then it’s going to go into foster care.” Mother and father
both stated that they understood that father was not to go to
mother’s home. Father’s counsel asked for visitation in the
visitation room at the place of incarceration, and the
department objected that C.V. was very young. The court
ordered monitored visits after father’s release with a
neutral monitor at a neutral location, and mother could take
C.V. to visit father in custody “if the incarcerating facility
allows for visits with the child as young as this child.” The
court ordered mother to complete parenting classes and
individual counseling, and mother’s counsel objected because
mother’s parenting was not in issue. The court ordered
father to complete parenting classes, and individual
counseling after his release. Over objection of father’s
counsel, the court also ordered father to comply with all
terms and condition of probation and stay 300 yards away
from mother and C.V. except during authorized visits.
      Father and mother filed timely appeals.
                         DISCUSSION
      At the request of DCFS, we took judicial notice of a
May 2, 2017, juvenile court order terminating jurisdiction,
and a family law order awarding sole physical custody of
C.V. to mother and joint legal custody to father, who




                              8
continued in custody. DCFS urges us to dismiss this appeal
as moot. We agree with mother and father, however, that
the juvenile court’s finding of jurisdiction over C.V. creates
the possibility of prejudice to both mother and father in
subsequent family law or dependency proceedings, and “in
an abundance of caution and because dismissal of the appeal
operates as an affirmance of the underlying judgment or
order [citations], we consider the merits of [the] appeal.” (In
re C.C. (2009) 172 Cal.App.4th 1481, 1488.) The motion to
dismiss is denied.
      To review mother and father’s claim that the juvenile
court’s finding of jurisdiction is not supported by substantial
evidence, we review the entire record, drawing all reasonable
inferences to support the findings and orders of the juvenile
court, construing the record in the light most favorable to
the court’s determinations, and acknowledging that factual
and credibility issues are the trial court’s province. (In re
Heather A. (1996) 52 Cal.App.4th 183, 193.) Even this
deferential review shows that no evidence of a sufficiently
substantial nature supported the jurisdictional finding.
      A juvenile court may find jurisdiction under
section 300, subdivision (b)(1) where “[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.” (§ 300,
subd. (b)(1).) Jurisdiction under subdivision (b) is warranted
when the evidence supports (1) neglect by the parent,




                              9
(2) causation, and (3) serious physical harm or illness, or a
substantial risk of such serious harm. (In re Yolanda L.
(2017) 7 Cal.App.5th 987, 993 (Yolanda L.).) “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.” (Ibid.) Jurisdiction “may not be based
on a single episode of endangering conduct in the absence of
evidence that such conduct is likely to reoccur.” (Ibid.)
      Citing cases from other jurisdictions finding child
endangerment when parents left loaded guns within the
reach of children, Yolanda L., supra, 7 Cal.App.5th 987
found as a matter of first impression 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.” (Id. at p. 995.)
Division Eight of this district rejected father’s argument that
a loaded handgun did not present a risk of harm to the two
children, then four years old and six months old, because the
loaded gun was in a bag and on a closet shelf four feet from
the floor: “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.” (Id. at p. 996.)
      The facts in this case are quite different. First, the
shotgun found in a backpack wedged between the mattress
and the bedroom wall was not loaded. Second, C.V., the only




                              10
child in the household, was three months old when the police
found the gun. Even an above-average three month old
would be incapable of reaching the backpack or opening it to
find the unloaded gun. Given his age, C.V. cannot be said to
have had access to the unloaded shotgun in the backpack.
No substantial evidence exists that at three months, C.V.
was at substantial risk of serious harm from an unloaded
firearm inside a backpack wedged between the bed and the
wall.
      Further, even had C.V. been at risk, no such risk
existed at the time of the jurisdictional hearing, when C.V.
was five months old. Father had recently been sentenced to
32 months imprisonment,2 removing any possibility he
would return to mother’s home so as to put C.V. at
substantial risk of harm. Further, mother had been ordered,
and had promised, not to allow father in the home after his
release.
      DCFS cites a potential risk of “police raids, gang
retaliation, shoot-outs in the home,” based on father’s
admitted gang membership and his possession of the



     2 The jurisdiction/disposition report stated that on
September 26, 2016, a sheriff’s deputy told the social worker
that the case was rejected by the court and father was
scheduled for release on November 7, 2016. However, the
parties stipulated at the October 5, 2016 hearing that father
had been sentenced to 32 months, and father was still
incarcerated in May 2017 when jurisdiction was terminated.




                             11
firearm. Again, these risks are not supported by substantial
evidence, given that there was no evidence of any such past
events and at the time of the jurisdiction hearing father had
just been sentenced to 32 months incarceration. Further,
DCFS does not argue that evidence that one parent is a gang
member, without more, can serve as a basis for taking
jurisdiction of a child.
      We reverse the order finding jurisdiction as to mother
and father.
                         DISPOSITION
      The order is reversed.




                                      JOHNSON, J.

We concur:



             ROTHSCHILD, P. J.



             CHANEY, J.




                             12
Filed 9/13/17
                CERTIFIED FOR PUBLICATION


 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION ONE


In re C.V., a Person Coming Under           B278331
the Juvenile Court Law.                     (Los Angeles County
                                            Super. Ct. No. DK18967)

LOS ANGELES COUNTY                          CERTIFICATION AND
DEPARTMENT OF CHILDREN                      ORDER FOR PUBLICATION
AND FAMILY SERVICES,

       Plaintiff and Respondent,

       v.

JAZMIN V. et al.,

       Defendants and Appellants.


      The opinion in the above-entitled matter filed August 31,
2017, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.



JOHNSON, J.             ROTHSCHILD, P. J.              CHANEY, J.
