Filed 11/23/21 In re John A. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re JOHN A., Jr., B311096
a Person Coming Under the (Los Angeles County
Juvenile Court Law. Super. Ct.
No. 19CCJP02142C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
JOHN A., Sr.,
Defendant and Appellant.
APPEAL from findings and orders of the Superior Court of
Los Angeles County, Lisa A. Brackelmanns, Judge Pro Tempore.
Affirmed.
Johanna R. Shargel, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
______________________________
Defendant and appellant John A., Sr., (father) appeals from
the juvenile court’s jurisdictional findings and dispositional
orders regarding his son John A., Jr., (minor, born 2019). Father
contends that his incarceration precludes any risk of harm to
minor and, therefore, substantial evidence does not support the
court’s finding of jurisdiction.
We affirm.
BACKGROUND
I. The Family
Father and W.C. (mother) are minor’s parents. 1 Mother is
not a party to this appeal. Mother has two older children, K.H.
(born 2014) and S.H. (born 2017) (collectively half-siblings).
Father is not the father of half-siblings.
II. Referral; Initial Investigation; Removal
A few days after minor’s birth in October 2019, the
Los Angeles County Department of Children and Family Services
(DCFS) received a referral alleging general neglect of minor.
1 On December 8, 2020, the juvenile court found father to be
minor’s biological father.
2
Mother had an open dependency matter regarding half-siblings.
Mother had missed two drug tests.
During an interview with a DCFS social worker, mother
said that marijuana and methamphetamine were her drugs of
choice but that she had been sober for six months. Mother
reported having a good relationship with father and described
him as “a ‘good guy.’” Father had been arrested for having guns
and selling drugs in the home while half-siblings were present.
He would not be released from custody until 2027 and, due to her
own felony conviction, mother could not visit him.
In November 2019, DCFS decided to initiate removal
proceedings for minor given that mother was receiving family
reunification services for minor’s “older, less vulnerable siblings,”
mother had not completed court-ordered services, and mother left
a treatment program in violation of a court order.
The juvenile court issued a removal order in December
2019, and minor was taken into protective custody.
III. Dependency Petition
On December 19, 2019, DCFS filed a dependency petition
seeking the juvenile court’s exercise of jurisdiction over minor
pursuant to Welfare and Institutions Code section 300,
subdivisions (b)(1) (failure to protect) and (j) (abuse of sibling).2
Counts b-1 and j-1 alleged that mother’s history of
substance abuse and recent abuse of methamphetamine rendered
her incapable of providing regular care of minor. Half-siblings
were juvenile dependents due to mother’s substance abuse.
Mother had left a court-ordered substance abuse treatment
program.
2 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
3
Counts b-2 and j-2 alleged that mother and father created a
dangerous and detrimental home environment for half-siblings.
Despite her knowledge that father abused methamphetamine
and sold drugs in half-siblings’ home, mother allowed father to
reside in the home and have unlimited access to half-siblings.
Father had a drug-related criminal conviction and, on April 2,
2019, he “was arrested for child cruelty possible injury/death,”
possession of a controlled substance while armed, and lewd and
lascivious acts with a child under 14.
Finally, counts b-3 and j-3 alleged that mother and father
created a dangerous and detrimental home environment for half-
siblings, as law enforcement had “found several large baggies
containing methamphetamine, a digital scale, a box of plastic
baggies, ammunition, a pistol and two loaded magazines” in half-
siblings’ home and within half-siblings’ access.
IV. Detention Hearing
At the detention hearing on December 20, 2019, the
juvenile court found that a prima facie showing had been made
that minor was a person described by section 300. Minor was
detained from father and released to mother under DCFS
supervision. The court ordered monitored visitation for father
upon his release from custody.
V. Jurisdiction/Disposition Report
According to the jurisdiction/disposition report filed in
February 2020, mother reported being sober for almost
10 months and stated that drugs and alcohol were no longer a
part of her lifestyle. As for the count b-3 and j-3 allegations
regarding drugs, drug paraphernalia, a gun, and ammunition,
mother admitted that “‘[it] was true at the moment’” but that
they all belonged to father. She stated, “‘The only fault I had was
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letting my kids be around it.’” Mother had been aware that
father was a drug dealer before she began a relationship with
him.
When asked about father’s registered sex offender status,
mother stated that father told her that his ex-girlfriend’s
underage daughter had gotten on top of him while he was asleep
and proceeded to have sex with him. While father was reportedly
“asleep/passed out, he ‘released inside of the girl and she got
pregnant.’” Mother was not sure what to believe.
Father was incarcerated in state prison and had not had
any visits with minor.
VI. Adjudication Hearing
The adjudication hearing was held on March 3, 2021.
Father’s presence at the hearing was waived. The juvenile court
sustained count j-2 only, as amended to conform to proof and
eliminating the allegations against mother. All other counts
were dismissed.
As amended, the sustained j-2 count states: “. . . Father . . .
established an endangering and detrimental home environment
for . . . half-siblings . . . in that . . . father has a history of
methamphetamine use and sold illicit drugs in . . . half-sibling[s’]
home. On [April 2, 2019], . . . father was arrested for child
cruelty possible injury/death, possessed controlled substance
while armed for an outstanding warrant due to lewd or lascivious
acts with child under 14. [Sic.] Law enforcement officers found
several large baggies of methamphetamine, a digital scale, a box
of plastic baggies, ammunition, a pistol and two loaded
magazines in . . . [half-]siblings’ home and within access to . . .
half[-]siblings. Such a detrimental and endangering home
environment established for . . . [half-]siblings by . . . father
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endangers . . . [minor’s] physical health and safety and places . . .
[minor] at risk of serious physical harm.”
Minor was declared a dependent of the court. He was
removed from father and placed with mother under DCFS
supervision. Father was granted monitored telephonic or video
visits with minor twice monthly while father remained
incarcerated. Based on father’s status as a biological father and
his 2027 release date, the juvenile court did not order services for
father. Mother’s court-ordered case plan included a full drug and
alcohol program with aftercare, drug testing, a 12-step program,
parenting classes, and individual counseling.
This timely appeal ensued.
DISCUSSION
Father contends that the evidence was insufficient to
support the juvenile court’s jurisdictional findings under
section 300, subdivision (j).3
I. Standard of Review
We review jurisdictional findings for substantial evidence.
(In re Mia Z. (2016) 246 Cal.App.4th 883, 891.) “Under this test,
we resolve all conflicts in the evidence, and indulge all reasonable
inferences that may be derived from the evidence, in favor of the
court’s findings.” (Ibid.) “Substantial evidence may include
inferences, so long as any such inferences are based on logic and
reason and rest on the evidence.” (In re Madison S. (2017)
15 Cal.App.5th 308, 318 (Madison S.).)
II. Relevant Law
Under section 300, subdivision (j), the juvenile court has
jurisdiction over and may adjudge to be a dependent of the court
3 Father does not independently challenge the dispositional
order removing minor from his custody.
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a child whose “sibling has been abused or neglected, as defined in
subdivision (a), (b), (d), (e), or (i), and there is a substantial risk
that the child will be abused or neglected, as defined in those
subdivisions.” In determining whether to exercise jurisdiction
under subdivision (j), the court is required to “consider the
circumstances surrounding the abuse or neglect of the sibling, the
age and gender of each child, the nature of the abuse or neglect of
the sibling, the mental condition of the parent or guardian, and
any other factors the court considers probative in determining
whether there is a substantial risk to the child.” (§ 300, subd. (j).)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction. The subdivision[] at issue here require[s] only a
‘substantial risk’ that the child will be abused or neglected. . . .
[Citation.] ‘The court need not wait until a child is seriously
abused or injured to assume jurisdiction and take the steps
necessary to protect the child.’” (In re I.J. (2013) 56 Cal.4th 766,
773 (I.J.).)
The existence of a substantial risk is a function of the
likelihood of a particular harm and the magnitude of that harm.
Thus, “‘[s]ome risks may be substantial even if they carry a low
degree of probability because the magnitude of the harm is
potentially great. . . . [¶] . . . [¶] . . . Conversely, a relatively
high probability that a very minor harm will occur probably does
not involve a “substantial” risk. . . .’” (I.J., supra, 56 Cal.4th at
p. 778.)
III. Analysis
Father does not challenge the juvenile court’s findings
regarding his drug use, sale of drugs in half-siblings’ home, or
maintenance of drugs, a firearm, and ammunition within access
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of half-siblings in their home. Rather, he argues that the court
erred by finding that minor was at substantial risk of being
abused or neglected, as required to support jurisdiction under
section 300, subdivision (j), because father was incarcerated and
would be until 2027—another six years from the time of the
adjudication hearing.
We disagree. The juvenile court could reasonably find that
father’s incarceration did not remove the substantial risk that
father posed to minor. (See In re Carlos T. (2009)
174 Cal.App.4th 795, 806 [the incarceration of a father, who had
been convicted but not yet sentenced and still had the right to
appeal his convictions, did not eliminate the substantial risk that
his children would be abused].) Even accepting father’s
representation that the window for bringing a direct appeal of his
conviction has lapsed, a logical and reasonable inference exists
that father could still be released at any time through various
avenues of postconviction relief or retroactive legislative changes.
The evidence supports this inference. A printout of an
online California Department of Corrections and Rehabilitation
(CDCR) inmate information form dated December 19, 2019,
indicates that father’s “Parole Eligible Date” is January 2027.
The form provides the following explanation: “The Parole
Eligible Date displayed above is subject to change. [¶] The date
shown above is the earliest possible release date for this inmate
at this time. This is the earliest date the inmate is expected to be
released, based on current information. Inmates may earn
credits for participating in rehabilitative programming, which
may move their parole eligible dates to an earlier date. Inmates
could also be found guilty of an institutional rules violation,
which could result in a loss of credits that may move their parole
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eligible dates further into the future. Parole eligible dates may
also change based on a variety of other reasons, including court
orders, changes in law, and routine audits. Parole eligible dates
displayed on this website are updated regularly.”
Further indicating that the “Parole Eligible Date” is subject
to change, a CDCR inmate information form dated September 9,
2020, also appears in the record and lists father’s “Parole Eligible
Date” as October 2026.
Father argues that “[t]he notion that [his] parole eligible
date may be advanced by some unknown number of months is
purely speculative, and no basis for assuming jurisdiction.” But,
here, the inference is more than speculation or conjecture. It is
“based on logic and reason and rest[s] on the evidence.”
(Madison S., supra, 15 Cal.App.5th at p. 318.) Accordingly, it
constitutes substantial evidence supporting the jurisdictional
findings. (See ibid.)
Finally, even if the probability of father’s early release is
low, the magnitude of the potential harm to minor if such an
event materializes without protections in place is great. Father
sold drugs in half-siblings’ home and allowed them access to
drugs, a firearm, and ammunition. Nothing in the record
suggests that father would not expose minor to the same hazards.
Under these circumstances, the juvenile court could reasonably
conclude that the risk of abuse to minor was substantial. (See
I.J., supra, 56 Cal.4th at p. 778; In re S.R. (2020) 48 Cal.App.5th
204, 207 [“‘“even . . . a low degree of probability”’ can give rise to a
substantial risk if ‘“the magnitude of the harm is potentially
great[]”’”].)
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DISPOSITION
The jurisdictional findings and dispositional orders are
affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
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