By a MetNews Staff Writer
A man who is in prison based on 2019 convictions for setting an inhabited structure ablaze and assault with a deadly weapon with force and by means likely to produce great bodily injury, and has a history of violent crimes, was wrongfully stripped of his parental rights, the Court of Appeal for this district decided Friday.
Div. One, in an opinion by Presiding Justice Frances Rothschild, vacated a jurisdictional finding as to the father, “V.N.” and reversed the order by Los Angeles Superior Court Commissioner Emma Castro removing the seven-year-old boy, “J.N.,” from the incarcerated man’s custody. A finding that reunification services would be “detrimental” to the child was made under an inapplicable statute, Rothschild said, and the finding was vacated to avoid prejudice to V.N. should he seek such services in the future.
The jurist noted that the Los Angeles County Department of Children and Family Services (“DCFS”) “presented evidence that Father’s record includes convictions for violent crimes and convictions for crimes committed while Father was already on probation.”
She commented, with respect to the jurisdictional finding:
“This evidence supports a reasonable inference that there is a substantial risk Father will commit crimes—even violent crimes—in the future. But that is not the same as a substantial risk J.N. will be harmed. Although it is possible that evidence of a parent’s violent criminal record could support a reasonable inference of risk to the parent’s child, the evidence in this record does not. Nothing in the record suggests any of Father’s crimes were against children or involved children. The record also does not support that Father’s criminal conduct ever placed J.N. in danger during the approximately two years he appears to have been involved in J.N.’s life.”
“And although DCFS may be correct that Father exposing J.N. to his criminal ways could put J.N. at risk, the record does not provide any nonspeculative basis for the court to conclude that Father is likely to do so. For example, nothing in the record suggests Father ever exposed J.N. (or any other child) to his criminal activities, that he ever provided J.N. (or any other child) access to weapons or other dangerous instruments of his crimes, or that J.N. (or any other child) was even in Father’s care at the time Father committed the crimes for which he was convicted.”
The jurist declared that DCFS failed to demonstrate the requisite “nexus between the past violence and some likely future violence that could endanger the child.”
Addressing the order removing the child from the “custody” of V.N., Rothschild said:
“[Welfare & Institutions Code] Section 361, subdivision (d) permits removal from a parent with whom the child did not reside when the petition was filed only upon a finding by clear and convincing evidence of a current ‘substantial danger to the physical health, safety, protection, or physical or emotional well-being of the child,’ were the parent ‘to live with the child or otherwise exercise the...right to physical custody.’…When applying this test to an incarcerated parent, the question cannot be whether such danger would exist, were the child literally to ‘live’ with the parent during the parent’s incarceration, as this is not a realistic possibility— a child cannot ‘live’ at an adult prison. Nor could the fact of a parent’s incarceration at the time of disposition provide the basis for a detriment finding in any event.”
She went on to say:
“The test must therefore be whether Father ‘otherwise exercis[ing] [his]...right to physical custody’…— for example, by making arrangements for J.N.’s living situation while Father is still in prison—would create the requisite substantial risk.”
She said there was nothing in the record indicating that V.N. intended to exercise that right.
The case is In re J.N., B308879.
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