Jurisdiction finding was reversed because a parent’s violent criminal record, without more, does not necessarily establish the requisite risk of physical harm to a minor. The minor J.N. was detained when his infant half-sibling tested positive for marijuana at birth. The petition alleged J.N. was at risk of serious physical harm as a result of father’s violent criminal history. Father had convictions for criminal threats, assault with a deadly weapon, exhibiting a deadly weapon, and arson and was serving an eight-year prison sentence. The court sustained the allegations, found that placement with father would be detrimental to J.N., and denied father reunification services pursuant to section 361.5(e)(1). The appellate court reversed the jurisdiction orders. Evidence of a parent’s past conduct may be probative of current risk of harm, but DCFS must establish a nexus between them. Here, the sole evidentiary basis for the jurisdictional finding as to father was his incarceration and criminal record. While there was a reasonable inference that father would commit future crimes, there was no evidence that J.N. would be harmed by this as there was no information in the record that father’s criminal conduct ever placed J.N. in danger, that J.N. was ever exposed to father’s criminal activity, or that J.N. had access to weapons or was in father’s care at the time father committed the crimes. While violent crime, on an abstract level, is incompatible with child safety, such generalities are insufficient to prove an “identified, specific hazard in the child’s environment” that poses a substantial risk of serious physical harm to the minor. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824.) A parent’s violent criminal record, without more, does not necessarily establish that a parent has a violent disposition sufficient to establish the requisite risk of physical harm to a particular child to support a jurisdictional allegation. The disposition order was also reversed. When a parent is incarcerated, the test is whether the incarcerated parent exercising their right to physical custody by making arrangements for the minor’s living situation while they are incarcerated would create a substantial risk to the child. (See Isayah C. (2004) 118 Cal.App.4th 684, 696.) Nothing in the record suggests that DCFS’ request for removal from father supports a finding that there would be a requisite danger to J.N. Further, the order denying father reunification services was also reversed. The juvenile court denied father services based on section 361.5(e)(1). However, J.N. was placed with his mother, a previously custodial parent and thus, under such circumstances, neither parent was entitled to reunification services. The detriment finding made under section 361.5(e)(1) to deny father services could constitute a sufficient basis for termination of parental rights if J.N. were ultimately removed from both parents and parents failed to reunify. Because there is a risk that the erroneous detriment finding could prejudice father later in the case, the order was vacated.
The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/documents/B308879.PDF