Filed 6/26/24 In re Juan H. CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

In re JUAN H. et al., Persons

Coming Under Juvenile Court 

Law.

 B331262

 (Los Angeles County

 Super. Ct. No. 23CCJP01716)

LOS ANGELES COUNTY 

DEPARTMENT OF 

CHILDREN AND FAMILY 

SERVICES,

Plaintiff and Respondent,

v.

MELISSA G. et al.,

Defendants and 

 Appellants.

APPEAL from an order of the Superior Court of Los 

Angeles County, Philip L. Soto, Judge. Reversed.
2

Katie Curtis, under appointment by the Court of Appeal,

for Defendant and Appellant Melissa G.

Roni Keller, under appointment by the Court of Appeal, for 

Defendant and Appellant Juan H.

Dawyn R. Harrison, County Counsel, Kim Nemoy, 

Assistant County Counsel, and David Michael Miller, Deputy 

County Counsel, for Plaintiff and Respondent.

__________________________________

In July 2023, the juvenile court found that children Juan 

H. (born September 2008), Nickolas H. (born April 2011), Julissa 

H. (born March 2014), and Emilio H. (born March 2019), were 

persons described by Welfare and Institutions Code section 300, 

subdivision (b), and ordered services to be provided under section 

360, subdivision (b).1 Specifically, the court found that appellantfather Juan H. had stored a loaded gun where the children could 

access it; that, during an argument Father had with appellantmother Melissa G., Nickolas had taken the gun; that Mother 

knew or should have known that the children had access to the 

gun; and that, at the time of the hearing, the children were still 

at substantial risk of serious physical harm.

On appeal, both parents argue that substantial evidence 

does not support any of the court’s findings and that, because the 

1 Undesignated statutory references are to the Welfare and 

Institutions Code. Section 360, subdivision (b), provides that “[i]f 

the court finds that the child is a person described by Section 300, 

it may, without adjudicating the child a dependent child of the 

court, order that services be provided to keep the family together 

and place the child and the child’s parent or guardian under the 

supervision of the social worker for a time period consistent with 

Section 301.”
3

court erred in finding the children were persons described under 

section 300, it also erred in proceeding under section 360. We 

conclude that substantial evidence does not support the court’s 

finding that the children were still at risk at the time of the 

hearing and therefore reverse without addressing the parents’ 

other contentions.

FACTUAL AND PROCEDURAL BACKGROUND2

A. Previous Allegation of Domestic Violence

In October 2021, DCFS received a referral for domestic 

violence. When told that his parents would have to be called 

regarding his poor school grades, Juan asked his teacher not to 

call them, claiming that Father “routinely hits, punches and 

kicks mother”—with the most recent incident occurring the 

previous month—and that Juan needed to stay awake to ensure 

Mother was safe. Juan “was observed by school staff to be 

withdrawn, tearful, and upset.” When interviewed by DCFS, 

however, Juan denied any violence had happened recently but 

claimed his parents “did used to physically fight a lot with each 

other until one year ago” and they “were mutually physically 

aggressive.” 

Father refused to speak with DCFS. Mother acknowledged 

the parents would argue, but denied any violence, implying that 

Juan was simply upset about recently being disciplined. Mother 

admitted throwing clothes at Father years ago. 

Julissa also recalled Mother throwing items at Father 

during an argument. However, she claimed that the parents had 

2 We limit our summary to the facts and procedural history 

relevant to the issues appellant raises on appeal.
4

changed and now when they argued, “usually one of them leaves 

the home to calm down.” Nickolas stated that the arguments 

“sometimes . . . become physical” and recalled an incident in 

which Mother threw a shirt at Father, and Father left the home. 

He said the last incident occurred “when he was little”; he could 

not say how many years ago. 

The case was closed as “Inconclusive with a disposition of 

Situation Stabilized.” 

B. DCFS Investigates a Referral

1. DCFS Receives a Referral

In April 2023, DCFS received a referral alleging general 

neglect and emotional abuse regarding the four children. The 

referral stated that adult sibling Shirley had reported receiving a 

call from Nickolas, who claimed their parents were fighting and 

that the “situation was getting scary,” and so he “took it upon 

himself to get his father’s handgun to prevent it from being used 

during” the fight. Shirley added that Father had previously 

threatened Mother with the gun. Shirley called both 911 and 

another adult sister (Emelly) to go check on the parents and 

children. According to the referral, when law enforcement 

arrived, Nickolas confirmed his parents were verbally arguing—

although he denied they were physically fighting—and also 

“admitted that he obtained his father’s handgun, during his 

parent’s [sic] verbal argument, from his parent’s [sic] bedroom 

closet.” The referral claimed that “father’s loaded handgun was 

kept inside an unlocked box inside of the parent’s [sic] bedroom 

closet at easy access to all the children in the home” and that 

“Nickolas held onto the loaded handgun until his father Juan 

noticed [it] in Nickolas’[s] hands . . . [and] asked Nickolas to put 
5

the handgun down, which he did, by placing it on the floor. The 

father then picked up the handgun from the floor” and the 

children left the home. The referral also claimed that “Nickolas 

was visibly shaken and he was a bit reluctant to say much for 

fear of being taken into protective custody.” 

The referral related that another child, Julissa, confirmed 

her parents were fighting and “reported seeing ‘everyone’ fighting 

over the gun and they were trying to push the handgun into the 

couch [sic].” Mother confirmed Father owned a gun, but asserted 

that “he keeps it locked.” She also denied any physical violence 

occurring, although she admitted to past unreported domestic 

violence incidents. Father was arrested for “Child Endangerment

because his handgun was not secured and at easy access to his 

children.” 

2. DCFS Interviews the Family

Six days later, a children’s social worker (CSW) visited the 

family home to interview the family. Mother stated that, on the 

day of the incident, she and Father had gotten into an argument 

over the fact that Mother’s cellphone was set to receive silent 

notifications. This escalated into mutual yelling—but no 

violence—and Mother took the kids to McDonald’s to “cool off.” 

The children were nervous because the parents were arguing, 

and Mother knew that Nickolas had called Shirley. When she 

and the children returned home, law enforcement was already 

present. 

Mother and the children were questioned about a gun that 

law enforcement found in a dresser. Mother claimed that, when 

she left the home, the gun had been in a lockbox in the closet, and 

denied that Nickolas had ever taken the gun during the incident. 

Mother admitted she did not know what happened with the gun 
6

after she left, but she was certain it had not been in the dresser 

when the incident happened.

3 Mother insisted the gun “is always 

locked and has triple security,” and Father was the only one with 

the key for the lockbox. Mother denied Father had ever 

threatened her with the gun. Mother also reported that when the 

police had been interviewing Nickolas, “he was walking away and 

he was nodding his head to every question without answering.”

4

Mother stated that a court had issued a protective order 

protecting the three younger children from Father, and that the 

parents were complying with the order. Mother believed Shirley 

called law enforcement because she was upset with Father; 

Shirley and Emelly had “moved out of the home about 7 months 

ago due to a conversation they had with father (who is their step 

father)” about their lack of employment despite not attending 

school. Mother denied there ever being physical violence between 

her and Father. 

Juan told the CSW that he had been sleeping in his room 

when the fight began. He “reported he could hear the parents

arguing something about cell phone notifications” and that they 

“were not yelling, but were speaking loud.” He “woke up” when 

Mother came into the room and told him they were leaving. They 

walked to McDonald’s so that each parent could cool off. Juan 

denied seeing a gun during the incident but stated that Nickolas 

3 Mother claimed that, before she left the home, “she got 

money out of the dresser” and “the gun was not there.” 

4 Mother explained that Nickolas had an IEP at school “due 

to having short term memory loss and having learning attention 

difficulties.” DCFS later confirmed that Nickolas had an IEP and 

learned that he was in special education classes and was not 

performing at grade level. 
7

“was sad and nervous, and told [him] that he had thoughts of 

pulling out the gun.”

Nickolas refused to be interviewed, stating that he neither 

wanted to look at nor speak with the CSW. Julissa spoke with 

the CSW but knew no more than that the parents had argued—

she did not see Nickolas or anyone else holding the gun during 

the incident. Emilio stated that Father “went to jail because he 

was being bad and he was screaming.” 

Three weeks later, the CSW spoke with Father. He 

admitted he argued occasionally with Mother but denied any 

domestic violence or ever threatening Mother with a gun. He 

confirmed that the gun was usually stored in a lockbox to which 

he was the only person with the key. During the argument with 

Mother, he stated the gun remained in the lockbox but, after 

Mother left with the children, he “took the gun out of the lock box

and put it in a drawer next to the bed” because he was 

“struggling with depression.” However, Father “denied having 

any thoughts of hurting himself.” He cited the incident as an 

“eye-opener” but refused to be referred to therapy or counseling. 

Father also informed the CSW that the restraining order had 

been modified to allow him to return home. Father stated that 

the gun was currently with the police. DCFS later learned that 

the charges against Father were dismissed, and he was permitted 

to pick up his gun from the police station.

5

In mid-May 2023, the CSW spoke with Shirley, who 

claimed she and Emelly had moved out of the home in January 

due to Father “kicking her out.” Shirley claimed the last time 

5 It was reported that on May 5, 2023, “the People 

announced they are unable to proceed to trial” and the matter 

was dismissed. 
8

there had been any domestic violence between the parents was 

two or three years ago, but that Father had physically abused 

Mother and “hit her everywhere on her body.” As for the 

incident, she related that she had received a phone call from 

Nickolas, who was “distraught and crying,” causing her to have a 

hard time understanding him. Nickolas told her that the parents 

were fighting and Shirley assumed the fight was physical, 

because that had occurred in the past. Shirley continued that 

“Nic[k]olas did not say who had the gun and he stated that it was 

outside and not where it was supposed to be.” 

3. DCFS Reviews the Police Reports

A few days later, DCFS received police reports regarding 

the incident. The reports stated that, upon arriving at the family 

home, the officers knocked several times, but no one answered. 

Emelly then approached the officers and repeated the claim that 

Nickolas had told Shirley he had taken Father’s gun when the 

parents were fighting. Emelly appeared “very distraught,” and 

informed officers that Father had physically abused and 

threatened Mother with a gun in the past, and that Mother had 

never reported the incidents out of fear of retaliation. Emelly 

stated she was afraid Father had killed Mother because neither 

Nickolas nor Mother were answering their phones. Emelly let 

the officers into the home with her key. They entered, and saw 

Father lying on his bed. They ordered him to stand and turn 

around to be handcuffed; Father “immediately began cursing” 

and demanding to know why the officers were present. Father 

was handcuffed without further incident but, when ordered to go 

outside, “began delaying” the investigation, refusing to go outside 

and “placing his feet on the frame of the front door” to prevent 

law enforcement from walking him outside. Father also 
9

“drop[ped] his body weight” and “fell back onto the ground on his 

back where he remained.” Eventually Father was escorted 

outside and, while there, Mother and the children returned home. 

Mother explained that the parents had not physically fought but 

were arguing over cellphone notifications, and that she had 

neither been threatened with nor seen a handgun during the 

dispute. However, she also “confessed to past domestic violence 

incidents with” Father “years ago, which she never reported[,]

but denied any recent incidents.” 

Nickolas appeared to be “visibly shaken” and “crying 

uncontrollably.” He hugged Emelly and “told her he was scared 

and sorry.” An officer asked him if he had seen a physical 

altercation between his parents and he stated he had been in his 

room when he heard them arguing. This scared him “due to 

witnessing past verbal altercation[s] between” the parents, 

“which prompted him to retrieve [Father]’s firearm, which was in 

[Father]’s bedroom.” Nickolas “stated he grabbed the firearm 

from the bedroom closet, which was in a box unlocked and readily 

available for him to use.” After getting it, he did not know what 

to do with it, “so he pointed the firearm at the floor.” He also 

confirmed calling Shirley and telling her that Father was hitting 

Mother, and that he (Nickolas) had grabbed Father’s gun. 

Nickolas then looked at the officer, “frightened,” and refused to 

speak any further. He admitted he had not seen Father hit 

Mother that day or any other day and “repeatedly stated he was 

done speaking to [the officer] and wished not to make any further 

statements.” 

Julissa told the officer that “she observed [Father] along 

with everyone else trying to push the handgun inside the couch.” 

She was unable to explain what she meant by that. She also 
10

claimed the gun was “silver and orange.” The officers retrieved a 

silver handgun—containing a magazine with seven live rounds 

and one in the chamber—from a dresser drawer directly next to 

the bed on which they had found Father. Also in the drawer were 

“extra loose ammunition” and “an extra loaded magazine with 

eight live rounds inside.” In the closet was a box of ammunition. 

Father admitted to owning the handgun, but stated it was 

“always locked, and secure inside his residence and only he has

access and a key to open his lock box.” He denied any physical 

altercation with Mother, denied seeing any of his children with 

the handgun, and denied having the gun himself. He refused to 

make any other statements. The officers determined no domestic 

violence had occurred but arrested Father for child 

endangerment, unlawful storage of a firearm where a child could 

access it, and delaying a police officer performing their duty. The 

police confiscated the gun. 

The day after Father was arrested, he agreed to explain to 

a police officer what had happened. After he and Mother had 

argued for 15 to 20 minutes, Mother decided to leave the home 

and walk to a local McDonald’s. Father then retrieved the gun 

from his lockbox, stating “he felt depressed because he feels stuck 

at his job and doesn’t feel like he’s progressing.” He then “held 

the gun and wanted to kill himself” but did not, after thinking 

about how “his children would feel without a father.” He “placed 

the gun inside a small dresser located adjacent to his bed and fell 

asleep.” He was awakened by the police and detained inside the 

home; he was upset because no one explained the situation to 

him. Father claimed no child had ever retrieved his gun from his 

home and denied any previous or current domestic violence with 

Mother. 
11

C. DCFS Files a Petition

Two days after reviewing the police reports, DCFS filed a 

petition on behalf of Juan, Nickolas, Julissa, and Emilio, alleging 

causes of action under section 300, subdivisions (a) and (b)(1). 

Count a-1 alleged that the parents had a history of engaging in 

violent altercations in the children’s presence, that they had a 

“violent verbal altercation” in April 2023 during which Nickolas 

grabbed Father’s gun (with which Father had previously 

threatened to harm Mother), and that Father was arrested for 

unlawful storage of a firearm and child endangerment as a result 

of this incident. Count b-1 contained the same allegations and 

added that Mother failed to protect the children in that she 

permitted Father to reside in the family home. Count b-2 alleged 

that Father “created a detrimental and endangering home 

environment for the children” because, in the April 2023 incident, 

he “placed the loaded firearm . . . within access [sic] to the 

children,” that Nickolas had gotten a hold of the gun in April 

2023, and that Mother “knew or reasonably should have known,

of the firearms placed within access to the children” but failed to 

protect them. Count b-3 alleged that Father had mental and 

emotional problems, including symptoms of depression and 

suicidal ideation, rendering him incapable of caring for the 

children. The petition indicated the children were not detained. 

A last minute information filed before the initial hearing 

informed the court the children were still living with the parents, 

and Father had yet to retrieve his gun from the police station and 

stated he had no plans to do so. 

At the initial hearing in June 2023, the court found a prima 

facie case that the children were persons described by section 

300, but that reasonable services were available to prevent 
12

detention; the court therefore ordered the children to remain with 

the parents under DCFS supervision. DCFS was ordered to, 

among other things, obtain the children’s birth certificates. The 

court also ordered the parents to stop fighting and not to have 

any guns in the house. The court admonished the parents that 

they needed to work out their differences “and not be scaring 

anybody to the point where somebody like Nickolas grabs a gun 

and caps off a round.” 

D. DCFS Continues to Investigate

In June 2023, a dependency investigator (DI) spoke with 

Mother to explain who she was and to schedule an interview with 

the family. Mother complained that too many people were 

coming to the home to speak with the children and had 

“traumatized them,” calling the case “all hearsay and . . . lies.” 

Mother also lamented that when law enforcement came to her 

house, they asked the parents whether they had tattoos or were 

involved in gangs. Mother additionally complained the court had 

“yelled at them to be quiet” at the court hearing. “After twenty 

minutes of complaining about the same issues, mother agreed to 

let DI come out to the home the following day at 10am to 

interview the parties. Mother stated that is father’s day off from 

work, he will be home for the interview, and she wants the 

interviews completed in the morning so that they can enjoy the 

rest of their day.” However, despite the court’s order that DCFS 

include copies of the children’s birth certificates in the next 

report, Mother refused to produce them, stating: “That bothers 

me, no you can’t see them. I’m not guilty and you’re invading my 

privacy. And I don’t want this information anywhere.” She 

acknowledged the court’s written order but insisted, “I want the 

judge to tell me.” 
13

The DI arrived at the family home the next day and 

interviewed the parents and the children, with the exception of 

Emilio (who was too young to make a meaningful statement) and 

Nickolas, who refused to speak with the investigator, despite 

Mother’s encouragement to do so. Mother explained that 

Nickolas “has a history of shutting down when it becomes 

overwhelming for him.”6 She also opined the police did not 

properly interview him, failing to account for his delayed 

development. “Mother stated that she told the police repeatedly”

that Nickolas functioned “at the level of a child in kindergarten.” 

She claimed he was “walking away from the police officer but the 

officer kept following him and asking him yes or no questions.” 

Mother also claimed that after the police left, “Nickolas cried and 

told her that the police officer ‘put words in my mouth’ and he did 

not know how to stop it.” 

1. Mother

Mother apologized to the DI for her outburst the previous 

day and produced copies of the birth certificates for the DI to 

photograph. When asked about the allegations in the DCFS 

petition, Mother claimed they were all false, except that Father 

was indeed arrested. However, she asserted he was “wrongly 

accused and wrongly arrested, and the DA’s office dropped his 

case.” She admitted she and Father could have “loud” 

arguments, but denied it ever became physical. She explained 

that the father of her two adult daughters was violent, but 

Father was “nothing like that.” Mother explained that, on the 

day of the incident, she and Father argued because the 

6 Nickolas’s school counselor later confirmed this. 
14

notifications on her cellphone were set to silent and, 

consequently, she did not notice a text Father had sent her. As 

the argument got louder, Mother decided to take the kids and 

leave, walking to McDonald’s. She left her phone at home. While 

at McDonald’s, Emelly texted one of the children, stating they 

needed to come home as soon as possible or the police would 

arrest Father. 

When they arrived home, they saw at least ten police 

officers present and Juan turned around and went back to 

McDonald’s, saying “he didn’t want to deal with it.” Father was 

in the back of the patrol car. “Nickolas was crying, and he was 

refusing to talk to the police officer, but she kept following him 

and asking him questions and he was just trying to get away.” 

Mother explained to the police officer that, “I know he’s tall and 

he’s twelve, but he doesn’t think and act like a twelve year old. I 

told her, I made it clear, he’s at the level of someone in 

kinder[garten]. The lady cop kept telling me to shut up, she was 

really rude, she did not listen to what I had to say, and she just 

kept following Nick to make him answer her questions.” 

Mother claimed that the gun was always in a locked case,

and no one was holding it during the argument. However, she 

admitted that she saw law enforcement “pull the gun out of the 

dresser,” and concluded Father must have taken it out after she 

left. She did not believe “Nickolas actually said those things to 

the police. He was crying and really upset, he doesn’t talk when 

he’s upset. He shuts down. I saw him trying to run away from 

her, but she kept chasing him. He has short term memory loss, 

he can’t learn and understand like other kids, I’m not sure he 

understood what the police was asking him.” 
15

However, Mother did believe that Shirley and Emelly “said 

those things about the past” because they were “hurt.” She 

explained that their biological father—who had physically abused 

her—was in prison for attempted murder and Mother raised 

Shirley and Emelly with the help of the maternal aunt and 

grandmother. Mother stated she had been married to Father for 

15 years, and Father had also raised the two adult children, but 

they were “taking advantage of us” by living at home without 

working, going to school, or even doing chores. When they were 

given an ultimatum of going to school or getting a job, they 

moved out. 

Mother stated the family was willing to comply with court 

orders and was on a waiting list for marriage counseling. 

2. Father

Father echoed Mother’s sentiments that they argued, 

sometimes loudly, but never physically fought. He also denied 

Nickolas had ever held the gun, stating the gun was kept in a 

lockbox, to which he was the only one with a key. He stated that 

on the day of the incident, after Mother and the children left, he 

took the gun out, cleaned it, and then “put it into the dresser and 

went back to sleep.” Father stated he was going to put the gun 

back in the lockbox “but I was sleepy.” When he woke up, he saw 

police officers in the house; they did not explain how they had 

gotten in or why they were there. Father stated he knew that 

Shirley and Emelly were mad at him. When asked if he would 

attend therapy, Father stated he would if it were ordered, but he

did not need it. 
16

3. Juan and Julissa

Juan admitted his parents argued, sometimes loudly, but 

denied that they physically fought. He claimed that when they 

argued, one would leave the home so both could calm down. On 

the day of the incident, Mother took the children to McDonald’s

after she argued with Father. While there, they received a text 

message from their sister Emelly to come home and they did, 

finding law enforcement present. Juan “didn’t want to deal with 

it,” and so he returned to McDonald’s. Juan denied that Nickolas 

had taken the gun during the incident although, after the police 

had left and Juan came home, Nickolas told him “that he thought 

about getting the gun.” Juan claimed the gun was kept in 

Father’s lockbox, and Father never left it lying around or let the 

children play with it. Juan also denied Father had any mental or 

emotional problems. When asked about the domestic violence 

report he made in 2021, Juan replied, “I lied about that. I lied 

about my parents fighting. I don’t know why I did. I don’t 

remember really.” 

Like Juan, Julissa also claimed her parents argued, but did 

not physically fight. She also denied Nickolas having a gun. She 

did not recall telling the police that anyone tried to “push[] the 

gun into the sofa.” 

4. Shirley and Emelly

The DI attempted to interview both Shirley and Emelly, 

leaving two voicemails and sending two text messages to each 

sister. Neither responded. 

5. Conclusions

DCFS concluded that Shirley and Emelly were not credible 

witnesses, and that due to Nickolas’s disabilities, it was unclear 
17

how credible the report of his statements was. Further, DCFS 

did not believe the allegations of domestic violence could be 

proven. DCFS stated that “[t]he one issue that can be proven to 

be true, is that father was arrested for unlawful storage of a 

firearm. The police located a loaded handgun in the dresser, next 

to the parents’ bed, in the bedroom used by parents and the 

children Emilio and Julissa.” 

DCFS advised that they could not proceed with a contract 

under section 301 because “DCFS policy is clear, the identified 

perpetrator must be willing to remain out of the home.”7

Therefore, DCFS recommended the court proceed under section 

360, subdivision (b). 

7 Section 301, subdivision (a), provides that “[i]n any case in 

which a social worker, after investigation of an application for 

petition or other investigation he or she is authorized to make, 

determines that a child is within the jurisdiction of the juvenile 

court or will probably soon be within that jurisdiction, the social 

worker may, in lieu of filing a petition or subsequent to dismissal 

of a petition already filed, and with consent of the child’s parent 

or guardian, undertake a program of supervision of the child. If a 

program of supervision is undertaken, the social worker shall 

attempt to ameliorate the situation that brings the child within, 

or creates the probability that the child will be within, the 

jurisdiction of Section 300 by providing or arranging to contract 

for all appropriate child welfare services pursuant to Sections 

16506 and 16507.3, within the time periods specified in those 

sections. No further child welfare services shall be provided 

subsequent to these time limits. If the family has refused to 

cooperate with the services being provided, the social worker may 

file a petition with the juvenile court pursuant to Section 332. 

Nothing in this section shall be construed to prevent the social 

worker from filing a petition pursuant to Section 332 when 

otherwise authorized by law.”
18

E. The Court Proceeds Under Section 360

In the July 2023 adjudication hearing, the court noted that 

DCFS had filed an amended petition that struck all counts

but b-2 (alleging that Father created a dangerous home 

environment by placing a loaded firearm where the children 

could access it, that Nickolas had gotten a hold of the gun, and 

that Mother knew or should have known that the children had 

access to the gun but failed to protect them). The court then 

heard argument from counsel.

Counsel for the children, counsel for Mother, and counsel 

for Father all asked the court to dismiss the petition. The 

children’s counsel stated there was “some confusion about 

whether [Nickolas] did get the gun,” and reminded the court that 

Nickolas functioned “at a kindergarten level,” that he was 

frustrated with how law enforcement interviewed him, and that 

Shirley admitted she did not understand what Nickolas was 

telling her. Counsel added that whatever risk there was to the 

children on the day of the incident, with the gun out of the house, 

there was no current risk to them. The court asked counsel what 

was to stop the parents from getting another gun “and doing this 

all over again.” The children’s counsel responded that the 

parents “understand why they’re here” and “understand why 

they need to keep the gun in a lock box” and opined that a 

petition should not be sustained “because [of] something that 

could happen” or because “we have gut feelings or fears of what 

could happen in the future.” 

Mother’s counsel joined the argument articulated by the 

children’s counsel and added that the evidence demonstrated 

Mother was not present, did not know the gun was not in the 
19

lockbox, and neither retrieved nor encouraged Father to retrieve 

the gun from the police after they were able to do so.

Father’s counsel also joined the arguments articulated by 

the children’s counsel and pointed out that even DCFS believed 

count b-2 to be only “partly true” because the allegation 

regarding Nickolas holding the gun was based on statements 

made by the older siblings who were unreliable witnesses due to 

the animosity between them and the parents. Father’s counsel 

added that, while the firearm was put in a dresser drawer, the 

children were not home when this occurred.

DCFS’s counsel recounted Nickolas’s statements from the 

police report, pointed out that the police had no incentive to lie,

and argued that if Nickolas knew that the gun was in a place 

accessible to him, Mother also knew or at least should have 

known that the gun was accessible to the children. Counsel 

discounted the dismissal of the criminal charges against Father, 

noting that the district attorney was bound to a different 

standard of proof.

The court stated that “it may well be the case that the 

parents have learned their lesson, but there’s no way to know for 

sure unless we make sure that they go through the lessons that 

will cement in their mind the issues that need to be addressed in 

this case.” The court continued that guns needed to be stored 

away from children, “especially a child like Nickolas” because “he 

is not responding the way a 12-year-old would respond and that 

puts him and the other children at risk.” The court then stated: 

“I don’t know whether or not Father or Mother is going to 

exercise their rights and get another gun into the house, could 

well be the case. But we need to train them up and make sure 

that they understand if they’re going to exercise that right, they 
20

have to do it in a responsible manner so that nobody has access to 

the weapons. So for those reasons, I have to find the b-2 true as 

pled.” 

The court stated it agreed with DCFS that continuing 

jurisdiction was unnecessary but found that the involvement of 

social workers was needed to address the conflicts between the 

parents “so we don’t have a situation arise where somebody 

reacts the way Nickolas did and gets a weapon to purportedly 

protect the mother or the father or himself or somebody else.” 

The court added that even though the gun in the incident was no 

longer at the home, it was too easy for the parents to get another 

gun, and thus the risk would not be ended “until you’re trained 

and understand what the risks are and know how to have the 

gun, if there’s a new one, around the children safely.” The court 

also pointed out that Father left the gun “unsecured in someplace 

where one of the children could get their hands on it.” The court 

concluded that it was “more likely than not true that the children 

are still at substantial risk until the parents learn what they 

need to learn about safely maintaining weapons around the 

children if they want to get another weapon. And there’s no 

reason to believe that they are not going to exercise that right.” 

The court sustained count b-2 and found the children were 

persons described under section 300. Pursuant to section 360, 

subdivision (b), the court placed the children under DCFS’s 

supervision for a period consistent with section 301. 

Both parents timely appealed. 

DISCUSSION

Jurisdiction under section 300, subdivision (b), “ ‘requires a 

showing that at the time of the jurisdictional hearing the child is 
21

at substantial risk of serious physical harm in the future (e.g., 

evidence showing a substantial risk that past physical harm will 

reoccur).’ ” (In re B.T. (2011) 193 Cal.App.4th 685, 692, emphasis 

in original.) “[E]vidence of past conduct may be probative of 

current conditions.” (In re James R. (2009) 176 Cal.App.4th 129, 

135.) But to establish a defined risk of harm at the time of the 

hearing, “[t]here must be some reason beyond mere speculation 

to believe the alleged conduct will recur.” (Id. at p. 136.)

Here, the court admitted it did not know whether the 

parents would get another gun but opined that this “could well be 

the case” and “there’s no reason to believe that they are not going 

to exercise that right” to buy another gun. To the extent the 

court found the children were at risk because the parents failed 

to demonstrate they were not going to purchase another gun, this 

was error.

“Proof by a preponderance of evidence must be adduced to 

support a finding that the minor is a person described by Section 

300.” (§ 355, subd. (a).) In other words, the burden was on DCFS 

to prove that the children were still at risk at the time of the 

hearing because it was more likely than not that the parents 

would purchase another gun and would fail to secure that gun in 

a manner that would prevent the children from accessing it. 

DCFS failed to meet this burden. There is no evidence in the 

record that the parents intended to purchase another firearm. In 

fact, the only evidence in the record suggested otherwise—Father 

informed DCFS that he had no plans to pick up his gun from the 

police station; Mother likewise had no plans to pick it up. 

Similarly, Father admitted it was “stupid” of him to take the gun 

out and wished he had not done so. He stated the incident had 

been an “eye-opener” for him. 
22

DCFS contends the children were still at risk because “the 

parents denied any responsibility for their conduct, and they had 

not engaged in any services for counseling or gun safety.” DCFS 

also cites Father’s “changing version of events” regarding how the 

gun ended up in the dresser, the children’s statements contained 

in the police report about Nickolas getting the gun, and the fact 

that loose ammunition and another loaded magazine was found 

in the dresser. 

While this evidence may support the court’s finding that 

Father improperly stored his gun in a place accessible to the 

children, only the parents’ alleged refusal to engage in “gun 

safety” classes relates to the children’s continuing risk at the 

time of the hearing. However, there are two problems with 

DCFS’s argument. First, it is unsupported by the record. None 

of DCFS’s citations to the record support the claim that the 

parents were asked, let alone refused, to take gun safety classes. 

Second, gun safety classes would be relevant only if there was 

evidence to support a conclusion that the parents intended to 

have firearms in the home again. As discussed above, such 

evidence is lacking.

Because the court erred in finding the children were 

persons described under section 300, it also erred in proceeding 

under section 360. Given our conclusion, we need not address the 

parents’ argument that substantial evidence does not support the 

other findings made by the court in sustaining count b-2.
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DISPOSITION

The court’s order is reversed.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

WEINGART, J.