Filed 7/21/26 In re Anthony W. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
In re ANTHONY W., a Person B347376
Coming Under the Juvenile
Court Law. (Los Angeles County
______________________________ Super. Ct. No. 24CCJP01704A)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.W.,
Defendant and Appellant.
APPEAL from the findings and order of the Superior Court
of Los Angeles County, Dash Talbot, Juvenile Court Referee.
Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal,
for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
_________________________
Anthony, born June 2014, is the son of appellant A.W.
(Father) and nonappealing Mother B.T. On May 31, 2024, the
Los Angeles County Department of Children and Family Services
(the Department) filed a dependency petition under Welfare &
Institutions Code1 section 300, subdivisions (a) and (b)(1) on
behalf of nine-year-old Anthony. The Department had received a
referral that Mother was Anthony’s primary caregiver, she had
been diagnosed with paranoid schizophrenia, and she was no
longer engaging in treatment or taking her prescribed
medications. Upon inquiry by the Department, Anthony said
Mother was not taking her medicine and had been acting
strangely for the past few weeks. Her behavior included extreme
anger outbursts. He also recounted several instances of physical
fights between his parents. Mother was placed on a section 5150
hold. When interviewed later, Mother said there was domestic
violence between her and Father and she had an active
restraining order protecting her against him.
Based on this information, the petition alleged a history of
domestic violence between the parents in Anthony’s presence and
Mother’s unrelated mental health issues that posed a risk of
serious physical harm, damage, and danger to Anthony. On June
14, 2024, the juvenile court detained Anthony from Father and
released him to Mother. Father was granted monitored
visitation. On July 30, 2024, Mother obtained a temporary
restraining order against Father in family court which listed
Anthony as a protected party. Because the temporary
restraining order conflicted with the juvenile court’s visitation
1 Undesignated statutory references are to the Welfare and
Institutions Code.
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order, the Department paused Father’s visits with his son. The
Department noted it was unaware of any recent domestic
violence between the parents and that the court had previously
admonished Mother about interfering with visitation between
Anthony and Father. It expressed its concern that the pause in
visitation would further alienate the child from Father, which
would negatively affect the parent-child relationship. The
Department asked the juvenile court to transfer proceedings on
the restraining order from family court to juvenile court.
On July 30, 2024, the Department filed an amended
petition which added an allegation that Mother had a history of
alcohol and marijuana use and currently used marijuana such
that Mother was incapable of providing regular care to Anthony.
It alleged Mother was convicted in 2023 of driving under the
influence of alcohol while Anthony was in the car, resulting in a
criminal protective order protecting Anthony from Mother until
June 2026.
In August and October 2024, Mother unsuccessfully
attempted twice to get the family court and then the juvenile
court to issue a restraining order against Father. The court
ordered Mother to cease her attempts to undermine the court’s
orders. It admonished Mother for forum shopping, telling her the
child could be removed from her care if she persisted.
In September and October 2024, the juvenile court held a
combined jurisdictional and disposition hearing. The court
sustained the amended petition only as to the count alleging that
Mother has mental and emotional problems for which she failed
to regularly take her medication as prescribed; it struck the
remaining allegations. Anthony was released to both parents
under a Home of Parents order with Mother the primary
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custodial parent; a custody sharing plan was ordered; and the
parents were ordered to participate in family maintenance
services. Father’s case plan included parenting and domestic
violence classes, individual counseling, conjoint counseling, and
family preservation. Mother requested a stay of the custody
order, which the court denied. On October 17, 2024, the court
admonished Mother “to cooperate and not thwart father’s
visitation with the minor.”
On February 9, 2025, Anthony texted his Mother a photo of
himself with a handgun he had found on Father’s nightstand
while he was at Father’s home unsupervised. Anthony told
Mother he held the gun which was heavy and then he felt scared
so he reached out to her. Anthony later reported Father had left
him alone for an hour and Anthony found the gun while
searching for his Xbox gift card in Father’s bedroom. The gun
was on an open shelf in Father’s nightstand. Anthony held the
gun and then, fearful, he had texted Mother. Mother called law
enforcement, reporting there was a loaded magazine next to the
gun.
Law enforcement arrived and arrested Father for child
abuse, firearm violation, possession of an unsecured firearm, and
restraining order violation (Father was under a criminal
protective order for domestic violence as a condition of probation).
The police report indicated Father denied owning the gun which
was found near his wallet and phone, which were on the bed.
Anthony also reported that he thought he saw the gun for
the first time earlier that week in the same location in the
nightstand. He thought it was a water gun. Anthony said
Father had left him alone before, usually for 20 to 60 minutes.
After finding the gun this time, Anthony was nervous about
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seeing Father and refused to visit with him. The Department
thought Anthony was struggling to find a reason not to visit
father.
On March 4, 2025, the Department filed a Welfare &
Institutions Code section 342 petition alleging that a gun and
magazine with live ammunition was found accessible to Anthony
in the home. On March 18, 2025, the juvenile court detained
Anthony from Father and ordered monitored visits for Father.
Father reported to the Department that on the day of the
discovery of the gun, he had a friend staying in his home. He had
planned to sleep with Anthony at his girlfriend’s home. Father
and his girlfriend had an argument so Father and Anthony came
home. Father then left Anthony at home alone while he took his
friend to another location. Father did not know the gun had been
left in his home. He said it was unloaded. He was thankful no
one was hurt and he believed Anthony did not touch the gun until
Mother told him to do so, manipulating Anthony to Father’s
disadvantage.
On June 13, 2025, the juvenile court held an evidentiary
hearing on the section 342 petition. Father presented the
testimony of his friend, Chanel Ellerbe. Ellerbe testified she is a
traveling nurse and had been staying at Father’s home for about
three weeks as of February 7, 2025. On February 7, 2025, Father
called and woke her up to tell her she had to leave the residence
because he was returning home with Anthony and Father did not
want Anthony to see another woman in his home. Father did not
want Ellerbe to “run into his son.” She packed up her stuff and
left around 9:00 p.m., accidentally leaving clothes and the loaded
gun at the house. She had the gun for her own safety and Father
did not know she had it at the home. She refused to answer
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questions about the gun’s make, model and ammunition type
because it could impact Father’s pending criminal case. She said
her own boyfriend had given her the gun and she was unaware
that it lacked a serial number. She always had the gun with her
because she is a single woman in a man’s house by herself and
needed it for protection. She also did not know about a
bulletproof tactical vest that was found at the house but assumed
that her boyfriend had included it when he packed up her car to
come to California from Texas. Ellerbe had registered two guns
in California.
The juvenile court sustained the section 342 petition after
amending it to read that Father knew “or should have known”
about the gun. It also found Father had violated the criminal
protective order prohibiting him from possessing, purchasing or
receiving firearms and ammunition. The court stated it would
dismiss the section 342 petition if Father admitted he owned the
gun and had made a mistake by leaving it accessible to his son.
Father did not do so.
The juvenile court found: “[Father] can’t admit to it because
of the criminal court case and the ramifications it would have
there. That then impacts the court’s analysis of whether there is
a current risk of future risk of harm. Because if he was able to
say, yes, the gun is mine and I made a mistake by leaving it out,
then the 342, I think, I would dismiss because it is
acknowledging an error. The court would not find a future risk of
harm. [¶] But because [Father] can’t or won’t admit to the gun
being his, then we have a situation where there is a criminal
protective order in place or a prior order in place that does not
allow [Father] to have a gun. He is in possession. There is a gun
in his home that does not have a serial number. There is a
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magazine in there, as well, and there is a bullet proof vest in the
home, as well. [¶] I don’t find [Ms.] Ellerbe credible at all. She
refused to answer basic questions about the gun. She says she is
a registered gun owner. Yet, she feigns ignorance when
travelling across state lines with a gun with a serial number that
has been removed from the gun. She could have legally had a
gun in California, as she testified she already does have guns
registered to her in California. So I don’t find her credible, her
testimony credible. [¶] She also indicated that she left in such a
hurry because she did not want [the minor] to know that she was
there or that she was in a relationship with Father. Yet, she had
prior contact with [minor] and drove him to school. [¶] So the
court does find that there is a current risk and future risk, based
on father’s denial of the gun and the bullet proof vest and the
magazine being in his home that was clearly in access to [the
minor]. He could have picked up the gun, handled the gun.
[¶] . . . [¶] And if the gun was not [Father’s] and was in fact Ms.
Ellerbe’s she was in the home for quite some time. She was in
the home with what she says is her own bullet proof vest, her
other magazine. And the gun is on the nightstand. And I think
clearly he should have known that she was in possession of a
gun.”
On June 13, 2025, the juvenile court sustained the section
342 petition, removed Anthony from Father, terminated
dependency jurisdiction, granted sole physical custody of Anthony
to Mother and joint legal custody to Mother and Father if the
criminal protective order was modified. It ordered monitored
visitation for Father as determined by the family court upon
modification of the criminal protective order. The court noted the
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only reason for the monitored visits was the existence of the
criminal protective order. This appeal followed.
DISCUSSION
Father argues that the juvenile court should have
dismissed the section 342 petition because there was no
indication that a similar gun event would happen again in the
future. Any risk of future danger to Anthony posed by Father
keeping a loaded gun in the house was entirely speculative and
therefore did not support the finding of an ongoing risk to
Anthony. We disagree.
A juvenile court’s jurisdictional findings are reviewed for
substantial evidence. Under the substantial evidence standard,
we are not permitted to “evaluate the credibility of witnesses,
reweigh the evidence, or resolve evidentiary conflicts.” (In re
L.Y.L. (2002) 101 Cal.App.4th 942, 947.) Rather we must “draw
all reasonable inferences in support of the findings, consider the
record most favorably to the juvenile court’s order, and affirm if
the order is supported by substantial evidence even if other
evidence supports a contrary conclusion.” (Ibid.) The court
considers the entire record to determine whether substantial
evidence supports the juvenile court’s jurisdictional findings.
Substantial evidence is evidence which is reasonable, credible
and of solid value. (In re I.C. (2018) 4 Cal.5th 869, 892.) The
ultimate test is whether it is reasonable for a trier of fact to make
the ruling in question in light of the whole record. (In re
Savannah M. (2005) 131 Cal.App.4th 1387, 1393–1394, overruled
on other grounds in In re R.T. (2017) 3 Cal.5th 622, 626–633.)
Father argues that the totality of the evidence establishes
there was no indication that a similar event would occur again
and therefore no ongoing risk to Anthony. Father was deemed
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non-offending in the initial petition when the juvenile court
struck the domestic violence counts pertaining to him. He was
participating in services and having unmonitored visits with his
son. And he was trying to maintain a relationship with his son
despite Mother’s attempts to create and foster alienation between
them.
In support of his position, Father relies on In re D.L. (2018)
22 Cal.App.5th 1142. There the court found no evidence of a
future risk where Father, who had stored a loaded rifle in a
location accessible to the child, recognized that in the future he
had to store any gun he owned where no child could access it. In
addition, by the time of the hearing, he had moved out of the
home and was not welcome to return. (Id. at p. 1147.) In re D.L.
is not dispositive.
Here, we start our analysis with In re Yolanda L. (2017)
7 Cal.App.5th 987, 995–996 (Yolanda L.). In Yolanda L, the
father had stored a loaded weapon in a hall closet accessible to
his four-year-old and six-month-old children. (Id. at pp. 989–
990.) We held, “Such conduct indicates ‘a gross lack of attention
to the child’s welfare’ with potentially greater repercussions than
leaving drugs and paraphernalia within a child’s reach.” (Id. at
p. 995.)
In Yolanda L., we concluded that storage of a loaded
accessible gun was likely to reoccur because Father was engaged
in drug trafficking activity and firearms are “tools of the trade” in
the “narcotics business.” (Yolanda L., supra, 7 Cal.App.5th at
pp. 995–996.) We pointed out that the juvenile court need not
wait until a child is seriously injured to assume jurisdiction if
there is evidence the child is at risk of future harm from the
parent’s negligent conduct. (Id. at p. 993.)
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To establish a defined risk of harm at the time of the
hearing, there must be some reason beyond mere speculation to
believe the alleged conduct will recur. (In re James R. (2009)
176 Cal.App.4th 129, 135–136, overruled on other grounds by In
re R.T., supra, 3 Cal.5th at p. 628.) Father argues that the
“future risk” the court found in Yolanda L. was based on the
father’s ongoing narcotics trafficking business where firearms are
the tools of the trade. He argues there was no such evidence in
this case. That is true. But the court in Yolanda L. arrived at a
second conclusion as well, to wit, that “father’s lack of insight into
the danger posed by the loaded gun in the home provided support
for the potential of future risk.” (Yolanda L., supra,
7 Cal.App.5th at p. 996.) Here Father, for whatever reason,
declined to acknowledge ownership of the gun and magazine or to
even attempt to explain how they happened to end up without his
knowledge on an open shelf in his nightstand next to his wallet
and phone. He would not otherwise state that he would do his
best to make sure nothing like this happened in the future, a
statement that would not have required him to admit any kind of
negligence or willful conduct. The juvenile court expressly gave
Father the opportunity to acknowledge he had committed a
momentary lapse in judgment and should have known a firearm
left openly in a nightstand accessible to a child who was home
alone was dangerous. He did not express anything close to that
resolve other than to express relief that his son was not harmed
and to acknowledge his son did the right thing in alerting adults
to the situation. It is reasonable to infer that Father’s hesitation
to own up to what happened as his fault sets the stage for similar
events to happen in the future. “One cannot correct a problem
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one fails to acknowledge.” (In re Gabriel K. (2012)
203 Cal.App.4th 188, 197.)
DISPOSITION
The findings and order of the juvenile court are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.
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