Cal. court: CP possession no reason to modify father's parental rights without proof of risk to child

A California appellate court has reversed an order making a child a dependent of the court following his father's conviction of possession of child pornography. No evidence showed there was a risk that the father would sexually abuse or exploit the child. In re M.M., 2012 Cal. App. Unpub. LEXIS 3772 (Cal. Ct. App. 2012).

The father had been convicted of possession of child pornography, and the state argued that the possession "created a detrimental and endangering home environment for the child ... and place[ed] the child at risk of physical and emotional harm and damage and sexual abuse." Additionally, the court noted that the father was a massage therapist, specializing in children that were always accompanied by their parents.

No evidence was presented to suggest that the father had abused his son. The child's mother acknowledged that he had always been a good father, and she "did not view [him] as a predator or a pedophile." A psychiatrist testified that the father posed no risk to his son. The court, however, was not convinced there was no risk, and made the son a dependent of the court, gave the mother physical custody, and ordered family maintenance services and family reunification services to the father. The father appealed, arguing the court did not have jurisdiction.

For the court to take jurisdiction, the state must have shown "that Father failed to supervise or protect [the son,] adequately causing him to suffer or that he will suffer serious physical harm or illness." The appellate court held that possession of child pornography alone does not do that, and no evidence was presented to suggest the father "was likely to commit a hands-on sexual offense against any child, let alone [the son]." Additionally, jurisdiction can be established if the child has been sexually abused or is at risk for sexual abuse, but the court held that sharing and possessing child pornography does not establish such.