In re C.K. CA2/4 ( 2015 )

Filed 6/17/15 In re C.K. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re C.K. et al., Persons Coming Under the B259834
Juvenile Court Law.
___________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK05107)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
M.M.,
Defendant and Appellant.
APPEAL from order of the Superior Court of Los Angeles County,
Tony Richardson, Judge. Modified and affirmed.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
______________________________
M.M. (mother) challenges the juvenile court’s jurisdictional and dispositional
order regarding her sons C.K. (born in 2002) and J.K. (born in 2004). Specifically, she
argues the fact that her live-in male companion, A.M., was a registered sex offender is
insufficient to establish jurisdiction. We agree and modify the order to strike the
allegations based on A.M.’s status as a registered sex offender. In all other respects, the
order is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
The family has had an extensive dependency history, with numerous referrals
against mother and the children’s father, D.K., and a voluntary family maintenance case
in 2004 to address the parents’ substance abuse issues. Based on a 2013 family law
order, the children lived with father, and visited mother during school breaks. In March
2014, mother’s live-in companion, A.M., was arrested for hitting mother in the face
during an altercation while the children were in the home.
During the subsequent investigation by the Department of Children and Family
Services (DCFS), mother tested positive for amphetamines and methamphetamines.
DCFS also discovered that A.M. was a registered sex offender. He was arrested in 1991
for rape by force, kidnapping, robbery, and assault with a deadly weapon, not a firearm.
He was convicted of rape by force under Penal Code section 261 and was sentenced to
eight years in prison; the other charges were dropped. Since then, A.M. had had several
arrests and convictions for domestic violence. In 2010, he had been convicted of failing
to register as a sex offender.
Mother had let A.M. stay with her for about a year because he was homeless, and
there was evidence she had left the children alone with him on at least two occasions.
The children reported they did not like A.M. because he was “mean” to them and their
mother, but they denied that he had abused them physically or sexually.
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Mother admitted A.M. had been abusive with her, and she obtained a restraining
order against him in early April 2014. Nevertheless, in late April, a social worker found
A.M. asleep in mother’s bed, and in June 2014, mother was seen with fresh bruises,
which she admitted were inflicted by A.M.
DCFS filed a petition under Welfare and Institutions Code section 300,
subdivisions (a), (b)(1), and (d). The sole allegation under subdivision (a) was that
mother and A.M. had a history of violent altercations in the children’s presence, and that
mother allowed A.M. to reside in the home and have unlimited access to the children
(count a-1). The same allegation was repeated in count b-1. Two other allegations were
made under subdivision (b)(1): that mother’s drug history and current drug use
endangered the children (count b-2), and that mother placed the children at risk of
“physical harm, damage, danger, sexual abuse and failure to protect” by allowing A.M., a
registered sex offender, to reside in her home and to have unlimited access to the children
(count b-3). The latter allegation was repeated in count d-1, which was pled under
subdivision (d).
The children were detained from mother and released to father. At the combined
jurisdictional and dispositional hearing in September 2014, the children’s counsel
questioned whether A.M.’s sex offender status, without more, placed the children at risk
of sexual abuse. The court noted the allegations were based not only on A.M.’s status,
but on the “violent nature” of the crime that required him to register as a sex offender.
The court sustained the allegations in the petition, declared the children dependents of the
court, and ordered monitored visits for mother until she completed a domestic violence
for victims program, individual counseling to address case issues, substance abuse
treatment and random testing. The court then terminated jurisdiction with an order
granting father full physical and legal custody.
This appeal followed.
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DISCUSSION
Mother acknowledges that because she does not contest all jurisdictional findings
against her, we would not reverse the jurisdictional order. Generally, a single
jurisdictional finding supported by substantial evidence is sufficient to support
jurisdiction and moots the challenge to the other findings. (In re Alexis E. (2009) 171
Cal. App. 4th 438, 451.) But we have discretion to consider the merits of a parent’s appeal
“in an abundance of caution” if the challenged finding could prejudice the parent in the
future. (In re C.C. (2009) 172 Cal. App. 4th 1481, 1485; see also In re Alexis E., at p. 451;
In re D.C. (2011) 195 Cal. App. 4th 1010, 1015.)
We agree with mother that the sustained counts b-3 (that she exposed her children
to a substantial risk of physical harm, including sexual abuse) and d-1 (that she failed to
protect them from sexual abuse) are pernicious. The two counts raise sexual abuse as an
issue, and child sexual abuse carries a particular stigma. We therefore consider mother’s
challenge to the court’s findings on those counts.
“We review the juvenile court’s jurisdictional findings for sufficiency of the
evidence. [Citations.] We review the record to determine whether there is any
substantial evidence to support the juvenile court’s conclusions, and we resolve all
conflicts and make all reasonable inferences from the evidence to uphold the court’s
orders, if possible. [Citation.] ‘However, substantial evidence is not synonymous with
any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not
be affirmed on appeal. [Citation.] Furthermore, “[w]hile substantial evidence may
consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must
rest on the evidence’ [citation]; inferences that are the result of mere speculation or
conjecture cannot support a finding [citations].” [Citation.] “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.” [Citation.]’ [Citation.]” (In re David M. (2005) 134 Cal. App. 4th 822, 828,
italics omitted.)
Welfare and Institutions Code section 300, subdivision (b) gives the juvenile court
jurisdiction over a child if “[t]he child has suffered, or there is a substantial risk that the
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child will suffer, serious physical harm or illness, as a result of the failure or inability of
his or her parent or guardian to adequately supervise or protect the child . . . .” Section
300, subdivision (d) allows for jurisdiction over a child when “[t]he child has been
sexually abused, or there is a substantial risk that the child will be sexually abused, as
defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a
member of his or her household, or the parent or guardian has failed to adequately protect
the child from sexual abuse when the parent or guardian knew or reasonably should have
known that the child was in danger of sexual abuse.”
DCFS argues A.M.’s status as a registered sex offender creates a presumption of
risk under those subdivisions, which mother failed to rebut. The statutory presumption is
set forth in Welfare and Institutions Code section 355.1, subdivision (d), on which DCFS
relies on appeal. That statute provides: “Where the court finds that either a parent, a
guardian, or any other person who resides with, or has the care or custody of, a minor
who is currently the subject of the petition filed under Section 300 (1) has been
previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code,
(2) has been previously convicted of an act in another state that would constitute sexual
abuse as defined in Section 11165.1 of the Penal Code if committed in this state, (3) has
been found in a prior dependency hearing or similar proceeding in the corresponding
court of another state to have committed an act of sexual abuse, or (4) is required, as the
result of a felony conviction, to register as a sex offender pursuant to Section 290 of the
Penal Code, that finding shall be prima facie evidence in any proceeding that the subject
minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at
substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption
affecting the burden of producing evidence.” (Welf. & Inst. Code, § 355.1, subd. (d).)
DCFS acknowledges that the presumption was not cited in the juvenile court, and
mother argues it has been forfeited. Generally, one party’s failure to clearly invoke a
rebuttable presumption in the court below deprives the other side and the court of notice
of the issue presented, and the presumption may not be raised for the first time on appeal.
(See In re A.S. (2011) 202 Cal. App. 4th 237, 243 [insufficient notice of Welf. & Inst.
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Code, § 355.1, subd. (a) presumption], but see In re D.P. (2014) 225 Cal. App. 4th 898,
904 [sufficient notice if petition borrows Welf. & Inst. Code, § 355.1, subd. (a)
language].) In In re Ricky T. (2013) 214 Cal. App. 4th 515, the only published case to
have considered the forfeiture of the presumption in Welfare and Institutions Code
section 355.1, subdivision (d), that presumption had been clearly raised and relied on at
the jurisdictional hearing, without an objection or request for a continuance. In addition,
since he was the registered sex offender, the appellant had unique knowledge of the facts
of his conviction. (Id. at p. 522.)
In contrast, here, while DCFS’s petition relied on A.M.’s registered sex offender
status, it did not cite Welfare and Institutions Code section 355.1, subdivision (d) or
borrow any distinctive language from it. There is no indication that DCFS or the juvenile
court relied on the presumption at the jurisdictional hearing. Mother had no notice of or
opportunity to object to the application of the presumption before this appeal, and she is
in no better position than DCFS to know the facts underlying A.M.’s conviction.
Regardless, as noted in In re Quentin H. (2014) 230 Cal. App. 4th 608, 615–616,
the statute’s legislative history indicates the Legislature’s intent that the presumption in
Welfare and Institutions Code section 355.1, subdivision (d) has conclusive effect only if
the conviction is recent, involves child sexual abuse, and there is evidence of risk to the
child that is subject to the court’s jurisdiction. ‘“Only if the person [with the history of
serious sexual abuse] has a recent conviction for a serious sexual offense involving a
child (it must be both recent and involve a child or there would then be “some evidence”
that there is no risk to the child in question), and the person was unable to present any
evidence to show that there was no risk to the child, only then would the prima facie
evidence translate into a basis for the juvenile court to assert jurisdiction over the minor.’
(Assem. Com. on Judiciary, Analysis of Sen. Bill No. 208 (1999–2000 Reg. Sess.) as
amended May 13, 1999, pp. 5–6, italics added.)” (In re Quentin H., at p. 616.)
The appellant in In re Ricky T., supra, 214 Cal. App. 4th 515 had been convicted
under Penal Code section 288, subdivision (a) for molesting one of his minor step
granddaughters just months before the jurisdictional hearing; there was evidence he also
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had recently molested his other minor step granddaughter. (In re Ricky T., at pp. 519–
520.) With or without the presumption, the evidence in that case overwhelmingly
established a risk that the appellant’s three-year-old grandson was at risk of being
exposed to the sexual molestation of other children in the same household, if not directly
at risk of sexual abuse himself. (Id. at. p. 523.)
Not so here. DCFS’s own evidence shows A.M.’s conviction of rape with force
under Penal Code section 261 was over twenty years old. DCFS’s position in the
jurisdictional report was that although A.M. “was not convicted of a sex crime against
children,” he was convicted of “a violent sexual act” and continued to exhibit violent
behavior in mother’s home. The juvenile court adopted DCFS’s rationale. It focused on
the “violent nature of the act which was rape by force,” and failed to make any findings
on the sexual abuse allegations in the petition. The court, thus, considered A.M.’s rape
conviction as additional evidence that A.M. was a violent individual, not that he was a
sexual predator. But the purpose of sex offender registration is to keep track of persons
likely to commit sexual offenses in the future (Lewis v. Superior Court (2008) 169
Cal. App. 4th 70, 78), not to keep track of violent individuals in general.
In addition to the rape conviction, A.M.’s criminal history since 2000 was replete
with instances of and at least one conviction for domestic violence, for which he served a
four-year prison term. Thus, his entire criminal history could have supported an
allegation under subdivision (b) that mother exposed her children to risk of harm by
allowing a violent individual to have access to them. But counts b-3 and d-1 did not
allege generally the children were at risk of physical harm because A.M. had committed
violent crimes. Rather, they alleged in relevant part that the children were at risk of
sexual abuse because A.M. was a registered sex offender. The court unnecessarily
confused and complicated the case against mother by sustaining counts b-3 and d-1 as
written.
Because the sexual abuse allegations in counts b-3 and d-1 based on A.M.’s sex
offender registration are not supported by the evidence and do not appear necessary to the
court’s findings of jurisdiction, they should be stricken.
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DISPOSITION
Counts b-3 and d-1 of the Welfare and Institutions Code section 300 petition are
stricken. The jurisdictional and dispositional order is affirmed as modified.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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