In re D.T. CA2/3 ( 2015 )


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  • Filed 9/29/15 In re D.T. CA2/3
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
    In re D.T., a Person Coming Under the                                B258878
    Juvenile Court Law.
    (Los Angeles County
    LOS ANGELES COUNTY                                                   Super. Ct. No. DK03776)
    DEPARTMENT OF CHILDREN
    AND FAMILY SERVICES,
    Plaintiff and Respondent,
    v.
    SUZANNE M.,
    Defendant and Appellant.
    APPEAL from an order of the Superior Court of Los Angeles County,
    Tony Richardson, Judge. Reversed in part, affirmed in part.
    Aida Aslanian, under appointment by the Court of Appeal, for Defendant and
    Appellant.
    Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
    and Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
    _________________________
    INTRODUCTION
    Legal guardian Suzanne M. appeals from the order of the juvenile court sustaining
    a petition under Welfare and Institutions Code1 section 300, subdivisions (b) and (d) after
    finding true that Suzanne has a history of alcohol abuse, domestic violence, emotional
    problems, and had sexually abused her grandson and ward, D.T. We conclude there is no
    evidence to support the allegations that Suzanne sexually abused D. or that the child is at
    risk of sexual abuse. Accordingly, we reverse the portion of the jurisdictional order
    finding true counts (b)(5) and (d)(1). In all other respects, the order is affirmed.
    FACTUAL AND PROCEDURAL BACKGROUND
    The Department of Children and Family Services (the Department) filed and the
    juvenile court sustained a petition alleging that Suzanne, grandmother and guardian of
    then 10-year-old D., and her male companion engaged in a violent altercation outside
    Suzanne’s house while the child was inside, and Suzanne’s history of alcohol abuse along
    with her emotional problems placed the child at risk of harm. (§ 300, subd. (b).)
    More relevant to this appeal, the court sustained counts (b)(5) and (d)(1), as
    amended to conform to proof, under section 300, subdivision (b) (neglect and failure to
    protect) and subdivision (d) (sexual abuse). Those counts read, “On 1/6/14, the child,
    [D.T.]’s legal guardian maternal grandmother, Suzanne M[.], engaged in sexual
    relation[s] with the legal guardian’s male companion, [S.T.] while the child and the
    [Department’s] Children’s Social Worker, Rebecca M[.], were present in the home, and
    in an area that was accessible to the minor, by orally copulating the male companion.
    The sexual abuse of the child by the legal guardian endangers the child’s physical health
    and safety and places the child at risk of physical harm, damage, danger and sexual
    abuse.” (Italics added.)
    The events leading to the allegations in counts (b)(5) and (d)(1) are that the social
    worker came to Suzanne’s house in response to a police report of domestic violence. She
    1
    All statutory references are to the Welfare and Institutions Code, unless otherwise
    indicated.
    2
    was greeted by a woman who indicated that Suzanne was in the garage, a detached
    building. On her approach, the social worker found Suzanne orally copulating her male
    companion. Suzanne apologized and went with the social worker into the house to find
    D. Eventually, D. was detained from Suzanne and the Department filed the petition.
    At the jurisdiction hearing, Suzanne pled no contest, apparently to all counts
    except (b)(5) and (d)(1). As to those counts, D.’s attorney argued that D. has never
    witnessed inappropriate sexual behavior and that the petition’s allegations do not show
    risk to the child. The only activity that D. has seen is hugging, kissing, or lying on the
    couch. The Department countered, and the trial court agreed, that Suzanne was engaging
    in sexual activity “in an area that was easily accessible to the minor. It wasn’t something
    that was done in the privacy of their own bedroom. The roommate directed the social
    worker to the garage. The social worker freely and easily walked in, and the
    Department’s concern is that this minor . . . could have just as easily walked in during
    this activity.” Recognizing that D. was not the person who witnessed the sexual behavior
    alleged in the petition, the court stated, “There is substantial risk as to this child, and it
    even was argued that this child has explained that he’s seen some affectionate behavior
    including lying on the couch and what have you. And I have no idea whether even that
    innocent act might have devolved into more – again, in areas that are easily accessible to
    this minor.” (Italics added.) The court sustained the petition as described.
    As for disposition, the juvenile court ordered Suzanne to undergo drug and alcohol
    services, domestic violence counseling, parenting classes, and to submit to a mental
    health assessment. The court awarded Suzanne monitored visits for three hours, three
    times per week. Suzanne appealed.
    DISCUSSION
    Suzanne’s sole contention on appeal is that there is no evidence to support the sex
    abuse allegation. She does not challenge the bases for jurisdiction to which she pled no
    contest. Nor does she claim error in the disposition order.
    The Department does not dispute the facts or defend the sufficiency of the
    evidence to support the finding under counts (b)(5) and (d)(1). Instead, the Department
    3
    contends that the issue is not justiciable because we are unable to give Suzanne any
    effective relief. The justiciability doctrine generally counsels against deciding an appeal
    unless it involves “a present, concrete, and genuine dispute as to which the court can
    grant effective relief.” (In re I.A. (2011) 
    201 Cal. App. 4th 1484
    , 1489.) The Department
    argues that as Suzanne does not challenge the order sustaining the counts concerning her
    alcohol abuse, domestic violence and emotional problems, the juvenile court has
    jurisdiction over D. irrespective of what happens on appeal to counts (b)(5) and (d)(1).
    Therefore, the Department argues, Suzanne’s jurisdictional challenge is not justiciable.
    Suzanne counters that we should nonetheless address the issue because the ruling
    will be prejudicial to her when the guardianship comes up for review, or if she is
    involved in future child dependency proceedings. We agree that the ruling poses the risk
    to Suzanne that she cites. “Few crimes carry as much (or as much deserved) social
    opprobrium as child molestation. Most people would rather be accused of bank robbery.”
    (Blanca P. v. Superior Court (1996) 
    45 Cal. App. 4th 1738
    , 1752.) “With the exception of
    death penalty cases, it is hard to imagine an area of the law where there is a greater need
    for reliable findings by the trier of fact. The consequences of being wrong -- on either
    side -- are too great.” (Id. at p. 1754, first italics added.) Because of the ramifications of
    the finding that counts (b)(5) and (d)(1) are true, we shall exercise our discretion and
    consider the merits of Suzanne’s appeal. (In re D.C. (2011) 
    195 Cal. App. 4th 1010
    , 1015,
    citing In re C.C. (2009) 
    172 Cal. App. 4th 1481
    ; see also In re Drake M. (2012)
    
    211 Cal. App. 4th 754
    , 762-763 [prejudice to appellant by failing to address merits of
    nonjusticiable appeal].)
    “At a jurisdictional hearing, a finding that the minor is a person described in
    section 300 must be supported by a preponderance of the evidence. [Citations.]”
    (In re Heather A. (1996) 
    52 Cal. App. 4th 183
    , 193.)
    A child will come within the jurisdiction of the juvenile court under subdivision
    (d) of section 300 if “The 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
    4
    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.”
    Penal Code section 11165.1 defines sexual abuse as “sexual assault.” That section
    then explains that conduct described as “sexual assault” includes inter alia, “The
    intentional touching of the genitals or intimate parts . . . or the clothing covering them, of
    a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification,
    except that it does not include acts which may reasonably be construed to be normal
    caretaker responsibilities; interactions with, or demonstrations of affection for, the child;
    or acts performed for a valid medical purpose.” (Pen. Code, § 11165.1, subds.(a), (b)(4),
    italics added.)
    There is simply no evidence that D. was sexually abused or assaulted as those
    terms are used in Penal Code section 11165.1 and hence in section 300, subdivision (d).
    As Suzanne observes, the only sexual conduct here occurred between consenting adults,
    in a building separated from Suzanne’s house, that did not involve the child as a
    participant or witness. There is no evidence that any acts listed in Penal Code section
    11165.1 were committed on or by D., or that Suzanne failed to protect the child from sex
    abuse by another. The petition does not even allege that D. witnessed any sexual activity
    as defined in section 300, subdivision (d).
    The juvenile court acknowledged that D. never saw Suzanne engage in
    inappropriate sexual activity. Instead, the court speculated about the possibility that the
    child could have walked in on Suzanne just as the social worker had. Yet, even if he had
    walked in on Suzanne in the act, that does not constitute sexual abuse as defined by
    Penal Code section 11165.1. There is simply no evidence that D. was sexually abused or
    at risk of sexual abuse as that term is defined by section 300, subdivision (d). The
    petition fails to state facts sufficient to bring the child within subdivision (d) because it
    does not allege that any sexual acts were done to or by the child.
    DISPOSITION
    The portion of the June 11, 2014 jurisdiction order sustaining counts (b)(5) and
    (d)(1) is reversed. In all other respects, that order is affirmed.
    5
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    ALDRICH, J.
    We concur:
    EDMON, P. J.
    JONES, J.
    
    Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
    article VI, section 6 of the California Constitution.
    6
    

Document Info

Docket Number: B258878

Filed Date: 9/29/2015

Precedential Status: Non-Precedential

Modified Date: 9/29/2015