L.A. Cty. Dept. of Children etc. v. Super. Ct. ( 2013 )

Filed 12/30/13 (unmodified opn. follows)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LOS ANGELES COUNTY No. B250059
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, (L.A. Super. Ct. No. CK95882)
Petitioner,
v. ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
D.S., et al.,
Real Parties in Interest.
It is ordered that the opinion filed herein on December 17, 2013, and certified for
publication, be modified in the following particulars:
On the title page, Ailene Wong, Deputy County Counsel, was inadvertently
omitted appearing on behalf of petitioner. The first full paragraph is deleted and replaced
with the following:
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jessica Paulson-Duffy, Senior Associate County Counsel, and Aileen Wong, Deputy
County Counsel, for Petitioner.
There is no change in the judgment.
________________________________________________________________________
MOSK, Acting P. J. KRIEGLER, J.
Filed 12/17/13 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
LOS ANGELES COUNTY No. B250059
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, (L.A. Super. Ct. No. CK95882)
Petitioner,
v.
THE SUPERIOR COURT OF LOS
ANGELES COUNTY,
Respondent;
D.S., et al.,
Real Parties in Interest.
ORIGINAL PROCEEDINGS; petition for writ of mandate. Marguerite Downing,
Judge. Writ granted.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jessica Paulson-Duffy, Senior Associate County Counsel, for Petitioner.
No appearance for Real Party in Interest.
No appearance for Respondent.
__________________________________
The Department of Children and Family Services (Department) seeks a writ of
mandate to reverse respondent court‟s order dismissing a petition filed under Welfare and
Institutions Code section 300, subdivisions (b) and (d).1 Respondent court dismissed the
petition, finding that a two-year-old male, S.G., was not at substantial risk of sexual
abuse by S.G., Sr. (father), even though father was convicted of sexually assaulting
young boys on two separate occasions, was civilly committed as a sexually violent
predator (SVP) for almost 13 years after his 7-year prison term, and discontinued any sex
offender treatment after his release in 2009. We conclude the record does not contain
substantial evidence to overcome the presumption of jurisdiction set forth in
section 355.1, subdivision (d). The Department‟s petition is therefore granted.
FACTUAL AND PROCEDURAL BACKGROUND
Father’s 1986 and 1989 Sex Crimes
In 1986, father pled guilty to violating Penal Code section 288, committing lewd
and lascivious acts with a minor under 14. According to the police report, father
sodomized a ten-year-old boy on June 5, 1986. The crime took place at an elementary
school, and the victim claimed father grabbed the victim around his neck, choking him,
and kept him from screaming by placing his hand over the victim‟s mouth. Afterwards,
father told the victim “You better not tell anybody or I‟ll kill you.” The victim reported
the incident to his grandmother, who notified police. A medical exam confirmed signs of
sexual assault. Police questioned father, and he admitted to sodomizing the victim.
Nothing in the police report mentions any other suspects or participants.
Father again sodomized a young boy in January 1989 while on probation for his
earlier sex crime. Father was 20 years old and his victim was six years old. Father lured
1
All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
3
the victim to his bedroom with a promise of toys, and after sodomizing the child, father
gave the victim a Twinkie and told him not to tell anyone because father would get in
trouble. The victim reported the incident to his mother, and a medical examination
revealed a small tear on the top of his anus, which “was good evidence that the victim
had been the victim of a recent sexual assault.” When questioned by police, father again
admitted the crime and also disclosed that he had been arrested two years earlier for a
similar crime. He was convicted of violating Penal Code section 288 and subdivision (c)
of Penal Code section 286 (sodomy of person under 14 years with a 10-year age
difference). Father served seven years in prison.
Father’s Civil Commitment as an SVP
Father was clinically evaluated during his prison sentence to determine whether he
qualified as an SVP under sections 6600 et seq. The evaluating psychologist, Dr. Gary
Zinik, Ph.D., opined father was sexually attracted to males and also suffered from
polysubstance abuse for cocaine, alcohol, marijuana, and PCP (phencyclidine). Dr. Zinik
noted alcohol and drugs made it easier for father to act without conscience on his sexual
impulses toward children. The doctor further observed that a widely accepted psychiatric
reference guide explained that pedophilia “is usually chronic especially those attracted to
males. The recidivism rate for individuals with pedophilia involving a preference for
males is roughly twice that for those who prefer females.” Father‟s “offense record
shows that he clearly fits this profile.” The district attorney petitioned for father to be
civilly committed as an SVP in June 1996 and again in December 1999. Father was
evaluated by mental health professionals who concluded that he suffered from a
diagnosed mental disorder, and as a result of the disorder is “predisposed to the
commission of sexual acts to such a degree that he constitutes a menace to the health and
safety of others.” Although the disposition of the 1996 petition is not in the record, a jury
found the 1999 petition true, and in December 1999, father was civilly committed as an
SVP.
4
Father was held in state mental hospitals for nearly 13 years and was subject to
numerous psychological evaluations during that time. The record at trial included 24
psychological evaluations between April 26, 1996, and February 9, 2009. Until 2005, the
evaluators consistently concluded that father was likely to commit sexually violent
offenses in the future. Father was not willing to enroll in the second phase of a four-
phase treatment program for sexual offenders because he did not consider himself a child
molester. In a January 2003 evaluation with Dr. Dawn Starr, Ph.D., father stated his
plans after release would be to move in with his mother in Alabama and care for her, then
get a job and move in with his girlfriend, register as a sex offender, continue with
Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings, and continue
his Muslim beliefs. He said he did not participate in sex offender treatment because he
considered it a waste of time. He identified alcohol, drugs, and having too much spare
time as potential risks. A report by Dr. Douglas Korpi, Ph.D., in the same time frame
states father “has consistently informed all who have asked that he does not suffer a
sexual disorder, is not a child molester and does not require treatment. He has been quite
frank about this: If he is released he will not seek treatment.”
For the first time in a report dated March 5, 2005, Dr. Starr concluded father was
no longer likely to commit sexually violent crimes in the future. Dr. Starr‟s conclusion
was based on the fact that father planned to seek therapy with Jan Brown, a sex therapist,
when he returned to Alabama and appeared committed to sobriety and a socially
acceptable lifestyle. Dr. Starr reiterated her concern about father‟s likelihood of future
sexual offending and recognized that without a court order, father‟s participation in
treatment would be voluntary. She believed, however, with the support of his family,
father would stay committed to therapy. Given father‟s new commitment to therapy, Dr.
Starr concluded father was not likely to commit future sexually violent offenses.
Dr. Gary Zinik evaluated father in the same time frame and concluded that father
remained a danger to others, was likely to commit sexually violent crimes in the future
due to a mental disorder, and continued to meet the criteria of an SVP. Dr. Zinik
recognized that father had quit smoking, attended anger management and interpersonal
5
skill classes, and regularly participated in Muslim religious activities. Father seemed
sincere about his Muslim religious practices and hoped his religion would keep him from
reoffending. Dr. Zinick noted father had stopped attending NA/AA meetings eight
months earlier. Father identified himself as a sex offender and admitted he needed sex
offender and substance abuse treatment, but refused to participate in the hospital‟s sex
offender treatment program because he did not believe he had a mental disorder. Dr.
Zinik was aware of father‟s plans to seek therapy from Jan Brown after his release, but
considered this plan insufficient because the proposed group therapy sessions met only
once every two weeks. In Dr. Zinik‟s opinion, father needed intensive sex offender
treatment and his history of refusing treatment lowered the chances he would stay in
treatment. Dr. Zinik notes: “[Father‟s] motivation for sex offender treatment is
questionable, since he has refused sex offender treatment at [the state hospital] for the
past six years. . . . If he were to [be released], he would not be under any supervision.
He would be accountable to no one and there would be no way to ensure that he would
get the treatment he needs to reduce the risk to reoffend.”
Father began the second phase of a five-phase treatment program for sex offenders
in early 2008. When asked what motivated him to begin the second phase after almost 10
years of civil commitment, he explained that he did not like the way the program was run
at Atascadero State Hospital, but that the program at Coalinga was different.
Specifically, the treatment contract at Atascadero required him to admit he had a
“problem,” but the contract at Coalinga made no mention of such a requirement. Later in
2008, he prepared a “Release Plan” detailing the steps he planned to follow to make a
successful transition back into the community when released. Father stated that upon his
release, he would leave California to reside with his mother and 24-year-old nephew in
Alabama. The “Release Plan” stated father understood the responsibility of being
accountable. He planned to follow all sex offender registration laws, keep a daily
journal, set up daily “check-in call times” so that his support group knows his
whereabouts at all times, and practice full disclosure with employers, landlords,
neighbors, and members of the NA group he planned to attend.
6
Psychological evaluations in 2007 and 2008 reached varying conclusions about
father‟s likelihood to commit future sex crimes. Those psychologists who concluded
father no longer met the criteria for SVPs emphasized father‟s attendance at NA/AA
programs, his Muslim faith, and his recognition of the need for continued treatment.
Evaluators responded positively to the fact that father was attending treatment and
appeared committed to continuing treatment after his release. They continued to
diagnose father as suffering from mental disorders, including pedophilia and drug and
alcohol dependence. At least one psychologist diagnosed him as having pedophilia, drug
and alcohol dependence, and antisocial personality disorder but concluded that because
the norms for a psychological test called the Static-99 had changed since 1995, father‟s
predicted risk level had fallen so he no longer met the criteria for an SVP.
Father’s 2009 Release From Civil Commitment
On April 22, 2009, the court denied the district attorney‟s petition to recommit
father as an SVP. It also granted district attorney‟s motion to dismiss earlier
recommitment petitions dated September 23, 2005 and October 19, 2007, and ordered
father released forthwith. Nothing in the record or the briefs provides any reason why the
district attorney moved to dismiss the 2005 and 2007 petitions, or whether the court
considered the possibility of imposing conditions on father‟s release. A social worker
interviewed the district attorney, who recalled the doctors and father all agreed that father
needed to continue to participate in ongoing, community-based treatment for sex
offenders after his release. The district attorney claimed father was in denial about his
issues, and she did not trust father with any child.
7
Department Investigations of Possible Risk to Children Living with Father
Less than eight months after his release, father moved in with D.S. (mother) and
her three-year-old daughter, Do.S.2 In November 2009, the Department investigated a
report that father, a convicted pedophile, was residing with mother and Do.S. When the
Department informed mother of father‟s criminal history, mother separated from father in
order to protect Do.S., and the Department closed the matter without filing a petition. At
some point thereafter, mother reunited with father and became pregnant. S.G., a male
and the subject of the current petition, was born in June 2011.
The Department received another referral concerning mother and father on
September 19, 2012. The caller reported mother and father smoked marijuana around
S.G., and father was a registered sex offender. The Department conducted an
investigation, interviewing mother, father, and a maternal uncle who occasionally resided
with mother. Father admitted his criminal history and denied he was subject to any
conditions as a registered sex offender. Father stated he lived with his sister in Los
Angeles but spent the night at mother‟s apartment three to five nights a week because
mother works nights. A Long Beach Police Officer was present at the initial visit and
advised father that he would need to register in Long Beach even if he maintained a
separate residence in Los Angeles. Father agreed to do so. Father also admitted he
smoked marijuana and drank beer on occasion.
Mother is slightly developmentally disabled. She told the investigating social
worker she knew about father‟s criminal history but was unaware of what type of child
abuse father went to prison for. She explained “that is his past and I know him now.”
The investigating social worker asked father to describe his past convictions to mother in
the social worker‟s presence. Father began by reminding mother that he had been
molested by his cousin as a child. He explained that the 1986 arrest stemmed from the
fact that he was present while his cousin was molesting another child and denied
2 Do.S. no longer resides with mother and father and is not a subject of the
petition.
8
participating in the molestation. He admitted he was arrested for sodomy in 1989.
Mother did not know what sodomy was and father had to explain it to her. The
Department report from its 2009 investigation reflected mother was similarly confused
about father‟s past but had eventually agreed to separate from father in order to avoid the
Department‟s involvement.
In different interviews with the Department, father repeatedly minimized the
significance of his earlier sex crimes, his diagnosis as a pedophile, and his designation as
an SVP. On September 20, 2102, father denied participating in the molestation that led to
his arrest in 1996, attributing the molestation to his cousin. Father said he had received
sex offender treatment at the state hospitals from 1996 to 2009, but he did not need
professional support after his release. On October 3, 2012, father took the position that it
was unfair of the Department to take his earlier crimes into consideration, because he had
already served his time and been to treatment. When told the severity of his earlier sex
crimes was a cause for significant concern, father responded “it‟s not like it seems.”
Regarding his mental health diagnoses, he claimed that while he was at the state hospital,
he was classified as “anti-social” but that was only while he was incarcerated. Father
emphasized that since his release, he had not been involved with law enforcement and
respected the law. On November 9, 2012, father claimed he had changed and no longer
was the person who had committed the crimes. He said he completed sex abuse classes
while in the hospital. Father said he would not hurt S.G. and repeatedly insisted he
needed unmonitored visits. In a May 2013 interview, father said he did not remember if
he went to therapy when he first got out of the hospital in 2009. Father denied being
diagnosed with a mental illness and said he was not eligible for disability because he did
not suffer from any mental disorder.
Father‟s statements also demonstrate that after he was released from civil
commitment in 2009, he did not continue the rehabilitative activities that led to his
release. Rather than continuing to attend NA/AA meetings as planned, he was drinking
beer and smoking marijuana while living with mother. His release plan emphasized the
importance of complying with sex offender registration requirements, yet while the
9
dependency investigation and case was proceeding, father failed to register as required.
A February 15, 2013 police report stated father was to register as an SVP every 90 days,
and his last 90-day period expired on June 5, 2012, without father registering. On
October 3, 2012, a Los Angeles police officer conducted a compliance check at father‟s
residence, and he was not home. The officer left his card and requested father contact the
officer. As of February 14, 2013, father had not contacted the officer or registered.
Father also did not follow through on his plan to marry D.M., the woman he
identified as his fiance during his civil commitment. He became romantically involved
with mother instead. D.M. is mother‟s aunt and raised mother from childhood. Father
stated he believed D.M. called in the 2009 referral because she was upset that father and
mother had formed a romantic relationship.
Dependency Court Proceedings
The Department filed a petition on October 9, 2012, alleging that father is a
registered sex offender and has a criminal history of sex abuse convictions for sodomy
with a minor under 14 years old. The petition further alleged that mother was aware of
father‟s criminal history and failed to protect the child by allowing father to reside in the
home with unlimited access to the child. The Department alleged these facts placed the
child “at risk of physical harm, damage, danger, sexual abuse, and failure to protect.”
Respondent court held a detention hearing, found father to be a presumed father,
found a prima facie case, and released the child to both parents. The Department
petitioned for a stay of the court‟s order and authority to re-detain S.G., which we granted
on October 11, 2012. Respondent court amended its order, granting father monitored
visits only, in accordance with the directions provided by this court.
On January 4, 2013, respondent court ruled that all evaluations of father ordered
by a court or the Department of Corrections were discoverable and not privileged, but
other physician and psychological records were privileged and not discoverable. The
court ordered evaluations from father‟s civil commitment proceedings produced.
10
Expert’s Report
On May 26, 2013, Dr. Barry Hirsch completed a report evaluating the risk father
presented of sexually molesting his son. He prepared the report under contract with the
Department but did not interview father or mother because they both declined to be
interviewed. Dr. Hirsch is a psychologist with 43 years of experience working with
sexual offenders and 38 years experience as a forensic psychological evaluator. Dr.
Hirsch reviewed father‟s criminal history, Department reports, and father‟s mental health
evaluations and concluded that father presented a serious and well-founded risk of
sexually grooming S.G. Sexual grooming consists of planning and deliberate behaviors
to befriend and establish an emotional connection with a child to have the child lower and
abandon whatever inhibitions the child might have against inappropriate sexual activities.
The risk of sexual grooming therefore creates a risk that father will molest S.G. at some
point. In Dr. Hirsch‟s opinion, father would wait until the court was no longer focused
upon him, his son, and mother before beginning to groom and sexually molest his son.
Dr. Hirsch based his opinion on a number of facts. Father had resisted sexual
offender treatment until everyone told him that if he obtained treatment he would be
released. The state hospital had a sex offender treatment program that typically takes
four years to complete. Father had only participated in a little over a year in phase two of
the program. Father presented a treatment plan to attend out-patient treatment for his
sexually deviant interest, attend local NA/AA meetings, and settle down with his fiance,
D.M. Once released, however, father repudiated any need for continued sex offender
treatment, never attended NA/AA meetings, and abandoned his plans to marry D.M.
Instead, he began using marijuana and drinking beer, both identified “triggers” for
predatory acts. Father moved in with and impregnated mother, who demonstrated such a
lack of insight into the nature of his prior crimes that she reconciled with him after
learning of his status as a registered sex offender, had a child with him, and trusted him to
care for their son alone overnight. In addition, father failed to register as a sex offender
after the Department filed a petition asking the court to exercise dependency jurisdiction
11
based on his criminal history and former status as an SVP. Father sought to introduce
expert testimony through a telephonic or video appearance, but the court denied his
motion.
On June 13, 2013, respondent court held a jurisdictional hearing, admitting
numerous reports and evaluations, and taking testimony from Dr. Hirsch. The
Department also sought to question father, but father asserted a right against self-
incrimination under the Fifth Amendment of the United States Constitution and was not
required to take the stand.
On July 17, 2013, respondent court dismissed the section 300 petition, finding no
substantial risk was proven to support jurisdiction over S.G. The Department filed the
petition for extraordinary relief and sought a stay of respondent court‟s dismissal.
Minor‟s counsel submitted a “preliminary opposition.” This court granted the stay and
issued an alternative writ.
Respondent court failed to comply with our writ, which directed it to reverse its
order denying jurisdiction and to enter a new jurisdictional order over S.G. Instead of
entering a new jurisdictional order as directed, the court set an adjudication hearing on
the now-dismissed petition for December 19, 2013. Neither respondent nor any real
party in interest filed a return. This court heard oral argument on the petition on
November 4, 2013.
DISCUSSION
We note preliminarily that respondent court and real parties in interest have
admitted the allegations in the petition because no party filed a return to our alternative
writ. In response to an order to show cause, real parties in interest may file “a return by
demurrer, verified answer, or both.” (Cal. Rules of Court, rule 8.487(b)(1).) “In the
absence of a true return, all well-pleaded and verified allegations of the writ petition are
accepted as true.” (Bank of America, N.A. v. Superior Court (2013) 212 Cal. App. 4th
1076, 1084.) Nonetheless, we permitted counsel for father and for the minor to appear at
12
oral argument. After considering the petition, the submitted exhibits, and oral argument,
we conclude respondent court erred in dismissing the petition.
Standard of Review
We review respondent court‟s order for substantial evidence. (In re J.K. (2009)
174 Cal. App. 4th 1426, 1433.) “The term „substantial evidence‟ means such relevant
evidence as a reasonable mind would accept as adequate to support a conclusion; it is
evidence which is reasonable in nature, credible, and of solid value. [Citation.]” (Ibid.)
“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.]” (In re
Savannah M. (2005) 131 Cal. App. 4th 1387, 1393-1394.)
Dependency Law in the Context of Sex Crimes
A child falls within the jurisdiction of the dependency court when there is “a
substantial risk that the child will suffer[] serious physical harm or illness, as a result of
the failure or inability of his or her parent . . . to adequately supervise or protect the
child” or if “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 . . . .” (§ 300, subds. (b), (d).)
Penal Code section 11165.1provides an extensive definition of sexual abuse,
including “[t]he intentional touching of the genitals or intimate parts . . . of a child . . . for
purposes of sexual arousal or gratification . . . .” (Id., subd. (b)(4).) The definition of
sexual abuse also includes conduct in violation of Penal Code sections 286 (“an act of
13
sodomy with another person who is under 14 years of age and more than 10 years
younger” than the perpetrator) and 288 (“any lewd or lascivious act . . . upon or with the
body . . . of a child who is under the age of 14”). (Id., § 11165.1, subd. (a).)
The Department must show by a preponderance of the evidence that a minor is a
child described by one of the subdivisions in section 300. (§ 355, subd. (a).) If, however,
a parent has been convicted of sexual abuse—even for an offense that occurred many
years earlier with an unrelated child—that conviction is prima facie evidence that the
parent‟s own child is a person described by subdivision (a), (b), (c), or (d) of section 300
and is at substantial risk of abuse or neglect. (§ 355.1, subd. (d)(1); see also In re E.B.
(2010) 184 Cal. App. 4th 568, 577.) A parent‟s status as a registered sex offender also
provides prima facie evidence that a child is at substantial risk of abuse or neglect.
(§ 355.1, subd. (d)(4).) The burden of producing evidence then shifts to the offender,
rather than the Department. (Id., subd. (d).) In establishing this presumption of risk, the
Legislature sought to “focus on the heightened risk facing minors who come into contact
with sex offenders and to ensure the juvenile court has information about such persons
when assessing jurisdictional facts.” (In re John S. (2001) 88 Ca1.App.4th 1140, 1145.)
An uncodified section of the bill adding this presumption explains the Legislature‟s
intent: “The Legislature finds that children of the State of California are placed at risk
when permitted contact with a parent or caretaker who has committed a sex crime.
Further, the Legislature finds that children subject to juvenile court dependency
jurisdiction based on allegations of molestation are in need of protection from those
persons. Therefore, the purpose of [section 355.1] is to ensure that information regarding
those acts is appropriately considered by the juvenile court in determining whether a
child is in need of juvenile court dependency protection.” (Stats. 1999, ch. 417, § 1.)
Law Governing SVPs
Section 6600, subdivision (a)(1), defines an SVP as “a person who has been
convicted of a sexually violent offense against one or more victims and who has a
14
diagnosed mental disorder that makes the person a danger to the health and safety of
others in that it is likely that he or she will engage in sexually violent criminal behavior.”
Statutes permit the state to “civilly commit individuals found to be SVPs” after the end of
their prison terms. (Reilly v. Superior Court (2013) 57 Cal. 4th 641, 646.) Before civil
commitment, two mental health experts conduct a full evaluation of the prisoner
according to a standardized assessment protocol, which must “require assessment of
diagnosable mental disorders, as well as various factors known to be associated with the
risk of reoffense among sex offenders. Risk factors to be considered shall include
criminal and psychosexual history, type, degree, and duration of sexual deviance, and
severity of mental disorder.” (§ 6601, subd. (c); see also Reilly, supra, at pp. 646-647.)
Two experts must concur the individual meets the criteria for commitment in order for a
petition of commitment to be filed. Because the civil commitment of an SVP is premised
upon a current mental disorder, evaluations may be updated or replaced. However, “the
updated evaluations‟ primary purpose is evidentiary or informational. [Citation.]
Mandatory dismissal is not required where one or both of the later evaluators conclude
the individual does not meet the criteria for commitment.” (Reilly, supra, at p. 648,
italics added.)
Respondent Court’s Dismissal is Not Supported By Substantial Evidence
The Department presented evidence defendant had committed egregious sex
crimes against two different boys in separate instances. Father served a lengthy prison
term, followed by extended commitments as an SVP. Father minimized his conduct
claiming a cousin committed the first sex crime, and he was no longer the same person.
Father failed to comply with requirements to update his registration as a sex offender, at
least during the period from June 4, 2012, through February 14, 2013. The Department‟s
expert witness, Dr. Hirsch, gave uncontradicted testimony that father presented a serious
risk of “grooming” S.G., which placed the child at risk of sexual molestation.
15
Father failed to overcome the presumption under section 355.1, subdivision (d),
that his prior convictions and status as a registered sex offender are prima facie evidence
to support dependency jurisdiction. He presented no evidence at all. He called no
witnesses, offered no documentary evidence, and refused to testify after invoking the
Fifth Amendment.
Against this overwhelming weight of the statutory presumption and the
Department‟s evidence, respondent court focused on the facts that father‟s sex crimes
occurred almost 25 years earlier, father had been unconditionally released from his
commitment as an SVP, the Department presented no evidence of a current substance
abuse problem, and there were no signs father was molesting S.G. When considered in
light of the record as a whole, these facts are insufficient to overcome the presumption
that S.G. was at substantial risk of abuse or neglect.
The length of time that had passed since father‟s earlier sex crimes, taken alone, is
not enough to overcome the presumption. (See, e.g., In re John S. (2001) 88 Cal. App. 4th
1140 [affirming jurisdictional finding based on stepfather‟s status as a registered sex
offender for a crime committed 13 years earlier, when stepfather offered no evidence to
overcome the presumption].) The weight given to the passage of time is even less
substantial considering that father had been in confinement, with no access to potential
child victims, for 20 years after his most recent crime.
Respondent court found Dr. Hirsch‟s 2013 report and testimony were outweighed
by psychological evaluations from between 2005 and 2008 that concluded father no
longer met the criteria for an SVP. The court recognized that Dr. Hirsch and the state
hospital psychologists reached different conclusions about father‟s risk of committing
future sex crimes but found the state hospital psychologists had the opportunity to see
father‟s evolution over a substantial period of time. According to the court, “His doctors
at both facilities interviewed him, not once, but on numerous occasions. They wrote
numerous opinions on his behavior and they were in a better position to note whether he
has made growth or not.” It is certainly within the court‟s province to weigh the relative
credibility of the psychological evidence, but the issue before the court is the current risk
16
to S.G., which is not the same issue addressed by evaluators in 2005 and 2008, when
father was seeking release from his civil commitment as an SVP. At the time of the
earlier evaluations, father was held under his commitment as an SVP and did not have
access to young children. Moreover, the premise of the favorable reports was the
evaluators‟ express reliance on father‟s commitment to continuing sex offender therapy
after release, his belief in the Muslim faith, and father‟s participation in NA/AA
meetings. By 2013, father had not engaged in any post-release therapy and denied the
need to do so. He was drinking, using marijuana, and had abandoned the Muslim faith.
Thus, the expectations that had tipped the scale in father‟s favor in the eyes of the
evaluators before release had not come to fruition. Father presented no evidence the
evaluators would not consider him to be a threat in light of his post-release abandonment
of the goals he had expressed in seeking release. Most significantly, father presented no
evidence that frequent, unmonitored access to S.G. did not place the child at substantial
risk of sexual abuse.
Respondent court also relied on father‟s release from civil commitment as evidence
rebutting a presumption of risk. However, the record contains no evidence explaining why
father was released. The April 22, 2009 minute order dismissing the district attorney‟s
petition to recommit father as an SVP is silent on the court‟s reasons for dismissal. The
minute order alone, without any detail about the proceeding, does not provide factual
support for the court‟s conclusion that father no longer poses a risk of sexual abuse. The
minute order also does not reveal whether the court ever considered, much less rejected,
the possibility of imposing conditions on release. In fact, the only other evidence on the
absence of conditions on father‟s 2009 release is a statement from the district attorney, who
recalled that father had committed to participate in ongoing community-based treatment
and all the doctors had agreed continuing treatment was needed.
Respondent court‟s finding that the Department did not provide evidence of
substance abuse mischaracterizes the nature of the potential harm to S.G. the Department
was seeking to prevent. The Department did not allege the risk of harm to S.G. arose
from father‟s dependency on drugs or alcohol, as is typical when a case is filed under
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subdivision (b) of section 300, based on a parent‟s history of substance abuse. (See, e.g.,
In re Kristin H. (1996) 46 Cal. App. 4th 1635, 1653-1654 [affirming jurisdictional finding
under § 300, subd. (b), based on substance abuse and mental illness].) Rather, the
evidence of such use is relevant to a finding of risk because it demonstrates that father
lacks the structure and insight to refrain from behaviors and patterns that led to earlier
violent sex crimes against young boys. The court erred in ignoring evidence such as drug
and alcohol use because such evidence is relevant to the current risk posed by father.
Respondent court also focused on the fact that the Department had not produced
any evidence that father had abused S.G. to date. Although actual abuse can be a basis
for exercising jurisdiction, it is by no means requisite when there is evidence of
substantial risk, as there is here. (See, § 300.2 [purpose of exercising jurisdiction is to
ensure the “safety, protection, and physical and emotional well-being of children who are
at risk of [physical, sexual, or emotional] harm”].) “„The court need not wait until a child
is seriously abused or injured to assume jurisdiction and take the steps necessary to
protect the child.‟ [Citation.]” (In re I.J. (2013) 56 Cal. 4th 766, 773.) In In re I.J., the
California Supreme Court held that a court could find substantial risk to the male siblings
of a female child who had been sexually abused by her father, even in the absence of any
evidence that the father had physically or sexually abused the male siblings. In
determining whether substantial risk exists in a particular case, courts consider not only
the probability that a given harm will occur, but also the severity of the harm. “[T]he
more severe the type of [] abuse, the lower the required probability of the child‟s
experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect
under section 300.” (Id. at p. 778.) While it is not possible to say what a particular
sexual predator “is likely to do in the future in any particular instance[,]” it is that
uncertainty that “makes it virtually incumbent upon the juvenile court to take
jurisdiction” over others at risk. (Id. at p. 779.)
Here, both the probability and the severity of the possible sexual abuse is high
enough to require a finding of substantial risk. Father was civilly committed as an SVP
until less than two years before S.G.‟s birth. Father had scored four points on a
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psychological test called the Static-99. Father argued that his score corresponded to only
a 4.8 to a 17.9 percent likelihood of reoffending. Dr. Starr points out “that the estimate
provided by the Static-99 reveals only the probability he will be convicted of a new sex
crime, not the likelihood that he would actually commit another illegal sexual act.” Even
if the score accurately captures the likelihood that father will reoffend, the nature of his
earlier crimes are violent enough to compel the exercise of dependency jurisdiction on
this record. In addition, the score is based on testing done before father was released
from the state hospital and therefore does not account for father‟s later activities. In
addition, Dr. Zinik noted pedophilia is “usually chronic” when directed at males.
Respondent court‟s findings are insufficient, as a matter of law, to overcome the
presumption of section 355.1, subdivision (d). Twenty-seven years ago, father
sodomized a ten-year-old boy, and then repeated the same crime with a six-year-old boy
two years later. He served seven years in state prison, and then was civilly committed for
thirteen years as an SVP. No matter how well-intentioned father may have been at the
time he obtained his release in 2009, for the past four years, father has minimized the
seriousness of his prior sex crimes and failed to obtain any form of treatment for sex
abuse or drug or alcohol dependency. He states he does not have a problem and wants
unmonitored access to his two-year-old son. The court‟s determination that father had
overcome the presumption of jurisdiction is not supported by substantial evidence.
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DISPOSITION
For the foregoing reasons, the Department‟s petition is granted and a writ of
mandate hereby issues directing respondent court to vacate its order of July 17, 2013, and
issue a new order finding S.G. is a person described in section 300, subdivisions (b)
and (d).
KRIEGLER, J.
We concur:
MOSK, Acting P. J.
KUMAR, J.*
* Judge of the Los Angeles County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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