In re Isabella D. CA2/3 ( 2015 )

Filed 9/22/15 In re Isabella D. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ISABELLA D. et al., Persons Coming B261322
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. No. DK05312)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
ALLEN D.,
Defendant and Appellant.
APPEAL from a judgment and an order of the Superior Court of Los Angeles
County, Marguerite Downing, Judge. Affirmed.
Jamie A. Moran, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
_____________________
INTRODUCTION
Appellant Allen D. (father) challenges the dependency court’s jurisdictional
findings under Welfare and Institutions Code1 section 300, subdivisions (b) and (d) with
respect to his four-year-old daughter, Isabella D., and two-year-old son, Allen D., Jr. The
evidence showed that father approached his 11-year-old stepdaughter wearing only his
underwear, offered to pay her $8.00 to consume an alcoholic beverage, then lay down on
a bed next to the minor and told her to touch his penis, all while the two dependent
children were watching television in an adjoining room. Father attributed his misconduct
to the influence of alcohol. Though father does not challenge many of the sustained
grounds for dependency jurisdiction, he nevertheless argues the evidence was insufficient
to find a danger that he would sexually abuse his biological children or that his abuse of
alcohol posed a risk to the children’s physical or mental well-being. Father also argues
the evidence was insufficient to remove the dependent children from his physical
custody. We reject these contentions and affirm.
FACTS AND PROCEDUREAL BACKGROUND
On May 5, 2014, the Los Angeles County Department of Children and Family
Services (the Department) received a referral alleging father became intoxicated and tried
to make his stepdaughter grab his penis. The Department later learned the alleged victim
was father’s 11-year-old stepdaughter Mia.
In her interview with a Department social worker the day after the report, Mia
disclosed the incident occurred at the two-bedroom home father shared with Mia’s
mother and their two children, four-year-old Isabella and two-year-old Allen. Mia, who
lived with her biological father, had been at the home to babysit her half-siblings while
mother was at work. Immediately before the incident, Mia reported that Isabella and
Allen were watching television in mother’s room and father was in the kitchen making a
drink. After preparing the drink, father approached Mia and offered her $8.00 to drink
some of it. Unsuspecting, Mia took a sip of the drink, which she observed father make
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with “some juices,” but spit it out because it tasted “ ‘funny.’ ” She then went to the
other bedroom to lay down. Moments later, father came into the bedroom wearing only
his underwear and lay down on the bed next to her. He then told her to “give him a ‘
hand job.’ ” Mia refused the demand and ran into the bathroom, locked the door and sent
a text message to her mother. Mother contacted her older daughter (father’s other
stepdaughter), Chloe, and instructed Chloe to go to the house immediately to retrieve Mia
and the two younger children. Mother then rushed home from her work in a neighboring
city.
Mother took father to the Veteran’s Administration Hospital the day after the
incident to seek services for him. Mother reported that father served in the military
during the Iraq war and had never received counseling after returning home. She said he
sometimes became very upset when they argued, but she never thought he would sexually
proposition Mia. Mother confirmed that she had not allowed Isabella or Allen to be alone
with father since the incident. Mia had no further contact with father and no longer
babysat the children at mother’s home.
In his interview with the Department, father largely admitted to the details of the
incident as related by Mia. He confirmed that he had consumed alcohol before sexually
propositioning Mia, and described the incident as a “ ‘dumb mistake,’ ” noting “ ‘I have
no history of such behavior.’ ” Father denied having an alcohol problem, yet maintained
that his intoxication significantly influenced his misconduct. Father said he was unaware
of any mental health problems, but also said he had not received a psychological
evaluation when he returned from the Iraq war. Father apologized for his misconduct and
acknowledged it was very wrong. He denied having sexually abused any other children.
1
All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
3
Father agreed to a safety plan that required him to move out of the home. He said
he intended to cooperate with the Department and confirmed that he and mother went to
the hospital to initiate treatment.
After detaining Isabella and Allen from father, the Department filed a petition
alleging the children were dependents as described in section 300, subdivisions (b), (d)
and (j). The petition alleged that father sexually abused Mia and this misconduct
demonstrated that Mia’s younger half-siblings, Isabella and Allen, were at risk of harm,
both from father’s direct mistreatment and his inability to adequately care for the
children. The petition also alleged that father abused alcohol and created a detrimental
home environment by giving alcohol to Mia.
In advance of the jurisdiction and disposition hearing, the Department reported
that father had completed a parenting class through the National Council on Alcohol and
Drug Dependency; however, father was no longer enrolled in psychiatric counseling.
Father informed the Department that he had been receiving psychiatric services through
the Veterans Administration, but he stopped because the location was too far from his
home. The Department also reported that mother had, on at least one occasion, permitted
father to visit the children at the family home in violation of the court’s prior order.
On November 19, 2014, the court held the combined jurisdiction and disposition
hearing. The court admitted the Department’s reports into evidence; father did not
submit any evidence.
Father’s counsel asked the court to sustain the count under section 300,
subdivision (b) alleging that father’s sexual abuse of Mia posed a risk of general neglect
to the younger children, and a similar count under section 300, subdivision (j). However,
counsel maintained that the evidence did not support the allegation under section 300,
subdivision (d) that father posed a danger of sexual abuse to Isabella and Allen. Counsel
also asked the court to dismiss the separate count under section 300, subdivision (b)
alleging father’s abuse of alcohol endangered the children.
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The court sustained the counts to which father submitted, as well as the counts that
he challenged. The court declared Allen and Isabella dependents and also found, by clear
and convincing evidence, that returning the children to father’s physical custody would
pose a significant danger to their physical and mental health. The court ordered family
maintenance services for mother, and ordered father to participate in alcohol testing, an
alcohol treatment program, individual counseling, and sexual abuse counseling for
perpetrators.
DISCUSSION
1. Substantial Evidence Supports the Challenged Jurisdictional Findings
“ ‘In reviewing a challenge to the sufficiency of the evidence supporting the
jurisdictional findings and disposition, we determine if substantial evidence, contradicted
or uncontradicted, supports them. “In making this determination, we draw all reasonable
inferences from the evidence to support the findings and orders of the dependency court;
we review the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court.” [Citation.]
“We do not reweigh the evidence or exercise independent judgment, but merely
determine if there are sufficient facts to support the findings of the trial court.
[Citations.] ‘ “[T]he [appellate] court must review the whole record in the light most
favorable to the judgment below to determine whether it discloses substantial
evidence . . . such that a reasonable trier of fact could find [that the order is
appropriate].” ’ [Citation.]” [Citation.]’ ” (In re I.J. (2013) 56 Cal. 4th 766, 773 (I.J.).)
As a general rule, “ ‘[w]hen a dependency petition alleges multiple grounds for its
assertion that a minor comes within the dependency court’s jurisdiction, a reviewing
court can affirm the juvenile court’s finding of jurisdiction over the minor if any one of
the statutory bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case, the reviewing court need not consider whether any
or all of the other alleged statutory grounds for jurisdiction are supported by the
evidence.’ ” (I.J., supra, 56 Cal.4th at p. 773.) Here, father does not challenge the
dependency court’s jurisdictional findings under section 300, subdivision (j) or two of the
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three counts under section 300, subdivision (b). Accordingly, we could affirm the
judgment on the bases of those counts without reaching father’s challenges to the risk of
sexual abuse finding under section 300, subdivision (d) or alcohol abuse finding under
section 300, subdivision (b). Be that as it may, we have no trouble concluding the court’s
findings with respect to these counts were supported by the evidence.
Section 300, subdivision (d) authorizes jurisdiction where there is evidence of “ 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.”
As relevant here, Penal Code section 11165.1 defines “ ‘Sexual assault’ ” to include
“child molestation” as set forth in Penal Code section 647.6. “Penal Code section 647.6,
subdivision (a)(1) is violated when a defendant engages in the requisite annoying or
offensive conduct, motivated by an unnatural or abnormal sexual interest in a specific
child or children generally.” (People v. Phillips (2010) 188 Cal. App. 4th 1383, 1388.)
Father does not deny that his conduct toward Mia constituted sexual abuse and
child molestation as defined by the foregoing statutes. He nevertheless argues the
conduct is insufficient to infer a risk that he might engage in the same misconduct with
his biological children. We disagree.
As this court observed in In re P.A. (2006) 144 Cal. App. 4th 1339 (P.A.), “aberrant
sexual behavior by a parent places the victim’s siblings who remain in the home at risk of
aberrant sexual behavior.” (Id., at p. 1347; see also I.J., supra, 56 Cal.4th at pp. 775-776
[discussing P.A. with approval]; In re Ricky T. (2013) 214 Cal. App. 4th 515, 523 (Ricky
T.) [same].) Though Mia was not father’s biological child, the evidence was that father
had been in a relationship with mother for five years, and stood in a parental role toward
Mia since she was just six years old. Father’s contention that the sexual molestation of
his stepdaughter is irrelevant to the dependency court’s assessment of whether he poses
the same risk to his biological children “is contrary to the holdings and language of the
cases that suggest sexual abuse of one child in the household puts at risk other children in
the household.” (Los Angeles County Dept. of Children & Family Services v. Superior
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Court (2013) 215 Cal. App. 4th 962, 970 [observing this holding is “categorically state[d]”
by the relevant cases].)
The fact that Isabella and Alan were present in the home when father molested
Mia lends further support to the dependency court’s section 300, subdivision (d) finding.
As this court observed in Ricky T., “Sexual abuse of other children in [the biological
child’s] presence would also constitute annoying or molesting [the child] within the
meaning of Penal Code section 647.6.” (Ricky T., supra, 214 Cal.App.4th at p. 523.) In
that case, we held that a grandfather’s sexual abuse of his step-granddaughter at home
placed his three-year-old grandson at risk of harm under section 300, subdivision (d).
Cognizant of the various forms molestation can take, this court reasoned that, “[g]iven
that [the step-granddaughter] stated [the grandfather] also abused her in his home, the
juvenile court reasonably could conclude [the grandson] was at risk of being exposed to
[the grandfather’s] sexual abuse of other children in [the grandson’s] presence even if
[the grandson] were not at risk of being touched inappropriately by [the grandfather].”
(Ricky T., at p. 523.) The same reasoning applies in this case given the fact that father
sexually propositioned Mia when she was babysitting his two younger children who were
just a room away.
As for the alcohol abuse finding, substantial evidence likewise supports the court’s
conclusion that father is a current abuser of alcohol and this abuse renders him incapable
of adequately supervising or protecting his children as specified in section 300,
subdivision (b). While father points to evidence suggesting he has no history of alcohol
abuse, he also maintains that alcohol intoxication was a significant cause of his sexual
abuse of Mia. In father’s words, sexually propositioning his 11-year-old stepdaughter
was a “ ‘dumb mistake’ ” he made while he was “ ‘not normal[,] but under the influence
of alcohol.’ ” Add to this the evidence that father apparently attempted to coerce Mia to
perform the sexual act by offering her money to drink alcohol, while she was babysitting
Isabella and Alan, and the dependency court was more than justified in finding that
father’s abuse of alcohol rendered him incapable of adequately caring for these very
young children.
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2. Substantial Evidence Supports the Disposition Order
Father contends a “formal removal order” was unnecessary because father had
cooperated with the Department’s demands concerning the children’s protection,
including the Department’s request that father move out of the family home before a
dependency petition was filed. Father also contends his misconduct toward Mia was
“isolated in nature” and argues the court’s finding that he posed an ongoing danger to his
biological children was necessarily based on speculation. We disagree.
Before a dependent child may be taken from the physical custody of a parent,
section 361, subdivision (c)(1) requires the juvenile court to find “clear and convincing
evidence” of “a substantial danger to the physical health, safety, protection, or physical or
emotional well-being of the minor if the minor were returned home, and there are no
reasonable means by which the minor’s physical health can be protected without
removing the minor from the [parent’s] physical custody.” Notwithstanding section
361’s heightened proof requirement, “on appeal, the substantial evidence test applies to
determine the existence of the clear and convincing standard of proof, the same as in
other cases.” (In re Amos L. (1981) 124 Cal. App. 3d 1031, 1038.) Thus, we review the
disposition order for substantial evidence, drawing all reasonable inferences from the
evidence to support the order, without reweighing the evidence or exercising independent
judgment. (I.J., supra, 56 Cal.4th at p. 773.) Our task is simply to determine whether it
was reasonable for the dependency court to issue the removal order based on the evidence
in the record.
We acknowledge father has largely cooperated with the Department’s efforts to
protect Isabella and Allen; however, in light of the seriousness of father’s misconduct, the
dependency court was not compelled to conclude that these very young children should
be returned to father’s physical custody. The dependency court’s concerns were not
limited to the prospect that father might sexually abuse his younger children; rather, the
court’s concerns also properly extended to the lack of responsible parental judgment
inherent in father’s severe misconduct, and the risk that this lack of judgment posed to his
children’s physical and emotional well-being. In this regard, it is especially significant
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that father attempted to intoxicate Mia and sexually abused her while she was charged
with babysitting four-year-old Isabella and two-year-old Allen, who were left alone and
unsupervised in an adjoining bedroom. The fact that father also intoxicated himself when
his children were in this vulnerable position could not have been reassuring to the
dependency court in assessing whether returning Isabella and Allen to father’s physical
custody would be safe.
As for father’s contention that his misconduct was “isolated in nature,” the
Department reasonably points out that this was wholly due to Mia’s mature response to
father’s sexual misconduct. Furthermore, though father had completed a parenting class
in advance of the disposition hearing, he had discontinued psychiatric counseling, and
had not participated in services directed at perpetrators of sexual abuse. Based on this
record, it was not unreasonable for the dependency court to conclude that the underlying
causes of father’s misconduct had not been adequately addressed or resolved and that
returning Isabella and Allen to father’s physical custody still posed a substantial danger
to their physical and mental well-being.
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DISPOSITION
The judgment and disposition order are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
EDMON, P. J.
ALDRICH, J.
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