In re Detroy L. CA2/7 ( 2022 )

Filed 7/20/22 In re Detroy L. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re DETROY L. et al., Persons B311193
Coming Under the Juvenile (Los Angeles County Super.
Court Law. Ct. No. 20LJJP00807)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
DERRICK L.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robin Kesler, Juvenile Court Referee. Reversed
and remanded with directions.
Law Office of Robert McLaughlin and Robert McLaughlin,
under appointment by the Court of Appeal, for Defendant and
Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy,
Assistant County Counsel, and Sally Son, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Derrick L. (Father) challenges the jurisdiction findings and
disposition orders declaring 15-year-old Detroy L., 12-year-old
Micah L., nine-year-old Derico L., and eight-year-old Malik L.
dependents of the juvenile court pursuant to Welfare and
Institutions Code1 section 300, removing them from Father’s
custody, and requiring Father to submit to drug testing. Father
contends there is insufficient evidence to support the juvenile
court’s findings Father left the children without provision of care
and the children were at risk of harm from Father’s past criminal
convictions of sex offenses and his status as a registered sex
offender. Father also argues substantial evidence does not
support the disposition order removing the children from Father’s
custody and requiring Father to test for drugs.
We agree with Father substantial evidence does not
support the juvenile court’s findings Father failed to provide or
arrange for care of the children and the children were at
substantial risk of sexual abuse by Father, and therefore reverse.
As to the sexual abuse allegations, because the juvenile court
based its finding on an incorrect understanding of one of Father’s
prior convictions and the presumption affecting the burden of
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
production under section 355.1, subdivision (d), we remand for a
new jurisdiction and disposition hearing.
FACTUAL AND PROCEDURAL HISTORY
A. The Referral and Investigation
On November 10, 2020 the Los Angeles County
Department of Children and Family Services
(Department) received a referral alleging Barbara B. (Mother)
and the maternal grandfather allowed Detroy, Micah, Derico, and
Malik to watch pornography, and the children were being
sexually abused by an unidentified person. On November 13 a
social worker visited the family home, where Mother and the
children lived with paternal grandfather and the children’s adult
sibling, Daquan J. Micah, Derico, and Detroy stated Mother’s
male companion Carlos T. sometimes lived in the home. In
private interviews with the social worker, each of the children
denied watching pornography or being sexually abused. The
children were clean and appropriately dressed and reported
having enough to eat.
However, Malik reported that a week earlier during a
family trip to the beach (while they were in the hotel), Carlos hit
Mother in the face with his fist causing Mother’s nose to bleed.
Derico stated that during the trip Carlos pushed Mother against
a wall causing her to fall and her nose to bleed. Detroy and
Micah reported Carlos and Mother argued, but the children
denied the parents had a physical confrontation.
Mother told the social worker as to the hotel incident that
Carlos “got in Detroy’s . . . face” and was about to fight Detroy,
but Mother and the maternal grandfather “broke it up.” When
3
Mother attempted to leave, Carlos “dragged her down stairs and
made her go back into the house,” scraping Mother’s knees and
elbows. Mother confirmed Carlos had assaulted her in the hotel
room, causing her nose to bleed. However, she stated that
everything was now “okay” between her and Carlos, and Carlos
had never physically abused the children.
Mother stated she and Father were together for 14 years
and shared custody of the children under “an informal
agreement.” Prior to Mother and Father’s separation three years
earlier, “‘Father was around with the children.’” More recently,
Father “‘hasn’t been around for personal reasons.’” Mother spoke
with Father “almost daily,” and the children saw Father “often.”
On November 19, 2020 a social worker interviewed Father, who
stated he had not had any contact with the children since 2017.
Father had “distanced himself from [Mother] because she had a
drinking problem.” The social worker reported, “Father said he
had a drinking problem, too.” Father stated he lived with the
paternal grandmother and was “not currently stable to have the
children in his care.” But Father had family who could care for
the children “if needed.”
B. The Dependency Petition, Removal, and Further
Investigation
On December 18, 2020 the Department filed a dependency
petition under section 300, subdivisions (a) and (b)(1), on behalf
of Detroy, Micah, Derico, and Malik alleging Mother and Carlos
had a history of engaging in domestic violence in the presence of
the children, and Mother failed to protect the children. At the
detention hearing on December 23, the juvenile court ordered the
children released to the home of Mother with the children to have
4
no contact with Carlos. At Father’s arraignment on January 20
2021, the court ordered monitored visitation for Father “with a
written visitation schedule.”
On January 25, 2021 the Department requested the
children be removed from Mother and Father due to Mother’s
failure to protect the children from Carlos. Detroy reported
Carlos was at Mother’s home on December 27, 2020 and again on
January 25, 2021, in violation of the juvenile court’s no-contact
order. In addition, on December 28 Carlos crashed his vehicle
into the family apartment’s complex, and his minor son was
staying in the family home. Mother denied Carlos was in the
home. Father stated he was unable to take custody of the
children because of his current situation. He had family
members who potentially could take the children but not at that
time. On January 26 the juvenile court authorized the
Department to remove the children from Mother and Father.
The children were initially placed in foster care, but on January
27 they were placed with a paternal aunt at Mother’s
recommendation. At the February 2, 2021 detention hearing,
Father’s attorney requested the children be released to Mother,
or alternatively, to Father with a conditional placement with the
paternal aunt. The court denied Father’s request and detained
the children from Mother and Father.
On January 28, 2021 the Department conducted a search of
the California Law Enforcement Telecommunication System
(CLETS), which showed Father was a registered sex offender
with felony criminal convictions in 1985 for lewd or lascivious
acts on a child under 14 years of age (Penal Code, § 288, subd.
(a)) and in 2005 for unlawful sexual intercourse with a minor who
5
is more than three years younger than the perpetrator (id.,
§ 261.5, subd. (c)).2
On February 2, 2021 a social worker interviewed Father
regarding his convictions. Father stated his 1985 “conviction is
36 years old,” and he declined to discuss it further, only noting
“this matter keeps him from having a stable job.” Father
explained he stayed away from the children out of a concern his
criminal history might “embarrass[]” them. But he loved his
children, and his criminal history had “nothing to do with” them.
Father usually lived in his car but was staying with the paternal
grandmother due to the COVID-19 pandemic. Father added, “‘I
can’t have my children. They are with my sister and that is
good.’”
C. The First Amended Petition
On February 16, 2021 the Department filed a first amended
petition, alleging Father was required to register as a sex
offender and suffered criminal convictions of sex offenses in 1985
and 2005 (§ 300, subd. (b)(1); count b-3), and Father could not
assume or arrange for care of the children (id., subds. (b)(1) & (g);
count g-1), which placed the children at a substantial risk of
serious harm.3
The February 16 last minute information for the court
reported Father stated he had “‘always been around [his]
2 Father was sentenced on the 1985 conviction to 365 days in
county jail and four years’ probation, and on the 2005 conviction
to two years in state prison. Father was also convicted in 2005 of
failure to register as a felony sex offender.
3 The first amended petition also alleged Mother violated
court orders by allowing Carlos to visit the home.
6
children’” up until the last two years. The social worker
confirmed Father was released on parole on September 10, 2007
and discharged on July 19, 2010 without any violations.
According to the March 10 last minute information for the court,
Father reported, “I have no restrictions to be around kids. . . . I
would never harm my children.” Father stated he did not
currently have a job or any source of income, and he could not
take care of the children at the time although he loved them.
Father continued to have monitored visits with the children,
which he said were going well. He also regularly spoke with the
children by phone.
D. The Jurisdiction and Disposition Hearing
At the March 15 jurisdiction and disposition hearing,
Father’s attorney requested the court dismiss all counts as to
Father, arguing the Department failed to show Father was a
current risk to the children because none of Father’s convictions
involved the children and Father had “no current criminal history
for over ten years.” Further, Father arranged for the care of the
children with Mother before the Department filed the petition,
and Father’s “living situation should not be used against him.”
Father’s attorney added the children were “suitably placed” with
the paternal aunt. The children’s attorney agreed Father did not
present a current risk to the children based on his past criminal
conduct and submitted as to the remaining counts against
Father.
The Department argued Father was a registered sex
offender, and he “did not provide any information that he has
gone through counseling” or “taken awareness classes or sexual
abuse classes for perpetrators.” Further, Father admitted he
7
could not provide for the children, and he failed to make an
appropriate plan for the children when they were detained.
The juvenile court sustained the allegations under
section 300, subdivisions (b)(1) and (g).4 The court found as to the
sexual abuse allegations that Father “is a registered sex offender
with at least two convictions for sex [with a minor] under the age
of 14.” The court explained, “[Father] has more than one
conviction with lewd acts for children under the age of 14, two
convictions. One was a three-year-old child or younger. . . . The
[Penal Code, section 288, subdivision (a)] was in 1985. And the
[Penal Code, section 261.5, subdivision (c)] was in 2005. But
. . . Father has . . . continued to involve himself with sexual
conduct with children. [¶] [T]hese kids are seven and older, up
to 15. In the court’s mind, the conviction shifts the burden of
proof to show that Father has rehabilitated himself. . . . [H]e
hasn’t had any convictions in regards to this since then; however,
I don’t have any information of what he’s done otherwise in
counseling or programs. It’s real obvious the kids are in danger.”
As to the allegation under section 300, subdivision (g), the court
explained, “While I understand the difficulty with COVID, and
[Father’s] prior [criminal] history, he has been unable to provide
care or support for the children.”
As to disposition, Mother’s attorney requested the children
be placed with Mother, or at least that she be provided
unmonitored visitation. Father’s attorney stated Father was
willing to complete any case plan ordered by the court. The
4 The court sustained the allegation in count g-1 that Father
failed to assume or arrange for the care of the children and to
provide them with the basic necessities of life. However, the
court dismissed the identical allegation in count b-4.
8
children’s attorney requested all four children be removed from
Mother and Father. The children’s attorney also clarified as to
Father’s 2005 conviction “there . . . was . . . at least a three-year
age difference between Father and the victim” and the conviction
did not involve “a child under the age of three.” The court
replied, “I did read it wrong. I thought it was a child three years
or younger, but it’s a difference in age of three years. Thank you
very much for pointing this out.” However, the court did not
revisit its finding Father suffered at least two convictions for sex
with children under the age of 14 or the jurisdiction finding based
on the court’s erroneous interpretation of Father’s criminal
record. The Department argued that given the risk posed by
Father, he should be “bypass[ed],” with no reunification services.
The juvenile court removed the children from Mother and
Father and ordered reunification services for both parents. As to
Father, the court ordered up to three monitored three-hour visits
each week, but it required any liberalization of visits be approved
by the court. The court also ordered Father to comply with any
criminal order requiring him to register as a sex offender, to
submit to random and on-demand drug testing, and to complete
sexual abuse counseling for perpetrators and individual
counseling to address his sexual abuse. Father’s attorney
objected to the court requiring Father to drug test and the
restriction on liberalization of visitation.
Father timely appealed.5
5 Mother is not a party to this appeal.
9
DISCUSSION
A. Father’s Appeal of the Jurisdiction Findings Is Justiciable
The Department contends Father’s appeal is not justiciable
because Mother has not appealed from the jurisdiction findings
and disposition order and Father does not challenge the findings
as to Mother. Father argues his claims are justiciable because he
challenges the jurisdiction findings on which the disposition order
he also challenges is based. We agree with Father his appeal is
justiciable.
An appeal is not justiciable where “no effective relief could
be granted . . . , as jurisdiction would be established regardless of
the appellate court’s conclusions with respect to any such
[challenged] jurisdictional grounds.” (In re Madison S. (2017)
15 Cal.App.5th 308, 329; accord, In re I.A. (2011) 201 Cal.App.4th
1484, 1490 [“An important requirement for justiciability is the
availability of ‘effective’ relief—that is, the prospect of a remedy
that can have a practical, tangible impact on the parties’ conduct
or legal status.”].) Nevertheless, “[c]ourts may exercise their
‘discretion and reach the merits of a challenge to any
jurisdictional finding when the finding (1) serves as the basis for
dispositional orders that are also challenged on appeal [citation];
(2) could be prejudicial to the appellant or could potentially
impact the current or future dependency proceedings [citations];
or (3) “could have other consequences for [the appellant], beyond
jurisdiction” [citation].’” (In re D.P. (2015) 237 Cal.App.4th 911,
917, quoting In re Drake M. (2012) 211 Cal.App.4th 754, 762-763;
accord, In re Madison S., at p. 329; In re J.C. (2014) 233
Cal.App.4th 1, 4.) We exercise our discretion to reach the merits
10
of Father’s challenges because the jurisdiction findings against
him serve as a basis for the removal order.
B. Substantial Evidence Does Not Support the Jurisdiction
Findings as to Father
1. Standard of review
The juvenile court has jurisdiction over a child if the
Department establishes by a preponderance of the evidence that
an allegation made pursuant to section 300 is true. (§ 355,
subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773.) We review the
juvenile court’s jurisdiction findings for substantial evidence in
light of the whole record. (In re I.C. (2018) 4 Cal.5th 869, 892
[“the evidence supporting the jurisdictional findings must be
considered ‘“in the light of the whole record”’ ‘to determine
whether it discloses substantial evidence’”]; In re R.T. (2017)
3 Cal.5th 622, 633 [“‘In reviewing the jurisdictional findings and
disposition, we look to see if substantial evidence, contradicted or
uncontradicted, supports them.’”].) Substantial evidence is
“evidence which is reasonable, credible, and of solid value.” (In re
I.C., at p. 892; accord, In re Cole L. (2021) 70 Cal.App.5th 591,
602.) “‘[W]e 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.’” (In re R.T., at p. 633; accord, In
re I.J., at p. 773; In re Cole L., at p. 602 [“while substantial
evidence may consist of inferences, any inferences must rest on
the evidence; inferences based on speculation or conjecture
cannot support a finding”].) “The appellant has the burden of
showing there is no evidence of a sufficiently substantial nature
11
to support the findings or orders.” (In re E.E. (2020)
49 Cal.App.5th 195, 206; accord, In re D.B. (2018) 26 Cal.App.5th
320, 328-329.)
2. Substantial evidence does not support the juvenile
court’s jurisdiction finding under section 300,
subdivision (g)
Section 300, subdivision (g), provides for juvenile court
jurisdiction when, among other grounds, “[t]he child has been left
without any provision of support.” (Accord, In re Anthony
G. (2011) 194 Cal.App.4th 1060, 1065 [“As pertinent here, a
jurisdictional finding under section 300, subdivision (g) requires
[the Department] to show that ‘[t]he child has been left without
any provision for support . . . .’”]; In re J.O. (2009)
178 Cal.App.4th 139, 153 [same], disapproved on another ground
in In re R.T., supra, 3 Cal.5th 622.)
A jurisdiction finding under section 300, subdivision (g),
does not require the Department to prove serious harm or risk of
harm. (In re J.O., supra, 178 Cal.App.4th at p. 153.) “Whether a
parent can arrange for care is to be determined as of the date of
the jurisdictional hearing, and a non-custodial parent’s failure to
make arrangements before the child is removed by [the
Department] does not cause the child to fall within the terms
of section 300, subdivision (g).” (Ibid.; accord, In re Aaron
S. (1991) 228 Cal.App.3d 202, 209 [“The statute requires proof
that appellant was unable to arrange for care at the time of the
hearing, not that he had failed to do so at some prior point in
time.”].)
Father contends substantial evidence does not support the
juvenile court’s jurisdiction finding under section 300,
12
subdivision (g), because Father never left the children without
provision for support. Rather, prior to the removal of the
children in January 2021, Mother cared for the children under an
informal agreement between Father and Mother. The
Department argues substantial evidence supports the court’s
jurisdiction finding because “Father had not arranged for the
children’s care with a relative when Mother became unable to
care for them—as a result, the children were placed in foster
care.” Father has the better argument.
As discussed, on November 19, 2020 Father told the social
worker he was “not currently stable to have the children in his
care,” but he had family who could care for the children “if
needed.” As of January 21, 2021, Father was still unable to care
for the children, and his family was not available to care for the
children. Although the children were therefore placed in foster
care on January 26, they remained there for only one day. On
January 27 the children were placed with the paternal aunt,
after Mother suggested the placement, stating “there were
already plans for the [paternal aunt] to pick up the children and
have an extended visit with her.” And Father similarly requested
at the February 2, 2021 detention hearing that if the children
could not be released to Mother, they should be released to
Father conditioned on placement with the paternal aunt.
Moreover, prior to the children’s removal, they were in good
health, had adequate food and shelter, and showed no signs of
abuse or neglect.
There is not substantial evidence Father left the children
without providing support within the meaning of section 300,
subdivision (g). Father’s failure to arrange for the placement of
the children before the Department removed the children “is not
13
sufficient in and of itself to meet the term of section 300,
subdivision (g).” (In re Aaron S., supra, 228 Cal.App.3d at
p. 209.) At the time of the jurisdiction hearing, the children were
placed with the paternal aunt, consistent with Father’s request
at the February 2, 2021 detention hearing. (See In re J.O., supra,
178 Cal.App.4th at p. 153 [the Department must prove a parent
cannot arrange for care of a child as of the date of the jurisdiction
hearing to support allegations under § 300, subd. (g)]; In re Aaron
S., at p. 209 [same].) The Department’s argument Father left the
children without provision for support because it was Mother, not
Father, who identified the paternal aunt for placement is not
persuasive in light of Father’s arrangement with Mother to care
for the children.
In re E.A. (2018) 24 Cal.App.5th 648, relied on by the
Department, is distinguishable. There, the parents left the
children without provision for support, abandoning them for
seven months in a Tijuana shelter in the custody of Mexican
Department of Integrity of Families without making any attempt
to reunify. (Id. at pp. 656, 658.) The children were then brought
to the United States (where they were citizens), and the juvenile
court placed them with the maternal grandmother. At the
jurisdiction hearing, the juvenile court concluded the parents had
left the children without provision for support under section 300,
subdivision (g), but the later placement of the children with the
maternal grandmother defeated any exercise of jurisdiction, and
on that basis the court dismissed the petition. (In re E.A., at
pp. 658-659.) The Court of Appeal reversed, concluding the
juvenile court had misinterpreted section 300, subdivision (g),
reasoning the “[g]randmother’s willingness to provide for minors’
care, a relevant fact if dependency jurisdiction was sought under
14
the last criteria [subdivision (g)], is not an exception to, and does
not trump, a finding that ‘the child has been left without
provision for his or her support’ when dependency jurisdiction is
asserted under the first clause of section 300(g).” (In re E.A., at
p. 662.) The court reasoned further the parents had not arranged
for the grandmother to care for the children, did not want the
children to live with the grandmother, and demonstrated a lack
of interest in the children’s welfare at the time of the jurisdiction
hearing by failing to meet with the social worker, to call the
children when scheduled, or to submit to drug testing. (Id. at
p. 663.)
Here, Mother and Father arranged for placement of the
children with the paternal aunt after the children were removed
from the parents’ care. That the children spent one day in foster
care prior to the jurisdiction hearing does not provide a basis for
jurisdiction under section 300, subdivision (g). Thus, we reverse
the juvenile court’s jurisdiction finding under section 300,
subdivision (g).
3. The juvenile court erred in sustaining the sexual
abuse allegations under section 300,
subdivision (b)(1)
a. Governing law
Section 300, subdivision (b)(1), allows the juvenile court to
assume jurisdiction when “[t]he child has suffered, or there is a
substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of the child’s
parent or guardian to adequately supervise or protect the
child . . . or by the willful or negligent failure of the parent to
provide the child with adequate food, clothing, shelter, or medical
15
treatment, or by the inability of the parent or guardian to provide
regular care for the child due to the parent’s or guardian’s mental
illness, developmental disability, or substance abuse.”
“A jurisdiction finding under section 300, subdivision (b)(1),
requires the Department to prove three elements: (1) the parent’s
or guardian’s neglectful conduct or failure or inability to protect
the child; (2) causation; and (3) serious physical harm or illness
or a substantial risk of serious physical harm or illness.” (In re
Cole L., supra, 70 Cal.App.5th 591, 601; accord, In re L.W. (2019)
32 Cal.App.5th 840, 848; see In re R.T., supra, 3 Cal.5th at p. 624
[“section 300(b)(1) authorizes dependency jurisdiction without a
finding that a parent is at fault or blameworthy for her failure or
inability to supervise or protect her child”].) “Although
section 300 requires proof the child is subject to the defined risk
of harm at the time of the jurisdiction hearing [citations], the
court need not wait until a child is seriously abused or injured to
assume jurisdiction and take steps necessary to protect the
child.” (Cole L., at pp. 601-602; accord, In re L.O. (2021)
67 Cal.App.5th 227, 238 [“‘Although there must be a present risk
of harm to the minor, the juvenile court may consider past events
to determine whether the child is presently in need of juvenile
court protection.’”].) “A parent’s ‘“[p]ast conduct may be probative
of current conditions” if there is reason to believe that the
conduct will continue.’” (Cole L., at p. 602; accord, In re J.A.
(2020) 47 Cal.App.5th 1036, 1048.)
Section 355.1, subdivision (d), “provides that a parent or
guardian’s prior conviction of sexual abuse as defined in Penal
Code section 11165.1 or the parent’s legal obligation to register as
a sex offender as a result of a felony conviction pursuant to Penal
Code section 290 constitutes ‘prima facie evidence in any
16
proceeding that the [child who is the subject of the dependency
proceeding] 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.’” (In re Quentin H. (2014)
230 Cal.App.4th 608, 614 (Quentin H.); accord, In re S.R. (2020)
48 Cal.App.5th 204, 221.) A presumption affecting the burden of
producing evidence “require[s] the trier of fact to assume the
existence of the presumed fact unless and until evidence is
introduced which would support a finding of its nonexistence, in
which case the trier of fact shall determine the existence or
nonexistence of the presumed fact from the evidence and without
regard to the presumption.” (Evid. Code, § 604; accord, Quentin
H., at p. 614.)
Thus, the section 355.1 presumption “disappears once
contrary evidence is introduced whether or not the contrary
evidence is sufficient under the appropriate standard of proof to
disprove the presumed fact.”6 (Quentin H., supra,
230 Cal.App.4th at p. 615, fn. 6; accord, In re S.R., supra,
48 Cal.App.5th at p. 222.) “Once rebutted, the presumed fact
may still be considered by the fact finder, as well as
any reasonable inferences to be derived therefrom . . . , but
6 “A presumption affecting the burden of proof, in contrast, is
designed to implement some public policy; it places on the party
against whom it operates the affirmative obligation to disprove
the presumed fact by a preponderance of the evidence, unless a
different standard of proof is required by law.” (Quentin H.,
supra, 230 Cal.App.4th at p. 615, fn. 6; see Evid. Code, § 606 [the
effect of a presumption affecting the burden of proof is “to impose
upon the party against whom it operates the burden of proof as to
the nonexistence of the presumed fact”].)
17
without regard to the benefit of the presumption.” (Quentin H.,
at pp. 614-615; accord, In re S.R., at p. 222 [“Even without the
benefit of the [rebutted] presumption, however, the juvenile court
was entitled to consider ‘the fact of [the father’s] prior sex abuse
conviction and any reasonable inferences to be derived from it.’”];
see Evid. Code, § 604 [“[n]othing in this section shall be construed
to prevent the drawing of any inference that may be
appropriate”].)
b. Father rebutted the presumption under
section 355.1
Father contends the juvenile court improperly relied on the
section 355.1 presumption in finding under section 300,
subdivision (b)(1), the children were at substantial risk of abuse
or neglect even though Father rebutted the presumption with
evidence in the Department’s reports that the children stated
they had never been sexually abused; Mother and Father
coparented the children for 14 years without any signs of sexual
abuse by Father; and Father had not reoffended since being
released from parole in 2010. The Department argues Father did
not rebut the presumption given the 20-year interval between
Father’s two convictions for “sexual offense[s]” against minors,
the absence of evidence Father completed rehabilitative services,
and Father’s unwillingness to discuss the nature of the offenses.
Father is correct.
Father’s 1985 conviction for committing lewd or lascivious
acts on a child under 14 years of age (Pen. Code, § 288, subd. (a))
constitutes “‘sexual abuse’” under Penal Code section 11165.1,
subdivision (a), thereby triggering the presumption under
section 355.1, subdivision (d). (See Pen. Code, § 11165.1,
18
subd. (a) [defining “‘sexual abuse’” to include, among other
things, “conduct in violation of . . . subdivision (a) . . . of,
Section 288 (lewd or lascivious acts upon a child)”].) However,
the juvenile court erred in finding Father’s 2005 conviction under
Penal Code section 261.5, subdivision (c) (unlawful sexual
intercourse with a minor who is more than three years younger
than the perpetrator) also fell within the definition of “sexual
abuse” pursuant to section 355.1, subdivision (d).7 (See Pen.
Code, § 11165.1, subd. (a) [defining “‘sexual abuse’” to include
“conduct in violation of . . . subdivision (d) of Section 261.5,” but
not subdivision (c) of that section].) Further, Father’s 2005
conviction, based on unlawful sexual intercourse with a minor
who was three years younger than Father, does not support the
juvenile court’s finding the victim was under 14 years of age (and
certainly does not show the victim was under three years old). At
most the record of conviction shows the victim was a minor. After
the children’s counsel pointed out the error, the court
acknowledged it had misread the conviction record, but it failed
to revisit its jurisdiction finding that was based on Father’s two
convictions for sexual abuse, one of which the court believed
involved a child younger than three years old.
Moreover, in sustaining the sexual abuse count (b-3), the
juvenile court misstated the applicable evidentiary burden,
explaining the Department had met its “the burden of proof”
rather than the burden of producing evidence. (See § 355.1, subd.
7 It is troubling that counsel for Father and the Department
on appeal similarly treat Father’s 2005 conviction as one for
sexual abuse under section 355.1, subdivision (d). Further,
Father’s counsel erroneously refers to Father’s conviction as one
“for having sex with a minor child under three years of age.”
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(d).) Father amply rebutted the presumption he posed a danger
to the children by his showing the 1985 offense for sexual abuse
was stale; the offense did not involve Father’s children; the
children denied they had ever been abused; and Father lived with
the family for 14 years with no indicia of sexual abuse.
Our opinion in Quentin H., supra, 230 Cal.App.4th 608 is
instructive. There, the father suffered a conviction of forcible oral
copulation with a minor under 14 years old, which required him
to register as a sex offender, over 20 years before the Department
filed its petition. (Id. at p. 611.) At the jurisdiction hearing, the
father argued he was not a risk to the children, relying on the
staleness of the conviction and statements in the Department’s
reports by the children and their mother that the father had lived
with them for a substantial amount of time and never acted
inappropriately with the children. (Id. at p. 612.) As here, the
Department argued the father posed a danger to his children
based on his conviction and lack of evidence he had completed
rehabilitative therapy. (Ibid.) We reversed the juvenile court’s
jurisdiction findings under section 300, subdivisions (b) and (d),
reasoning Father’s evidence was sufficient to meet his burden of
production, and thus, the presumption disappeared. (Quentin, at
p. 610.) We explained, “The question is not whether this evidence
is sufficient to support a jurisdiction finding because the court did
not weigh this evidence or make any findings as to the
significance or weight of the Department’s evidence relative to
[father’s]. Instead, it erroneously relied on the presumption to
sustain the petition as to [father], mistakenly believing no
contrary evidence apart from the date of the conviction had been
presented to overcome the presumption of dangerousness
contained in section 355.1. This was error.” (Id. at p. 620.) We
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remanded for the court to make findings based on the evidence
without regard to the presumption. (Id. at pp. 615-618.)
In light of the juvenile court’s factual and legal errors, as in
Quentin H., we reverse the court’s jurisdiction finding on count b-
3 based on the sexual abuse allegations.8 On remand, the court
must consider the evidence presented at the jurisdiction hearing
without regard to the presumption under section 355.1,
subdivision (d), in determining whether the Department carried
its burden to show by a preponderance of the evidence
jurisdiction is proper based on Father’s prior convictions and
status as a sex offender.
C. We Reverse the Disposition Order as to Father
Because we reverse the jurisdiction finding as to Father,
“the court’s findings cannot support a disposition order denying
him custody of the children.” (In re Andrew S. (2016)
2 Cal.App.5th 536, 544; accord, In re R.M. (2009) 175 Cal.App.4th
986, 991.) Further, “all subsequent orders as to [Father] must be
reversed as well.” (In re R.M. (2009) 175 Cal.App.4th at p. 991.)
We therefore reverse the removal order and order requiring
Father to submit to drug testing.
8 As we explained in Quentin H., supra, 230 Cal.App.4th at
page 620, footnote 8, the court’s misapplication of the
presumption under section 355.1 was prejudicial: “Under
California law a judgment may not be reversed based on
improper rejection of evidence unless the error is prejudicial—
that is, it resulted in a miscarriage of justice. [Citations.] Here,
in a close case in which the court’s improper application of the
presumption plainly tilted the balance in favor of the
Department, we simply cannot deem the error harmless.”
21
On remand, the juvenile court will need to base any
disposition order on current circumstances, including any
requirement as to drug testing (challenged by Father on appeal).
Substantial evidence did not support the requirement in the prior
disposition order that Father submit to drug testing based on his
single statement reflected in the December 23, 2020 detention
report that he “said he had a drinking problem, too.” Father
made this statement in explaining why he distanced himself from
Mother and the children in 2017—because of Mother’s drinking
problem. There is no evidence in the record that Father had a
“drinking problem” after 2017, or the nature of any drinking
problem. “The program in which a parent or guardian is required
to participate shall be designed to eliminate those conditions that
led to the court’s finding that the child is a person described by
Section 300.” (§ 362, subd. (d); see In re Daniel B. (2014)
231 Cal.App.4th 663, 673 [“The case plan ordered by the court
should be appropriate for each individual family based on facts
relevant to that family, and should be designed to eliminate the
conditions that led to the dependency in the first instance.”].)
Absent evidence Father had an alcohol or drug abuse problem in
2020 that led to the court’s jurisdiction over the children (and
was an ongoing issue), the juvenile court abused its discretion in
requiring Father to submit to drug testing. (See In re Drake
M. (2012) 211 Cal.App.4th 754, 770 [juvenile court abused its
discretion in ordering drug testing of father where there was
nothing in the record to indicate father had a substance abuse
problem or that his use of medical marijuana led to the finding of
dependency jurisdiction, nor was the condition designed to
address mother’s substance abuse and mental illness issues].)
22
DISPOSITION
The jurisdiction findings on counts b-3 and g-1 and the
disposition order are reversed as to Father. On remand the
juvenile court shall conduct a new jurisdiction hearing as to
Father to determine whether the Department has sustained its
burden of proof as to the sexual abuse allegations in count b-3 of
the first amended petition without regard to the section 355.1
presumption, giving appropriate weight to the family’s current
situation.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
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