In re M.F. CA2/2 ( 2023 )

Filed 10/5/23 In re M.F. CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
In re M.F., a Person Coming B322363
Under the Juvenile Court Law. (Los Angeles County Super.
Ct. No. 22CCJP00926A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
JESUS F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Craig S. Barnes, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jacklyn K. Louie, Principal
Deputy County Counsel, for Plaintiff and Respondent.
******
The juvenile court exerted dependency jurisdiction over a
seven-year-old boy after his father, Jesus F. (father), “tugged” at
his penis and testicles 15 times. Father argues on appeal that
there is insufficient evidence to support jurisdiction because
father’s repeated touching of his son’s genitals was just a “game”
that was “misunderst[ood]” by the court, and that we must
reweigh the evidence independently. These arguments
fundamentally misunderstand basic principles of appellate
review. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Father and A.V. (mother) met in 2011, got engaged in 2013,
and had a son—M.F.—in November 2014. Their relationship was
tumultuous. Both parents drank excessively, smoked marijuana,
and used cocaine. Father and mother split up when M.F. was
two years old, and their interactions continued to be contentious
enough that they exchanged custody of M.F. at a police station.
In 2018, a family court awarded father sole physical custody of
M.F., with visitation rights granted to mother. Over the next few
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years, the parents’ custody arrangement evolved: M.F. generally
lived with father and visited mother during the evening on
weeknights; mother could also have overnight visits with M.F.
but “didn’t make herself available.”
From the time M.F. was five years old until he was seven
years old, father touched the child’s penis and testicles on 15
separate occasions while M.F. bathed or showered. Father’s
touching was not part of any bathing routine, as the touching did
not involve cleaning and M.F. regularly bathed on his own while
staying with mother. Instead, father would put the tip of M.F.’s
penis between his thumb and index finger, and then “tug[]” on it.
Although father characterized this touching as a “game” and
convinced M.F. that it was all done “for fun,” father’s touching
“hurt” the child, and M.F. without fail asked his father to “stop”
the tugging.
M.F. first reported this touching to mother in February
2022, but indicated that if mother had not believed him, he would
have told his aunt or a teacher at school. M.F. loved father, but
wanted the abuse to stop. He gave the same account of events to
his maternal aunt, to social workers, and to a forensic examiner.
Father did not deny tugging on the child’s genitals.
Instead, he claimed he was merely “grabbing” his son’s “nuts” in
a “playful way” as part of a “game” in which father would touch
M.F. while saying, “I’m going to get you.” When invited by a
social worker, father demonstrated how he tugged on his son’s
penis and commented that M.F.’s “balls are so cute.” Father
believed that his behavior was “appropriate” because he was not
“feeling-up his child, sucking him off, jacking him off, or putting
anything in his butt hole”—sexual assaults which father claimed
“were done to” him when he was a child.
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II. Procedural Background
On March 11, 2022, the Los Angeles County Department of
Children and Family Services (the Department) filed a petition
asking the juvenile court to exert dependency jurisdiction over
M.F. on the ground that father’s prior “sexual[] abuse” of him “by
repeatedly touching the child’s testicles and grabbing the child’s
penis inflicting pain” placed M.F. at substantial “risk of serious
physical harm” and created a substantial risk of sexual abuse
(rendering dependency jurisdiction appropriate under Welfare
and Institutions Code section 300, subdivisions (b)(1) and (d)).1
On May 18, 2022, the juvenile court held the jurisdictional
and dispositional hearing. The court indicated its tentative
ruling was to sustain the sexual abuse allegation because (1) its
review of the forensic examination showed M.F. to be “consistent,
detailed, [and] reluctant” in his account of what happened, and
also showed that M.F. had no “axe to grind” because he wanted to
be with father but wanted father’s abuse to stop; and (2) father’s
abuse of M.F. was connected to sexual gratification based on
father’s own description of events. After further argument from
counsel, the court adopted its tentative ruling and sustained the
allegation under subdivisions (b)(1) and (d) of section 300.2 The
court found that father’s touching of M.F. on 15 separate
occasions causing the child pain constituted “sexual abuse” and
not, as father characterized it, a “game.” The court declared M.F.
1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 The juvenile court dismissed additional allegations
pertaining to mother’s and father’s physical abuse of M.F. and
father’s substance abuse; they are accordingly not pertinent to
this appeal.
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a dependent of the court, removed him from father’s custody and
placed him in the home of mother. The court ordered family
maintenance services for both parents, as well as monitored
visitation for father.
Father filed this timely appeal.
DISCUSSION
Although father appeals both the juvenile court’s
jurisdictional and dispositional orders, his arguments solely
attack the sufficiency of the evidence underlying the court’s
jurisdictional findings. Thus, we do not separately address the
propriety of the court’s dispositional order and presume father
requests reversal of the disposition only if jurisdiction is reversed.
I. Pertinent Law
Welfare and Institutions Code section 300, subdivision (d),
authorizes a juvenile court to exert dependency jurisdiction over
a child if the child “has been sexually abused, or there is a
substantial risk that the child will be sexually abused, as defined
in section 11165.1 of the Penal Code, by the child’s parent or
guardian or a member of the child’s household.” (Welf. & Inst.
Code, § 300, subd. (d).) Penal Code section 11165.1, in turn,
defines “sexual abuse” to include any act that violates Penal Code
section 647.6 (annoying or molesting a child) or Penal Code
section 288, subdivision (c)(1) (lewd or lascivious acts upon a
child under the age of 14). (Pen. Code, § 11165.1, subd. (a).) The
statute goes on to set forth a non-exhaustive list of conduct
constituting “sexual abuse,” including “[t]he intentional touching
of the genitals or intimate parts . . . of a child . . . for purposes of
sexual arousal or gratification, except that it does not include
acts which may reasonably be construed to be normal caretaker
responsibilities; interactions with, or demonstrations of affection
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for, the child; or acts performed for a valid medical purpose.”
(Pen. Code, § 11165.1, subd. (b)(4).)
Because sexual intent “can seldom be proven by direct
evidence, it may be inferred from the circumstances.” (In re
Mariah T. (2008) 159 Cal.App.4th 428, 440 (Mariah T.).) “To
determine whether a defendant acted with sexual intent, all the
circumstances are examined. Relevant factors include [(1)] the
nature and manner of the touching, [(2)] the defendant’s
extrajudicial statements, [(3)] the relationship of the parties[,]
and [(4)] ‘any coercion, bribery or deceit used to obtain the
victim’s cooperation or avoid detection.’ [Citation.] The requisite
intent ‘must be inferred from all the circumstances . . . . A
touching which might appear sexual in context because of the
identity of the perpetrator, the nature of the touching, or the
absence of an innocent explanation, is more likely to produce a
finding that the act was indeed committed for a sexual purpose . .
. .’” (In re R.C. (2011) 196 Cal.App.4th 741, 750 (R.C.).)
We review the juvenile court’s finding of jurisdiction for
substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773.)
Under this standard of review, our task is merely to assess
whether the record contains evidence that is reasonable, credible,
and of solid value sufficient for a reasonable trier of fact to make
its orders. (Ibid.) In so doing, we consider the record as a whole,
and resolve all conflicts and draw all reasonable inferences to
support the juvenile court’s findings; contrary to what father
asserts, we may not reweigh the evidence or gainsay the juvenile
court’s credibility findings. (Ibid.; In re Lana S. (2012) 207
Cal.App.4th 94, 103.)3 Evidence from a single witness, even a
3 Relying on People v. Vivar (2021) 11 Cal.5th 510, In re
Rosenkrantz (2002) 29 Cal.4th 616, and In re Booth (2016) 3
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party, can be sufficient to support the trial court’s findings. (In re
Alexis E. (2009) 171 Cal.App.4th 438, 450-451 (Alexis E.).)
II. Analysis
Father’s challenge to the sufficiency of the evidence
supporting jurisdiction under section 300, subdivision (d), is a
narrow one. Father freely admits that he “repeatedly touch[ed]
the child’s testicles and grabb[ed] the child’s penis” but argues
that there was insufficient evidence that his conduct was done
with a “sexual intent.” We disagree. As noted above, sexual
intent is, in most cases, established circumstantially by looking to
a variety of factors. Here, those facts point to a sexual purpose:
Father was tugging on M.F.’s penis regularly and so hard that it
“hurt”; this was not part of “normal caretaking responsibilities,”
was not a demonstration of affection for M.F. (as most
demonstrations of affection do not involve the nonconsensual
infliction of pain), and certainly had no valid medical purpose.
Cal.App.5th 1284, father urges that appellate courts owe no
deference to a juvenile court’s assessment of a person’s credibility
if the person’s statements are set forth in a report. Father is
wrong. Vivar took pains to emphasize that its ruling regarding
credibility determinations was confined to petitions for relief
from criminal convictions filed under Penal Code section 1473.7,
and neither Rosenkrantz nor Booth stands for the proposition
that a juvenile court’s assessment of credibility based upon its
assessment of a witness’s statements in light of competing
evidence is entitled to no deference on appeal. Were that the
rule, appellate courts would be tasked with reweighing credibility
in most juvenile dependency appeals because the more relaxed
rules regarding hearsay in dependency proceedings mean that
many witnesses’ statements are presented solely in documentary
reports. We decline father’s invitation to wholly transmogrify the
nature of appellate review in these proceedings.
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What is more, father is M.F.’s parent and father’s insistence that
this touching—which had no ostensible purpose other than sexual
gratification for father—was a “game” was such a convincing
“deceit” that even M.F. vacillated between saying the abuse
“hurt” and saying it “was fun.”
Father resists this conclusion with a blunderbuss volley of
arguments.
First, father argues the court erred in not accepting, at face
value, father’s insistence that he was tugging on the child’s penis
as part of a “game” and thus not with any sexual intent. But it is
the juvenile court’s task to weigh father’s self-serving statements
against the other evidence, and the court acted reasonably in
concluding that tugging on a seven-year-old boy’s penis—
repeatedly and in a manner that causes the boy pain—is not a
“game” and has no viable purpose aside from a sexual one. We
would reach the same conclusion were we independently
assessing the evidence. Father’s other statements about touching
M.F.—that he engaged in that touching; that it was not as bad as
“feeling [him] up . . . ,” “jerking him off, jacking him off, or
putting anything in his butt hole”; and that he voluntarily went
to the police to ask if they had opened up an investigation into his
conduct—could reasonably be viewed as evidence that father
knew what he did, that he considered it to be a type of sexual
touching (albeit a “lesser” type), and that he knew it was wrong
because he was concerned he might be criminally prosecuted for
it. Such evidence is consistent with a finding that father acted
with sexual intent.
Second, father urges that his sexual touching of M.F. was
less egregious than the sexual touching of the children in three
other cases because his tugging of M.F.’s penis was not “an
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inherently sexual act” (like the French kissing of a 12 year old in
R.C., supra, 196 Cal.App.4th at p. 750), because father did not
sexually abuse any other child (as in In re Jordan R. (2012) 205
Cal.App.4th 111, 137), and because father did not try to “silence”
M.F. (as in Mariah T., supra, 159 Cal.App.4th at p. 432). But
none of these cases purport to set the floor for what constitutes
“sexual abuse.” What is more, father’s tugging of M.F.’s penis
appears to be an “inherently sexual act”; we decline to adopt
father’s proffered “it’s okay as long as it’s just one child” or “it’s
okay as long as you don’t ask the child to be quiet about it” rules;
and father’s mantra-like insistence that the touching was a
“game” or a “joke” was akin to trying to silence M.F. into
believing the touching was acceptable and thus nothing to report
to other adults.
Third, father disagrees with portions of the juvenile court’s
analysis. He contends the court “attached unwarranted
meaning” to father’s remark that M.F.’s “balls are so cute”
because the court, in its ruling, commented that the remark
“[took the case] to a different realm.” Father elaborates that
“cute” can be an innocuous term (and he uses the bare-bottomed
girl in the 1950s Coppertone ads as an example), and insists that
is how he meant the word here. The juvenile court acted
reasonably in rejecting such a characterization in light of the
totality of the evidence in this case. Father next contends that
the juvenile court wrongly inferred father’s intent to sexually
abuse M.F. from father’s status as a victim of sexual abuse when
father was a child. But the court drew no such inference.
Lastly, father also attacks the sufficiency of the evidence
supporting jurisdiction under subdivision (b) of section 300.
However, we need not consider that challenge because our
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conclusion that the evidence is sufficient to support jurisdiction
under subdivision (d) of section 300 is enough to affirm.
(See Alexis E., supra., 171 Cal.App.4th at p. 451 [when a
dependency petition alleges multiple bases for jurisdiction, a
reviewing court can affirm the juvenile court’s finding
of jurisdiction if any one of the bases is supported by substantial
evidence].)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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