In re E.H. CA2/2 ( 2024 )

Filed 10/22/24 In re E.H. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
In re E.H., a Person Coming B330047
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
23CCJP00357A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
A.H.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County. Linda L. Sun, Judge. Affirmed.
Deborah Dentler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Jessica Buckelew, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________________________
In this juvenile dependency appeal, A.H. (father) challenges
the juvenile court’s jurisdictional findings pertaining to his young
son, E.H. (son). In particular, father argues substantial evidence
does not support a finding that son was at substantial risk of
physical harm or sexual abuse. Father seeks reversal of the
jurisdictional findings and, therefore, also the court’s subsequent
removal and visitation orders.
We conclude substantial evidence supports the juvenile
court’s jurisdictional finding under Welfare and Institutions Code
section 300, subdivision (b).1 Accordingly, we affirm.
BACKGROUND
When the underlying proceedings began, son’s mother G.H
(mother) and father had known each other for 10 years. They
married in 2017. Son was born in January 2022.
1. Father’s Pattern of Molesting Minor Girls
For years prior to son’s birth, father sexually molested
several minor female relatives. Father admitted to touching two
sisters, maternal grandnieces A.T. and M.T., inappropriately.
Although father denied inappropriate conduct with anyone else,
during the course of the proceedings below, two additional female
1 Undesignated statutory references are to the Welfare and
Institutions Code.
2
minors reported father had molested them and one other female
minor reported father sent her inappropriate text messages.
a. A.T. and M.T.
A.T. and M.T. are mother’s grandnieces. At the time the
underlying proceedings began, A.T. was 13 years old and M.T.
was 12 years old. For some time prior to the underlying
proceedings, they and their family lived in a home on the same
property where mother, father, paternal grandmother and
paternal step-grandfather lived in a separate house. The girls
visited and slept over at mother and father’s home often. When
the sexual abuse began, A.T. was approximately nine years old
and M.T. was seven years old.
M.T. said father “often” and “frequently” touched and
rubbed her legs, back, butt, and thighs, sometimes under her
underwear. At times, he held M.T. on his lap and rubbed her
over his groin area. M.T. reported that, on multiple occasions
after she had fallen asleep on the couch, father tried to carry her
to his bedroom but she managed to “wiggle free.” M.T. said
“things got worse when she turned 8 years old” and, similarly,
“things became worse” and father “got ‘more touchy’ ” when she
was between the ages of eight and nine. M.T. said the abuse
occurred “anywhere in the pool or the Livingroom area” and
sometimes in a car.
A.T. similarly stated father rubbed his hand on her thigh
and pelvic area, making her feel uncomfortable. However, she
said father “did a lot more to her sister” M.T. A.T. saw father
touch M.T. many times when they were in mother and father’s
home on the shared property. She said father “would always
touch her sister on her thighs and stomach and it would happen
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in the living room or in [father’s] bedroom when they were
messing around.”
Father admitted to some of the behavior reported by A.T.
and M.T. Father stated he touched A.T. inappropriately three
times and M.T. one time in 2019 or 2020, during the time they all
lived on the same property. He said he knew what he was doing
was wrong, but he thought A.T. “knew and came on to me, but
not.” Father denied ever putting his hands inside the sisters’
pants. He no longer had contact with A.T. or M.T. The girls’
mother reported, during the time of the abuse, A.T. and M.T.
often spent the night with mother and father in their home on
the shared property. Once the girls revealed father’s
inappropriate conduct to their parents, the family moved away
and no longer had contact with mother or father.
In 2019, mother confronted father about allegations of
inappropriate conduct with A.T. and M.T. Father denied
everything. In early 2020, because of the allegations, mother and
father separated for one year. After they reconciled, mother
again confronted father about the allegations. At that time,
father told mother he had touched A.T. and M.T. inappropriately
a few times. Mother believed father had changed, saying, “He
wasn’t the same person” he was in 2019 and earlier, when the
sexual abuse took place. Father was “heavily involved in church
and getting the support he needs.” He participated in “an AA like
meeting for his sexual recovery” once a week and met with
church pastors “as needed.” According to mother, father began
attending church and a “recovery program through church” in
April 2020. Mother stated father himself was a victim of child
sexual abuse and had both a sexual addiction and addiction to
pornography.
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b. C.H.
C.H. is mother’s niece. At the time the underlying
proceedings began, C.H. was 14 years old. During both a police
interview and a forensic interview, C.H. reported father sexually
molested her when she was younger. She could not remember
exact dates, but stated father molested her for approximately six
years, when she was between the ages of six and twelve. C.H.
said she spent a lot of time with mother and father and was very
close with them. On one occasion when she slept over at their
home, mother had C.H. sleep in between mother and father.
During the night, father held C.H.’s side with his hand and she
could feel his erect “penis against her buttocks.” “[S]he could feel
[him] on her all night.” Other times, father touched C.H.’s upper
thighs and rubbed her vagina under her shorts. C.H. said “this
happened a lot.” He had her sit very close to him or on his lap.
She reported father “would move her on his lap and that [he]
would get ‘hard’ from her sitting on him.” When asked about the
“worst time,” C.H. described an incident when father moved her
shorts and underwear to the side and rubbed her vagina with his
fingers.
Father and mother both denied C.H.’s allegations. Mother
stated C.H. never spent the night at their house, mother never
had kids in her bed, and “[t]he timeframe is off.”
c. Y.H.
Y.H. is C.H.’s sister and also mother’s niece. She reported
father sent her text messages when she was 16 years old, asking
“about her having sex and asking for naked pictures of her.” Y.H.
told a forensic interviewer that “everyone knew of the abuse
including the maternal grandmother and mother.”
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Mother found out about the text messages between father
and Y.H. and confronted them. Father and Y.H. told mother
nothing happened. Mother said she “ ‘read [through] the text.
There was nothing there. That was it.’ ” She said she did not see
anything “in a sexual manner.” Mother described Y.H. as “very
provocative,” “smoking weed,” “skipping school,” and “having
sex.”
d. L.T.
L.T. is a paternal niece. She reported father sexually
abused her. She also had been abused by father’s father. She
“did not want to go through the Court process again” and did not
give details about the sexual abuse by father.
2. Father’s Own Sexual Abuse as a Child, Efforts at
Rehabilitation, and Arrest
Father was molested as a minor by his own father, who also
had sexually molested minor female family members and was
incarcerated. Father stated he began going to church in 2019.
He said he completed a 12-step program through his church for
sexual addiction and codependency and was in the process of
enrolling in individual therapy. He said he met with his pastor
once a week and with his lead pastor as needed. In January
2023, father reported he had been “sober of pornography and
masturbation” for 60 days. He was seeking help and support
through his church and believed he was “a changed man.”
Father’s pastor confirmed father had participated in a 12-
step program as well as “a more intensive” yearlong 12-step study
program, with a sponsor. After graduating from the program in
2021, father began leading small groups in the church’s 12-step
program. The pastor said father was “ ‘one of the biggest greatest
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transformations in recovery at our church.’ ” The pastor had no
child safety concerns regarding father.
In January 2023, father was arrested and incarcerated on
two counts of child sexual molestation. He was incarcerated for
the duration of the underlying proceedings.
Following father’s arrest, maternal grandmother stated she
had no concerns about mother’s or father’s ability to care for son.
Maternal grandmother said, “They’re great parents,” and “I
appreciate [father] being a good husband and father for my
daughter.” Sometime after father’s arrest, his brother (paternal
uncle), who was a church pastor, harassed police officers at the
police station and demanded to speak with father. A few days
later, paternal uncle returned to the police station and stated “he
was father’s priest, and therefore, their conversation could not be
recorded.” A detective believed paternal uncle was coaching
mother and stated mother “stopped cooperating” after speaking
with paternal uncle. Mother expressed her desire to remain
married and committed to father.
3. Petition, Adjudication, Disposition
In January 2023, soon after father’s arrest, the Los Angeles
County Department of Children and Family Services
(Department) filed a four-count section 300 petition on behalf of
son. The petition stated counts under subdivisions (b) and (d) of
section 300 and alleged father had molested both A.T. and M.T.
on multiple occasions and mother had failed to protect son. At
the detention hearing, the juvenile court detained son from father
and released son to mother, with whom son stayed for the
duration of the underlying proceedings. The Department later
filed an amended petition, which added subdivision (b) and (d)
counts related to father’s molestation of C.H.
7
In its jurisdiction report for the court, the Department
acknowledged “father has taken accountability for his actions and
started his recovery for porn addiction through a faith-based
program.” Nonetheless, the Department believed father required
“a structured evidence based program by professional staff whose
area of concentration is sexual abuse for perpetrators” and
“therapy through a licensed clinician to address his own
childhood trauma as a sexual abuse victim.” Given the multiple
allegations and charges against father of sexual abuse of children
in the family, the Department was concerned about father’s
ability to parent a child safely. The Department also was
concerned mother was “unable and unwilling to recognize,” and
gave excuses for, father’s behavior. For example, the Department
noted mother “insinuated that the cousins [A.T., M.T., and C.H.]
were possibly in cahoots as they provided similar statements”
and mother placed blame on Y.H. for father sending her
unsolicited text messages, describing Y.H. as provocative and
“going through issues.” The Department stated it could “only
speculate that the mother[’s] lack of insight of sexual abuse and
her willingness to only believe the father’s statements places
[son] at risk of future sexual abuse, and that the mother would
not be protective of [son] if the father was around.”
The adjudication and disposition hearing was held on
May 17, 2023. By that date, mother had completed a parenting
class and a three-hour sexual abuse awareness and education
class. Counsel for mother recognized the allegations regarding
father were “horrendous.” However, mother’s attorney did not
believe the allegations as to mother were supported by the
evidence and, therefore, asked the juvenile court to strike mother
from the petition.
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Counsel for son argued the evidence amply supported the
allegations against father. Counsel noted not only had father
admitted to touching two of the girls but also all of the girls were
close to the family and father had groomed and bonded with
them. As to mother, son’s counsel argued the court should
dismiss the subdivision (d) counts but sustain the subdivision (b)
counts.
Counsel for the Department urged the court to sustain the
amended petition in its entirety. Counsel described father’s
behavior as “abhorrent sexual behavior” aimed at prepubescent
family members through marriage. Counsel for the Department
also expressed concern that mother had indicated she did not
intend to divorce father and was close with his family. The
Department believed mother lacked sufficient insight into
father’s conduct.
Counsel for father argued, in total, “I ask that this petition
be dismissed because the county failed to meet its burden with
regard to a nexus to current risk with regard to [son].”
After hearing argument, the juvenile court sustained the
amended petition as pleaded and declared son a dependent of the
court under subdivisions (b) and (d) of section 300. The court
noted father had admitted to the allegations concerning his
molestation of A.T. and M.T. and, as to the allegations concerning
C.H., the court found C.H. “incredibly honest” and “extremely
distraught and credible during her forensic interview.” The court
found the allegations as to mother’s failure to protect were true in
part because mother “seems to minimize the sufferings of the
victims” and, instead of calling law enforcement after father
confessed to her, “she talked to her therapist.” The court found
father to be “unequivocally a sexual predator,” the victims were
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all “very, very young,” and “his conduct is sexually abhorrent.”
The court called it a “common sense conclusion” that “every
person in the family home would be at risk of sexual abuse, and
[father’s] sexually abhorrent behaviors places [sic] young victims
at risk of being sexually exploited.” The court found the “danger
of sexual abuse” to son “substantial.”
The juvenile court removed son from father and continued
son’s placement in mother’s care under Department supervision.
The court ordered father to participate in sexual abuse
counseling for perpetrators and individual counseling. Father
was granted monitored visits with son.
4. Appeal
Father appealed the juvenile court’s jurisdictional findings
and dispositional orders. Mother did not appeal.
5. Postappeal Termination of Dependency Jurisdiction
and Final Custody Order
In November 2023, while this appeal was pending, the
juvenile court terminated jurisdiction and entered a final custody
order.2 The court granted sole physical custody of son to mother
and joint legal custody to mother and father. The court ordered
monitored visits for father with son. The final custody order
indicates mother and father were no longer married or living
together. Neither mother nor father appealed the court’s
November 2023 orders.
2 We previously took judicial notice of both the juvenile
court’s November 27, 2023 minute order terminating jurisdiction
and its November 27, 2023 final custody order.
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DISCUSSION
1. Justiciability
As an initial matter, we address the justiciability of father’s
appeal. As noted above, while father’s appeal was pending, the
juvenile court terminated jurisdiction and entered a final custody
order. Based on these postappeal events, we asked the parties to
brief whether father’s appeal was moot and, if so, whether we
should exercise our discretion to hear the matter. (Gov. Code,
§ 68081.) The Department argued the appeal is moot and we
should not exercise our discretion to consider the merits. On the
other hand, father responded we should consider the merits of his
appeal. Although father seems to assume the appeal is moot, he
argues we should consider his appeal because not only do the
court’s jurisdictional findings continue to impact him adversely
with respect to his visitation rights, the issue raised is of public
importance and likely to occur again. We conclude the appeal is
not moot despite the juvenile court’s termination of jurisdiction
postappeal. The court’s jurisdictional findings continue to affect
father adversely not only with respect to visitation, but also with
respect to custody of son. (In re D.P. (2023) 14 Cal.5th 266, 276–
277.)
In In re D.P., supra, 14 Cal.5th 266, our Supreme Court
addressed the justiciability of dependency appeals such as
father’s here. The court explained, “A court is tasked with the
duty ‘ “to decide actual controversies by a judgment which can be
carried into effect, and not to give opinions upon moot questions
or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.” ’
[Citation.] A case becomes moot when events ‘ “render[] it
impossible for [a] court, if it should decide the case in favor of
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plaintiff, to grant him any effect[ive] relief.” ’ [Citation.] For
relief to be ‘effective,’ two requirements must be met. First, the
plaintiff must complain of an ongoing harm. Second, the harm
must be redressable or capable of being rectified by the outcome
the plaintiff seeks.” (Id. at p. 276.)
Particularly relevant here, our Supreme Court noted, when
a jurisdictional finding affects subsequent orders and “continues
to impact a parent’s rights—for instance, by restricting visitation
or custody—that jurisdictional finding remains subject to
challenge, even if the juvenile court has terminated its
jurisdiction. [Citations.] Because reversal of the jurisdictional
finding calls into question the validity of orders based on the
finding, review of the jurisdictional finding can grant the parent
effective relief.” (In re D.P., supra, 14 Cal.5th at pp. 276–277; see
also id. at pp. 277–278.)
Here, in terminating its jurisdiction, the juvenile court
issued a final custody order limiting father’s custody of son and
restricting visitation with son. Thus, even though the juvenile
court terminated its jurisdiction, its jurisdictional findings
continue to impact father’s rights. If we were to reverse the
jurisdictional findings, our decision would call into question the
juvenile court’s subsequent orders. Thus, we conclude father’s
appeal is not moot.
2. Dependency Jurisdiction
a. Applicable Law
In this case, the juvenile court exercised its jurisdiction
under subdivisions (b) and (d) of section 300. We address
subdivision (b) first. Under that subdivision, a juvenile court
may assert dependency jurisdiction over a child when, among
other things, “[t]he child has suffered, or there is a substantial
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risk that the child will suffer, serious physical harm or illness, as
a result of . . . [¶] (A) The failure or inability of the child’s parent
or guardian to adequately supervise or protect the child.” (§ 300,
subd. (b)(1) (subdivision (b).)
“[S]ection 300 does not require that a child actually be
abused or neglected before the juvenile court can assume
jurisdiction.” (In re I.J. (2013) 56 Cal.4th 766, 773.) “The
legislatively declared purpose of these provisions ‘is to provide
maximum safety and protection for children who are currently
being physically, sexually, or emotionally abused, being
neglected, or being exploited, and to ensure the safety, protection,
and physical and emotional well-being of children who are at risk
of that harm.’ (§ 300.2, italics added.) ‘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.’ ” (In re I.J.,
supra, at p. 773.) “ ‘The purpose of dependency proceedings is to
prevent risk, not ignore it.’ ” (Jonathan L. v. Superior Court
(2008) 165 Cal.App.4th 1074, 1104.)
b. Standard of Review
We review the juvenile court’s jurisdictional findings for
substantial evidence. (In re I.J., supra, 56 Cal.4th at p. 773.)
“ ‘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
13
independent judgment, but merely determine if there are
sufficient facts to support the findings [and disposition order] of
the trial court.” ’ ” (Ibid.) In determining whether substantial
evidence exists such that a reasonable trier of fact could find the
order challenged on appeal is appropriate, we review the entire
record in the light most favorable to the challenged order. (Ibid.)
“Substantial evidence is evidence that is ‘reasonable,
credible, and of solid value’; such that a reasonable trier of fact
could make such findings.” (In re Sheila B. (1993) 19 Cal.App.4th
187, 199.) Substantial evidence “ ‘is not synonymous with any
evidence. [Citations.] A decision supported by a mere scintilla of
evidence need not be affirmed on appeal.’ ” (In re Yolanda L.
(2017) 7 Cal.App.5th 987, 992.)
c. Substantial evidence supports the juvenile
court’s jurisdictional findings under
subdivision (b).
Father argues substantial evidence does not support the
juvenile court’s subdivision (b) jurisdictional findings. He claims
there was “zero evidence” mother would not protect son and no
evidence father might ever abuse a male child, let alone his own
biological one-year-old male child. In contrast, the Department
argues substantial evidence supports the court’s finding that son
was at risk under subdivision (b), noting the severity of father’s
actions and mother’s lack of protective capacity. We agree with
the Department.
Both parties discuss our Supreme Court’s decision in In re
I.J., supra, 56 Cal.4th 766 (I.J.). In that case, the court
addressed the question whether a father’s sexual abuse of his
minor daughter supported the exercise of dependency jurisdiction
over the father’s minor sons. (Id. at p. 772.) The court held it
14
did, concluding the father’s repeated sexual abuse (including
rape) of his minor daughter in the family home constituted
substantial evidence supporting dependency jurisdiction over all
of the father’s children, regardless of gender and regardless of
whether their father had abused all of them. (Id. at pp. 771, 778.)
Our Supreme Court explained, “the more severe the type of
sibling 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. If the sibling abuse is
relatively minor, the court might reasonably find insubstantial a
risk the child will be similarly abused; but as the abuse becomes
more serious, it becomes more necessary to protect the child from
even a relatively low probability of that abuse.” (Id. at p. 778.)
I.J. is not entirely on point here because it focusses on the
exercise of dependency jurisdiction under subdivision (j) of
section 300, which subdivision is not at issue here. Nonetheless,
we conclude I.J. offers guidance and support for dependency
jurisdiction in this case.
The record before us contains substantial evidence that son
was at a substantial risk of harm. Although there is no evidence
father sexually abused or otherwise injured son, a child need not
“actually be abused or neglected before the juvenile court can
assume jurisdiction.” (I.J., supra, 56 Cal.4th at p. 773.) The
record is replete with evidence of father’s longstanding aberrant
sexual behaviors and abuse of prepubescent girls. For years,
father sexually molested three young girls.3 Although the girls
3 Father also molested a fourth girl, his niece L.T.The
record does not include details of that abuse and, therefore, we do
not know whether it was as pervasive and severe as father’s
abuse of the other three girls.
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were not father’s biological children, they were extended family
members who shared close familial relationships with mother
and father, spending many nights and days in their home. A.T.
and M.T. lived on the same property as father. Father
unquestionably violated his position in the family with those
girls. His behavior was a “ ‘betrayal of the appropriate
relationship between the generations.’ ” (I.J., supra, 56 Cal.4th
at p. 778.)
Father also remained in denial as to much of the abuse he
committed, which further supports a finding of risk to son. At
first, father denied any wrongdoing. Eventually, he confessed to
a handful of isolated incidents of abuse as to A.T. and M.T. only.
However, as the girls described it, father molested them,
especially M.T. and C.H., for years. His abuse was not isolated.
It was pervasive. He also molested M.T. many times when A.T.
was present and witnessed his aberrant behavior toward her
sister. Additionally, father himself was a victim of sexual abuse
as a young child. His own father subjected him to abuse and
pornography. Although father attended various church
programs, there is no evidence father participated in a clinical
program designed specifically for perpetrators and victims of
sexual abuse. Indeed, attending church programs, while
certainly commendable, did not appear to have been entirely
successful for father by the time the underlying proceedings
began. In January 2023, approximately two years after
graduating from the more intensive 12-step church program, he
reported being “sober of pornography and masturbation” for 60
days. Having failed to recognize the full extent of his dangerous
and aberrant conduct, it was not likely father would take steps
16
necessary to address and ameliorate that behavior. (In re A.F.
(2016) 3 Cal.App.5th 283, 293.)
After briefing, father submitted a recently decided case in
which the Fourth District reversed jurisdictional findings and
dispositional orders concerning the mother’s teenaged son. (In re
S.R. (2024) 104 Cal.App.5th 44 (S.R.).) In that case, it was
alleged, among other things, that the mother’s teenaged son was
at risk because the mother’s fiancé allegedly had molested the
mother’s teenaged daughter in the family home and the mother
failed to protect her son. (Id. at p. 51.) S.R. is factually distinct.
In S.R., the fiancé was alleged to have molested one teenaged
girl. The son who the juvenile court had found to be at risk also
was a teenager who had lived with the mother and her fiancé for
nine years. The son stated he had never been sexually abused,
would speak up if he ever were abused, and felt safe in the home.
(Id. at pp. 49, 54.) In contrast, here, father molested several
young girls over the course of many years. Son was of tender
years, vulnerable, and unable to speak for himself. Also here,
father admitted to some of his very aberrant behavior and that he
himself had been sexually abused as a child by his father. S.R. is
not persuasive here.
Given the severity of father’s deviant sexual behavior, his
continued denial and lack of clinical treatment, and his own
abuse as a child by his father, we conclude substantial evidence
supports the juvenile court’s jurisdictional findings as to father
under subdivision (b).
Because we affirm the juvenile court’s jurisdictional
findings as to father under subdivision (b), we need not and do
not address the remaining jurisdictional findings. (I.J., supra, 56
Cal.4th at p. 773.) Similarly, because father does not
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independently challenge the juvenile court’s dispositional orders,
and we affirm the findings on which those orders are based, we
need not and do not address the dispositional orders.
DISPOSITION
The juvenile court’s May 17, 2023 order is affirmed.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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