In re L.O.

Filed 7/29/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re L.O., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E075921
Plaintiff and Respondent, (Super.Ct.No. J285639)
v. OPINION
L.O.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Christopher B.
Marshall, Judge. Affirmed as modified.
Elizabeth A. Klippi, under appointment by the Court of Appeal, for Defendant and
Appellant.
Michelle D. Blakemore, County Counsel, and Jodi L. Doucette, Deputy County
Counsel, for Plaintiff and Respondent.
1
L.O. (Father) and Z.T. (Mother) are the parents of six-year-old L.L.O. (L.), a boy
born in December 2014. Father appeals from the juvenile court’s October 7, 2020
jurisdictional and dispositional orders adjudicating L. a dependent of the court (Welf. &
Inst. Code,1 § 300, subds. (b) & (d)) and removing L. from parental custody (§ 361,
subd. (c)(1)).2 Father contends that there was insufficient evidence to support the
juvenile court’s findings sustaining the petition against him under section 300,
subdivisions (b) and (d) and the order removing L. from his custody. We find substantial
evidence supports the juvenile court’s finding under subdivision (b) of section 300 and
the order removing L. from Father’s custody. We, however, agree insufficient evidence
supports the court’s finding under section 300, subdivision (d), and modify the order to
strike the allegation under that subdivision. The order is affirmed in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2020, the San Bernardino County Children and Family and Services (CFS)
received a referral alleging physical abuse, emotional abuse, and general neglect of L.,
after L. reported to Father that Mother’s boyfriend, G.B., had physically abused him. L.
had marks and bruises on his lower back, right eye, and buttocks, and a cut on the bottom
of his left foot. The parents shared joint custody of L. and a court order was issued to not
hit L. Father explained that he, Mother, and G.B. had been in a physical confrontation
where restraining orders were sought. L. was born with a condition called Fanconi
1 All future statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 Mother is not a party to this appeal.
2
anemia and was small for his age and vulnerable to illnesses and diseases. L. also
disclosed that G.B. hit Mother too, and that G.B. often showed L. his guns.
When law enforcement responded to the referral, officers observed the various
marks and bruises on L. and took pictures. The officers also took pictures of belt loop
marks on L.’s shins, circular bruises on the side of his face, and bruising on his buttocks.
Father informed the officers that this was not the first time L. had returned to his home
with suspicious bruises, but it was the first time he had reported it to CFS. Father also
stated that L. displayed sexualized behaviors upon return from Mother’s home, such as
humping, moaning, and saying “ ‘oh yeah baby.’ ” Father denied that such sexual
conduct was picked up from his home. Father admitted to using marijuana a year ago
and drinking on occasion.
L. stated that Mother’s boyfriend G.B. had hit him with a sandal and showed the
social worker his marks and bruises. During the interview, L. had acted out the sexual
behavior described above, humping things and kissing the mirror and walls for an
extended period of time. L. would not disclose where he learned the sexualized behavior.
He was also cussing, saying “ ‘F _ _ k. Shit. Bitch. N _ _ _ a.’ ” L. described Mother
getting beat up by G.B. When asked if someone had told him not to talk to anyone about
his bruising and marks, L. stated that “[M]om said she would hit me.”
Mother generally blamed Father for L.’s injuries and noted that one of the injuries
to L.’s eye had occurred at a party when he ran into a table. Mother claimed that when
she picked L. up from Father’s home, she saw bruising and marks on L.’s body “all the
3
time.” Mother denied being beaten by her boyfriend. She noted that L.’s cussing was
from an “app” Father had on his phone. She also denied engaging in sexual activity in
front of L. and claimed L. had described Father and his girlfriend engaging in sexual acts.
Mother had sought a restraining order against Father following an altercation between
Father and G.B. during which L. was present in December 2019, but it was denied due to
insufficient evidence.
L. later informed CFS that he had seen his father and girlfriend having sex and that
he was mimicking what they did. Due to conflicting stories and alleged issues at both
parents’ homes, CFS removed L. from the parents’ custody.
On June 22, 2020, CFS filed a petition on behalf of L. pursuant to section 300,
subdivisions (a) (serious risk of harm), (b) (failure to protect), and (d) (sexual abuse). As
to Father, the petition alleged: (1) L. was at substantial risk of serious harm due to
Father’s failure to adequately protect L. from physical harm (a-1); (2) Father had failed to
protect L. from physical abuse by Mother and her boyfriend (b-3); (3) Father had a
substance abuse problem (b-5); (4) Father had a history of engaging in domestic violence
with his partners and that such ongoing violence in the home placed L. at risk of physical
and emotional harm (b-6); and (5) Father had exposed L. to inappropriate sexualized
behaviors and L. was acting out in a sexualized manner, thereby placing L. at risk of
abuse and/or neglect (d-10).
At the detention hearing on June 23, 2020, Father appeared, denied the allegations,
and submitted on detention. Father submitted on CFS’s recommendations for placement
4
of L. with the paternal grandmother (PGM). The juvenile court formally removed L.
from parental custody, maintained L. in his PGM’s home, provided the parents with
supervised visitation, and ordered the parents to drug test. The court also ordered L. to be
assessed at the Children’s Assessment Center (CAC) and ordered no contact between L.
and Mother’s boyfriend G.B.
CFS interviewed the parents again before the jurisdictional hearing. Father stated
that he did not have a history of domestic violence, but noted that Mother had
“ ‘socked’ ” him and “ ‘scratched [him] up pretty good’ ” about three to four years ago.
He reported four or five incidents of domestic violence with the last incident occurring
three years ago. Father also admitted that L. had been a witness to “ ‘lots of arguing and
yes, three . . . times when it got physical.’ ” Father did not believe those incidents were
domestic violence. Father admitted that L. shared a room with him and his girlfriend, but
denied having sexual relations in front of L. Father noted that L.’s display of sexualized
behavior was “ ‘almost as if he’s watched porn.’ ” Father also stated he had not used
marijuana for a month and a half but tested positive for marijuana when ordered to drug
test by the court at the detention hearing.
When Mother was interviewed, she described the physical altercation in
December 2019 involving Father and G.B. She noted that while L. was in her arms, she
tried to stop the altercation between Father and G.B. She admitted that she and Father
had been in other verbal and physical fights involving slapping. Mother believed that L.
learned the sexualized behavior from Father, as L. says “ ‘baby’ ” when sexually acting
5
out and Father calls his girlfriend “ ‘[b]aby.’ ” Mother explained that L. showed her what
Father’s girlfriend does to Father. She thus believed L.’s sexual conduct was learned at
Father’s house, especially since L. displayed behavior similar to real-life sexual acts.
The social worker interviewed L. over Facetime due to concerns for his special
medical condition and susceptibility to harm from COVID-19. Without prompting while
on the phone, L. blurted out that Mother’s boyfriend “ ‘hurted’ ” him and “ ‘squished’ ”
him hard. He also stated that Mother “got really hit.” At one point, he puckered his lips,
made kissing sounds, and said “ ‘[o]h baby.’ ”
PGM reported that she saw L. dancing sexually and acting out sexual behavior.
She opined that whatever L. was doing sexually, “ ‘he saw it.’ ” PGM also stated that she
had to watch L. carefully because he acted out, cussed, and tried to choke his six-year-old
cousin on two occasions. PGM further asserted L. informed her that Mother’s boyfriend
had hit him with a belt while Mother was watching, and told L. if he told, he would hit
him harder.
Because drug use by both parents did not rise to a concerning level and no
evidence existed of mental illness with Mother, CFS requested dismissal of those
allegations (b-5, b-8, and b-9). In addition, because Father had recently tried to get
custody of L. by reporting the physical abuse to the Family Law Court, and because he
had reported the current abuse to CFS, CFS dismissed the willful failure to protect the
physical harm allegations involving Father (a-1 and b-3). Prior to the jurisdictional
hearing, CFS thus recommended dismissal of allegations a-1, b-3, and b-5 as to Father
6
and allegations b-8 and b-9 as to Mother. The remaining allegations pertaining to
Father’s conduct therefore included two allegations, namely b-6 (Father’s history of
engaging in domestic violence) and d-10 (Father exposing L. to inappropriate sexualized
behaviors).3
Both parents essentially blamed the other parent and denied any wrongdoing
themselves, while acknowledging L.’s injuries and sexualized behavior existed. CFS
thus recommended L. be removed from parental custody and be maintained with PGM
while the parents received reunification services until it could be determined L. was safe
from sexual misconduct, domestic violence, and physical abuse.
The scheduled July 14, 2020 jurisdictional/dispositional hearing was continued to
obtain the CAC report, which had not yet been completed. By August 11, 2020, the CAC
report was completed, but without L.’s interview as he refused to go into the interview
room. PGM continued to describe concerning behaviors by L., such as cussing,
touching/patting his penis in front of people, two attempts to choke his six-year-old
cousin, and not asking for Mother or Father. CFS noted L. was sexually advanced for his
age and the parents could not agree on where and how L. was exposed to the sexual acts.
On September 28, 2020, CFS reported that L. had been having only video
conferencing visitation with the parents and his sexual behaviors had reduced. L. told the
3 The remaining allegations involving Mother were a-2 and b-4 relating to
physical abuse by Mother’s boyfriend, b-7 due to domestic violence with partners, and d-
11 based on L.’s sexualized behavior.
7
social worker that he wanted to go back to Father’s house because he did not want to
return to Mother’s boyfriend’s home.
The contested jurisdictional/dispositional hearing was held on October 7, 2020.
Father objected to the allegations and recommendations, but offered no witnesses or
evidence and did not testify. L.’s counsel asked the juvenile court to find the allegations
true as recommended. The court read and admitted all CFS reports into evidence. After
hearing arguments from the parties, the court found true allegations b-6 and d-10 as to
Father and allegations a-2, b-4, b-7, and d-11 as to Mother. The court declared L. a
dependent of the court, removed him from parental custody, and provided the parents
with reunification services. Father appealed.
DISCUSSION
A. JURISDICTIONAL FINDINGS
Father argues there is insufficient evidence to support the section 300,
subdivisions (b) and (d) jurisdictional findings against him. Father does not challenge the
allegations against Mother.
Initially, Father asserts the justiciability doctrine should not apply to this case
because the juvenile court’s jurisdictional findings as to him formed the basis for the
dispositional order. He is also challenging the court’s dispositional order.
1. JUSTICIABILITY DOCTRINE
The juvenile court assumed jurisdiction based on findings against both Mother and
Father, but Mother has not appealed, and Father does not challenge the jurisdictional
8
findings concerning her. CFS thus contends the jurisdictional determinations found as to
Mother are sufficient to support jurisdiction over L. (See In re Briana V. (2015) 236
Cal.App.4th 297, 308 [“ ‘[A] jurisdictional finding good against one parent is good
against both.’ ”]; In re I.A. (2011) 201 Cal.App.4th 1484, 1492 (I.A.) [“an appellate court
may decline to address the evidentiary support for any remaining jurisdictional findings
once a single finding has been found to be supported by the evidence”].)
Under the doctrine of justiciability, courts generally do not act upon or decide
moot questions or abstract propositions, nor do they issue advisory opinions. (I.A., supra,
201 Cal.App.4th at pp. 1490-1491.) “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.” (Id. at p. 1490.) “For
this reason, an appellate court may decline to address the evidentiary support for any
remaining jurisdictional findings once a single finding has been found to be supported by
the evidence” or is unchallenged. (Id. at p. 1492.)
On the other hand, an exception to this general rule has been recognized: “[W]e
generally will exercise our 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
Drake M. (2012) 211 Cal.App.4th 754, 762-763.)
9
Generally, to acquire jurisdiction under subdivision (b) of section 300, the juvenile
court was obliged to find that the child “has suffered, or there is a substantial risk that the
child will suffer, serious physical harm or illness, as a result” of specified forms of
parental neglect, including substance abuse, domestic violence, and failure to protect the
child. (§ 300, subd. (b).) Findings that Father “knowingly or negligently” harmed the
child or exposed him to a substantial risk of physical harm are “pernicious” and “could
potentially impact the current or future dependency proceedings.” (In re M.W. (2015)
238 Cal.App.4th 1444, 1452 (M.W.).) The jurisdictional findings are also the basis for
the dispositional order that Father challenges on appeal. We therefore will exercise our
discretion to review the juvenile court’s jurisdictional findings against Father.
2. SECTION 300, SUBDIVISION (B) FINDING
“ ‘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.” ’ ” (In re
I.J. (2013) 56 Cal.4th 766, 773; accord, In re R.T. (2017) 3 Cal.5th 622, 633 (R.T.).)
10
Exposure to domestic violence may support jurisdiction under subdivision (b)(1)
of section 300. (In re R.C. (2012) 210 Cal.App.4th 930, 941 (R.C.) [jurisdiction under
subdivision (b)].) Jurisdiction under section 300, subdivision (b)(1), applies when a
parent fails, or is unable, to protect the child from a substantial risk of serious physical
harm because of exposure to domestic violence. (R.C., at p. 941.) Jurisdiction is
appropriate since a minor can be “put in a position of physical danger from this violence,
since, for example, they could wander into the room where it was occurring and be
accidentally hit by a thrown object, by a fist, arm, foot or leg . . . .” (In re Heather A.
(1996) 52 Cal.App.4th 183, 194, abrogated on other grounds by R.T., supra, 3 Cal.5th
622.)
“The court need not wait until a child is seriously abused or injured to assume
jurisdiction and take steps necessary to protect the child.” (In re N.M. (2011) 197
Cal.App.4th 159, 165.) “ ‘ “[P]ast violent behavior in a relationship is ‘the best predictor
of future violence.’ ” ’ ” (R.C., supra, 210 Cal.App.4th at p. 942; see In re A.F. (2016) 3
Cal.App.5th 283, 289 (A.F.) [“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”].)
Here, Father admitted that he and Mother had four or five incidents of domestic
violence in the home. He also admitted that on more than one occasion Mother had
“ ‘socked’ ” him and that Mother had “ ‘scratched [him] up pretty good.’ ” Father further
admitted that L. had been a witness to “ ‘lots of arguing, and yes, three . . . times when it
11
got physical.’ ” He stated that he, Mother, and Mother’s boyfriend had been in a physical
confrontation where restraining orders were sought. Mother also described a physical
altercation in December 2019 involving Father and her boyfriend, wherein she attempted
to stop the altercation between the two men while she held L. in her arms. Mother further
reported that there were times when things got physical and they would push each other
while she and Father were still together. She explained that she and Father had been in
other verbal fights and slapping matches. Father’s admissions and Mother’s statements
amounted to substantial evidence that Father exposed L. to “ ‘ “the substantial risk of
encountering the violence and suffering serious physical harm or illness from it.” ’ ”
(R.C., supra, 210 Cal.App.4th at p. 941.)
Father asserts the juvenile court lacked jurisdiction under section 300,
subdivision (b), because the evidence does not indicate he had a history of engaging in
domestic violence with his “ ‘partners.’ ” He also asserted the incidents involving
Mother occurred three to four years ago and Mother ended her relationship with G.B.,
and thus there was no evidence L. would be exposed to further physical injury. These
arguments are unpersuasive.
The mere “[e]xposure to domestic violence may serve as the basis of a
jurisdictional finding under [this provision].” (See R.C., supra, 210 Cal.App.4th at
p. 941.) “ ‘Children can be “put in a position of physical danger from [spousal] violence”
[by], “for example, . . . wander[ing] into the room where it was occurring and be[ing]
accidentally hit by a thrown object, by a fist, arm, foot or leg . . . .” ’ ” (Id. at pp. 941-
12
942.) For that reason, a juvenile court may invoke jurisdiction under section 300,
subdivision (b), even if a child has emerged physically unscathed from an instance of
domestic violence. (See e.g., R.C., at pp. 942-943, 945 [affirming the juvenile court’s
assertion of jurisdiction under section 300, subdivision (b), even though the child who
witnessed a violent altercation “was not physically hurt”].)
Mother’s separation from G.B. and the length of time between the last instance of
domestic violence and the jurisdictional hearing do not undermine the juvenile court’s
assertion of jurisdiction under section 300, subdivision (b). “Physical violence between a
child’s parents may support the exercise of jurisdiction under section 300, subdivision (b)
but only if there is evidence that the violence is ongoing or likely to continue and that it
directly harmed the child physically or placed the child at risk of physical harm.” (In re
Daisy H. (2011) 192 Cal.App.4th 713, 717 (Daisy H.).)
Here, Father and Mother were still involved in an acrimonious family law matter
and had domestic violence issues during custody exchanges. Moreover, L. was acting out
violent conduct toward his six-year-old cousin. The record supports that L. faced an
ongoing risk of harm based on Father’s ongoing violent and contentious behavior when
dealing with Mother. Therefore, the mere fact that CFS alleged “partners,” rather than
Mother, in the petition, and Mother and Father had separated does not establish that he no
longer poses a substantial risk of serious physical harm to L. Indeed, even after Father
had separated from Mother, he continued to engage in altercations with Mother in L.’s
presence. Thus, notwithstanding the passage of time and the fact that Father and Mother
13
are separated and Mother is separated from G.B., Father’s failure even to acknowledge
his past violent behavior, let alone express remorse or show any insight regarding it,
exposes L. to a risk that he will once again attack Mother in L.’s presence. (See A.F.,
supra, 3 Cal.App.5th at p. 293 [“ ‘[D]enial is a factor often relevant to determining
whether persons are likely to modify their behavior in the future without court
supervision’ ”]; In re Giovanni F. (2010) 184 Cal.App.4th 594, 601 [parent’s denial of
domestic violence increases risk].)
Additionally, Father has expressed interest in having custody of, and an ongoing
relationship with L. The juvenile court’s orders in no way foreclose Father from
achieving that objective, given that the court has declared that he is the presumed father
of L., and provided Father and Mother with reunification services, including visits with
L. Accordingly, Father will likely encounter Mother in L.’s presence in the foreseeable
future. (See R.C., supra, 210 Cal.App.4th at p. 940 [during the proceedings below, the
juvenile court observed that because the mother and the father “ ‘still have three children
together[,] [t]hey’re still going to be interacting with each other’ ”].)
Father’s efforts to align this case with Daisy H., supra, 192 Cal.App.4th 713, In re
Jonathan B. (2015) 235 Cal.App.4th 115 (Jonathan B.), and M.W., supra, 238
Cal.App.4th 1444 are not persuasive. Each of the cases is factually distinguishable.
In Daisy H., supra, 192 Cal.App.4th 713, the appellate court reversed a finding
that the children were described by section 300, subdivisions (a) and (b), because the
evidence showed that domestic violence between the parents last occurred “probably
14
seven [ ] years” before the dependency matter was filed, and there was no evidence any
child had been exposed to domestic violence. (Id. at p. 717.) In Jonathan B., supra, 235
Cal.App.4th 115, the mother lived apart from the father prior to the May 2014 domestic
violence incident and immediately reported it to the police. (Id. at p. 117.) The only
other domestic violence incident occurred five years prior. (Ibid.) Based on those facts,
the Court of Appeal held there was no substantial evidence to support the jurisdictional
finding against the mother under section 300, subdivisions (a) or (b)(1). (Jonathan B., at
pp. 119-121.) And in M.W., supra, 238 Cal.App.4th 1444, the appellate court reversed
jurisdiction based on domestic violence where the allegation was based on a single
incident of domestic violence between the parents that had occurred more than seven
years before the jurisdictional hearing and there was no other evidence of altercations
between the parents. (Id. at p. 1454.) Here, unlike those cases, there were many more
recent acts of violence which the court could reasonably find would likely continue.
Jurisdiction against Father here was in the context of Father and Mother’s historic failure
to appreciate the dangers to L. from domestic violence and how their actions affected L.
Dependency jurisdiction is inherently fact-driven and the evidence must be viewed
in its totality. We conclude there was substantial evidence to support the section 300,
subdivision (b) jurisdictional finding against Father. (See R.C., supra, 210 Cal.App.4th
at pp. 943-944 [finding substantial evidence that the father’s violence was ongoing in part
because “[t]his case does not involve a single act which endangers a child” but instead
15
“involves two separate acts of domestic violence,” one of which occurred “in the
presence of one of the children”].)
3. SECTION 300, SUBDIVISION (D) FINDING
Under Section 300, subdivision (d), a child comes within the juvenile court’s
jurisdiction if “[t]he 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 his or
her parent . . . or a member of his or her household, or the parent . . . has failed to
adequately protect the child from sexual abuse when the parent . . . knew or reasonably
should have known that the child was in danger of sexual abuse.” (§ 300, subd. (d); see
In re D.C. (2015) 243 Cal.App.4th 41, 51 (D.C.), superseded by statute on other grounds
as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322.) As Father notes, Penal Code
11165.1 sets forth numerous enumerated offenses that constitute child sexual abuse,
sexual assault, and sexual exploitation, with references to the Penal Code.
Penal Code section 11165.1, subdivision (a), provides that “ ‘sexual abuse’ means
sexual assault or exploitation” and lists a number of offenses that qualify as “sexual
assault or exploitation.” Most of the offenses listed involve physical touching, child
trafficking/prostitution, or pornography. Penal Code section 11165.1, subdivision (b)(4),
describes “intentional touching” as “[t]he intentional touching of the genitals or intimate
parts . . . of a child, . . . for purposes of sexual arousal or gratification . . . .” The absence
of physical evidence of sexual abuse does not preclude a finding of sexual abuse. (See In
re Jordan R. (2012) 205 Cal.App.4th 111, 137 (Jordan R.).)
16
Here, there was no evidence that Father had inappropriately touched L. Rather, as
alleged in the petition, the court found that Father had exposed L. to inappropriate
sexualized behaviors and L. was acting out in a sexualized manner. Thus, as pointed out
by Father, the only possible enumerated offense which can qualify as “sexual assault or
sexual exploitation” under Penal Code section 11165.1 is child molestation as set forth in
Penal Code section 647.6., subdivision (a). (See Pen. Code, § 11165.1, subd. (a).) That
provision makes it a crime to “annoy[ ]” or “molest[ ]” any child under the age of 18.
(Pen. Code, § 647.6, subd. (a)(1).)
“ ‘ “Annoy and molest” ’ ” in the context of this provision are “ ‘synonymous and
mean to disturb or irritate, especially by continued or repeated acts; to vex, to trouble; to
irk; or to offend.’ ” (Jordan R., supra, 205 Cal.App.4th at p. 135, citing People v. Kongs
(1994) 30 Cal.App.4th 1741, 1749 (Kongs).) “The forbidden annoyance or molestation is
not concerned with the child’s state of mind, but rather refers to the defendant’s
objectionable acts that constitute the offense.” (People v. Lopez (1998) 19 Cal.4th 282,
290.) The defendant’s conduct must be “ ‘ “motivated by an unnatural or abnormal
sexual interest.” ’ ” (Id. at p. 289.) Further, it must be conduct which would irritate or
disturb a normal person. (Id. at p. 290.) “For the most part, Penal Code section 647.6 has
been applied to incidents of explicit sexual conduct . . . . [¶] In some instances, however,
the proscribed conduct was more ambiguous.” (Kongs, at pp. 1747, 1750 [the defendant
convicted of violating Penal Code section 647.6 on the basis of taking “ ‘crotch shots’ ”
of fully clothed girls at public photo shoots].) “The deciding factor for purposes of a
17
Penal Code 647.6 charge is that the defendant has engaged in offensive or annoying
sexually motivated conduct which invades a child’s privacy and security, conduct which
the government has a substantial interest in preventing and which is unrelated to the
suppression of free expression.” (Kongs, at p. 1752, italics omitted.)
In this case, as Father aptly notes, Penal Code section 647.6 is the only provision
that could be possibly applicable given the allegations, the facts in this case, and the
juvenile court’s specific references to the terms “annoy” and “molest” in its ruling.
Although the record demonstrates L. was acting out sexually and possibly witnessed
Father engaging in sexual conduct with his girlfriend, there is no evidence in the record to
support a finding that such an error or lapse was sexually motivated by Father, rather than
an accident. There is no evidence Father had intentionally exposed L. to sexual conduct
because Father was “motivated by an unnatural or abnormal sexual interest.” (Pen. Code,
§ 647.6, subd. (a)(2).) L. denied that he had been sexually abused, and there is no
evidence to suggest Father had intentionally exposed L. to sexual activities with his
girlfriend. The social worker concluded several times that she did not know who or what
L. had observed. There is also no evidence that Father had subjected L. to pornographic
material, inappropriately touched L., or groomed L. (Cf. In re D.G. (2012) 208
Cal.App.4th 1562, 1567-1572 [the father offered the child money on several occasions
and groomed the child for sexual favors]; Jordan R., supra, 205 Cal.App.4th at pp. 116-
120, 137 [the father had wrestled with his niece on numerous occasions and then sexually
abused her by asking her for a lap dance, kissing her, and asking for oral sex; the Court of
18
Appeal concluded that given the daughter’s age, and the father’s wrestling with her too,
substantial evidence supported the finding the daughter was at risk of sexual abuse at the
hands of her father when he “annoyed” or “molested” his niece].)
We have found no authority with similar facts as in the instant case—where a
petition is sustained pursuant to section 300, subdivision (d), based on a child’s
sexualized behavior after having possibly witnessed a parent engaging in sexual activity
with a significant other. Although Father may have inadvertently exposed L. to sexual
conduct with his girlfriend, there is no evidence that he had intentionally exposed L. to
the behavior. We note that “[a]llegations of child molestation are serious; they merit
more than a rubber stamp. With the exception of death penalty cases, it is hard to
imagine an area of the law where there is a greater need for reliable findings by the trier
of fact. The consequences of being wrong—on either side—are too great.” (Blanca P. v.
Superior Court (1996) 45 Cal.App.4th 1738, 1754.)
During oral argument, CFS’s counsel questioned how jurisdiction could be
established in these types of cases where a child is unintentionally exposed to sexual acts
by a parent, the child is inappropriately acting out the sexual behavior, and the parent is
aware of the child’s sexualized behavior. We believe jurisdiction based on the facts in
this case could have been established under section 300, subdivision (b). Indeed,
pointing to In re Rocco M. (1991) 1 Cal.App.4th 814, abrogated by R.T., supra, 3 Cal.5th
at page 624, CFS’s counsel’s arguments related to the standard for substantial risk of
harm under subdivision (b)(1) of section 300.
19
Jurisdiction under section 300, subdivision (b)(1), is proper if “[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 his or her parent or guardian to adequately
supervise or protect the child. . . .” This language “authorizes dependency jurisdiction
without a finding that a parent is at fault or blameworthy for [his or] her failure or
inability to supervise or protect [his or] her child.” (R.T., supra, 3 Cal.5th at p. 624.) A
parent need not be “ ‘neglectful’ ” or “ ‘unfit.’ ” (Id. at p. 627.) Jurisdiction in the
circumstances of this case where a child has witnessed a parent engaging in sexual acts
and the parent is aware of the child acting out sexually could have been established under
section 300, subdivision (b)(1). However, CFS did not allege jurisdiction under
subdivision (b)(1) of section 300, but under section 300, subdivision (d). Jurisdiction
under subdivisions (b) and (d) of section 300 are not the same.
Based on the evidence in this case, we cannot conclude substantial evidence
supports the jurisdictional finding pursuant to Welfare and Institutions Code section 300,
subdivision (d). There is no evidence that Father committed “sexual abuse” against L.
under Penal Code section 11165.1 and Welfare and Institutions Code section 300,
subdivision (d). We decline to find, as Father requests, that the section 300,
subdivision (d) allegations in the petition based on L.’s exposure to sexual conduct, even
if true, do not constitute sexual abuse pursuant to section 300, subdivision (d) as a matter
of law. As the section 300, subdivision (d) allegation against Father is not supported by
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the evidence and is not necessary to the court’s findings of jurisdiction, we strike
allegation d-10.
B. DISPOSITIONAL FINDINGS
Father also contends there was insufficient evidence to support removing L. from
his custody and that there existed reasonable means to prevent removal of L. from his
care. He believes that since he “has shown the jurisdictional findings and orders related
to [him] are not supported by substantial evidence and must be reversed,” the
dispositional orders “must be dismissed as well.” We disagree.
“A dependent child shall not be taken from the physical custody of his or her
parents . . . with whom the child resides at the time the petition was initiated, unless the
juvenile court finds clear and convincing evidence . . . . [¶] (1) [That] [t]here is or would
be 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 minor’s parent’s . . . custody.” (§ 361, subd. (c)(1).)
“Because we so abhor the involuntary separation of parent and child, the state may
disturb an existing parent-child relationship only for strong reasons and subject to careful
procedures.” (In re Kieshia E. (1993) 6 Cal.4th 68, 76.) California law therefore
“requires that there be no lesser alternative before a child may be removed from the home
of his or her parent.” (In re Jasmine G. (2000) 82 Cal.App.4th 282, 284; § 361,
subd. (c)(1).) But, “ ‘ “[t]he parent need not be dangerous and the minor need not have
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been actually harmed before removal is appropriate. The focus of the statute is on
averting harm to the child.” [Citation.] The court may consider a parent’s past conduct
as well as present circumstances. [Citation.]’ ” (In re John M. (2012) 212 Cal.App.4th
1117, 1126.)
We review a juvenile court’s dispositional order removing a child from parental
custody for substantial evidence, “ ‘bearing in mind the heightened burden of proof.’ ”
(In re Hailey T. (2012) 212 Cal.App.4th 139, 146.) “Clear and convincing evidence
requires a high probability, such that the evidence is so clear as to leave no substantial
doubt.” (In re Isayah C. (2004) 118 Cal.App.4th 684, 695.) Still, the appellant bears the
burden of showing “ ‘there is no evidence of a sufficiently substantial nature’ ” to support
the dispositional removal order. (D.C., supra, 243 Cal.App.4th at p. 55.)
Here, substantial evidence shows that removing L. from Father’s custody was
necessary to protect L.’s physical and emotional well-being, and there were no other
reasonable means by which L.’s well-being could be protected without removing him
from Father’s custody. (§ 361, subd. (c)(1).) Substantial evidence shows that, by the
time of the October 2020 dispositional hearing, the parents could not agree who had
caused the physical harm to L. or how L. had learned his sexualized behavior. Mother
claimed that Father had caused the physical harm to L., and stated L.’s sexualized
behavior was learned at Father’s home. Father denied that L. had learned the sexualized
behavior at his house and claimed L. had learned the behavior at Mother’s home. He also
denied that he had physically abused L. Therefore, without acknowledgement of the
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perpetrator, L. remained unsafe in the custody of either parent. Moreover, PGM had
reported that L.’s sexualized behaviors had decreased since he had been placed in her
care. PGM also reported that L. used inappropriate language and tried to choke his six-
year-old cousin. Until it was determined how or where L., who was five years old at the
time, learned his inappropriate and alarming behavior, L. was at a substantial risk of
serious physical harm if returned to Father’s care. Thus, given L.’s high risk due to his
age, developmental level, speech difficulties, medical needs, sexualized behaviors, and
unexplained injuries, Father’s ability to properly care for L. was in serious question by
the time of the dispositional hearing. Substantial evidence supports the juvenile court’s
dispositional order removing L. from parental custody.
Father claims there were less drastic alternatives to removing L. from his care,
including placing L. with him pursuant to a family maintenance plan. In support, Father
points to mitigating factors such as his honesty and cooperation with CFS, his attempting
to obtain a restraining order against G.B., his reporting the physical abuse allegations to
CFS, and L.’s desire to live with Father. Although Father’s actions are commendable and
L. had stated he wanted to live with Father, we cannot ignore L.’s alarming behavior at
such a young age. The record shows that L. had learned his inappropriate behaviors from
either Father or Mother or both, and until it could be determined how he learned them, it
was necessary to remove L. from Father’s custody.
Father relies on In re Henry V. (2004) 119 Cal.App.4th 522 (Henry V.) and
contends it is “on point.” In that case, the appellate court reversed an order removing
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from his mother’s custody a four-year-old boy who had suffered first and second degree
burns on his buttocks. (Id. at pp. 525-526, 529.) The appellate court characterized the
abuse as “a single occurrence,” noting that there was “ample evidence” of specific
services available to “mitigate the risk of further physical abuse” and that there was no
indication the juvenile court “understood the necessity of making the dispositional
findings on clear and convincing evidence.” (Id. at pp. 529-530.)
We disagree with the analysis in Henry V. that the removal was not supported by
substantial evidence. The mother purposefully burned the toddler three times on the
buttocks with a curling iron, and yet claimed she did not understand how the injury
happened. (Henry V., supra, 119 Cal.App.4th at pp. 525-526.) In our view, this was
sufficient to support the juvenile court’s order removing the child from his mother’s care.
In any event, Henry V. is factually distinguishable because L. was not subjected to a
single incident, but rather a continuing risk of harm. Further, in this case, unlike Henry
V., the social worker had not suggested out-of-home placement of L. would be useful to
secure Father’s further cooperation.
Father also contends the juvenile court erred by failing to make required factual
findings under section 361 before removing L. from his custody, and therefore “a new
dispositional hearing is necessary to rectify this prejudicial error.”
“At the dispositional hearing, a dependent child may not be taken from the
physical custody of the parent under section 361 unless the court finds there is clear and
convincing evidence there is or would be a substantial danger to the child’s physical
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health, safety, protection, or physical or emotional well-being if returned home, and that
there are no reasonable means to protect the child's physical health without removing the
child.” (In re D.B. (2018) 26 Cal.App.5th 320, 328; see § 361, subd. (c)(1).) The
juvenile court is statutorily required to determine “whether reasonable efforts were made
to prevent or to eliminate the need for removal of the minor from his or her home” and
“shall state the facts on which the decision to remove the minor is based.” (§ 361,
subd. (e).) It also must consider, “as a reasonable means to protect the minor. . . . [¶]
(A) The option of removing an offending parent . . . from the home.” (§ 361,
subd. (c)(1).)
We agree with Father that the juvenile court’s factual findings were deficient. It
did not state any facts in support of removal or make any findings concerning reasonable
means of preventing removal before removing L. from Father’s custody. The court’s
minute order of the October 7, 2020 dispositional hearing “is not a replacement for a
statement of the facts supporting the court’s decision to remove a child from a parent’s
custody.” (In re D.P. (2020) 44 Cal.App.5th 1058, 1067 (D.P.).)
However, “cases involving a court’s obligation to make findings regarding a
minor’s change of custody or commitment have held that the failure to do so will be
deemed harmless where ‘it is not reasonably probable such finding, if made, would have
been in favor of continued parental custody.’ ” (In re Jason L. (1990) 222 Cal.App.3d
1206, 1218.) As explained in D.P., supra, 44 Cal.App.5th at p. 1068, this is because a
removal order “is subject to the constitutional mandate that no judgment shall be set aside
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‘unless, after an examination of the entire cause, including the evidence, the [appellate]
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.’ ” “Under this mandate a ‘miscarriage of justice’ will be declared only when the
appellate court, after examining the entire case, is of the opinion that ‘ “it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.” ’ ” (Ibid.) “Reasonable” probability means merely a
reasonable chance that is more than an abstract possibility; it does not mean more likely
than not. (Ibid.)
Based on our review of the entire record, and as discussed previously, we
conclude it is not reasonably probable that the court would have found that L. could
safely be returned home.
DISPOSITION
We strike allegation b-10 of the petition. As modified, the juvenile court’s
jurisdictional and dispositional orders are affirmed.
CERTIFIED FOR PUBLICATION
MILLER
J.
We concur:
RAMIREZ
P. J.
SLOUGH
J.
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