In re Olivia P. CA2/8 ( 2015 )

Filed 5/5/15 In re Olivia P. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Olivia P., a Person Coming Under the B256881
Juvenile Court Law.
LOS ANGELES COUNTY (Los Angeles County
DEPARTMENT OF CHILDREN Super. Ct. No. DK04665)
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
FRANCISCO P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles County. Steven Klaif,
Juvenile Court Referee. Affirmed.
Michelle L. Jarvis, under appointment by the Court of Appeal, for Defendant and
Appellant.
Mark J. Saladino, County Counsel, Dawyn R. Harrison, Assistant County Counsel,
and Kimberly Roura, Deputy County Counsel, for Plaintiff and Respondent.
__________________________
Francisco P., Jr. (father) appeals from part of the order adjudicating his daughter
Olivia P. a dependent of the court, and from part of the dispositional order. Olivia was
declared dependent on several bases; father challenges only the jurisdictional finding that
she was dependent due to a risk of sexual abuse because of father’s inappropriate
behavior with his stepdaughter, Alyssa R., and the concomitant dispositional order that
father’s individual counseling include sexual boundary issues. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The family unit at issue consisted of mother, Jennifer P. (mother), father, five-
year-old Olivia, and mother’s two daughters from a previous relationship, 13-year-old
Katelynn R. and 11-year-old Alyssa R. Prior to the detention of the children in April
2014, there had been a series of abuse referrals dating back to 2007, although, for various
reasons, no petitions had been filed by the Los Angeles County Department of Children
and Family Services (DCFS).
In January 2014, Katelynn and Alyssa telephoned their father, Gabriel R., who had
joint custody, and asked him to pick them up because they did not feel safe at home, due
to mother’s and father’s drug use and neglect. Gabriel R. obtained a family court order
for emergency physical custody of his daughters, and suspension of mother’s visitation.
In April 2014, there was a physical altercation between mother and father, in
which father kicked mother and slammed her to the ground. Mother left the room, but
could not take Olivia because father would not allow her to leave with the child. Mother
left and called police. DCFS conducted an investigation and detained all three children
from mother and father. Katelynn and Alyssa remained with Gabriel R.; Olivia was
placed with her paternal grandmother.
DCFS’s investigation revealed some disturbing sexual behavior by father toward
Alyssa. There were two types of incidents. First, on multiple occasions, father peeked at
Alyssa while she was showering. Second, on at least two occasions, father went into
Alyssa’s room and lay down in bed beside her. On one of these instances, Alyssa was
wearing only a bra and underwear.
2
On April 22, 2014, DCFS filed a petition alleging that Katelynn, Alyssa and Olivia
were dependents under Welfare and Institutions Code section 300 subdivisions (a)
(violent altercations between the parents in front of the children put them at risk of
physical harm); (b) (the children were at risk due to the physical altercations, mother’s
drug abuse, father’s alcohol abuse, and father’s sexual abuse of Alyssa); (d) (father’s
sexual abuse of Alyssa put all three girls at risk of sexual abuse); and (j) (father’s sexual
abuse of Alyssa put her sisters at risk of sexual abuse).1
The case proceeded to a jurisdiction/disposition hearing. No testimony was
offered; the sole evidence consisted of the DCFS social worker’s reports. Mother and
father submitted on the record with respect to the allegations of domestic violence, drug
abuse, and alcohol abuse. They disputed only the allegations of sexual abuse, and argued
that the evidence was insufficient to show father’s conduct toward Alyssa had an
improper sexual motivation. The trial court concluded, by a preponderance of the
evidence, that father’s conduct had, in fact, been sexually motivated. The court found the
petition, including the allegations pertaining to sexual abuse, to be true. Therefore, at
disposition, when the court ordered reunification services for both parents, father’s
counseling was to include sexual boundaries and mother’s counseling was to include
sexual boundary awareness.
Father appeals. On appeal, he does not challenge the dependency court’s finding
that Olivia was dependent. He argues only that she should not have been found
dependent due to his alleged sexual abuse of Alyssa. He makes no argument that sexual
abuse of Alyssa would not put Olivia at risk of sexual abuse; nor does he argue that the
alleged abusive behavior was not the type of conduct that, with the appropriate mental
state, could support a finding of sexual abuse. He challenges only the sufficiency of the
1 The petition also contained allegations that mother and father engaged in sexual
activity in the children’s presence, and that father watched pornography on the family
mobile phone. These allegations, and some allegations regarding specific incidents of
domestic violence, were ultimately dismissed by stipulation.
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evidence of his mental state, arguing that there is insufficient evidence that his acts were
motivated by an unnatural sexual interest in Alyssa.
DISCUSSION
1. The Issue Is Properly Before This Court
Preliminarily, DCFS argues that, as there were multiple grounds for jurisdiction
over Olivia, and father does not challenge all of them, we need not address father’s
appeal of one of several jurisdictional bases. We disagree. While we could affirm the
jurisdictional finding based on domestic violence, drug abuse, and alcohol abuse,
appellate courts will generally exercise discretion to consider a challenge to any specific
jurisdictional finding when (1) the finding serves as the basis for dispositional orders
challenged on appeal or (2) could be prejudicial to the appellant or could potentially
impact current or future dependency proceedings. (In re Drake M. (2012)
211 Cal. App. 4th 754, 762-763.) That standard is met here. The challenged sex abuse
finding is the basis for the sexual boundary counseling order father also contests.
Moreover, a finding in a dependency proceeding that a parent committed an act of sexual
abuse constitutes prima facie evidence in future dependency proceedings. (Welf. & Inst.
Code, § 355.1, subd. (d).) We therefore exercise our discretion to consider father’s
appeal on the merits.
2. There Is Substantial Evidence of Father’s Sexual Motivation
Welfare and Institutions Code section 300, subdivision (d) provides for
jurisdiction when 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 . . . .”
In turn, Penal Code section 11165.1 defines “sexual abuse” to include “sexual assault”
and “sexual exploitation.” Sexual assault means conduct in violation of one of several
itemized statutes, including Penal Code section 647.6, which prohibits child molestation.
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DCFS argues that father’s conduct toward Alyssa constituted child molestation
within the meaning of Penal Code section 647.6 (section 647.6). That section is violated
by conduct “that would unhesitatingly irritate a normal person” which was
“ ‘ “ ‘ “motivated by an unnatural or abnormal sexual interest” ’ ” ’ ” in the victim. (In re
R.C. (2011) 196 Cal. App. 4th 741, 750.) As there can be no normal sexual interest in a
child, any sexual interest in the child is sufficient to establish the motive necessary for a
violation of section 647.6. (People v. Brandao (2012) 203 Cal. App. 4th 436, 441.) In
determining whether father’s conduct was sexually motivated, all circumstances are taken
into account, including the nature and manner of the activity. (In re R.C., at p. 750.)
While the child’s opinion may not directly address the issue of whether the conduct
would unhesitatingly irritate a normal person (In re D.G. (2012) 208 Cal. App. 4th 1562,
1571), the child’s discomfort and belief that the conduct was sexually motivated can be
relevant to determining whether the perpetrator acted with sexual motivation. (See In re
Mariah T. (2008) 159 Cal. App. 4th 428, 441.)
A juvenile court makes its findings that children are described by Welfare and
Institutions Code section 300 by a preponderance of the evidence. (Welf. & Inst. Code,
§ 355, subd. (a).) We will uphold the juvenile court’s finding that the children were so
described if it is supported by substantial evidence. (In re Jordan R. (2012)
205 Cal. App. 4th 111, 135.) We do not reweigh the evidence or resolve evidentiary
conflicts, nor do we reevaluate witness credibility. We draw all legitimate and
reasonable inferences in support of the judgment. (Id. at pp. 135-136.)
In this case, father does not challenge the first element, that his conduct would
unhesitatingly irritate a normal person. He contends, however, that the evidence is
insufficient that his conduct was motivated by a sexual interest in Alyssa. He argues,
instead, that innocent explanations are available: he opened the shower curtain only to
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look for soap; he got in bed with Alyssa only because he and mother had fought and
Alyssa slept alone in a queen-sized bed.2
While father’s explanations may be theoretically plausible, that is not the test. We
look only to see if substantial evidence supports a contrary conclusion. The evidence
supporting this conclusion is substantial. It appears that Alyssa made multiple attempts
to report father’s inappropriate behavior, but, when she did, mother punished Alyssa and
told the girls to lie about it. As early as March 2012, Alyssa reported that father got
drunk “a lot and when he comes home he jumps in bed with” her. Sometime in 2013, due
to Alyssa’s perceived reticence to discuss the issues, her stepmother suggested that
Alyssa write down what had happened. Alyssa wrote a letter to her family, in which she
stated: (1) once, father had lain down next to her in bed when she was wearing only her
bra and underwear; (2) on another occasion, he came into her room to sleep with her
after a fight with mother; (3) once, he came into the bathroom when she was showering
behind a see-through curtain, and he refused to leave; (4) when she is in the shower, he
opens and closes the shower curtain quickly; and (5) one time, when she was in the
shower, she needed soap so she took the soap from the sink; father peeked in the shower
to check if there was another soap in the shower, which made her “feel like he just
wanted to look at [her].” Father told her “from now on I’m going to make sure you do
everything you say you’re going to do.” When interviewed by a DCFS social worker in
April 2014, Alyssa stated that she felt threatened by father telling her that he did what he
did in order to check up on what she was doing in the bathroom. When she spoke to a
DCFS investigator in May 2014, Alyssa minimized the number of improper incidents, but
2
We say that father argues that innocent explanations are available, because father,
in large part, denied that the conduct occurred at all, and therefore offered no
explanations for it. Father told the DCFS investigator that he never opened the shower
curtain when Alyssa was showering. Father’s interview on the subject of whether he ever
got into bed with Alyssa after fighting with mother was somewhat uncertain. He first
stated that there were times when he would come home and his children would sleep with
him and he with them. But when asked “if everyone had a bed,” father’s response was “it
only happened one time,” and he said the children “would come to him and [mother].”
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added that father opening the shower curtain made her feel uncomfortable and “not
normal.”
We need not decide the legal effect if father had opened the shower curtain only
once as he alleged or that he was only looking for soap. The contrary evidence worthy of
belief was that he opened the shower curtain on Alyssa repeatedly, and told her that he
was going to keep a watchful eye on her. More than that, father repeatedly got into
Alyssa’s bed with her at night, once when the girl was wearing only a bra and underwear.
Taken together, father’s multiple attempts to see his stepdaughter naked and lie next to
her in a state of partial undress give rise to the inference that he acted out of an improper
sexual motive.3
As there was substantial evidence that father’s behavior was sexually motivated,
the jurisdictional finding under Welfare and Institutions Code section 300,
subdivision (d) must be affirmed. As father makes no argument that the dispositional
order was unsupported other than for insufficient evidence of sexual molestation, we also
uphold the order requiring father’s counseling to address sexual boundaries.
DISPOSITION
The jurisdiction and dispositional orders are affirmed.
RUBIN, J.
WE CONCUR:
BIGELOW, P. J. GRIMES, J.
3 Father briefly argues that he presents no current risk of sexual abuse because, after
a social worker visited in 2013 in response to Alyssa’s letter, father stopped using the
bathroom when Alyssa showered and did not sleep with the girls unless mother was also
present. But, as the trial court rightly noted, nothing has “ever been done for this
problem.” Even though father may have controlled his behavior in these two respects for
some limited time, he has had no counseling to address his clear misunderstanding of
sexual boundaries, and his own daughter would soon reach the age where he would
present a risk to her.
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