Opinion
NOT TO BE PUBLISHED
Appeal from postjudgment orders of the Superior Court of Orange County Nos. DP017256, DP017257, DP017258, Salvador Sarmiento, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Edward D. (father) appeals from orders asserting jurisdiction over his children Nicole D., Curtis D., and Aaron D., and removing them from his custody. He contends insufficient evidence showed his possession of child pornography and subsequent arrest caused or risked causing serious emotional harm to his children. We disagree, and affirm.
FACTS
Father and his wife (stepmother) lived with his three minor children: Nicole D. (born 1993), Curtis D. (born 1994), and Aaron D. (born 1996). Father had been awarded legal and physical custody in 2006. Mother lived in Tennessee.
FBI agents seized father’s home computer in January 2008. He told them he was “addicted to pornography,” which he knew was “‘sick’” but he could not “help himself.” He had started searching the internet for child pornography in 2004, and had “deleted his collection two or three times because he knew it was wrong.” He used search terms like “pedo,” “teen,” “pre-teen” and “hussyfan.” He looked for pictures of girls who “reminded him of his neighbor who lived next door to him when he was in the first through third grade.” The neighbor girl, who was about the same age as father, would go out into the woods with her older sister and father. The oldest sister would force father to try to have sex with the girl. Father was still aroused by these memories.
The FBI analyzed defendant’s computer. It had “‘approximately 250 images and videos...’ and it appear[ed] the primary age group was ‘about 5 to 12 years old.’” The images reflected minors posed in lascivious positions and engaged in explicit sexual acts with other minors and adults.
The FBI arrested father in July 2008 for possession of child pornography. The FBI arranged for the Orange County Social Services Agency (SSA) to take the children into protective custody. Stepmother agreed not to allow the children to contact father without SSA or court authorization, and SSA placed the children with her the next day. Father was arraigned in federal court and released from custody. The federal court ordered father to stay away from the children pending a detention hearing.
SSA filed a dependency petition, alleging that father posed a substantial risk of sexually abusing the children and failed to protect them. (Welf. & Inst. Code, § 300, subds. (b) [failure to protect], (d) [sexual abuse].) It further alleged mother failed to protect the children from father’s child pornography, her own “unresolved history of illegal substance abuse and alcohol abuse,” and from her physically abusive new husband. (§ 300, subd. (b).)
All further statutory references are to the Welfare and Institutions Code.
According to the detention report, the children knew father had been arrested, but thought it was for illegally downloading music. They had never seen anything inappropriate on the computer. Stepmother told social workers she found out about the child pornography when the FBI came to the house in January 2008 and it “‘made [her] sick.’” She said father had since started taking a sexual addiction class and becoming more involved with their church.
The court detained the children, vested temporary care and placement with SSA, and ordered monitored visitation for father. SSA released the children to stepmother.
By August 2008, the older two children began figuring out why father had been arrested. Nicole told a social worker father “‘was arrested and I think he was doing something bad on the Internet.’... ‘I think he was looking at bad stuff about kids or downloading music.’” Curtis told a social worker, “‘I get what he was looking at [and] I do not want to talk about it right now.’... ‘[H]e did not do anything to us.’” Still, the children had not yet shown any behavioral problems.
Curtis began having problems when school started in September 2008. He “threw a lit firecracker into a small crowd of students” and was suspended. He related his “‘family issues’” to a counselor and “appear[ed] to be having some problems ‘due to the uncertainty of what could happen.’”
SSA filed an amended dependency petition in late September 2008, adding an additional jurisdictional basis: serious emotional damage. (§ 300, subd. (c).) It alleged father “suffer[ed] from serious sexual deviant behavior” that “placed the children at substantial risk of serious emotional damage.” It further alleged, “Curtis, eldest minor and most informed of father’s behavior, has acted out at school and at home,” and that the children and father had “not had any therapy to deal with... father’s sexual deviant sexual behavior and its effect on [the children].”
Curtis continued struggling at school. He was tardy to class, talked back to teachers, and failed to complete assignments. He was punished at school with trash pickups, detentions, and suspensions. He was removed from algebra and placed in an easier math class. His grades fell from Bs to “barely like passing.”
By June 2009, a social worker reported increased concerns about Curtis. He reported, “Curtis is unhappy in the step-mother’s home and feels like the ‘black sheep’ of the family, or an outsider. The relationship between Curtis and his two siblings has been strained. They are mad at Curtis’ behavior and attitude. Drugs have been found in Curtis’ room on two occasions — two months ago and again one week ago. Curtis stated that he uses marijuana and methamphetamine. Curtis has had multiple suspensions from school for talking back, not following rules, and graffiti. His latest report card had two Fs and one D.”
At the jurisdictional/dispositional hearing, father testified he “was, basically, addicted to pornography.” He conceded “it was traumatic for [his] children to have the F.B.I. come into [his] home,” the “children are currently suffering, because of [his] actions,” and “it would have been damaging to [his] children to see the images that [he] had on [his] computer.”
The court-appointed psychologist offered his opinion of father through a written evaluation and testimony. He diagnosed father with “Pedophilia Disorder based upon his history of viewing child pornography of prepubescent children, masturbating to these images over a period extending beyond six months, and the discovery of sexual interest towards children on [a psychological test].” He clarified that “[p]edophilia refers to a condition [in] which a person has intense recurrent sexually arousing fantasies, urges or behaviors toward children, generally, under age 14; and the condition extends beyond six months.” Father had told the psychologist that “he was trying to relive and capture that experience when he was molested or involved in those — sex with that girl and her sister,” he “was sexually addicted and... drawn to the adrenaline rush of that excitement,” and he “couldn’t help it.”
The court-appointed psychologist noted father had a “history of... excessive downloading of pornography” and that his “history of child pornography viewing is an indication of sexual deviance.” The psychologist concluded father suffered from “obsessiveness” and “poor behavior control,” was “currently preoccupied with sex” and “vulnerable to exercising poor judgment,” and was “in need of specialized treatment to help him deal with sexual compulsiveness related to viewing child pornography.”
Father’s expert psychologist offered his own opinion of father. He conceded father “certainly engaged in pedophilia behavior” and “has had sexual deviant interests.” He noted father “masturbated frequently when looking at all kinds of pornography, including child pornography and bestiality... on an ‘on-and-off’ basis for about four or five years prior to the child pornography arrest. Over the years, he became disgusted with himself and deleted files at least fifteen times because he was ‘sick of it... sickening.’” Child pornography “was a new way of getting high” for father and “the taboo and over the top nature of watching the pornography, even the bestiality, was a way of engendering ‘a rush.’” The psychologist conceded father has “a history of poor frustration tolerance and impulsiveness” and “has had a pattern of addictive behaviors” and “has had multiple addictions[:] alcohol and drugs, and then his preoccupation with pornography.” While father’s sexual addiction counseling at his church was “a good thing... it is not enough” — “he needs more of an organized treatment” and “a sexual offense program.”
Father’s expert psychologist also offered opinions on the effects of father’s child pornography viewing and arrest on his children. He acknowledged it is “detrimental for children to be exposed to child pornography” and “detrimental for a child to come across some of the images that father was looking at.” He conceded “[t]hat [it] is not good for the children having a father charged with child pornography” and that his children “are, I am sure in some ways, badly [a]ffected by all this, badly [a]ffected by his arrest [for] the child pornograph[y], [his] unstable history.”
Both psychologists opined father posed a low risk of sexually abusing the children. The court-ordered psychologist concluded the “children do not appear to be at risk at this time,” but “the risk to the children cannot be completely ruled out” because father “does have deviant sexual interests that increases risk of some type of sexual misconduct.” Father’s expert saw “no evidence that [father] is predatory or to suggest that he is at risk for sexually offending his children.”
The court sustained the petition as to father on the ground of serious emotional damage (§ 300, subd. (c)), but overruled it on the grounds of failure to protect and sexual abuse (§ 300, subds. (b), (d)). It sustained the petition as to mother, finding she failed to protect the children from her drug and alcohol abuse and her husband’s physical abuse. (§ 300, subd. (b).) It found by clear and convincing evidence that returning the children to father’s custody would pose a substantial danger to their emotional well-being. (§ 361, subd. (c)(1).) The court declared the children wards of the court (§ 360, subd. (d)), removed them from father’s custody and vested custody with SSA (§ 361, subd. (c)(1)), and ordered reunification services for both parents.
The court presumed the children would suffer serious physical harm if returned to father’s custody because he had been convicted of a sexual abuse crime (see § 355.1, subd. (d)), but found father rebutted that presumption.
We deny SSA’s request to take judicial notice of post-order reports and orders as irrelevant.
DISCUSSION
Father challenges the court’s assertion of jurisdiction over the children. He contends insufficient evidence showed they were “suffering serious emotional damage, or [were] at substantial risk of suffering serious emotional damage... as a result of the conduct of the parent....” (§ 300, subd. (c).) But he does not contest the court’s jurisdictional findings as to mother. “Contrary to father’s position, a jurisdictional finding good against one parent is good against both. More accurately, the minor is a dependent if the actions of either parent bring her within one of the statutory definitions of a dependent. [Citations.] This accords with the purpose of a dependency proceeding, which is to protect the child, rather than prosecute the parent.” (In re Alysha S. (1996) 51 Cal.App.4th 393, 397.) Thus, the court properly asserted jurisdiction over the children based on its finding — uncontested by father on appeal — mother failed to protect them from her drug and alcohol abuse and her husband’s physical abuse.
Father further contends insufficient evidence supports the dispositional order removing the children from his custody. “A dependent child may not be taken from the physical custody of his or her parents or guardian or guardians with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence.... [¶] (1) There is or would be a substantial danger to the... emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor’s [emotional] health can be protected without removing the minor from the minor’s parent’s... physical custody.” (§ 361, subd. (c).)
“The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child.” (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on other grounds by Renee J. v. Superior Court (2001) 26 Cal.4th 735, 748, fn. 6.) “The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a dispositional order in accord with this discretion.” (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006.)
“In reviewing the... disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports [it]. [Citation.] 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.” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
Substantial evidence shows a substantial risk that father would rebuild his child pornography collection. Father repeatedly conceded being “addicted” to his pornography and not being able to help himself. He had deleted his child pornography files “‘at least fifteen times,’” only to rebuild it every time. The court-appointed psychologist concluded father was “currently preoccupied with sex” and suffered from “obsessiveness” and “sexual compulsiveness related to viewing child pornography.” Father’s expert psychologist conceded father “has had a pattern of addictive behaviors,” including “his preoccupation with pornography.” For father, child pornography “was a new way of getting high” and “engender[ed] ‘a rush.’” Thus, returning the children to father’s custody would pose a substantial, unacceptable risk of exposing them to child pornography.
Returning the children to father’s custody would thus pose a substantial risk of danger to their emotional well-being. (See § 361, subd. (c)(1).) Father conceded “it would have been damaging to [his] children to see the images that [he] had on [his] computer.” His expert psychologist agreed it would be “detrimental for children to be exposed to child pornography,” “detrimental for a child to come across some of the images that father was looking at,” it “is not good for the children having a father charged with child pornography,” and that the children “are, I am sure in some ways, badly [a]ffected by all this, badly [a]ffected by his arrest [for] the child pornograph[y], [his] unstable history.”
The emotional harm posed by father’s child pornography addiction is not speculative. Father’s behavior had already harmed Curtis. At school, Curtis acted out, did not do his schoolwork, and let his grades slip from Bs to “barely like passing” to Ds and Fs. He was given detention and suspended from class. He “appear[ed] to be having some problems ‘due to the uncertainty of what could happen.’” At home, Curtis began using marijuana and methamphetamine, fought with his siblings, and complained he felt “like the ‘black sheep’ of the family, or an outsider.” Curtis’s serious downslide shows the substantial risk father’s conduct posed to the other children, though they were not yet exhibiting the same external signs of emotional harm. Nicole and Aaron “need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to [them].” (In re Diamond H., supra, 82 Cal.App.4th at p. 1136.)
It is no answer for father to blame Curtis’s behavior on SSA or court intervention. It was his child pornography compulsion that required such intervention. Even he conceded “it was traumatic for [his] children to have the F.B.I. come into [his] home” to confiscate his child pornography and that the “children are currently suffering, because of [his] actions.”
DISPOSITION
The postjudgment orders are affirmed.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.