Opinion
B310598
12-17-2021
In re Q.T. et al., Persons Coming Under the Juvenile Court Law. v. TONY T., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant. Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from findings and orders of the Superior Court of Los Angeles County Nos. 20CCJP04657A, 20CCJP04657B, Sabina A. Helton, Judge. Affirmed.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and David Michael Miller, Deputy County Counsel, for Plaintiff and Respondent.
VIRAMONTES, J. [*]
Tony T. (father) appeals from the juvenile court's jurisdictional findings as to his two sons, 11-year-old Q.T. and seven-year-old A.T., from the dispositional orders removing the children from father's custody, and from the dispositional orders requiring father to complete a case plan. The mother did not appeal any juvenile court rulings.
We are asked to determine whether substantial evidence supports the juvenile court's jurisdictional findings and removal orders regarding father. We are also asked to determine whether the juvenile court abused its discretion in ordering father to complete a case plan.
We affirm the juvenile court's jurisdictional findings and dispositional orders regarding the risk of sexual abuse to the children. We do not reach the juvenile court's findings regarding father's drug use.
BACKGROUND
I. Factual background.
In August 2020, the El Monte Police Department executed search warrants on father's home and his female companion's home after receiving information about father distributing child pornography. Father resided with the mother and his children. Father also had a female companion and sometimes spent the night at her home. While executing the warrant, the police recovered child pornography videos on father's phone. These videos included 21 files depicting child pornography of young girls, ages two to five, which police located in a file folder in father's phone. A detective concluded that father was looking for child pornography videos and purposefully saved them onto his phone based on the volume of videos and where the files were saved on father's phone.
A detective interviewed father after law enforcement executed a search warrant at the family home. Father conceded that he sent a child pornography video to his female companion. Father denied having any further child pornography other than the single video.
After his arrest, the El Monte Police Department again interviewed father. Father described publishing a video depicting an "adult and child" and described it further as "[s]exual abuse, like intercourse." He estimated that the girl in the video was "around 3" years old and stated that he received the video from a Facebook group. When asked about his motivations for sending the video to his female companion, father said that he sent the video to her because it was "very interesting" and because he wanted to have sex with his companion. Father described storing child pornography on his phone from March 2020 to August 2020, a period of roughly five months, although he denied enjoying child pornography. In executing a search warrant with internet service providers, the El Monte Police Department concluded that father uploaded the child pornography video that he sent to his female companion from the internet protocol (IP) address associated with the family home.
While executing the search warrant at the home of father's female companion, law enforcement found 25 ecstasy pills and 21 vials of ketamine.
In an interview with the Los Angeles County Department of Children and Family Services (DCFS) for the detention report, father said that he accidentally clicked on a link from a Facebook group without realizing it was child pornography. He reported that the videos automatically downloaded to his phone. Father also denied watching the child pornography videos, with the exception of the video that he sent to his female companion.
In the DCFS's interview with father for the jurisdiction and disposition report, he described looking for videos online which were "strange and weird" during the COVID-19 pandemic. Father said that he randomly clicked on videos on a pornography website and some of them depicted child pornography. He said he clicked on one video depicting an adult male having sex with a two-year-old girl. Father admitted watching the whole video, which he estimated lasted 1.5 minutes. He said the 1.5-minute video "goes by fast, and it is not a long time." He denied being sexually aroused by the child pornography. In addition, father indicated that he placed the child pornography in a secure file protected by a password to prevent his children from accessing the child pornography. Father also denied knowing that it was illegal to possess child pornography.
In the same report, the DCFS noted that father was engaging in therapy to address both child pornography and drugs prior to the disposition hearing. From father's self-reporting, the therapist understood that father accidentally looked at one piece of child pornography one time. The therapist was surprised to learn from the DCFS that there were 21 child pornography videos and that they involved children under the age of five.
In the jurisdiction and disposition report, father said he began using drugs during the COVID-19 pandemic after he lost his job. Father stated that he would spend the night with his female companion and used the substances at her home. He said he would return to his home when he was no longer under the influence. When visiting his companion, father said he took a quarter pill of ecstasy to stay awake and used marijuana for recreational purposes. Father also indicated that he used ketamine to calm himself and to help him sleep. In addition, he also indicated that he stopped using drugs after the DCFS first interviewed him. Father voluntarily tested twice for the DCFS prior to the disposition hearing, and both tests were negative. The mother said she had no knowledge that father was using drugs and that he did not use around her or the children.
Prior to the jurisdiction and disposition hearing, both parents participated in a planning meeting with two DCFS social workers. At the meeting, father indicated that he had a personal goal to stop abusing drugs.
At the time of the jurisdiction and disposition hearing, father was charged with two crimes related to child pornography. Under one theory, he was charged under Penal Code section 311.1, for the sale or distribution of obscene matter depicting a person under the age of 18 in sexual conduct. Under a second theory, he was charged under Penal Code section 311.11, subdivision (a) for possession or control of child pornography. There was no verdict in his criminal case at the time of the dependency hearing.
II. Dependency proceedings.
In September 2020, the DCFS filed a petition under Welfare and Institutions Code section 300 regarding Q.T. and A.T. Under section 300, subdivisions (b)(1) and (d), the DCFS alleged that father's possession of child pornography and the mother's failure to protect the children from father established a basis for jurisdiction. Under section 300, subdivision (b)(1), the DCFS alleged that father's drug abuse and mother's failure to protect the children from father's drug abuse created a second basis for jurisdiction.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
On September 8, 2020, at the detention hearing, the juvenile court detained the children from father and placed the children in the mother's care. The juvenile court ordered that father was to have monitored visitation with children.
On January 12, 2021, the juvenile court presided over the jurisdiction and disposition hearing. The parties asked the court to consider written exhibits and did not offer any testimony. Regarding father, the juvenile court sustained the allegations with regard to both the child pornography and drug abuse theories. The juvenile court made credibility determinations against father's statements regarding the number of child pornography videos he possessed, his motivations for looking at the videos, and his knowledge of the legality of his actions. Regarding the drug allegations, the juvenile court only noted that it was sustaining the entirety of the allegations against father. For father's case plan, the juvenile court ordered father to do a sex abuse program for perpetrators, individual counseling to address child pornography, a parenting program, and ordered drug testing with the matter to be "walked on" for hearing if there were any missed or dirty drug tests.
DISCUSSION
I. The jurisdictional findings regarding sexual abuse are supported by substantial evidence.
In reviewing the sufficiency of the evidence to support the juvenile court's jurisdictional findings, we determine whether the record as a whole contains substantial evidence supporting these findings, and draw all reasonable inferences in support of the court's findings. (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394; In re James R. (2009) 176 Cal.App.4th 129, 135.) In addition," '[w]hen a dependency petition alleges multiple grounds for its assertion . . . [of] jurisdiction, a reviewing court can affirm the juvenile court's finding of jurisdiction'" if a single basis for jurisdiction is supported by substantial evidence. (In re I.J. (2013) 56 Cal.4th 766, 773 (I.J.).)
Here, we limit our review to the juvenile court's determination that the two boys were at substantial risk of sexual abuse from their father under section 300, subdivision (d). Under this analysis, the juvenile court's ruling that father's interest in child pornography placed his children at substantial risk of sexual abuse is supported by substantial evidence. Father's arguments to the contrary are unavailing.
Because substantial evidence supports the juvenile court's finding regarding the risk of sexual abuse from father's conduct, we need not address father's arguments regarding the juvenile court's drug abuse finding. (I.J., supra, 56 Cal.4th at p. 773.)
Section 300, subdivision (d), provides that a child comes within dependency court 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." Penal Code section 11165.1, subdivision (c)(3), in turn, defines that a person commits" 'sexual abuse'" if he or she "knowingly develops, duplicates, prints, downloads, streams, accesses through electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct."
In the context of potential sexual abuse to children, the Supreme Court has explained that even" 'a low degree of probability'" can create a substantial risk if" 'the magnitude of . . . harm is potentially great.'" (I.J., supra, 56 Cal.4th at p. 778.) Recently, Division One of this appellate district concluded that this same heightened risk of sexual abuse can be present where a parent possesses child pornography. (In re S.R. (2020) 48 Cal.App.5th 204, 207.)
Here, the juvenile court appeared to credit evidence that father possessed, downloaded, and distributed child pornography. The DCFS also argued, and the juvenile court "adopted" the conclusion that father distributed a child pornography video in order to express his desire to have sexual relations with his female companion. Moreover, the juvenile court elaborated, "I don't find his contention that he just looked at them [the child pornography videos] out of curiosity to be credible." Thus, the juvenile court concluded that father's possession, distribution, and interest in child pornography placed his two children at risk of sexual abuse.
On appeal, father concedes that he possessed and distributed child pornography. Nevertheless, father contends that the child pornography involving very young female children does not put his male children, ages seven and 11, at risk for sexual abuse.
However, father misconstrues the law. In I.J., supra, 56 Cal.4th at page 770, a sex abuse case, the Supreme Court decided "whether a father's sexual abuse of his daughter supports a determination that his sons are juvenile court dependents" and answered the question in the affirmative. There, the record included "no evidence the father sexually abused or otherwise mistreated the boys." (Ibid.) The juvenile court found jurisdiction over the father's sons where the father raped his daughter, orally copulated his daughter, and watched pornography with his daughter, among other facts that occurred over a three-year period. (Id. at pp. 770-771.) In I.J., as here, the father argued that the juvenile court erred in asserting jurisdiction because the risk to his sons was significantly lower than the risk to female children. (Id. at p. 779.) In reaching its ruling, the Supreme Court "assume[d] that father's other daughter is at greater risk of sexual abuse than are his sons." (Ibid.) Ultimately, the Supreme Court concluded that "[t]his does not mean the risk to the sons is nonexistent or so insubstantial that the juvenile court may not take steps to protect the sons from that risk." (Id. at p. 780.) In that context, the Supreme Court noted that" 'the danger of sexual abuse to the male sibling is nonetheless still substantial.'" (Ibid.)
Here, as in I.J., the juvenile court could find that the father's interest in child pornography involving females created a substantial risk of sexual abuse to the male children. (See I.J., supra, 56 Cal.4th at p. 780.) Moreover, as Division One has already explained, a father's interest in child pornography can trigger a jurisdictional risk of sexual abuse for children. (In re S.R., supra, 48 Cal.App.5th at pp. 206-207 [heightened risk of sexual abuse where father possessed child pornography, albeit where pornography depicted children close to age and gender of daughter].) While the facts here are not on all fours with I.J., where a father had sexually abused his daughter, father's behavior here is sufficiently alarming that" 'the magnitude of . . . harm is potentially great.'" (I.J., at p. 778.) Here, father possessed 21 videos depicting child pornography of girls ages two to five, he published a child pornography video to his female companion, and he connected his publishing of the video with his desire to engage in sexual relations with his female companion, among other facts. Even if a female would face a greater risk of sexual abuse than the two sons, the danger here for the two sons is "still substantial." (See id. at p. 780.)
Moreover, the record contains evidence that father had not ameliorated the risk to his children from his interest in child pornography. Although father was seeing a therapist, he told the therapist that he only viewed one video of child pornography and that he accidentally clicked on that single video once. The juvenile court made a credibility determination against father, and credited law enforcement's statements that father had 21 child pornography videos on his phone. Thus, the juvenile court appeared to determine that father had not sufficiently addressed child pornography in his therapy as father did not disclose the extent of his interest in child pornography to the therapist. The juvenile court also determined that father's statement that he was merely curious about the videos was not credible, with the implication that father had a sexual interest in the videos. As is well-established, it is within the juvenile court's purview to assess credibility. (See In re Lana S. (2012) 207 Cal.App.4th 94, 109.) Here, the juvenile court found that father was not credible across multiple fronts. Thus, both the record and caselaw support the juvenile court's determination to assert jurisdiction over Q.T. and A.T.
Second, father points out that at the time of the jurisdiction and disposition hearing, father had been criminally charged but not convicted. While true, this fact is immaterial to the juvenile court's determination. Father is correct that no presumption in favor of dependency jurisdiction is applicable under section 355.1, subdivision (d), which requires that a parent be "previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code," among other bases, for a presumption in favor of jurisdiction to attach. Here, however, the juvenile court did not rely on any presumption under section 355.1, subdivision (d). Instead, the juvenile court properly relied on its review of the record to conclude that the children faced a risk that supported jurisdiction.
Given the totality of the record here, the juvenile court's conclusion that Q.T. and A.T. were at risk of sexual abuse from father is supported by substantial evidence.
II. The juvenile court did not abuse its authority in fashioning its dispositional orders.
A juvenile court has broad discretion to protect a child's interests in making dispositional orders. (In re D.P. (2020) 44 Cal.App.5th 1058, 1071.) For dispositional orders, including removal orders, we apply an abuse of discretion standard and review the juvenile court's findings of fact for substantial evidence. (In re K.T. (2020) 49 Cal.App.5th 20, 25.) In this context, we consider whether the record as a whole contains substantial evidence from which a reasonable trier of fact could have found potential detriment by clear and convincing evidence. (See Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005-1006.) Although this court must still draw all reasonable inferences in support of the juvenile court's orders, we also keep in mind that dispositional orders must be based on the higher standard of clear and convincing evidence. (In re Nathan E. (2021) 61 Cal.App.5th 114, 122-123; In re I.R. (2021) 61 Cal.App.5th 510, 520.)
Here, as explained below, the juvenile court did not abuse its discretion in removing Q.T. and A.T. from father's care.
A. Removal order.
Section 361, subdivision (c)(1), provides that a "dependent child shall not be taken from the physical custody of his or her parents . . . unless the juvenile court finds clear and convincing evidence" of one of several enumerated grounds for removal, including 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 parents." Subdivision (e) further provides that the juvenile court "shall make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal" and" 'shall state the facts on which the decision to remove the minor is based.'" (In re D.P., supra, 44 Cal.App.5th at p. 1065.) A removal order must be based on proof of parental inability to properly care for the child and of the potential detriment to the child. (In re N.M. (2011) 197 Cal.App.4th 159, 169-170.) However, a juvenile court need not wait for harm to befall a child before ordering removal as California law focuses on averting harm to children. (Id. at p. 170.)
Here, the juvenile court did not err in concluding that the record supported removal from father. The juvenile court expressly relied on: (1) evidence that the IP address that father used to publish child pornography was associated with the family home, (2) evidence from the therapist from which the juvenile court concluded that father had not "gained sufficient" insight into the risks associated with his interest in child pornography, and (3) evidence that father needed further services before return of the children would be appropriate. The juvenile court's determination is supported by substantial evidence.
Our colleagues in Division One of this appellate district previously affirmed a juvenile court decision to remove a child from a parent who possessed child pornography when the parent failed to thoroughly address the issue by completing services. (In re S.R., supra, 48 Cal.App.5th at p. 224.) They concluded that "the juvenile court correctly found that 'being involved in child pornography or some other hands-on sexual abuse is a great, great danger to the child and would do her extreme harm.'" (Ibid.) Here, while the genders of the children in the child pornography were female, and father's children are male, the juvenile court did not err in finding a clear and convincing risk of substantial danger for Q.T. and A.T. (See I.J., supra, 56 Cal.4th at p. 770 [danger to male child still substantial where female sibling had been sexually abused].) Moreover, the juvenile court could rely on evidence in the record that "father has minimized the seriousness of his prior sex crimes" to support removal and did so here. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 222 Cal.App.4th 149, 164.) Finally, while father had a password protected phone, the juvenile court found that he was distributing the videos from his home IP address, which further exacerbated the risks to his children who resided in the home. B. The juvenile court did not abuse its discretion in ordering father's case plan.
We review a juvenile court's orders with regard to a parent's case plan for abuse of discretion. (In re Briana V. (2015) 236 Cal.App.4th 297, 311-312.) On this point, father asks that we vacate the dispositional orders regarding father's case plan because he argues that there is no basis for the underlying jurisdictional orders. As discussed at length above, however, we affirm the jurisdictional findings under section 300, subdivision (d), with regard to both children. Thus, the juvenile court properly exercised its discretion to order sex abuse counseling, individual counseling, and a parenting program for father.
Moreover, father misconstrues the juvenile court order regarding drug testing. Father argues that that juvenile court ordered "a full drug rehabilitation program if the father misses or tests dirty." But in fact, the juvenile court ordered that father drug test with the "matter to be walked on for further court orders" if father failed to submit clean drug tests. Here, even without reaching the jurisdictional finding regarding father's use of drugs, we conclude that the juvenile court had a proper basis to order drug testing as the record established that father's drug use was a barrier to reunification. (See In re Christopher H. (1996) 50 Cal.App.4th 1001, 1008 [affirming an order to drug test where there was no jurisdictional finding of drug abuse].) Given father's admitted drug use, the juvenile court was well within its discretion to order that father drug test.
DISPOSITION
The jurisdictional findings and dispositional orders are affirmed.
We concur: EDMON, P. J., LAVIN, J.
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.