Opinion
B305657
02-22-2021
In re K.K., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.K., Defendant and Appellant.
Pamela Rae Tripp for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 19CCJP06050) APPEAL from findings and orders of the Superior Court of Los Angeles County. Kristen Byrdsong, Judge Pro Tempore. Dismissed. Pamela Rae Tripp for Defendant and Appellant. Rodrigo A. Castro-Silva, Acting County Counsel, Kim Nemoy, Assistant County Counsel, and Melania Vartanian, Deputy County Counsel, for Plaintiff and Respondent.
____________________
The juvenile court asserted jurisdiction over minors K.K. and L.K. after finding their father sexually abused L.K., emotionally abused K.K., and has a history of substance abuse and domestic violence. On appeal, the father challenges only certain jurisdictional findings related to his sexual abuse of L.K. We dismiss the appeal as not justiciable.
FACTUAL AND PROCEDURAL BACKGROUND
S.K. (Father) and Ka.K. (Mother) have two children together, K.K. (born 2007) and L.K. (born 2010). Mother and Father had an argument early in the morning on August 27, 2019. Father twisted Mother's arm and hit her on the face and back with a closed fist. Father threatened to beat Mother to death, and Mother urinated in her pants.
Around this time, 12-year-old K.K. woke up to the sounds of her parents screaming. She went downstairs and saw Father hitting Mother with a closed fist in the shoulder and back area. Mother told K.K. to call 9-1-1. She tried handing K.K. a phone, but Father grabbed it. K.K. went upstairs and called 9-1-1 using an emergency phone Mother previously gave her. The police responded to the call and arrested Father.
Investigation
During an investigation of the incident by the Los Angeles County Department of Children and Family Services (DCFS), Mother told a social worker that Father had been physically abusing her since 2012, with many incidents occurring in front of their children. According to Mother, Father is very controlling and required she ask his permission to use the bathroom. Father previously threatened to kill Mother and the children, and said he wanted to kill himself in front of his family.
Mother also reported that Father has a drinking problem and will drink a liter of gin in a single day. She said Father gets more violent when he drinks. Mother thought Father might be using other substances as well, and she found a small box containing pills and a white powder.
K.K. disclosed seeing Father physically hit Mother on many occasions. She had also heard Father tell Mother to "kill yourself," and threaten to hire someone to kill the entire family. K.K. said she is afraid of Father and does not feel safe with him in the home.
K.K. told a social worker that three years earlier, she was asleep and felt someone touching her vagina. She woke up and saw Father in her room, but she was not sure if he had touched her. K.K. subsequently told a forensic interviewer that Father touched her genitals and she screamed. Mother confirmed K.K. ran to her room and told her that Father had touched her inappropriately.
According to K.K., Father called her a loser, a disappointment, and his least favorite child. K.K. reported feeling depressed and wanting to go to sleep and never wake up. She used to think things would be easier if her life were over. K.K. stopped having these feelings when Father moved away after the most recent domestic violence incident.
Nine-year-old L.K. told a social worker she is afraid of Father and not comfortable around him. According to L.K., she and Father frequently have "huggy time," in which Father undresses to his boxers, hugs her, wraps his legs around her, rubs her back, and kisses her neck. This made L.K. feel uncomfortable because she did not think it was something a father should do with his child.
During a subsequent forensic interview, L.K. said that during "huggy time" Father would pat her butt, rub her neck and arms, massage her back, and kiss her neck. She said Father's kisses do not feel the same as Mother's kisses; they are "slimier." She would struggle to get away, but Father would wrap his legs around her tightly or tickle her to make her stop.
L.K. said sometimes she "would be upside down, where my face was near [Father's] area . . . ." Father's private area would touch her legs, stomach, and private area. She described his private area as feeling squishy. When asked if it ever felt like something else, she replied, "maybe a little hard, I don't know."
L.K. described "huggy time" as "feeling like sex." She understood sex to be when "two people share the same bed or couch thing and they kiss a lot and rub each other, and they touch each other in places."
L.K. said that during "huggy time" Father would try to get her to massage his back, legs, and arms, and he would offer to pay her money to do so. According to L.K., Father would moan while she massaged him, and Mother and K.K. tried to get him to stop.
K.K. told the forensic interviewer that L.K. would start screaming and kicking during "huggy time," and sometimes she would cry. K.K. said Father used to do "huggy time" with her when she was younger.
Mother told a social worker she knows "huggy time" is inappropriate, but she could not tell Father to stop because he would not listen and possibly hit her. She described "huggy time" as "more like a force," which got scarier from 2018 to 2019.
Father denied any domestic violence with Mother. He also denied having substance abuse problems, but he declined to take a drug test. Father said he shows his children love through "huggy time." He also claimed it is a form of punishment because the children do not like it. Father denied wrapping his legs around L.K., or kissing and rubbing her back.
Juvenile Court Proceedings
DCFS filed a petition asserting K.K. and L.K. are persons described by Welfare and Institutions Code section 300. The petition alleged eight counts as follows: three counts under subdivisions (b), (d), and (j) alleging Father sexually abused L.K. by wrapping his legs around her and rubbing and kissing her neck (counts b-3, d-1, j-1); two counts under subdivisions (a) and (b) alleging Father and Mother have a history of domestic violence (counts a-1, b-1); one count under subdivision (b) alleging Father abuses alcohol and has a history of substance abuse (count b-2); one count under subdivision (b) alleging Father has mental and emotional problems (count b-4); and one count under subdivision (c) alleging Father emotionally abused K.K. (count c-1).
All further undesignated statutory references are to the Welfare and Institutions Code.
For each count, the petition alleged as follows: "On a prior occasion, the children [K.K.] and [L.K.]'s father, . . . sexually abused the child, [L.K.] by rubbing and kissing the child's neck, making the child feel uncomfortable. On prior occasions, the father wrapped the father's legs around the child, making the child feel uncomfortable. The children's mother, . . . knew of the sexual abuse of the child by the father and failed to protect the child in that the mother allowed the father to reside in the child's home and have unlimited access to the child. The sexual abuse of the child by the father, and the mother's failure to protect the child, endangers the child's physical health and safety and places the child, and the child's sibling, [K.K.] at risk of serious physical harm, damage, danger, sexual abuse, and failure to protect."
The court held a combined jurisdiction and disposition hearing over the course of multiple days in February and March 2020. Father asserted his Fifth Amendment right not to testify at the hearing. He called L.K., K.K., and Mother to testify. Because Father's appeal exclusively concerns the sexual abuse allegations, we summarize only the testimony related to that issue.
L.K. testified that "huggy time" would happen two to four times per week, and it would last between 30 minutes and an hour. Sometimes she would be asleep and Father would come into her room to do "huggy time." He would either do it in L.K.'s bed, or he would take her to the living room.
Other times, Father would say "it's huggy time," and L.K. would run away. Father would chase her, and she would try to hold onto an object that did not move. L.K. believed Father thought it was a game, but she did not. L.K. would tell Father to stop, but he did not listen to her. Father once did "huggy time" in front of another child, and he never tried to hide it.
L.K. said some of Father's kisses on her neck were pecks, but some were not. She described them as "wet," and they would make her uncomfortable. L.K. also thought it was "weird" when Father would pat her butt. She said her private area touched Father's private area more than once.
According to K.K., sometimes during "huggy time," Father would make her and L.K. look at pictures of people, some of whom were topless. He would say "this person is anorexic and they do drugs." Father never clearly answered K.K.'s questions about why he was making them look at the pictures.
Mother testified that she did not consider "huggy time" to be sexual in nature, but she did think it was inappropriate. Mother told Father to stop, but he would get angry and tell her it was his bonding time with the children. Father never described it to Mother as discipline or a game. According to Mother, Father used to do "huggy time" with both children, but he stopped doing it as often with K.K. after she accused him of touching her in bed.
After hearing the testimony, the juvenile court struck count a-1 related to domestic violence and count b-4 related to Fathers' mental and emotional problems. It sustained counts b-1, b-2, and c-1, which concerned domestic violence, substance abuse, and emotional abuse. The court also sustained counts b-3, d-1, and j-1, which concerned Father's sexual abuse of L.K.
In sustaining the sexual abuse counts, the court found the evidence showed there was sexual contact between Father and L.K., as defined in Penal Code section 11165.1. In support, the court noted that L.K. felt uncomfortable during "huggy time"; she asked Father to stop; her face was near his groin area; she described "huggy time" as feeling like sex; Father continually hugged and kissed her; Father was wearing boxer shorts; L.K. said Father touched her differently than Mother does; and L.K. could feel Father's penis, which was sometimes hard. The court also pointed to K.K.'s statements that Father would refuse to let L.K. go, even though she was screaming, and Father previously touched K.K. inappropriately.
As to disposition, the court declared K.K. and L.K. dependents of the court and removed them from Father's custody. The court ordered Father complete domestic violence and parenting programs, enroll in individual counseling to address case issues, and submit to random drug testing.
Father timely appealed.
DISCUSSION
Father contends the juvenile court erred in sustaining counts b-3, d-1, and j-1, which alleged he sexually abused L.K. According to Father, those counts were not sufficiently pleaded, nor is there substantial evidence to support them. DCFS urges us to dismiss the appeal as not justiciable given Father does not challenge the numerous other bases under which the juvenile court took jurisdiction over the children. We agree with DCFS that the appeal is not justiciable. In any event, we would reject Father's arguments on the merits.
I. Father's Appeal is Not Justiciable
"It is a fundamental principle of appellate practice that an appeal will not be entertained unless it presents a justiciable issue." (In re I.A. (2011) 201 Cal.App.4th 1484, 1489 (I.A.).) An important requirement for justiciability is the availability of effective relief. (Ibid.)
For this reason, when there is no challenge to at least one finding that is sufficient to support jurisdiction, "an appellate court may decline to address the evidentiary support for any remaining jurisdictional findings." (I.A., supra, 201 Cal.App.4th at p. 1492; see In re I.J. (2013) 56 Cal.4th 766, 773-774; In re J.C. (2014) 233 Cal.App.4th 1, 3-4; In re Francisco D. (2014) 230 Cal.App.4th 73, 80; In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) This is because a reviewing court's decision on the challenged bases for jurisdiction will not result in reversal of the juvenile court's order asserting dependency jurisdiction over the child. As a result, the reviewing court is unable to grant effective relief, rendering the challenge not justiciable. (In re I.A., supra, 201 Cal.App.4th at pp. 1489, 1491-1493.)
A reviewing court may nonetheless exercise its discretion to reach the merits of the parent's arguments when "(1) the jurisdictional finding serves as the basis for dispositional orders that are also challenged on appeal; (2) the findings could be prejudicial to the appellant or could impact the current or any future dependency proceedings; and (3) the finding could have consequences for the appellant beyond jurisdiction." (In re A.R. (2014) 228 Cal.App.4th 1146, 1150, citing In re Drake M. (2012) 211 Cal.App.4th 754, 762-763 (Drake M.).) Courts, for example, have frequently exercised this discretion in cases where the parent's appeal, if successful, would eliminate all jurisdictional findings against that parent, potentially affecting the court's placement and custody decisions. (See e.g., In re Christopher M. (2014) 228 Cal.App.4th 1310, 1316-1317; In re Quentin H. (2014) 230 Cal.App.4th 608, 613; Drake M., supra, at pp. 762-763.)
In this case, the juvenile court asserted dependency jurisdiction over K.K. and L.K. pursuant to section 300, subdivisions (b), (c), (d), and (j) after finding true four distinct categories of factual allegations. Count b-1 alleged domestic violence between the parents, count b-2 alleged father has substance abuse issues, count c-1 alleged Father emotionally abused K.K., and counts b-3, d-1, and j-1 alleged Father sexually abused L.K. Father, however, challenges the court's findings with respect to only three of those counts: counts b-3, d-1, and j-1. No matter the outcome of this appeal, therefore, the juvenile court will retain jurisdiction over K.K. and L.K. based on its findings under counts b-1, b-2, and c-1. As a result, we cannot grant effective relief, meaning Father's appeal is not justiciable.
Father urges us to nonetheless reach the merits of his arguments, but he has not identified any compelling reason for us to do so. He does not contend this case falls within the three generally accepted exceptions to the justiciability rules. (See In re A.R., supra, 228 Cal.App.4th at p. 1150.) Nor could he. The jurisdictional findings on counts b-3, d-1, and j-1 do not serve as the basis for dispositional orders that are also challenged on appeal; Father, in fact, does not challenge any of the dispositional orders. Moreover, reversal of the findings would not render Father "nonoffending," and the findings present no apparent consequences beyond jurisdiction.
Father seems to suggest a court should always review sexual abuse findings, regardless of whether there are other unchallenged bases for jurisdiction, but he provides no authority to support that assertion. In the absence of such authority, we decline to hold that sexual abuse findings are categorically exempt from the general justiciability rules.
We are also not persuaded by Father's contention that we should review the sexual abuse findings in order to correct any trauma and stigma they may have caused to his daughters. He overlooks that his daughters, through their attorney, urged the juvenile court to affirm the challenged jurisdictional findings. They also declined to appeal those findings. Under these circumstances, we are not convinced we should exercise our discretion to consider the merits of Father's arguments.
II. Father's Arguments Lack Merit
Even if we were to exercise our discretion to consider Father's arguments, we would reject them on the merits.
A. The Petition Sufficiently Alleged Sexual Abuse
Father argues the petition did not sufficiently allege he sexually abused L.K. as that term is used in section 300, subdivision (d). We disagree.
Section 300, subdivision (d), states a child is within the jurisdiction of the juvenile court if he or she "has been sexually abused . . . as defined in Section 11165.1 of the Penal Code, by his or her parent." Penal Code section 11165.1, in turn, provides that "sexual abuse" includes conduct prohibited by numerous other Penal Code sections, including Penal Code section 288 (lewd or lascivious acts upon a child) and Penal Code section 647.6 (child molestation). (Pen. Code, § 11165.1, subd. (a).) It then lists various forms of conduct that constitute sexual abuse, such as the "intentional touching of the genitals or intimate parts . . . of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification." (Pen. Code, § 11165.1, subd. (b)(4).) The list is not exhaustive. (Ibid.)
Father contends the petition was deficient because it did not allege any intentional touching of genitals or intimate parts. The problem with this argument is that sexual abuse under section 300, subdivision (d), does not require proof of such touching. Child molestation in violation of Penal Code section 647.6, for example, constitutes sexual abuse, yet it does not require any touching whatsoever between the perpetrator and victim, let alone touching of the genitals or intimate parts. (People v. Lopez (1998) 19 Cal.4th 282, 289.) Accordingly, we reject Father's argument on this point.
Father next contends the petition was deficient because it failed to allege he acted for the purpose of sexual gratification, which is an element of sexual abuse. Father cites no authority and provides no meaningful analysis to support his claim that such specific allegations are required. We are satisfied the petition was sufficiently pleaded under the requirements of the dependency law, and that it otherwise provided adequate notice to Father of the basis for the dependency proceeding. (See § 332 [a petition must include a "concise statement of facts, separately stated, to support the conclusion that the child upon whose behalf the petition is being brought is a person within the definition of each of the sections and subdivisions under which the proceedings are being instituted"].) Father's cursory argument does not convince us that anything more was required.
B. Substantial Evidence Supports the Jurisdictional Findings
Father contends there is insufficient evidence showing he sexually abused L.K. We disagree.
" 'In reviewing the jurisdictional findings . . . , we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings . . . 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 R.T. (2017) 3 Cal.5th 622, 633.)
As noted above, a violation of Penal Code section 288 constitutes sexual abuse for purposes of section 300, subdivision (d). Penal Code section 288 prohibits "any lewd or lascivious act . . . upon or with the body, or any part or member thereof, of a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child." (Pen. Code, § 288, subd. (a).) "Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim." (People v. Lopez, supra, 19 Cal.4th at p. 289.)
Father does not dispute that he touched L.K. during "huggy time," or that she was under the age of 14 when he did so. The only disputed issue is whether he touched her with the requisite "intent to arouse or gratify the sexual desires" of himself or L.K.
"To determine whether a defendant acted with sexual intent, all the circumstances are examined. Relevant factors include the nature and manner of the touching, the defendant's extrajudicial statements, the relationship of the parties and 'any coercion, bribery or deceit used to obtain the victim's cooperation or avoid detection.' [Citation.] The requisite intent 'must be inferred from all the circumstances . . . . A touching which might appear sexual in context because of the identity of the perpetrator, the nature of the touching, or the absence of an innocent explanation, is more likely to produce a finding that the act was indeed committed for a sexual purpose and constituted a violation of the statute. On the other hand, if the trier of fact is persuaded . . . , from all the circumstances, that the touching of a child was sexually motivated, nothing in the language, history, or purpose of section 288 indicates that the touching should escape punishment simply because it might not be considered a means of sexual gratification by members of the mainstream population.' [Citation.]" (In re R.C. (2011) 196 Cal.App.4th 741, 749-750.)
Here, sufficient evidence supports the juvenile court's implied finding that Father touched L.K. with the intent to arouse or gratify his sexual desires. L.K. reported that during "huggy time," Father would wrap his legs around her, pat her butt, rub her neck and arms, massage her back, and kiss her neck. Although such acts are not inherently sexual between a parent and child, there is ample evidence indicating they were in this case. L.K., for example, described Father's kisses as wet and slimy, and she said they did not feel like Mother's kisses. L.K. also reported that Father would undress to his boxers and then hold her in such a way that her face would be near his groin, and his private area would touch her legs, stomach, and private area. She described Father's private area as sometimes feeling "a little hard," suggesting he was sexually aroused. L.K. also said Father would moan while she massaged him, further suggesting he was sexually aroused during "huggy time."
K.K.'s testimony and statements further support a finding that Father acted with sexual intent. According to K.K., Father previously touched her genitals under circumstances clearly demonstrating sexual intent. (See People v. Ranlet (2016) 1 Cal.App.5th 363, 375 [evidence that a defendant previously sexually molested a child was relevant to show he had the requisite intent for other lewd and lascivious acts].) K.K. also reported that Father would sometimes show her and L.K. pictures of topless people during "huggy time," which it is reasonable to infer was pornography.
Father's statements to DCFS also support a finding that he acted with sexual intent. Although Father admitted he engaged in "huggy time," he denied wrapping his legs around L.K., or kissing and rubbing her back. Given such conduct is not necessarily improper, especially between a parent and child, it is reasonable to infer Father denied it because he knew his sexual intent made it inappropriate. (Cf. People v. Kimble (1988) 44 Cal.3d 480, 496 [a defendant's false statements to an arresting officer show a consciousness of guilt and suggest there is no honest explanation for incriminating circumstances].)
Considered as a whole, there is sufficient evidence from which the juvenile court could find Father acted with the requisite sexual intent.
Father insists the evidence and circumstances instead show "huggy time" was a game he played with L.K., and he did not act with sexual intent. He points out, for example, that "huggy time" occurred in front of other people, Mother did not think it was sexual, and there was no coercion, bribery, or deceit used to obtain cooperation or avoid detection. Although such evidence and circumstances may support a finding that Father acted with an innocent intent, they do not compel it. Father's arguments, therefore, are nothing more than thinly-veiled attempts to have us reweigh the evidence and exercise our independent judgment, which we decline to do on appeal. (See In re Yolanda L. (2017) 7 Cal.App.5th 987, 992 ["Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment."].)
Father proposes a number of other problems with the juvenile court's findings, none of which has merit. First, he contends the court improperly relied on L.K.'s statement that his genitals felt "a little hard." According to Father, the court should have disregarded the statement because it was equivocal and made in response to a suggestive question by the interviewer. We are not persuaded. If anything, these arguments go to the weight of the evidence; they do not require disregarding it entirely.
Father next contends the court's findings are premised on a misreading of the evidence. Specifically, he insists the video recording of L.K.'s forensic interview makes clear the child did not say her face was near his groin. We have reviewed the recording and do not agree with Father's characterization of it. During the interview, L.K. said "sometimes I would be upside down, where my face was near [Father's] area." She paused before saying the word "area," and it is clear she was uncomfortable. Later in the interview, L.K. again referred to Father's "area." The interviewer asked what part of his body L.K. was referring to, and L.K. gestured towards her groin. Considered in this context, we think it is reasonable to infer that L.K. was referring to Father's groin when she said her face was near his "area."
Father insists L.K. clarified at the hearing that her face was near his feet, not his groin. Once again, we disagree with his characterization of the record. Although L.K. explained that her face was near Father's feet at times, she did not recant her earlier statement implying her face was near his groin. Even if she did, it is not our place to resolve conflicts between her hearing testimony and prior statements. (See In re Yolanda L., supra, 7 Cal.App.5th at p. 992.)
Father next argues the juvenile court improperly relied on L.K.'s comments that "huggy time" made her uncomfortable, felt "like sex," and differed from Mother' touches. Father suggests these "subjective" statements are irrelevant to whether he sexually abused L.K. We disagree. L.K.'s perceptions and comparative descriptions of Father's touches provide circumstantial evidence of his intent. This is especially true given she expressed some conception, albeit limited, of the difference between sexual and nonsexual touching.
Father additionally argues there is insufficient evidence showing he molested L.K. in violation of Penal Code section 647.6. Regardless of whether that is true, it does not require reversal of the jurisdictional findings. As discussed above, child molestation is just one of several forms of conduct qualifying as sexual abuse under section 300, subdivision (d). Here, there is substantial evidence showing Father committed a lewd or lascivious act upon a child in violation of Penal Code section 288, which also constitutes sexual abuse. (In re R.C., supra, 196 Cal.App.4th at p. 749.) Therefore, whether he committed child molestation in violation of Penal Code section 647.6 is irrelevant.
Finally, we reject Father's contention that there is insufficient evidence supporting count j-1, which alleged K.K. was at risk of sexual abuse. His argument presupposes a lack of substantial evidence showing he sexually abused L.K., which we have already rejected. Accordingly, we also reject his derivative argument related to the subdivision (j) count.
DISPOSITION
The appeal is dismissed.
BIGELOW, P. J. We concur:
STRATTON, J.
WILEY, J.