Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. CK76883 of Los Angeles County, James Hahn, Judge.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, J.
INTRODUCTION
John C. (Father) appeals from jurisdictional findings and the ensuing dispositional order that removed his daughter, Bridget C., from the physical custody of Father and Deborah K. (Mother), and ordered reunification services. Father contends the juvenile court erred in finding jurisdiction pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (d). We disagree and affirm the juvenile court’s orders.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
Bridget C. came to the attention of the Los Angeles County Department of Children and Family Services (DCFS) in April 2009 when at birth she tested positive for amphetamines and displayed symptoms of drug withdrawal. Mother tested positive for amphetamines and marijuana; she admitted using marijuana frequently but denied using amphetamines. DCFS filed a section 300 petition on April 14, 2009.
Father said Mother smoked marijuana and cigarettes, but said her doctor was aware she was doing so during her pregnancy. Father admitted that he smoked marijuana frequently, often daily. He denied currently using other drugs. He said he used cocaine in the past, but had stopped two or three years ago. He had tried methamphetamine, but did not enjoy it. Father revealed that he was a registered sex offender, having been convicted as an adult under Penal Code section 288 for sexually molesting his young cousin when he was a teenager. Father said he spent about 20 months in prison beginning in 2002.
The section 300 petition contained allegations regarding Mother pursuant to section 300, subdivision (b), that Mother has a history of illicit drug use and is a current user of amphetamines, methamphetamines, and marijuana which renders her incapable of providing regular care and supervision for the child, and endangers the child’s physical and emotional health, safety and well being, and places her at risk of harm. Mother used illicit drugs during her pregnancy and had a positive toxicology screen for amphetamines and marijuana one day after the child’s birth.
Regarding Father, the petition alleged pursuant to section 300, subdivision (b), that Father has a history of illicit drug use and is a current user of marijuana, which renders him incapable of providing regular care and supervision for the child, and endangers the child’s physical and emotional health, safety, and well being. The petition alleged pursuant to subdivisions (b) and (d) that, on a prior occasion, Father sexually abused a 7-year-old female child, and has a criminal history of convictions of committing a lewd act with a child under 14 and oral copulation with a person under 18. Father is a registered sex offender. The prior sexual abuse of the female child by Father and his criminal history endangers Bridget’s physical and emotional health, creates a detrimental home environment, and places Bridget at risk of physical and emotional harm, and at risk of sexual abuse.
Bridget was detained and placed with Father’s sister. At the detention hearing, the juvenile court ordered DCFS to provide family reunification services, including referrals for drug testing. Father and Mother were granted three-hour monitored visits at least three times per week.
In the jurisdiction and disposition report dated May 7, 2009, DCFS reported that Father said he had stopped using marijuana, upon the advice of counsel, when the dependency proceedings were initiated. When interviewed by the social worker regarding the allegations of the section 300 petition, Father told the social worker, “I would tell you don’t give her back to us yet. I don’t think we’re ready. In 6 months when I’m off the weed and I’ve been testing, I’ll be clear headed.” Mother and Father visited Bridget almost daily, and acted appropriately during the visits.
DCFS expressed concern that while Mother and Father appeared to be motivated to comply with the case plan, they clearly did not understand the ramifications of illicit drug use on an unborn child, or possibly dismissed them. Mother made the conscious decision to use marijuana during her pregnancy, and Father was aware of her marijuana use and said he attempted to limit her use to weekends.
Regarding Father’s sex offender status, he admitted there was inappropriate sexual contact between him and his 7-year-old cousin, but Father stated that the cousin had propositioned him.
On May 7, 2009, the court set the matter for a contested jurisdictional hearing as to Father on June 11, 2009. Mother had waived her right to a contested hearing. The court ordered DCFS to prepare a supplemental report regarding Father.
In its report dated June 11, 2009, DCFS reported that Father had tested positive for marijuana on April 13, 2009, and tested negative on May 1 and May 27, 2009. The social worker opined that it was too early to determine if Father could remain drug free for a significant period. Mother had continued to test positive for drug use.
DCFS submitted to the juvenile court various documents pertaining to Father’s criminal conviction. The documents revealed that Father began sexually molesting his cousin in December 1990, when he was 12 or 13 years old, and she was 3 years old. He continued to periodically abuse her until 1995, when she was 8 years old and he was 17. He molested her whenever they both visited their grandparents’ house and when she stayed at his house on a few occasions. He threatened her numerous times, saying family members would be mad at her and that he would get her in trouble; once he threw a chair at her when she refused to do what he wanted, striking her ankle. Initially he made her stroke his penis, and later he also made her orally copulate him. He also orally copulated her on numerous occasions. He twice attempted to penetrate her with his penis when she was about 7, but she was too small, and instead he digitally penetrated her. When interviewed by the police in 2001, he admitted that the sexual contact had occurred, but said that his cousin had approached him first and initiated the sexual activity. He later admitted that he forced her participation the first time he molested her by threatening to get her in trouble, but he maintained that thereafter “it was a mutual thing.” When interviewed, he expressed concern about his cousin’s well-being and a desire to be supportive of her. However, he continued to believe that she initiated the incidents and enjoyed the sexual activity at the time it occurred.
Father submitted a letter dated June 10, 2009, from psychologist Denise Grimes, indicating that Father had been in therapy with her for “several years.” She noted that he committed a sexual offense as a teenager with a cousin that was six years his junior. Father also submitted a note dated June 3, 2009, from Bethany Tucker, M.D., a psychiatrist, indicating that Father had been diagnosed with bipolar disorder and had returned to treatment with her on that date. The doctor had prescribed medication to help regulate his moods. Father also provided a certificate indicating he had completed a six-hour parenting program.
On June 11, 2009, Mother submitted to an amended section 300 petition being provided to the court for consideration based upon the social worker’s reports. Father was called to testify, and admitted that he had sexually molested his cousin, and was later convicted for doing so and served about two years in prison. Father, 31 years old at the time of the hearing, noted that the incidents took place about 16 years ago. He stated he had not engaged in any inappropriate sexual relations with minors since then. He had been in therapy with Dr. Grimes since the late 1990s, and had often discussed with her what his cousin must have gone through, and his own feelings of guilt. He took responsibility for his actions, and did not blame his cousin. The court sustained DCFS’s hearsay objections to the letters submitted by Dr's. Grimes and Tucker. Father expressed his intention to continue to abstain from smoking marijuana because he wanted to be the best father he could be to Bridget. He said he would continue to see Dr. Grimes every two weeks. He would also continue to see Dr. Tucker and to take the mood stabilizer she had prescribed to him.
Father acknowledges on appeal that the letters from Dr's. Grimes and Tucker were rejected by the court as hearsay, and does not argue that the court erred in sustaining the hearsay objections.
Counsel for DCFS asked Father if he told the social worker that his cousin had asked him to do the things that had occurred, and he replied that he had. Asked if it was his belief that his cousin was the aggressor, he said that she was not the aggressor. But he agreed that she had asked him to do all the things that he had done to her, saying, “I didn’t think it up myself.” Counsel pointed out that his cousin was three when the molestation started, and Father said, “She didn’t ask me to do all these things to her.... [S]he was just real curious about stuff like that.... I took it and I kind of – I kind of ran with it and did that stuff, but I didn’t think up of doing that stuff to her.” He agreed that every time he saw his cousin for the next four and a half years, he “ran with it and it continued.” He said “it was a bad mistake.”
Counsel for DCFS urged the court to sustain the count in the petition regarding Father posing a risk of sexual abuse to his daughter because his statements blaming the victim indicated that he was a pedophile. Counsel for Bridget agreed that Father’s statements showed that, even though he was in therapy, his issues had not been resolved. “This was a very young child who the father started to sexually abuse when the child was approximately three years old. This child is an infant, who is – if exposed to the father, could very well be a victim of the father as well.” Both counsel also pointed out that Father had admitted to daily use of marijuana, up until the evening before the detention hearing, and to having abused cocaine in the past.
Father’s counsel argued that there was no showing that Father’s use of marijuana had in any way impacted his ability to parent his child. As to the risk of sexual abuse, counsel argued that DCFS had not shown that there was a current risk based on Father’s actions 16 years before, when he was a minor. DCFS had not brought in any expert testimony to demonstrate that Father posed a risk of harm to his child.
The court found all of the allegations regarding Father to be true. The court noted that “the crime of child sexual abuse is very much a crime of opportunity. Without the opportunity, the crime doesn’t occur.” Each time the opportunity had presented itself, Father took advantage of his cousin. Regarding the fact that Father was a minor when the molestations occurred, the court observed: “The father at that time was a minor but was considerably older than the child and this isn’t two little kids playing doctor who are curious. A ten-year age difference is significant.” The court further stated that, “[Father’s] testimony only confirmed in the court’s mind that there is a present risk to this child.” “[E]ven with 23 months in prison and years of therapy, the father still has a difficult time owning up to the fact that there’s no way that a child who is 3, 4, 5, 6, or 7 is in any position to consent to sexual activity or to instigate that activity.” The court concluded that it could find a present risk to a child who is at the age or will be approaching the age at which a prior act of sexual abuse occurred with another child. In addition, the court found that Father had not been testing clean for long enough to convince the court that he had successfully dealt with his drug abuse problem. Accordingly, the court declared Bridget to be a dependent of the court and a person described by subdivisions (b) and (d) of section 300.
The court proceeded to disposition, and ordered Father to participate in individual counseling to address all case issues, including child sexual abuse as a perpetrator; to attend a DCFS-approved parenting education program; and to attend a drug rehabilitation program with random testing.
This appeal followed.
DISCUSSION
I. Standard of Review
Before asserting jurisdiction over a minor, the juvenile court must find that the child comes within one or more of the categories specified in section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185 (Veronica G.).) The burden is on DCFS to “‘“prove by a preponderance of the evidence that the child... comes under the juvenile court’s jurisdiction.”’” (Ibid., quoting In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) “On appeal from an order making jurisdictional findings, we must uphold the court’s findings unless, after reviewing the entire record and resolving all conflicts in favor of the respondent and drawing all reasonable inferences in support of the judgment, we determine there is no substantial evidence to support the findings. [Citation.] Substantial evidence is evidence that is reasonable, credible, and of solid value.” (Veronica G., supra, at p. 185.) Issues of fact and credibility are questions for the trier of fact, and we may not reweigh the evidence. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) “If there is any substantial evidence, contradicted or uncontradicted, which will support the judgment, we must affirm.” (In re Tracy Z. (1987) 195 Cal.App.3d 107, 113.)
We recognize that the section 300 petition need only contain allegations against one parent to support the exercise of the court’s jurisdiction, and that the unchallenged allegations against Mother would satisfy the jurisdictional basis for the petition. (In re Jeffrey P. (1990) 218 Cal.App.3d 1548, 1553-1554.) However, if Father’s challenge is successful, there could be an impact on both placement and reunification orders. Accordingly, we address Father’s claims. (In re John S. (2001) 88 Cal.App.4th 1140, 1143.)
II. Jurisdictional Finding Based on Prior Sexual Abuse Conviction
The petition filed in this matter alleged that Bridget was subject to the jurisdiction of the juvenile court pursuant to both subdivisions (b) and (d) of section 300, based on Father’s previous conviction for sexually abusing his cousin and his resulting status as a registered sex offender. Under subdivision (b), a child may be declared a dependent 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.” Pursuant to subdivision (d), a child may be declared a dependent 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 guardian or a member of his or her household.”
Applicable here, section 355.1 provides as follows: “(d) Where the court finds that either a parent, a guardian, or any other person who resides with, or has the care or custody of, a minor who is currently the subject of the petition filed under Section 300 (1) has been previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code, ... or (4) is required, as the result of a felony conviction, to register as a sex offender pursuant to Section 290 of the Penal Code, that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.” (§ 355.1, italics added.)
Father does not dispute that he was convicted of sexual abuse as defined in Penal Code section 11165.1, and that he is required to register as a sex offender. He contends, however, that he presented rebuttal evidence indicating that he did not pose a current risk to Bridget of sexually abusing her, and therefore the presumption created by section 355.1 did not survive beyond the introduction of such evidence. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1040-1041.) According to Father, he established that the incidents in question were too remote in time to pose a threat to Bridget, they occurred when he himself was a minor, and no further incidents of sexual abuse had occurred in the intervening 15 years. Evidence was presented that he had engaged in socially acceptable relationships with adult women during those years. He has received ongoing counseling, has had no subsequent inappropriate sexual relations with any minors, and has taken responsibility for his actions and does not blame his cousin. Father contends that this evidence was sufficient to overcome the presumption and, as a consequence, there was insufficient evidence to sustain the allegations against Father.
The presumption created by section 355.1 is one affecting the burden of producing evidence rather than the burden of proof. As such, it shifts to the parent the obligation of raising factual issues as to the risk posed to the child. If rebuttal evidence is offered, DCFS maintains the burden of proving the initially presented facts by clear and convincing evidence. (See, e.g., In re James B. (1985) 166 Cal.App.3d 934, 937.) Where rebuttal evidence is offered, the presumption in no way relieves the court of its obligation to make factual findings regarding whether the child is at substantial risk of harm.
The fallacy in Father’s argument in his assertion that because he presented rebuttal evidence to overcome the section 355.1 presumption, as a consequence, the evidence presented by DCFS was insufficient to support the allegations. In fact, DCFS presented substantial evidence to support the court’s eventual finding that there was a substantial risk that Bridget would suffer serious physical harm as a result of Father’s failure or inability to adequately supervise or protect her (§ 300, subd. (b)), and that there was a substantial risk that Bridget would be sexually abused (§ 300, subd. (d)). As the court noted, the cousin was extremely young when the abuse began, and there was a significant age difference (10 years) between them. Father’s seeking sexual gratification from a three-year-old when he was 12 or 13 years old (and continuing until she was 7 and he was 17) was not, as the court stated, simply “two little kids playing doctor who are curious.” Father asserts that he had demonstrated normalcy by engaging in appropriate relationships with adult women, but that does not constitute proof that he is not also a pedophile. The court could properly infer that Father’s sexual proclivities at age 17 were likely to have remained unchanged when he was 31. The fact the abuse occurred 16 years ago does not demonstrate that a current risk does not exist.
Father points out that, “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.] Thus the past infliction of physical harm by a caretaker, standing alone, does not establish a substantial risk of physical harm; ‘[t]here must be some reason to believe the acts may continue in the future.’ [Citations.]” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, italics in original, fn. omitted; see also In re Carlos T. (2009) 174 Cal.App.4th 795, 805.) Indeed, as the juvenile court found, Father’s own testimony provided sufficient evidence to support a true finding as to the allegations. Father’s current attitude toward and understanding of the sexual abuse he had perpetrated, which he again expressed in court, was that a three- to seven-year-old child was capable of instigating sexual activity and enjoying it. He said that he took responsibility for his actions, and knew that his actions were wrong, but he demonstrated that he continued to believe that his cousin shared responsibility for what occurred between them. Although he admitted to the police he had threatened her the first time he abused her to gain her compliance, he appeared at the time of the jurisdictional hearing to have forgotten or entirely minimized the importance of that fact. In the words of the juvenile court, “even with 23 months in prison and years of therapy, the father still has a difficult time owning up to the fact that there’s no way that a child who is 3, 4, 5, 6, or 7 is in any position to consent to sexual activity or to instigate that activity.” This critical lack of understanding, especially when coupled with the severity and duration of the sexual abuse he engaged in, demonstrates that Father poses a current risk of harm to his daughter.
III. Jurisdictional Finding Based on Father’s Drug Use
Father contends that no evidence was presented to show that he had failed or would fail to protect Bridget against the effects of marijuana smoke or other harmful effects of marijuana use, and no evidence was presented to show specifically how Bridget had been or would be harmed by Father’s marijuana use. He argues that no evidence was presented (by way of testimony from a medical professional or otherwise) to show that he suffers from clinical substance abuse, and there was no testimony linking his marijuana use to his parenting skills or judgment.
We disagree. Father’s marijuana use had already adversely affected his parental judgment. He knew Mother was smoking marijuana while she was pregnant. He said he “let her do it every weekend throughout the pregnancy.” He told Mother’s doctor about her marijuana use, and purportedly the doctor said there was no more danger in smoking marijuana than there was in smoking cigarettes during pregnancy-which is not to say that there was no danger from either. The fact Father acceded to her smoking at all shows poor judgment. He admitted that he smoked marijuana daily, and that he started using it when he was 17 years old. Expert testimony was not required for the court to infer that Father’s marijuana use was habitual and could prove difficult for him to abruptly discontinue, even if he is not clinically addicted. In addition, the court could infer that daily marijuana use would interfere with a person’s ability to parent an infant. Father conceded that he and Mother were not ready to assume custody of Bridget until he had demonstrated he could stop using marijuana, and until he could become “clear headed” by remaining drug-free for a period of time. We also will not disturb the finding of jurisdiction based on Father’s inability to provide regular care for Bridget due to his history of substance abuse.
DISPOSITION
The order of June 11, 2009 is affirmed.
We concur: EPSTEIN, P. J.MANELLA, J.