Opinion
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. J977592 Debra Losnick, Juvenile Court Referee.
Karen B. Stalter for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
Kenneth W. appeals jurisdictional and dispositional orders made with respect to Christopher W. We affirm the orders.
FACTS AND PROCEDURAL BACKGROUND
On March 9, 2007, the Department of Children and Family Services (DCFS) detained six-year-old Christopher W. and three of his siblings, T. (1992), A. (1993) and V. (1995). The children were detained from the custody of their mother and her companion, Ernest. DCFS filed a dependency petition alleging the children were at risk of harm based on domestic violence between mother and Ernest and because mother allowed Ernest to reside with the children despite the fact he sexually abused their sibling when she was a child. Additionally, Ernest was on parole for felony spousal abuse. The juvenile court ordered the children detained, declared Kenneth W. the alleged father of Christopher and directed DCFS to conduct a search for Kenneth W.
DCFS located Kenneth W. on April 19, 2007. Kenneth W. told the CSW he had not been involved in Christopher’s life because of the danger posed by Ernest. Kenneth W. admitted that, approximately 30 years earlier when he was 17 years old, he was convicted in Idaho of an offense that constituted oral copulation in violation of Penal Code section 288a. Kenneth W. indicated that conviction arose out of a fight he had with someone who owed him money and “I made him lick.” Kenneth W. stated he commenced drug use when he was 17 or 18 years of age and continued to abuse cocaine for 24 years. Kenneth W. claimed he had been drug-free for three years and that he participated in the Midnight Mission drug rehabilitation program for two years. Kenneth W. is employed as a cement truck driver and receives medical and dental benefits. Kenneth W. visited Christopher whenever he was in Lancaster but, when he visits, Ernest acts “all crazy, like I’m trying to steal his woman, so I stay here (Los Angeles) and work.” Kenneth W. was willing to do whatever was necessary to get Christopher “out of the system.”
On April 25, 2007, Kenneth W. appeared in court. Counsel appointed to represent Kenneth W. indicated Kenneth W. had been found to be Christopher’s father in child support proceedings. The juvenile court found Kenneth W. was the presumed father of Christopher and granted weekly monitored visits.
On May 9, 2000, the juvenile court received a letter from the Midnight Mission which stated Kenneth W. is currently a member of the “Alumni Association and is maintaining a clean and sober healthy life.” Kenneth W. requested unmonitored visits and asked that paternal aunt and uncle’s home be evaluated for placement of Christopher. The juvenile court refused the request for unmonitored visitation finding it had not heard all the evidence and wanted to be sure Kenneth W. and Christopher established a relationship before unmonitored visits commenced. The juvenile court directed DCFS to investigate placement of Christopher with parental aunt and uncle and ordered conjoint counseling for Kenneth W. and Christopher.
On May 16, 2007, the juvenile court ordered Christopher placed with paternal aunt and uncle.
At the contested jurisdiction hearing on June 25, 2007, Kenneth W. testified he stopped using drugs in 2004 when he entered the Midnight Mission drug program. Kenneth W. has been a cement truck driver for more than a year. Kenneth W. was willing to submit to drug testing to verify his sobriety. Kenneth W. admitted he had committed crimes such as petit theft, robbery and car tampering to obtain money for drugs but he has not engaged in illegal activity in the recent past. Kenneth W. was convicted in Idaho of what would have constituted a violation of Penal Code section 228a when he was 17 years old. Kenneth W. testified he had a fight over marijuana with a 22 year old. After Kenneth W. won the fight, the 22 year old “wouldn’t shut up. So I . . . put my genitals in his mouth.” Kenneth W. testified he did not “know why I did that. . . . I don’t think like that now.” Kenneth W. had no other sexually oriented convictions and he did not struggle with sexually aberrant behavior. Kenneth W. became a registered sex offender in 1995 and has consistently maintained registration. Kenneth W. has attended individual counseling in connection with his drug rehabilitation but it did not address his status as a registered sex offender. Kenneth W. testified he does not believe he needs sex offender counseling.
Kenneth W. asked that Christopher be placed with him. Kenneth W. admitted he did not have a home for Christopher but believed he could make arrangements for himself and Christopher to live with his mother. Kenneth W. visited Christopher about twice a month before the child was placed with paternal aunt and uncle. He now visits twice a week and his relationship with Christopher has improved. He previously did not have a strong bond with Christopher because of issues between himself and mother.
The social worker assigned to the case testified he believes Kenneth W. presents a risk to Christopher because Kenneth W. is a convicted sex offender who has a substantial arrest and conviction history. Also, DCFS did not have drug testing results from Midnight Mission and the worker was unsure if Midnight Mission’s drug program was DCFS approved.
In argument, DCFS noted Kenneth W.’s registration as a sex offender constituted prima facie evidence sufficient to sustain the allegations of the dependency petition.
As to Kenneth W., the juvenile court made the following factual findings: “There is at least a 24-year drug history that [Kenneth W.] has engaged in. The court does not know . . . whether this is an ongoing issue or not. Though I have no reason to disbelieve [Kenneth W.’s] testimony [that he has been drug free], there are no drug tests. There are no specific letters from Midnight Mission . . . .”
The juvenile court sustained the dependency petition with respect to all four of the children under Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j). The juvenile court found the children were at risk of harm in mother’s home due to domestic violence and Ernest’s presence in the home created a detrimental environment in that Ernest sexually abused the children’s adult sibling when she was a child and Ernest has a history of criminal convictions.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
With respect to Kenneth W., the sustained petition states Kenneth W. “has a long-standing history of drug abuse and a history of criminal convictions.” The juvenile court further found Kenneth W. is a registered sex offender and his “criminal history and conduct endangers [Christopher’s] physical safety and emotional well-being and creates a detrimental home environment, placing the child at risk of physical and emotional harm.”
The juvenile court continued the disposition hearing to permit Kenneth W. to drug test to assist the juvenile court to determine whether his visits should be unmonitored.
On July 30, 2007, DCFS filed a subsequent petition with respect to Christopher, T., A. and V. The subsequent petition alleged Ernest had fondled V. and mother failed to protect V. from sexual abuse by Ernest. DCFS reported that Kenneth W. drug tested on two occasions with negative results.
On August 17, 2007, DCFS moved Christopher from the home of paternal aunt and uncle and filed a petition to modify Christopher’s placement because paternal aunt and uncle no longer were able to care for him.
A report filed August 27, 2007, indicated mother commenced unmonitored visitation with the children on July 20, 2007. The visits were going well and mother was complying with the case plan. Kenneth W. attempted to enroll in conjoint counseling with Christopher. However, the therapist indicated she needed time to get to know Christopher before including Kenneth W. in the counseling sessions. The therapist also needed to know more about the conviction that caused Kenneth W. to register as a sex offender because there frequently were children in her waiting room. Kenneth W. failed to drug test on August 7, 2007 and September 7, 2007, and did not visit after Christopher was moved from the home of paternal aunt and uncle to foster care.
The juvenile court granted mother unmonitored overnight visitation at her sober living program.
On September 18, 2007, Kenneth W. failed to drug test and admitted he stopped calling the drug testing program. Kenneth W. told a social worker he believed it was a foregone conclusion that mother would regain custody of the children. Kenneth W. scheduled one visit with Christopher but it was canceled by Christopher’s foster mother. DCFS approved paternal aunt and uncle as monitors for Kenneth W.’s visits with Christopher, but Kenneth W. had not arranged any visits with them.
The juvenile court continued the contested disposition hearing to October 11, 2007, to allow DCFS to evaluate mother’s new home and to determine whether any of the children could be returned to her. Social reports prepared for that hearing indicated mother’s new home appeared safe for the children and the house manager stated mother was doing well and was ready to have all four children in her care. Mother’s therapist also supported reunification. DCFS recommended that mother participate in the Child Sexual Abuse Program (CSAP) given that “mother has failed to protect two different children on two different occasions [from] the same perpetrator over a period of approximately 20 years.” The report indicated Kenneth W. had not visited Christopher in over two months and Kenneth W. had not returned the social worker’s calls after the last court hearing. DCFS recommended that Kenneth W.’s visitation remain monitored and that he be ordered to participate in parenting class, individual counseling, random drug testing, sex abuse counseling and conjoint counseling with Christopher.
At the hearing, the juvenile court sustained the allegations of the subsequent petition. Kenneth W.’s attorney indicated “appropriate” disposition orders would include parenting class “and maybe conjoint counseling with the child. Perhaps even individual counseling regarding his history. But I don’t believe sex abuse counseling is necessary. [¶] [Kenneth W.] will drug test and will continue to drug test, and I think those are all the orders that the court can make.”
The juvenile court ordered all four children returned to mother’s custody with family maintenance services. The juvenile court granted Kenneth W. family reunification services and ordered him to participate in random drug testing, individual counseling to address sexual abuse issues and conjoint counseling with Christopher, if appropriate. The juvenile court specifically found neither mother nor Kenneth W. needed to attend CSAP. Kenneth W. was to have monitored visits with Christopher until he had four clean drug tests, at which time his visits were to be unmonitored. The juvenile court ordered DCFS to facilitate visitation for Kenneth W.
CONTENTIONS
Kenneth W. contends his criminal and drug related history did not constitute neglectful conduct within the meaning of section 300, subdivision (b) and, even if it did, DCFS failed to demonstrate that Christopher currently was at risk of harm in Kenneth W.’s care. Kenneth W. further contends several of the juvenile court’s dispositional orders are not supported by substantial evidence.
In the reply brief, Kenneth W. withdrew his claim that section 361.2 required the juvenile court to place Christopher in his care.
DISCUSSION
1. The record adequately supports the jurisdictional finding.
With respect to the dependency allegation sustained as to Kenneth W., Kenneth W. contends his criminal and drug related history did not constitute neglectful conduct within the meaning of section 300, subdivision (b). Kenneth W. argues he presented evidence that showed he had resolved his drug problem by completing a two-year residential drug rehabilitation program and participating in individual and group counseling. Kenneth W. notes his criminal activity was related to drug abuse, he now is gainfully employed, he pays child support for Christopher and he is willing to put Christopher on his medical insurance. Kenneth W. points out that he visited at least twice per month before Christopher was placed with paternal relatives and twice per week thereafter. Kenneth W.’s oral copulation conviction was remote in time and he had not suffered subsequent similar convictions. Although Kenneth W. had not participated in sexual abuse counseling, his participation in drug rehabilitation and his sobriety mitigated any risk he might present to Christopher. Additionally, DCFS had failed to demonstrate that Christopher currently was at risk of harm in Kenneth W.’s care. Kenneth W. concludes the absence of such evidence precludes the assertion of dependency jurisdiction.
Kenneth W.’s arguments are not persuasive. Kenneth W. admitted he was a registered sex offender. Under section 355.1, subdivision (d), this admission constitutes prima facie evidence that Christopher is a person described by subdivision (a), (b), (c) or (d) of section 300 and is at substantial risk of abuse or neglect.
Section 355.1, subdivision (d), provides that where a juvenile court finds a parent is required to register as a sex offender, “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.”
Kenneth W. argues section 355.1, subdivision (d), constitutes a presumption affecting the burden of producing evidence. He claims his testimony rebutted the presumption because it showed the circumstances surrounding the commission of the offense that resulted in his sex offender registration, the offense was remote in time, Kenneth W. had not suffered any subsequent convictions for similar offenses, Kenneth W. testified he harbors no sexually aberrant thoughts and he has been drug free for the last three years. Thus, his status as a registered sex offender did not place Christopher at substantial risk of abuse or neglect.
However, the juvenile court was not required to accept Kenneth W.’s version of the oral copulation offense or his claim that he harbors no sexually aberrant thoughts. Moreover, Kenneth W. did not demonstrate insight into why he had committed the offense, he admitted he had never attended counseling for sex offenders and he claimed he did not need such counseling. Consequently, the statutory presumption was sufficient to support the jurisdictional finding. (In re John S. (2001) 88 Cal.App.4th 1140.)
There also was substantial evidence to support the juvenile court’s finding that Christopher was at risk of harm due to Kenneth W.’s lengthy criminal and drug history that included 13 felony convictions. Kenneth W. recently served 32 months in prison after violating parole in November of 2001 and he failed to drug test regularly during the reunification period. Based on this evidence, and apart from Kenneth W.’s sex offender registration, the juvenile court properly could conclude Christopher was a dependent child under section 300, subdivision (b).
2. Kenneth W.’s challenges to the disposition order fail.
Kenneth W. contends the juvenile court erred in requiring him to participate in individual counseling to address sexual abuse issues and in ordering that his visitation remain monitored until he produced four consecutive clean drug tests. Kenneth W. asserts neither order is supported by substantial evidence.
With respect to the counseling order, Kenneth W. contends his conviction of oral copulation was remote in time, he has completed a two-year drug rehabilitation program that included individual and group counseling, he has been sober for three years and he is gainfully employed at a trucking company. Kenneth W. argues he was prejudiced by the juvenile court’s order because failure to comply may interfere with his ability to obtain custody of Christopher in the future.
Initially, we note the juvenile court did not require Kenneth W. to attend a CSAP program. Rather, the juvenile court merely ordered Kenneth W. to attend individual counseling to address case issues, including sexual abuse issues. This order falls well within the juvenile court’s broad discretion to fashion an appropriate disposition in accordance with the circumstances of each case. (In re Baby Boy H. (1998) 63 Cal.App.4th 470, 474; § 362, sub. (c).) The order was reasonable in light of Kenneth W.’s failure to receive any counseling that addressed his conviction of oral copulation and given that two of Christopher’s siblings had been sexually abused by mother’s companion.
With respect to the order for monitored visitation until Kenneth W. produced four consecutive clean drug tests, Kenneth W. argues the juvenile court should have permitted unmonitored visits immediately based on Kenneth W.’s history of sobriety and participation in rehabilitation. However, given Kenneth W.’s history of drug use and his recent failure to drug test, the juvenile court committed no error in premising unmonitored visitation on four consecutive clean drug tests.
In sum, neither order constituted an abuse of the juvenile court’s discretion.
DISPOSITION
The orders are affirmed.
We concur: KITCHING, J., ALDRICH, J.