Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County Super. Ct. No. CK74284. D. Zeke Zeidler, Judge. Reversed in part, affirmed in part.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, J.
The juvenile court found that Izaiah W., the infant son of Ashley A. (Mother) and Tyrell W. (Father), was subject to jurisdiction under Welfare and Institutions Code section 300, subdivisions (b) and (d) due to: (1) his parents’ regular use of marijuana in his presence; and (2) the risk of sexual abuse from Father, a registered sex offender. Mother appeals the court’s jurisdictional and dispositional orders, contending that substantial evidence does not support the court’s jurisdictional finding that Izaiah was at risk of sexual abuse from his Father or the court’s dispositional finding that there would be substantial risk to Izaiah’s safety if he were returned to Mother. We agree that substantial evidence did not support that Father’s history exposed Izaiah to danger and therefore reverse the finding that the risk of sexual abuse supported jurisdiction. The implicit requirement of the dispositional order that Mother and Father undergo sexual abuse counseling is also reversed. We otherwise affirm the court’s orders.
We elect to refer to the parties by their first name and last initial. (See In re Edward S. (2009) 173 Cal.App.4th 387, 392, fn.1.)
Unless otherwise designated, statutory references are to the Welfare and Institutions Code.
Father is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
A. Detention
Izaiah came to the attention of the Department of Children and Family Services (DCFS) in October 2008, when he was four months old. Responding to a referral, sheriff’s deputies went to the apartment where Izaiah lived with Mother and Father. When the deputies arrived, they noticed a strong odor of marijuana and a haze of smoke so thick it caused one deputy’s eyes to become irritated and to water. In addition to the family, there was a four-year old boy present in the apartment, whom Mother and Father were watching while his mother went shopping. Mother and Father admitted they had been smoking marijuana. The deputies found Izaiah crying loudly and uncontrollably on a couch upstairs and a still warm marijuana pipe on a nearby coffee table. There were additional pipes and a can containing the drug on a night stand in the same room. Father reported, and later confirmed, that he had a letter from a doctor prescribing marijuana for pain from a back and knee injury.
The caseworker learned that Father was a registered sex offender, who had been convicted of lewd and lascivious acts on a child under the age of 14 and had been on probation for the offense until January 2007. DCFS records showed two prior referrals alleging that Father had committed acts of sexual abuse.
The first, dated August 2000, involved a 16-year old girl and was deemed inconclusive. The second, dated June 2001, was the act which led to the above conviction. The allegations did not involve abuse of Father’s own children. (The caseworker later learned that Father had been married in the past and had a five-year old son from that relationship.)
Izaiah was detained. He bore no signs of neglect or abuse. Mother and Father were arrested and charged with child endangerment. DCFS filed a petition under section 300 contending jurisdiction was appropriate under subdivision (b) (failure to protect) and subdivision (d) (sexual abuse) based on Mother and Father’s use of marijuana and Father’s conviction for lewd and lascivious acts on a child.
Subdivision (b) applies where the child has suffered, “or there is a substantial risk that the child will suffer,” serious physical harm as a result of the failure or inability of his or her parent to adequately protect the child. Subdivision (d) applies where the child “has been sexually abused, or there is a substantial risk that the child will be sexually abused... by his or her parent or guardian or a member of his or her household....”
B. Jurisdiction/Disposition
In an interview that took place shortly after Izaiah’s detention, the caseworker learned that Father had had a relationship with Sarah R., who gave birth to a boy named after Father four days prior to Izaiah’s birth. The caseworker expressed concern that Sarah “may be a vulnerable minor who was sexually abused by [F]ather.” The caseworker informed Father that this information “confirm[ed] the need for [] sexual abuse group counseling.” Father told the caseworker that he had attended a sexual abuse class in connection with the criminal conviction and did not believe he needed additional counseling.
The caseworker’s report stated: “[Sarah] was 18 years [old] at the birth of her child which suggests that she may have had a relationship with [F]ather as a minor.” However, it appears that the caseworker was unable to establish Sarah’s age at the time of the relationship. Sarah’s birth date is not in the record, and there is no evidence that the caseworker interviewed her. Father said Sarah had been over 18 during the relationship, which began in 2007 and ended in October 2008.
Interviewed for the jurisdiction/disposition report, Mother admitted that she smoked marijuana almost every evening to relieve migraine headaches. She denied smoking enough to impair her judgment, denied smoking near Izaiah and denied smoking while she was pregnant. She said that on the day the deputies intervened, she and Father had smoked on the balcony and denied that the apartment was filled with smoke. She agreed to stop using the drug. When asked about her knowledge of Father’s prior conviction for sexual abuse of a minor, she said it had resulted from a “misunderstanding” and that, in any event, she did not believe Father would abuse his own son or any male child.
In his interview with the caseworker, Father stated that he had been using marijuana twice a day since 2007 for medical purposes. He, too, promised to stop. With respect to the conviction for lewd and lascivious conduct, he said he had participated in an 18-month course for domestic violence and sexual offenders. In a later interview, Father expressed doubt concerning his ability or desire to participate in reunification services. He said he had “a lot of personal problems” and was breaking up with Mother. He expressed the belief that his being a registered sex offender represented an insurmountable obstacle to reunification and offered to “leave so that [Mother] can reunify with [Izaiah].” He informed the caseworker that he was, in any event, planning to move to Texas for six months to be with his dying father.
Father’s probation officer reported that the 2001 criminal case arose after Father “touched” an eight-year-old girl and persuaded her to masturbate him with oil. He was sentenced to five years probation, which he completed in early 2007. As a result of his conviction, Father was required to register as a sex offender, but there were no legal barriers to his being around children.
The report does not indicate that the caseworker asked the probation officer about Father’s participation in the program for sexual offenders.
Mother tested negative for cannabis on November 3, 2008 and positive on November 21. She expressed surprise about the November 21 positive test and denied using marijuana at that time. Father also tested positive for cannabis in November. He admitted he was still using marijuana for back pain and that he had not enrolled in a substance abuse program.
By the time of the jurisdictional/dispositional hearing in December, Mother had completed ten sessions of a 24-session alcohol/drug education and prevention program. She had begun the program in October and had an “excellent record of attendance and participation.” She had also become active in a 12-step program. Her counselor reported “no concerns regarding any drug related negligence.” Both Mother and Father had completed at least five sessions of a seven-series parent education program. Their instructor stated they were “on task and attentive” and appeared to be doing their best “to get the most out of the program.”
At the December 23, 2008 jurisdictional hearing, neither side introduced additional evidence. There was no dispute concerning the petition’s contention related to marijuana usage, and the following allegation was sustained without objection: “[Mother and Father] have unresolved histories of substance abuse. Further, on or about 10/2/08, [Mother and Father] smoked a significant amount of marijuana in the presence of the child to subject the child to second-hand smoke.” The court found that this allegation supported jurisdiction under section 300, subdivision (b).
With respect to the petition’s second contention, alleging the risk of sexual abuse, counsel for DCFS raised the presumption that arises under section 355.1 when a minor’s parent is convicted of certain sexual offenses or is required to register as a sex offender -- a minor in that situation is presumed to be a proper subject of dependency jurisdiction. The attorneys representing Father and Mother argued that the presumption had been rebutted by: the evidence of appellant’s completion of the terms of his probation, including participating in a program for sexual offenders; the fact that Izaiah was a male child while the victim was female; the fact that Izaiah was Father’s biological child while the victim was unrelated; the fact that Izaiah was far too young to engage in the type of actions which formed the basis for Father’s conviction; and the lack of direct evidence of any abusive conduct toward Izaiah. Counsel for Izaiah joined in the arguments of Mother and Father, noting that there was no evidence Father would abuse a male, particularly his own biological child, that Father was in compliance with the registration requirements of being a sex offender, and that there were no restrictions from the criminal court on Father’s “being around any child, let alone his own.”
After hearing counsels’ argument, the court, sustained the following allegation: “[Mother] created a detrimental and endangering home environment for the child in that [Mother] was aware that [Father] is a registered sex offender. [Mother] allowed [Father] to reside in the child’s home and to have unlimited access to the child.” The court found that this allegation supported jurisdiction under section 300, subdivisions (b) and (d). In making its ruling, the court stated that the statutory presumption arose as the result of Father’s conviction and obligation to register as a sex offender and shifted the burden to the parties who sought to have the allegation dismissed. The evidence discussed by counsel for Mother, Father and Izaiah -- “the fact that it’s his own biological child, the fact he finished a program, et cetera” -- the court found did not rebut the presumption. Specifically, the court noted that the prior incident involved “having [an] eight-year-old do things to him” and there was the evidence that Father subsequently had a relationship with “someone who is described as being immature.”
A true finding that the minor is subject to a substantial risk of serious physical harm under subdivision (b) may be based on proof of sexual abuse or a serious risk of future sexual abuse. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824; In re Alysha S. (1996) 51 Cal.App.4th 393, 398.)
When the court turned to disposition, counsel for Father stated that Father was no longer residing with Mother. No other party objected to or sought to contradict that assertion. The court ordered removal from both parents, finding by clear and convincing evidence that a substantial danger existed to Izaiah’s physical and emotional health, and that DCFS had provided reasonable services to prevent removal. The court ordered Mother and Father to participate in a drug rehabilitation program, to undergo weekly drug testing, to complete a course of parent education (or confirm that the course they had started had been completed) and to undergo individual counseling to address “case issues.” Izaiah remained in foster care and visitation was restricted to monitored. The court noted that the evidence indicated both Mother and Father had been smoking with Izaiah in the room, subjecting him to secondhand smoke. Mother appealed the jurisdictional and dispositional orders.
DISCUSSION
Mother does not dispute the court’s finding concerning marijuana usage. Although that finding alone supported the court’s assertion of jurisdiction over Izaiah, we address Mother’s argument that the sexual abuse allegation was unsupported because the court’s finding affected its dispositional order and will have an impact on the court’s future determinations on reunification efforts.
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.) Generally, the burden is on DCFS to “‘“prove by a preponderance of the evidence that the child... comes under the juvenile court’s jurisdiction.”’” (Id. at p. 185, quoting In re Shelly J. (1998) 68 Cal.App.4th 322, 329.) However, where the evidence establishes that a parent has been convicted of sexual abuse as defined in section 11165.1 of the Penal Code or is required to register as a sex offender under section 290 of the Penal Code, section 355.1, subdivision (d) provides that that fact “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.”
Penal Code section 11165.1 defines “‘sexual abuse’” to include lewd and lascivious acts on a child. Penal Code section 290 requires a person convicted of a violation of Penal Code section 288 (which proscribes lewd and lascivious acts on a child) to register as a sex offender.
The presumption that arises under section 355.1, subdivision (d) “affect[s] the burden of producing evidence.” (§ 355.1, subd. (d).) This means that it “only survives until there is rebuttal evidence submitted.” (In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1041.) Put another way, “[a] presumption affecting the burden of producing evidence requires the ultimate fact to be found from proof of the predicate facts in the absence of other evidence. If contrary evidence is introduced then the presumption has no further effect and the matter must be determined on the evidence presented.” (In re Heather B. (1992) 9 Cal.App.4th 535, 561.) To rebut the presumption, the party against whom it operates need only “produce evidence sufficient to support a finding that the presumed fact (as distinct from the basic or foundational facts) did not exist.” (Xebec Development Partners, Ltd. v. National Union Fire Ins. Co. (1993) 12 Cal.App.4th 501, 546, italics omitted, overruled on another point in Essex Ins. Co. v. Five Star Dye House, Inc. (2006) 38 Cal.4th 1252.)
Mother does not dispute that the presumption contained in section 355.1 arose as a result of the evidence that Father had been convicted of lewd and lascivious acts on a child under the age of 14 and was required to register as a sex offender. She contends, however, that the presumption with respect to the risk of sexual abuse was rebutted by: (1) the age of the offense and the absence of evidence that Father engaged in similar conduct since that time; (2) the undisputed fact that Father successfully completed probation; (3) the uncontradicted fact that Father completed a program for sexual offenders; and (4) the evidence that the victim of Father’s prior abuse was different in many significant respects, including gender, age and biological connection, from Izaiah.
We agree that the evidence presented rebutted the section 355.1 presumption and shifted the burden back to DCFS. The offense at issue was committed seven years prior to DCFS intervention and there was no evidence of any similar misconduct in all the intervening years. Until early 2007, Father was under the supervision of a probation officer who, when questioned, confirmed that Father had successfully completed probation and was subject to no restrictions with respect to his contacts with children. Father reported, and DCFS did not dispute, that he had completed a program for sexual offenders as a requirement of his probation. This was sufficient to rebut the section 355.1 presumption and shift the burden back to DCFS to establish by direct evidence that Izaiah was at risk of sexual abuse. (See Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 882 [“[W]hen the party against whom [] a presumption [affecting the burden of producing evidence] operates produces some quantum of evidence casting doubt on the truth of the presumed fact, the other party is no longer aided by the presumption. The presumption disappears, leaving it to the party in whose favor it initially worked to prove the fact in question.”].)
Respondent points out that in finding Izaiah at risk of sexual abuse, the court also relied on Father’s relationship with an “emotionally immature” 18-year old woman and on the fact that the acts perpetrated on the young victim of the prior offense did not appear to be gender-specific. As to the former, assuming that a man’s consensual sexual relationship with an unrelated teenage girl has any bearing on whether he would abuse his infant son, the evidence did not establish that Sarah was under 18 during the relevant time period. Thus, Father’s relationship with her did not support that he posed a risk to Izaiah or any other minor. With respect to the court’s reliance on the specific facts of Father’s prior offense, the victim was a female child with no biological connection to Father, whereas Izaiah was a four-month old infant boy and Father’s biological son. On these facts, we agree with the court in In re Rubisela E. (2000) 85 Cal.App.4th 177, 198-199, that where there is no evidence of suspicious conduct toward male children, proof of sexual abuse of a young girl is ordinarily insufficient to support jurisdiction over the perpetrator’s sons. Moreover, Izaiah was at less risk than the boys in Rubisela E., as the victim of the prior offense was unrelated to Father, and there was no evidence that Father had ever behaved inappropriately toward a biological child. The court’s finding that Izaiah was at risk of sexual abuse by Father, whether it rested solely on the section 355.1 presumption or on the facts mentioned on the record, was not supported by substantial evidence.
We recognize -- but are not persuaded by -- the fact that the prior unlawful act could as easily have been performed by a boy as a girl. There was no evidence of Father’s sexual misconduct with boys or of any misconduct with infants, and seven years would have to elapse before Izaiah was the age of the victim of Father’s prior offense. The court did not purport to base its finding of substantial risk on the possibility of an event half a dozen years in the future.
B. Disposition
After finding that a child is a person described in section 300 and therefore the proper subject of dependency jurisdiction, the court must resolve the question of “the proper disposition to be made of the child.” (§ 358.) “A dependent child may not be taken from the physical custody of his or her parents... with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence... [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 parent’s... physical custody.” (§ 361, subd. (c).) There is no requirement of proof of actual harm to the child by the parent; the standard is substantial risk or danger of harm. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656-1658.) On review of the court’s dispositional findings, “we employ the substantial evidence test, however bearing in mind the heightened burden of proof.” (Id. at p. 1654.)
Mother contends that absent the sexual abuse allegation, the court’s dispositional order cannot be affirmed. She asserts that the evidence pertaining to marijuana usage was insufficient to support removing Izaiah from her care. We disagree.
Mother attempts to rely on the authorities that have found evidence of a parent’s use of marijuana alone insufficient to support jurisdiction. (See, e.g., In re Alexis E. (2009) 171 Cal.App.4th 438, 452; In re David M. (2005) 134 Cal.App.4th 822, 829-830; Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346.) The pertinent authorities do not support Mother’s position. Neither David M. or Jennifer A. involved daily use of marijuana or smoking in the presence of the children. In Alexis E., where the evidence supported that the father regularly smoked when he had custody of his children and that the children were exposed to secondhand smoke, the court upheld a jurisdictional finding based on the father’s marijuana usage.
The situation here is similar to that in Alexis E. When the deputies arrived at the apartment Mother shared with Izaiah and Father, it was so filled with smoke and the smell of marijuana that it triggered a physical reaction in one of the deputies. Izaiah was unattended and crying uncontrollably. The location and temperature of the pipes and the can containing marijuana supported that smoking had occurred in the same room where Izaiah had been left on the couch. Mother admitted smoking marijuana almost every evening; Father stated he smoked it twice a day. This supported that (1) Izaiah was regularly exposed to secondhand marijuana smoke, and (2) both parents regularly placed themselves in a position where they would be unable to competently care for Izaiah. (See In re Samkirtana S. (1990) 222 Cal.App.3d 1475, 1489 [evidence supported removal of children from custody of mother where mother’s excessive use of alcohol led to failure to supervise].)
Mother points to her efforts to correct the problems that led to DCFS intervention, including her enrollment in a substance abuse program and her newfound understanding that smoking in Izaiah’s presence was potentially harmful to him. Mother’s efforts were commendable, but at the time of the hearing, she had been a participant in drug counseling for less than two months. One month before the hearing, she had tested positive for marijuana despite repeated assurances she would give up the drug. Under the circumstances, the court’s finding that Izaiah was at risk of exposure to marijuana smoke and deficient care if returned to the custody of Mother was supported by substantial evidence.
DISPOSITION
The jurisdictional order is reversed with respect to the finding of risk of sexual abuse. The dispositional order is reversed with respect to the requirement that Mother and Father undergo sexual abuse counseling. In all other respects, the orders are affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.