Opinion
B297480
02-07-2020
In re D.M., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. JOEL M., Defendant and Appellant.
Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, William D. Thetford, Principal 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01511B) APPEAL from orders of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Brian Bitker, under appointment by the Court of Appeal, for Defendant and Appellant. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, William D. Thetford, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Joel M. (father) appeals from the orders of the juvenile court taking jurisdiction over his daughter D.M. under Welfare and Institutions Code, section 300, subdivision (b)(1) and removing her from his custody (§ 361, subd. (c)). We affirm.
All further statutory references are to the Welfare and Institutions Code.
BACKGROUND
Father and mother are the parents of two children D.M (age 4) and her brother. The parents, although not together, share custody of the children. They distrust each other and compete for custody. Father currently lives with his girlfriend and her three children.
The juvenile court dismissed D.M.'s brother from the petition and so he is not at issue here. Mother is not a party to this appeal. Nor are girlfriend's children at issue.
Mother reported to the Department of Children and Family Services (DCFS) that she had found three inappropriate photographs on father's cellphone. The two-week-old pictures showed D.M. sucking on girlfriend's breast, D.M. lying in bed between father and girlfriend, and D.M. grabbing girlfriend's breast. It appears that father took at least one of the photographs. Mother had father's cellphone because he dropped it while picking the children up. DCFS told mother to report the conduct to the police.
Father told the investigating social worker that the police had responded to mother's reports and advised father there was no sex abuse. Father believed the photos were not appropriate but did not think the conduct constituted sexual abuse "because no one was arrested." Father added, however, that it was "normal" for a child to suck on his girlfriend's breast and there was nothing inappropriate about it, notwithstanding girlfriend is not four-year-old D.M.'s mother and is not currently breastfeeding anyone. Father explained that D.M. wanted to be breastfed as she often saw paternal aunt breastfeeding her baby cousin. The incident occurred the previous month when paternal aunt was present. Girlfriend took the photos to show father what had happened. Father did not tell girlfriend the conduct was inappropriate. He told DCFS there was nothing wrong about the pictures, as it was "just a funny matter" and should have been photographed.
Then, for the jurisdiction report, father stated that "[w]e know that it was not okay that my girlfriend took that picture." "[I]t was . . . a mistake and we are here (open case with Dependency Court) because of that."
D.M. related to DCFS that father and girlfriend asked her to suck on girlfriend's breast. Because of her youth, D.M. was not able to indicate whether she had been asked to do this more than once. According to DCFS, the child denied being inappropriately touched or touching anyone else inappropriately, "aside from father's girlfriend." D.M. was not afraid of father or girlfriend.
D.M.'s brother was not present when the photographs were taken but explained that D.M. tends to pull on girlfriend's shirt, though he believed that the incident was inappropriate. He told D.M. and father as much and father " 'agreed with' " D.M.'s brother.
Girlfriend believed the "selfies" were funny and stated that father thought it was " 'normal and appropriate behavior.' " Girlfriend confirmed that D.M. tends to pull on her shirt and ask to be breastfed because she sees paternal aunt breastfeeding D.M.'s baby cousin. Girlfriend claimed father told D.M. not to pull on girlfriend's shirt or to breastfeed. After stating she only took one photograph, girlfriend admitted a fourth was taken showing D.M. touching girlfriend's nipple. Girlfriend stated, "It was an accident; we forgot to delete the selfies." Girlfriend explained that the police did not arrest her, but informed her that the photograph was inappropriate and advised her not to do it again. Girlfriend showed some remorse. However, she stated that it was a mistake and that "the biggest error I did was helping father."
Concluding that the children were at high risk for future neglect, in part because father believed the conduct was appropriate and normal and never deleted the pictures, DCFS detained the children from father and filed a section 300 petition alleging failure to protect (§ 300, subd. (b)(1)), sexual abuse (id., subd. (d)), and abuse of a sibling (id., subd. (j)).
At the jurisdiction hearing, the court sustained the count under subdivision (b)(1) of section 300 as to D.M., dismissed the subdivision (j) count, and dismissed D.M.'s brother from the petition. Initially, the court also sustained the count under subdivision (d), finding that it was a "closer call" and "not your typical kind of situation." The court was not sure that the photograph was taken "for sexual purposes." After argument, the court decided to dismiss the d-1 count because, although concerned that the photographs remained accessible, they did not depict conduct that was in the words of father's counsel, "deviant behavior." The court removed D.M. from father's custody, placed her in the control of DCFS, and released her to mother. Father timely appealed.
DISCUSSION
I. No err in taking jurisdiction
The juvenile court's jurisdictional findings under section 300 must be made by a preponderance of the evidence (§ 355, subd. (a)) and we review jurisdictional orders for substantial evidence (In re I.J. (2013) 56 Cal.4th 766, 773). We view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the court's findings and orders. Issues of fact and credibility are the province of the juvenile court and we neither reweigh the evidence nor exercise our independent judgment. (Ibid.)
Subdivision (b)(1) of section 300, in relevant part, authorizes a juvenile court to exercise dependency jurisdiction over a child if the "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 . . . to adequately supervise or protect the child." (Italics added.)
The sustained allegations under section 300, subdivision (b)(1) that is challenged by father are:
"On a prior occasion in 2019, . . . [D.M.'s] father['s] . . . female companion, . . . and a member of the household, sexually abused the child [D.M.] by causing the child to grab and suck on the female companion's breasts. The female companion took photographs of the child grabbing and sucking the female companion's breasts. The father knew of the female companion's sexual abuse of the child and failed to protect the child in that the father allowed the female companion to reside in the child's home and to have unlimited access to the child. Such sexual abuse of the child [D.M.] by the female companion, and the father's failure to protect the child, endangers the child's physical health and safety, and places the child . . . at risk of serious physical harm, damage, danger, sexual abuse and failure to protect."
Father does not dispute the events set forth in DCFS's reports. Nor does he dispute that the photographs depict lewd conduct; he asserts that the juvenile court correctly concluded that the conduct did not constitute sexual abuse as defined in section 300, subdivision (d). However, regardless of whether the allegations establish statutory sexual abuse, the juvenile court may nonetheless conclude that the same conduct establishes a failure to protect under subdivision (b)(1) of section 300. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 398 [stipulated dismissal of subd. (d) count did not preclude subd. (b) count].)
The focus of father's appeal is his contention that the evidence does not support an inference that D.M. suffered or was at risk of serious physical harm as required under section 300, subdivision (b)(1). We disagree.
D.M. reported that girlfriend told her to grab and to suck girlfriend's breast. Father knew about this lewd conduct because he participated. Not only did D.M. claim that father also asked her to grab and suck girlfriend's breast, but DCFS indicated that father took one of the photographs. The acts were clearly not done for the innocent purpose of allowing D.M. to breastfeed. Girlfriend is not breastfeeding anyone, is not D.M.'s mother, and there is no indication that the child is breastfeeding. Also, in addition to sucking girlfriend's breast, the photographs depict D.M. lying in bed between father and girlfriend, dispelling the adults' assertions that the photos were taken only to show father the breastfeeding. More disturbing, father thought that the conduct was normal, appropriate, and even funny. And, he kept the photographs, a fact that particularly disturbed the juvenile court. Father's change in attitude between DCFS's detention and jurisdiction reports was limited to his belief that it was a mistake to photograph the acts because the pictures triggered this dependency. Father never changed his views that the underlying lewd conduct was normal and appropriate.
Dependency jurisdiction is properly exercised under section 300, subdivision (b)(1) when a child is " 'of such tender years that the absence of adequate supervision and care poses an inherent risk to [his or her] health and safety.' " (In re Kadence P. (2015) 241 Cal.App.4th 1376, 1384.) Moreover, we may "infer[ ] from the fact of a lewd touching that the victim suffered serious physical harm." (In re Alysha S., supra, 51 Cal.App.4th at p. 398.) The juvenile court reasonably inferred from the evidence that four-year-old D.M. suffered physical harm caused by father's failure to protect her from these lewd acts and that D.M. remained at risk of serious physical harm because of father's failure to understand that the conduct is grossly inappropriate and his retention of the photographs on his phone. The jurisdiction order is supported by substantial evidence. II. Any error in the disposition order was harmless.
Before the juvenile court may order children physically removed from their parent's custody, it must find, by clear and convincing evidence, that the children would be at substantial risk of harm if returned home and there are no reasonable means by which they can be protected without removal. (§ 361, subd. (c)(1).) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child. [Citation.] We review the court's dispositional findings for substantial evidence." (In re T.V. (2013) 217 Cal.App.4th 126, 135-136.)
At the hearing, father endorsed a proposed plan to enable D.M. to remain in his custody. Under the safety plan, girlfriend could not be left alone with the child. The parties argued the merits of this plan, after which the juvenile court rejected it and removed D.M. from father's custody.
Father contends that the juvenile court did not make a finding on the record about whether his proposed plan, or other reasonable means, could prevent removal. He also argues that the removal order lacked substantial supporting evidence. Again, we disagree.
First, DCFS delineated the efforts it made to prevent removal in the section of its detention report entitled, "Reasonable efforts and/or prior intervention/services offered." (Capitalization omitted.) The social worker educated father about the risks and concerns of sexual abuse on the children and tried to create a safety plan. But father refused to participate.
Second, as DCFS and mother's counsel argued at the disposition portion of the hearing, returning D.M. to father's custody was premature because father had not enrolled in any classes and still failed to comprehend the inappropriateness of the conduct. More important, as DCFS noted, girlfriend's lewd acts occurred when father was in the home and so the plan is inherently ineffective.
Third, the order is supported by substantial evidence. Father has resisted participation in plans offered to prevent removal and continues to believe that the lewd conduct was normal, appropriate, and funny. He even engaged in some of the conduct underlying jurisdiction by taking some of the photographs and keeping all of them.
Finally, although as father contends and DCFS recognizes, the juvenile court failed to articulate on the record what reasonable alternatives to removal it considered (see § 361, subd. (e); see also In re Ashly F. (2014) 225 Cal.App.4th 803, 809 [reversal for failure to state reasons on record]), that error was harmless and not grounds for reversal (In re J.S. (2011) 196 Cal.App.4th 1069, 1078-1079). For the reasons just enumerated, reasonable alternatives—releasing D.M. to father with a direction not to leave girlfriend alone with her and offering father a safety plan—were already unsuccessful. At the hearing, the court heard extensive argument from all parties about the proposed alternative plan. It also read the status review reports. Even assuming the court failed to state the reasonable efforts made to prevent D.M.'s removal from father, we conclude DCFS in fact made reasonable but ultimately unsuccessful efforts to avoid removal. Therefore, on this record we can perceive no reasonable probability that, had the court complied with the statutory requirement, it would have ruled differently on the question of removal. (Id. at p. 1079.)
DISPOSITION
The orders are affirmed.
NOT TO BE PUBLISHED.
DHANIDINA, J. We concur:
EDMON, P. J.
EGERTON, J.