Opinion
B297790
03-19-2020
In the Matter of K.C., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant v. Raul C., Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Raul C. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel and Kim Nemoy, Deputy County Counsel for Plaintiff and Appellant Los Angeles County Department of Children and Family Services.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01526A) APPEAL from orders of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed in part, reversed in part. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Raul C. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel and Kim Nemoy, Deputy County Counsel for Plaintiff and Appellant Los Angeles County Department of Children and Family Services.
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INTRODUCTION
Appellant Raul C. is the father of K.C. (born June 2011). In the course of investigating a referral alleging that mother Lidia R. negligently allowed K.C. to have access to a gun, Los Angeles County Department of Children and Family Services (DCFS) discovered that K.C. shared a bed with Raul, which made her "uncomfortable." DCFS also discovered that Raul's brother Rigo sometimes slept in the same bed with the two of them. Additionally, K.C. revealed that when Raul thought she was asleep, he would be "on Snapchat watching girls take their clothes off," and she would see what he was watching. Based on these discoveries, DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1) (Section 300(b)(1)) and (d) (Section 300(d)) alleging that Raul's actions of sharing a bed with K.C. (and sometimes Rigo) and "caus[ing] the child to watch pornographic videos with the father . . . plac[ed] the child at risk of suffering serious physical harm, damage, danger and sexual abuse."
All further statutory references are to the Welfare and Institutions Code, unless otherwise noted.
The petition also stated a count under Section 300(b)(1) alleging that Lidia had a history of substance abuse which endangered K.C., and that Raul knew of this substance abuse and failed to protect K.C. The court dismissed this count, and no party appeals the dismissal.
The court found jurisdiction over K.C. under the Section 300(b)(1) count pled against Raul, and ordered K.C. removed from Raul and placed with Lidia. Raul appeals the court's finding of jurisdiction under Section 300(b)(1) and the removal of K.C. from his custody. DCFS appeals from the court's refusal to find jurisdiction under the Section 300(d) count. Because we find that substantial evidence does not support the court's conclusion that Raul's conduct placed K.C. at a substantial risk of suffering serious physical harm, we reverse the trial court's finding of jurisdiction under Section 300(b)(1) and its subsequent removal of K.C. from Raul's custody, and otherwise affirm the court's orders.
STATEMENT OF RELEVANT FACTS
A. DCFS Investigates a Referral
On February 19, 2019, DCFS received a referral alleging K.C. was a victim of general neglect by her mother Lidia and Lidia's boyfriend. The referral alleged that in January 2019, K.C. disclosed that, between the months of October and December 2018, Lidia's boyfriend (who was a police officer) was leaving his gun on a table where K.C. could easily reach it. K.C. reportedly stated the last time the gun was on the table, Lidia was sleeping and the boyfriend was watching TV. The reporting party stated a restraining order was issued to protect K.C., and K.C. had not seen her mother since December 2018.
A children's social worker (CSW) interviewed Raul on the same day. Raul explained that in December, Lidia took K.C. to the house of Lidia's police-officer boyfriend, and that at the house there was a gun on the table "with bullets" and it scared K.C. Because K.C. was scared, Raul requested and received a temporary restraining order against Lidia, and filed a report with the Long Beach Police Department regarding Lidia's boyfriend. He also informed the CSW that the restraining order was subsequently dismissed for insufficient evidence. Raul admitted Lidia had told him the gun was fake, but Raul insisted it was real. Raul stated K.C. saw Lidia only once or twice a month; Raul and Lidia had no family law custody order, but Raul advised he would be filing for sole custody because Lidia was a liar, drank too much, had previous suicidal ideations, had an unstable living environment, and neglected K.C. Raul also reported that K.C. was "sexually abused by her M[aternal] U[ncle] Brian awhile back . . . ."
A DCFS referral was generated over the alleged abuse by Brian, but after investigation, it was deemed "inconclusive." The incident occurred in 2016 when K.C. was 4 and Brian was 12.
The CSW also interviewed K.C. K.C. stated her mother had a lot of secrets, and had instructed her not to tell Raul about the secrets. The gun was one of the secrets, and it scared K.C. because she thought it was a real gun, and accurately described it as the size of a real gun. K.C. did not touch the gun because she knew guns were dangerous. Lidia and her boyfriend put the gun away after K.C. stated it scared her.
After K.C. responded that she only "sometimes" liked living with Raul, she explained the qualifier was because she shared a bed with him, which made her uncomfortable. However, she stated she felt safe living with him. K.C. was very chatty and spoke with the CSW regarding many issues. She stated that her father sometimes drank alcohol, but her mother would get drunk and smoke marijuana. She confirmed that her uncle Brian had "touched her private parts with his hand" some time ago, but could not say when.
On February 20, 2019, the CSW separately interviewed Lidia and her boyfriend. Lidia stated the gun K.C. saw was a replica, and she and the boyfriend had explained to K.C. the difference between a fake gun and a real one, and showed K.C. where the real gun was kept. Lidia denied any past drug or alcohol abuse and stated she never smoked marijuana or drank around K.C. Lidia consented to a drug test, and tested negative. She admitted to a previous DUI.
The boyfriend confirmed the gun was a replica, used in his Halloween costume, and that he had explained to K.C. the gun was fake. His real gun was locked in a safe in the closet, and the boyfriend stated he would never leave it out when children were present. Viewing pictures of both guns, the CSW could see the difference between them. Later, when viewing the actual replica gun, the CSW noted it looked real, though there was no chamber or clip for any ammunition. The boyfriend stated he had never seen Lidia abuse alcohol or any other substance, and they had been in a relationship for about a year.
During a February 26, 2019, interview with Lidia, Lidia told the CSW about arriving early at Raul's to pick up K.C. for a visit on February 23. When she walked in, she claimed K.C. was sleeping on the bed between Raul and his brother, K.C.'s uncle Rigo (not the uncle who had allegedly molested her), which she felt was inappropriate.
Lidia also stated that later, at her house, K.C. was watching a movie on a tablet beside her while Lidia took a nap. At some point, Lidia noticed she could not hear the movie anymore, and Lidia asked K.C. what she was doing. K.C. responded by clutching the tablet to her chest, and then closing the apps on it. Lidia took the tablet, checked its search history, and saw that K.C. had searched for "see people have sex." Lidia took a screenshot of this search and sent it to Raul, who responded "'it was nature'" and maybe Lidia should have been more involved in K.C.'s life. Lidia also stated that she had decided to take K.C.'s tablet away and, in response, Raul bought K.C. an iPhone with full internet access.
It was later reported that K.C. actually searched for "see people have xex."
It is unclear from the record when Lidia made this decision, or whether she actually took the tablet away.
After speaking with Lidia, the CSW called Raul. He confirmed Rigo had slept over on the weekend, but claimed Rigo slept on one side of the bed, Raul slept in the middle, and K.C. slept on the other side. Raul stated this sleeping arrangement was "'not a big deal.'" When the CSW opined that K.C. should not be sleeping in a bed with any other adult males because she was a victim of sexual abuse, Raul responded that K.C. "'was not really sexually abused, it was just touching, and it was by another child and not a grown man.'" When the worker stated that "unwanted touching was still considered sexual abuse," Raul disagreed.
When asked about K.C.'s search for "see people have sex," Raul stated it was unclear what K.C. was really searching for, because she actually searched for "see people have xex" (i.e., not sex). Raul also claimed K.C. would never search for this, and Lidia "had to be making it up." When confronted with his text to Lidia claiming K.C.'s search was just "nature," Raul stated that "everyone has feelings about sex, and it was normal for [K.C.] to want to explore those thoughts." When the CSW disagreed and stated K.C. should be in therapy due to the molestation, Raul accused her of "trying to take mother's side in this."
When asked why he purchased an iPhone for K.C. after Lidia took K.C.'s tablet away, Raul stated it was so he could talk to K.C. In response to the CSW's concerns over the iPhone's ability to search the Internet, Raul claimed the phone "was locked and could only be used to make phone calls." When the CSW stated she had seen the phone, and that it had full Internet access, Raul blamed T-Mobile and agreed to block the Internet on K.C.'s devices.
On February 27, 2019, the CSW asked Raul about a Family and Children's Index (FCI) report from the Los Angeles Sheriff's Department accusing Raul of "rape by intoxication as well as sodomy." Raul stated the charges were dropped, and the complainant had invented the allegations "because she had been caught underage drinking and her parents had been upset."
On March 1, 2019, the CSW interviewed K.C. at school. K.C. stated that Rigo had lived in the house with Raul and her since at least before Christmas, and confirmed they all slept in the same bed. She confirmed Raul's description of how they slept, with Raul in the middle. She denied being afraid of Rigo. When asked if anyone had ever touched her genitals, K.C. stated her maternal uncle Brian had "rubbed [his middle part] on her middle part" but that "his middle part didn't go inside her . . . ." This occurred only once. K.C. admitted to searching for "see people have sex" because she wanted to see people have sex. When asked if she had ever watched videos "like this" before, "[K.C.] stated yes but could not tell [the] CSW when." When asked if she had ever seen anyone else watching those types of videos, she answered, "'My dad. He thinks I am sleeping at night and he is on Snapchat watching girls take their clothes off.'"
Regarding the incident where she saw the gun at Lidia's boyfriend's place, K.C. admitted knowing the gun was fake, that Lidia and her boyfriend had explained it, and that she had told Raul the gun was fake, but Raul directed her to lie to DCFS about it, telling her it was important that she lie. She did not want to lie, "but her father kept telling her she had to." She stated she did not lie about anything else. K.C. confirmed feeling safe with both Lidia and Raul. The CSW again called Raul, who denied Rigo was living with him, and denied watching pornography around or near K.C.
On March 4, 2019, Lidia told the CSW that she had kept K.C. over the weekend and was going to pick her up from school that day, because Raul was scaring her. Lidia said Raul told her that DCFS "had found out about a rape case he had" and was trying to tell her to lie to DCFS. According to the DCFS report, Lidia "asked what she was supposed to lie about because she did not know about the rape case and father told her to lie about everything." Lidia related that when she and Raul were together, he had "forced himself on her . . . ." Lidia thought Raul had been acting recklessly and had said that "he would stop at nothing to keep [K.C.] in his care." Lidia later told the CSW that although she had told Raul she would be taking K.C. home, he had gone to school to try to take her home. Raul again told Lidia "to lie so they could get the CSW to leave their lives and they could work things out for themselves."
On March 6, 2019, the CSW spoke with Rigo, who denied living with K.C. and Raul and stated that when he did sleep over, he slept on an air mattress on the floor. When asked where Raul's mother slept -- because she had previously been said to sleep on an air mattress on the floor -- Rigo stated he thought she slept in the bed with Raul and K.C.
That same day, K.C.'s doctor informed the CSW that there were no concerns regarding abuse or neglect noted in K.C.'s records. Also, Lidia told the CSW that Raul was still asking her to lie in court and state DCFS had fabricated all the information.
B. DCFS Takes Action
On March 6, 2019, DCFS applied for authorization to remove K.C. from Raul. The court denied the application citing, among other reasons: "[i]nadequate showing of no reasonable means to protect without removal" and "[f]acts as stated insufficient to support removal order." On March 7, 2019, DCFS submitted a detention report categorizing the family "as being 'High' for future risk." On March 8, 2019, DCFS filed a petition under Section 300(b)(1) and Section 300(d) regarding K.C., listing her as "not detained." The petition contained two counts brought under Section 300(b)(1) and one count brought under Section 300(d).
Count b-1 alleged: "The child [K.C.]'s mother Lydia [sic] R[] has a history of substance abuse including marijuana and alcohol which renders the mother incapable of providing the child with regular care and supervision. On prior occasions the mother was under the influence of alcohol while the child was in the mother's care and supervision. The child's father Raul C[] knew of the mother's substance abuse and failed to protect the child. The mother's substance abuse and the father's failure to protect the child endangers the child's physical health and safety, placing the child at risk of suffering serious physical harm, damage, danger and failure to protect."
Counts b-2 and d-1 identically alleged: "The child [K.C.]'s father Raul C[] placed the child in an endangering and detrimental situation in that on prior occasions the father caused the child to watch pornographic videos with the father. On prior occasions the father caused the child's paternal uncle Rigo S[] to sleep in the same bed with the child and the father. Such an endangering and detrimental situation established for the child by the father endangers the child's physical health and safety, placing the child at risk of suffering serious physical harm, damage, danger and sexual abuse."
On March 11, 2019, after both parents denied the allegations in the petition, the court found a prima facie case for detaining K.C. and released her to Lidia.
C. DCFS Continues Investigating
On April 16, 2019, a dependency investigator (DI) interviewed K.C. K.C. denied that anyone had touched her inappropriately. She admitted to sleeping in the same bed with her father when she lived with him (i.e., before the detention). After some prompting, K.C. confirmed that Raul "watches naked girls on the phone" which K.C. did not like. K.C. also stated Raul never showed these images to her, and that he thought she was asleep when he looked at the images, which he did only at night. Regarding Rigo, K.C. stated that he sometimes slept in the same bed as K.C. and Raul, and sometimes on the floor. When in the same bed, Raul slept between K.C. and Rigo. K.C. denied that Raul or Rigo ever touched her inappropriately. When asked if anyone had told her to lie, K.C. reported Raul had told her to lie to DCFS about the gun at the house of Lidia's boyfriend, but that she had told the truth to the CSW who interviewed her. K.C. stated she felt safe living with her mother and when asked if she also felt safe living with Raul, she responded "'yes, kinda with both.'"
On April 16, 2019, the DI interviewed Lidia. Lidia denied any drug or alcohol issues (while admitting to a previous DUI). Regarding K.C.'s previous statements that she had seen Lidia drunk, Lidia stated that K.C. had told her that this information came from Raul, and that Raul had stated K.C. needed to tell DCFS this information, or he would go to jail. Lidia further stated she had told K.C. no one was going to jail, and that K.C. needed to tell DCFS the truth.
Despite repeated efforts, the DI was unable to interview Raul before the adjudication hearing.
D. The Court Removes K.C. from Raul
On April 17, 2019, the court held an adjudication hearing. DCFS's reports were accepted into evidence; no witnesses testified. DCFS's counsel argued the court should sustain the petition because: (1) Raul did not think what Brian had done to K.C. was sexual abuse; (2) K.C. was uncomfortable sleeping in the same bed as Raul and Rigo; (3) Raul watched "girls take off their clothes on his phone" when he thought she was asleep, and the court could "infer reasonably that he's deriving a sexual pleasure [out] of it"; and (4) Raul told K.C. to lie to DCFS. Counsel described Raul's conduct as "predatory behavior and grooming a seven-year-old girl to continue being sexually abused . . . ." K.C.'s counsel agreed, adding that K.C. was endangered by Raul's inability to recognize sexual abuse and his minimization of the importance of K.C.'s acting out, such as searching for videos of people having sex. Lidia's counsel asked the court to dismiss the count against her because Lidia had voluntarily undergone drug tests at DCFS's request and had tested clean. Raul's counsel asked the court to dismiss all counts, arguing there was no evidence Raul ever abused K.C. or placed her at risk of sexual abuse, or that he ever intentionally showed pornographic videos to her.
The court sustained the petition only as to count b-2 (alleging that Raul caused K.C. to watch pornography with him, and caused Rigo to sleep in the same bed with K.C. and Raul, endangering K.C.'s health and safety, and placing her at risk of suffering serious physical harm, damage, danger, and sexual abuse). The court stated:
"I'm not going to sustain d-1. I don't think it rises to that level . . . . Nevertheless, this is a case of neglect considerably, but it could escalate if Father continues what I think is a casual attitude regarding sexual abuse awareness. It is his job to protect, and I'm not sure he's doing it; in fact, I'm finding that he's not.The court then stated it would "expand" on its reasons for sustaining the b-2 count and discussed the following factors:
"Both parents have to continue to appreciate the potential and risk which is what the courts are concerned about for sexual abuse. This is a child who's been abused, been exposed. This is a child who perhaps parents, mother could have taken another step forward, and she did acknowledge what she saw but maybe a little further; so I will sustain b-1 [sic], not d-1."
Upon a question from counsel, the judge immediately corrected himself to clarify he was sustaining b-2, not b-1.
- Lidia saw K.C. "placed between the two men" and the court believed K.C. "should have her own bed if she's seven years old."
- K.C. "was exposed to porn and was obviously curious at age seven. This is way too early for her to act on that curiosity and be allowed to act on that curiosity, and it is the parents' obligation to ensure she doesn't."
- The court had a "concern" about Raul's "prior history" (presumably the allegations of rape), but stated it could not "give [the prior history] a lot of weight . . . ."
- The parents had not "given their full attention to the seriousness of what could happen to this child."
"[T]aking into consideration the totality of the circumstances regarding sexual abuse circumstances," the court sustained the b-2 count. The court then continued the disposition hearing for eight days in order to receive a supplemental report addressing the FCI report accusing Raul of rape by intoxication and sodomy.
When counsel for DCFS stated he "object[ed] to [the] b-1 and d-1 [counts] being dismissed," the court responded that it was "just not sustaining it." We see no difference between dismissing a count and refusing to sustain it, and it is unclear if the court was attempting to draw a distinction. Because no party has argued to the contrary, we construe the court's statements as synonymous with dismissing the b-1 and d-1 counts.
On April 22, 2019, DCFS submitted a last minute information indicating CLETS (California Law Enforcement Telecommunications System) had no records on Raul. The information noted that "the FCI lists the criminal activity as 'Rape by force, Female 18 and over-SVB handle.'" Moreover, the report noted that "[t]he case detail information lists the crime classification as 'rape by intoxication 261(A)(3) PC and sodomy 286(A) PC.'" The cited penal code sections are not specific to children.
SVB presumably stands for Special Victims Bureau.
On April 25, 2019, the court removed K.C. from Raul and released her to Lidia. Raul appealed the same day. On May 8, 2019, DCFS appealed the dismissal of the count brought under Section 300(d).
DISCUSSION
"On appeal, the 'substantial evidence' test is the appropriate standard of review for both the jurisdictional and dispositional findings." (In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) Under a substantial evidence review, "'[w]e view the record in the light most favorable to the juvenile court's determinations, drawing all reasonable inferences from the evidence to support the juvenile 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. [Citation.]'" (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560, quoting In re Yolanda L. (2017) 7 Cal.App.5th 987, 992.) However, "[w]hile substantial evidence may consist of inferences, such inferences must rest on the evidence; inferences that are the result of speculation or conjecture cannot support a finding [of jurisdiction]." (In re Precious D. (2010) 189 Cal.App.4th 1251, 1259.)
A. Substantial Evidence Does Not Support the Court's Finding of Jurisdiction Under Section 300(b)(1) The court's sole basis for finding jurisdiction over K.C. was Section 300(b)(1), which provides in relevant part that a child may be a dependent of the court 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 . . . ." "A jurisdictional finding under section 300, subdivision (b)(1), requires DCFS to demonstrate the following three elements by a preponderance of the evidence: (1) neglectful conduct, failure, or inability by the parent; (2) causation; and (3) serious physical harm or illness or a substantial risk of serious physical harm or illness." (In re L.W. (2019) 32 Cal.App.5th 840, 848.) "The third element, however, effectively requires a showing that at the time of the jurisdictional hearing the child is at substantial risk of serious physical harm in the future (e.g., evidence showing a substantial risk that past physical harm will re[]cur)." (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1395, 1396.) "As appellate courts have repeatedly stressed, '"[s]ubdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness."' (In re Alysha S. (1996) 51 Cal.App.4th 393, 399 , quoting In re Rocco M. (1991) 1 Cal.App.4th 814, 823 ; accord, In re John M. (2013) 217 Cal.App.4th 410, 418 ; In re Noe F. (2013) 213 Cal.App.4th 358, 366 ; In re David H. (2008) 165 Cal.App.4th 1626, 1642 ; In re Janet T. (2001) 93 Cal.App.4th 377, 391 .) Nonetheless, we are repeatedly called on to review jurisdictional findings where, as here, one parent has behaved badly, undeniably causing family trauma, but presents no obvious threat to the children's physical safety." (In re Jesus M. (2015) 235 Cal.App.4th 104, 111-112.) "Dependency proceedings are designed not to prosecute a parent or 'for the reproof and improvement of erring parents,' but to protect children." (Id. at 113.)
In sustaining the b-2 count, the court cited three factors: (1) Lidia saw K.C. "placed between the two men" and the court believed K.C. "should have her own bed if she's seven years old"; (2) K.C. "was exposed to porn and was obviously curious at age seven [which was] way too early for her to act on that curiosity and be allowed to act on that curiosity, and it is the parents' obligation to ensure she doesn't"; and (3) the parents had not "given their full attention to the seriousness of what could happen to this child." The court also mentioned it had a "concern" about Raul's "prior history," but stated it could not "give it a lot of weight." The court, while expressing its concern, did not specify how these factors supported a finding that K.C. was at "substantial risk of serious physical harm."
DCFS argues Raul's behavior "placed [K.C.] at risk of physical harm by making her vulnerable to sexual abuse," especially because K.C. "had been molested and was showing signs of sexualized behavior evidenced by her searching the internet for pornography." It further argues that Raul's "cavalier attitude an[d] inappropriate boundaries placed [K.C.] at future risk." Combined with the fact that Raul told K.C. to lie to DCFS, DCFS argues that substantial evidence supports both the court's findings that K.C. "was at current risk of harm" and that "the situation could escalate . . . ."
DCFS's conclusory statements fail to persuade us. While we understand the court's concern regarding Raul's and K.C.'s sleeping arrangements, as well as Raul's seeming minimization of K.C.'s exposure to and search for pornography, there is no evidence in the record that Raul's conduct or attitude made K.C. "vulnerable to sexual abuse" or placed her at substantial "future risk" of physical harm as DCFS contends. At the adjudication hearing, no witnesses testified, and the documents admitted into evidence contained no psychological evaluations or opinions regarding how Raul's behavior was affecting K.C. No expert testimony was given to establish a link between Raul's conduct and a substantial risk of being sexually abused. In fact, the only medical evaluation of K.C. in evidence was her doctor's statement that "there were no concerns regarding abuse or neglect noted in K.C.'s records." "'"While substantial evidence may consist of inferences, such inferences must be 'a product of logic and reason' and 'must rest on the evidence' [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations.]."'" (In re White (2018) 21 Cal.App.5th 18, 30, review granted May 23, 2018, S248125.) "Certainly, it is possible to identify many possible harms that could come to pass. But without more evidence than was presented in this case, such harms are merely speculative." (In re David M. (2005) 134 Cal.App.4th 822, 830, italics omitted.) "Perceptions of risk, rather than actual evidence of risk, do not suffice as substantial evidence." (In re James R. (2009) 176 Cal.App.4th 129, 137, citing Nahid H. v. Superior Court (1997) 53 Cal.App.4th 1051, 1070.)
Here, K.C. denied that Raul had ever touched her inappropriately, and on appeal, DCFS concedes "[i]t is further undisputed there is no evidence that father or anyone other than the maternal uncle [12-year-old Brian] ever molested the child." Nor did DCFS present any evidence that K.C. was in imminent danger of being sexually abused by anyone. Thus, DCFS's argument that Raul's behavior "placed [K.C.] at risk of physical harm by making her vulnerable to sexual abuse," is, at best, a speculative perception of risk, and insufficient to support the court's finding of jurisdiction.
B. Substantial Evidence Supports the Court's Dismissal of the Section 300(d) Count
DCFS argues the court erred in refusing to sustain the count brought under Section 300(d) because: (1) Raul's behavior toward K.C. qualified as "sexual abuse" as defined by the section; and (2) Raul's "prior sexual abuse of mother and the allegations that he raped and sodomized an intoxicated child, together with his cavalier attitude about [K.C.]'s prior molestation and the lack of boundaries in father's home, all warranted dependency jurisdiction under section 300, subdivision (d)." We disagree.
1. Raul Did Not Sexually Abuse K.C.
DCFS agrees it is "undisputed there is no evidence that father or anyone other than the maternal uncle ever molested the child." Nevertheless, DCFS argues the court should have sustained the Section 300(d) count because Raul's "behavior caused [K.C.] to share a bed with two grown men and oversee pornography, which falls within the definition of Penal Code, section 647.6 - conduct that a normal person would be irritated by. . . , warranting dependency jurisdiction under section 300, subdivision (d)."
In fact, DCFS noted that during the investigation into the alleged molestation by Uncle Brian -- which was closed as inconclusive -- "parents were protective" of K.C. Despite DCFS's conclusion that it was "difficult to determine what actually happened during the [alleged] incident [of molestation]," K.C.'s parents kept her away from Brian.
Section 300(d) permits a court to find a minor to be 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 . . . ." In relevant part, Penal Code section 11165.1 defines "'sexual abuse'" as "sexual assault or sexual exploitation as defined by the following: [¶] . . . conduct in violation of one or more of the following sections: . . . Section 647.6 (child molestation)." Finally, Penal Code section 647.6, subdivision (a)(1), provides: "Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment."
Our Supreme Court has made clear that "conduct that a normal person would be irritated by" is insufficient for liability under Penal Code section 647.6 -- there must also be an abnormal sexual motivation on the part of the offender. (People v. Carskaddon (1957) 49 Cal.2d 423, 426 ["The words 'annoy' and 'molest' are synonymously used [citation]; they generally refer to conduct designed 'to disturb or irritate, esp. by continued or repeated acts' or 'to offend' [citation]; and as used in this statute, they ordinarily relate to 'offenses against children, [with] a connotation of abnormal sexual motivation on the part of the offender'"], quoting People v. Pallares (1952) 112 Cal.App.2d Supp. 895, 901; see also People v. Lopez (1998)19 Cal.4th 282, 289 [Penal Code section 647.6, subdivision (a), requires "conduct '"motivated by an unnatural or abnormal sexual interest"' in the victim"].) Nothing in the record suggests Raul had any sort of "abnormal sexual motivation" in having K.C. sleep in the same bed with him, alone or with Rigo. Moreover, K.C. consistently stated that her father watched pornography on his phone only when "[h]e thinks I am sleeping at night"; there is no evidence to the contrary. Nothing supports a conclusion that Raul's nighttime viewing habits were motivated by an abnormal sexual interest in K.C. Substantial evidence therefore supports the court's finding that no such abnormal sexual motivation existed, and thus substantial evidence supports the court's finding that the acts did not "rise[]" to the level of sexual assault.
2. The Accusations by Lidia and an Unknown Person Are Irrelevant
DCFS also argues that "Section 355.1, subdivision (d), is illustrative. The statute provides that a prior finding that a parent has committed sexual assault is prima facie evidence that the child is at substantial risk of harm given the inherent risk posed by a sexual predator." DCFS admits that "section 355.1 does not apply to the matter at bar because there was no prior finding of sexual abuse in an earlier court proceeding," but argues a legislative intent that "a parent's sexual abuse of someone else supports the assumption of dependent jurisdiction over a child." Therefore, DCFS argues that "father's prior sexual abuse of mother and the allegations that he raped and sodomized an intoxicated child, together with his cavalier attitude about [K.C.]'s prior molestation and the lack of boundaries in father's home, all warranted dependency jurisdiction under section 300, subdivision (d)." We disagree.
First, the record does not support DCFS's allegation that Raul was accused of raping a child -- the sheriff's notes regarding the incident (which nothing in the record shows was ever prosecuted) say the alleged victim was "Female 18 and over . . . ." Regardless, the question before us is not whether a finding of jurisdiction under Section 300(d) would have been supported by Lidia's accusation that Raul forced himself on her, or the fact that Raul was accused of raping someone, or anything else. The question is whether sufficient evidence supports the court's finding that there was no such jurisdiction. Given the lack of evidence that Raul had any "abnormal sexual motivation" toward K.C., substantial evidence supports the court's refusal to sustain the petition under Section 300(d).
C. The Dispositional Order Must Be Reversed
Because we find the court erred in assuming jurisdiction over K.C. under Section 300(b)(1) and did not err in refusing jurisdiction under Section 300(d), the dispositional order removing K.C. from Raul's custody must be reversed. (See, e.g., In re Andrew S. (2016) 2 Cal.App.5th 536, 544 ["Because we reverse the jurisdiction finding as to [father], the court's findings cannot support a disposition order denying him custody of the [child]"].)
DISPOSITION
We reverse the portion of the court's jurisdictional order finding K.C. to be a dependent of the court under Section 300(b)(1) and its dispositional order removing her from Raul's custody. In all other respects, the court's orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.