Opinion
E065632
02-08-2017
In re K.H., a Person Coming Under the Juvenile Court Law. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. J.H., Defendant and Appellant.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INJ500322) OPINION APPEAL from the Superior Court of Riverside County. Susanne S. Cho, Judge. Affirmed. Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and Appellant. Gregory P. Priamos, County Counsel, James E. Brown, Guy B. Pittman and Julie Koons Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
J.H. (Father) appeals after a jurisdiction/disposition hearing wherein the juvenile court found allegations in the Welfare and Institutions Code section 300 petition filed against him for K.H. (Minor) true, and granting physical custody to K.S. (Mother). Father contends on appeal that insufficient evidence was presented to support the court's order sustaining the section 300 petition and the removal order was not supported by clear and convincing evidence.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. DETENTION
Minor was born in November 2005 and was nine years old at the time the section 300 petition was filed against Father on October 16, 2015, by the Riverside County Department of Public Social Services (the Department). The original section 300 petition included two allegations under section 300, subdivision (b) as follows: "(b-1) [Minor] is at substantial risk of being sexually abused as evidenced by law enforcement discovering several videos made by [Father], of child pornography including images of [Minor]'s stepsibling as a Minor"; and "(b-2) [Father] has a significant history of being investigated by [the Department] for allegations of sexual abuse from 1998 through 2002. In addition, in 2001, a referral for sexual abuse was substantiated as to [Minor]'s stepsibling and in 2013, a sexual abuse referral for [Minor] was generated." There was additionally an allegation under section 300, subdivision (d) that Minor was at substantial risk of being sexually abused as evidenced by law enforcement discovering several videos made by Father of child pornography depicting images of Minor's stepsibling as a child.
On October 16, 2015, an amended section 300 petition was filed. The b-1 allegation was amended as follows: "[Minor] is at substantial risk of being sexually abused as evidenced by the SAFE Task Force discovering child pornography in the home of [Father]." The section 300, subdivision (d) allegation was amended to provide that Minor was at substantial risk of being sexually abused as evidenced by the SAFE Task Force finding child pornography in the home. The b-2 allegation remained the same.
According to the detention report, Mother and Father were divorced and shared joint legal custody of Minor. Minor lived with Father. On August 27, 2015, the Department received a referral for sexual abuse and general neglect of Minor by Father from the Riverside County Sexual Assault Felony Enforcement (SAFE) Task Force. They had served a search warrant at Father's home for suspicion of child pornography. Also residing in the home was Minor, Father's girlfriend, and the girlfriend's 16-year-old daughter, J. Child pornography was located on Father's computer. Father was not arrested and the investigation was ongoing. Minor remained in Father's home.
On September 2, 2015, Minor was interviewed by the reporting social worker at her school. Minor reported she and Father were "best friends" and that he needed her. Father's girlfriend was like a second mother to her. Mother had moved to Mississippi one year prior and it made Minor sad. Minor also reported she thought Father would be sad without her. Minor felt she was caught in the middle of Father and Mother. Father had told Minor he would die without her.
The social worker also spoke with J. J. had been living with Father, her mother, and Minor for three months. J. reported that Mother's daughter, J.Y. had been living with them but had just moved out; she was 18 years old. J. described Father as a "big, extravagant guy." Father had not touched her inappropriately. Minor had not disclosed to J. that Father had touched her inappropriately and they were very close. J. also relayed that Minor would not leave Father's side and had previously been to a counselor for separation anxiety.
A SAFE Task Force member confirmed that a warrant was served on Father's home and that Father was a suspect in an ongoing investigation into child pornography. The matter came to the attention of the task force when there was transmission of child pornography on the Internet and it was traced back to Father's computer. The report included parenthetical information as to the child pornography in Father's home as follows: "Additional information is withheld due to the on-going criminal investigation."
The social worker also met with Father. Father expressed his innocence and an explanation for the child pornography that was found on his computer. Father explained he had problems with Mother and that she wanted custody of Minor. Father claimed the images sent from his computer was sent by someone else, possibly Mother and J.Y.; he let everyone use his computer. Father wanted the social worker to tell Minor that he was innocent.
Father first denied any prior contact with the Department then admitted that his ex-wife, G.H., had made false allegations against him regarding her daughter, T.H. The charges against him were dropped.
The social worker also spoke with Mother. Mother wanted Minor to live with her. Mother was aware of Father possessing male pornography but was unaware of him ever possessing child pornography. Mother did not take Minor and J.Y. with her to Mississippi because they did not want to leave California.
On September 15, 2015, and September 29, 2015, Riverside County Probation Officer Justin Mellinger, who served on the SAFE Task Force, conveyed further information on the child pornography investigation, but it could not be disclosed because of the ongoing criminal investigation.
Minor and J. were interviewed again on October 3, 2015. Minor was planning to visit Mother in the next few weeks but was concerned about Father while she was away. J. reported that two weeks prior, Father and his girlfriend (her mother) had been arguing in front of J. Father put a gun to his head and threatened to kill himself. Minor was in the house but did not witness Father with the gun. Minor had told J. she wanted to live with Mother but was worried about Father.
On October 16, 2015, it was determined Minor was at a substantial risk of sexual abuse and she was detained by the Department. Minor was already on her way to Mother's home in Mississippi and would remain in her custody. Mother expressed concern for her safety as she believed Father would harm her if she retained custody of Minor. Mother also told the social worker Father had told Minor he would kill himself without her. The social worker spoke with Minor. She was happy staying with Mother. She wanted to remain with her through Christmas. Minor spoke again with the social worker on October 20, 2015. She expressed concern about Father; she did not want him to die.
Mother and Father were investigated in March 2013 due to Minor wetting herself at school. She was seen by a doctor and no further action was taken.
There were additional allegations against Father in 2002 regarding his daughter T.H., who was six years old at the time. She reported Father put his hands inside her pants. Also, when they were lying on the bed together he would put his hand on his private part and make the bed shake. T.H.'s mother, G.H., immediately filed for modification of child custody to prevent visits with Father and the case was closed. There were other reports in 1999 and 2001 of Father inappropriately touching family members but there were no substantiated allegations.
In 1998, Father's stepdaughter, R.H. reported she was taking a shower when Father entered the bathroom, but claimed it was a mistake. Father had offered her $60 to look at his private parts. He claimed he was just joking. On another occasion, she was just wearing a towel. Father came up to her and said "Let me see your boobs! Let me see your boobs!" R.H. was very uncomfortable. The sexual abuse allegation against Father was substantiated.
The detention hearing was scheduled for October 22, 2015. Father was named the presumed father. The matter was set for a contested hearing. The contested hearing was conducted on October 27, 2015. Father objected to the allegations in the petition, accusing Mother of having someone put items on his computer, and insisted the prior accusations of sexual abuse were untrue. Father requested that Minor not be detained, and if she was detained, that he be granted visitation. The juvenile court found a prima facie case and ordered Minor detained from Father.
B. JURISDICTIONAL/DISPOSITIONAL REPORT
A jurisdictional/dispositional report was filed on November 9, 2015. It was recommended Minor remain in Mother's custody. It recommended the court find the allegations in the section 300 petition true. Further, the Department requested that a finding as to Father under section 361, subdivision (c)(1) be made. It recommended the juvenile court order physical custody to Mother and joint legal custody to Mother and Father pursuant to section 361.2, subdivision (b)(1). It was further recommended that the dependency proceeding be terminated.
Further information was provided regarding the sexual abuse allegations regarding T.H. in 2002. T.H. stated during the investigation that defendant put his hand under her "panties" and then quickly removed it. The matter was resolved by giving G.H. full physical custody of T.H.
The information regarding the 1998 incident did not change. There was additional information regarding an incident involving Father's niece in 1999. According to a police report generated by the Cathedral City Police Department dated December 22, 1999, the six-year-old niece disclosed Father had touched her private parts. Father had the niece pull down her underwear to her knees and then fondled her vagina. No charges were filed. The police report was attached as an exhibit to the report.
The social worker spoke with Minor on November 4, 2015. Minor had started a new school in Mississippi and liked it better than her old school. She had made some new friends. She liked living with Mother and her stepfather and felt safe. Minor missed Father and her dog. Minor liked talking to Father over the telephone. Minor did not want to return to living with Father because "He made me feel like I was in a cage, like I couldn't move, I was stuck. I felt little. I don't feel like I was meant to be there." Father oftentimes cried in front of her, would yell at her, and he would say bad things about Mother.
Mother stated she was "grossed out" that she had been with Father because of what he had done. Minor had not reported any inappropriate sexual behavior by Father against her to Mother.
On November 5, 2015, the social worker spoke with Officer Mellinger from the SAFE Task Force. Father remained under investigation for possible possession of child pornography. Fifteen electronic devices that belonged to Father had been seized from his home and were being examined.
On November 5, 2015, the social worker spoke with J.Y. J.Y. reported she felt it was "unhealthy" for Minor to live with Father and that he was "toxic." She described Father as "sneaky, manipulative and narcissistic." Father would make himself cry so people would take care of him. J.Y. believed he may suffer from mental health problems. J.Y. felt Father always tried to control Minor. Father had never touched J.Y. inappropriately.
The contested jurisdiction/dispositional hearing was continued several times to accommodate witnesses.
An addendum report was filed on January 7, 2016. The recommendation remained the same, with physical custody of Minor being awarded to Mother; family law orders being issued granting legal custody to both Mother and Father; and that the dependency proceeding be terminated.
The social worker spoke with Mother on November 16, 2015. Minor expressed that she did not want to visit with Father at Thanksgiving. Minor became anxious when thinking about returning to live with Father. Minor and Father had an in-person visit on November 27, 2015. The social worker spoke with Minor prior to the visit. Minor liked living with Mother. She liked her stepfather. She was seeing a therapist. At the visit, Minor hugged Father. She asked about her dog and Father left to get the dog. While she was gone, Minor told the social worker she wanted to live with Father. Minor insisted Mother told her to say that things were great, but that she really wanted to live with Father. Minor took the dog for a walk and Father spoke with the social worker. Father believed Minor wanted to live with him and Mother was telling Minor what to say. Father believed the police were not going to find child pornography on any of his electronic devices. It was clear there was a bond between Father and Minor.
A visit between Father and Minor also occurred in Mississippi. The social worker spoke with Minor in Mother's home and she expressed Minor was doing well in school and had friends. Minor expressed no concerns about living with Mother. The visit between Minor and Father went well while the social worker was present. The remainder of the visit was supervised by Mother's adult son.
On December 23, 2015, Mother called the social worker to advise her that Minor had not been the same since her visit with Father in Mississippi. According to Mother, her adult son did not properly supervise the visit; Father was crying throughout the visit and told Minor she needed to return to his house because he needed her. Mother's adult son told the social worker he supervised the entire visit; he confirmed that Father cried, but only when the visit ended. Minor also cried when the visit ended.
The social worker spoke with Minor's counselor, who reported Minor was doing well in Mother's care. She needed a tutor for school. Minor did not speak negatively about either Mother or Father to the counselor.
Officer Mellinger reported he was still investigating the child pornography allegations against Father. Officer Mellinger requested any evidence regarding the investigation be omitted from the Department's reports in order to preserve the investigation.
On February 8, 2016, the matter was called for a hearing. The section 300 petition was amended. The b-2 allegation was amended to provide as follows: "[Father] has a significant history of being investigated by [the Department] for allegations of sexual abuse from 1998 through 2002. In addition, a referral for sexual abuse was substantiated as to [Minor]'s stepsibling, [R.H.] and in 2013, a sexual abuse referral for [Minor] was generated."
Several documents were provided to the juvenile court of which it took judicial notice. The dissolution paperwork for the divorce of Mother and Father was included. They agreed to joint legal custody of Minor. Father's residence was the primary residence. The stipulation between Father and G.H. for custody and visitation for T.H. was included. The stipulation included language that Father could have visitation as long as he did not act inappropriately with T.H. The search warrant for Father's residence was included. The allegation to support the search warrant was that the premises were used to commit a felony and involved sexual exploitation of a child. The affiant's declaration was prepared by Officer Mellinger. He described the video that was sent by email from an account connected to Father. It involved nude images of a female child between seven and 10 years. She was committing digital penetration on herself. The video also depicted an adult male ejaculating on her genital area. The search of the residence was intended to determine if other images were in Father's possession. Numerous electronic items were seized during the search.
In addition, the juvenile court took judicial notice of the delivered services logs involving the prior case with T.H. In those logs, Father admitted to the social worker he made inappropriate comments to R.H. but never touched her. Further, a report by Dr. Leitman from the 2002 case involving T.H. was provided to the juvenile court. Dr. Leitman spoke with Father, G.H. and R.H. at that time. Father admitted to Dr. Leitman that he said inappropriate things to R.H. but denied that he ever touched her. Further, in Dr. Leitman's report, R.H. admitted Father never touched her but came into the bathroom when she was showering; he exposed himself to her and would take her shopping if she looked at him; he would not allow her to go to her friend's house because she refused to kiss him on the mouth; and he wanted her to tickle his "butt." Father denied any impropriety with T.H. He said T.H. was his best friend. Dr. Leitman recommended Father receive therapy for boundaries with the children, that joint legal custody be awarded, and that G.H. have physical custody.
Jeanette Austin, the social worker who wrote the detention report, testified. She spoke with Mother, who told her that she had to leave Minor when she moved to Mississippi because Father had "lawyered up" and she could not afford to fight for custody. Austin was asked why there was a month-long delay in detaining Minor after the search warrant was executed. Austin explained it was not until after discussions with Father's girlfriend and J.—that Father had held a gun to his head—that the Department determined detention was necessary. Also, due to further information from law enforcement regarding the child pornography, which she could not disclose due to the ongoing investigation.
Counsel for Father objected to the information not being disclosed as it violated Father's due process rights. An in camera hearing was conducted. Additional items had been found in the house during the search warrant. When the proceedings resumed in open court, the juvenile court ruled that Austin did not have to disclose specifics regarding what other items were found in the house because of the ongoing investigation. The juvenile court stated there was evidence disclosed already that there was child pornography in the house. The information that Father had child pornography in his home alone met the preponderance of the evidence standard.
The juvenile court later stated, "I would note . . . that in going forward on this jurisdiction hearing, I'm only really relying on the fact that the Department is presenting evidence alleging that they found child pornography based upon a search warrant executed in the home of your client. Without more specific information about what that alleged child pornography is."
J.Y. was called to testify. J.Y. thought Minor living with Father was unhealthy. She also acknowledged she had called him sneaky, manipulative and narcissistic. J.Y. felt Father manipulated J.Y. to keep her living with him. She was afraid of him when they got into arguments. Father bribed J.Y. to go on vacation with him.. J.Y. did not move with Mother because it was her senior year in high school. Father had manipulated Minor to stay with him rather than move with Mother. J.Y. was not being influenced by Mother. She did not have access to Father's computer. J.Y. admitted Father never touched her inappropriately. J.Y. heard Father say to Minor that he would die without her. Minor slept in Father's bed all of the time. No one had the passwords to Father's email accounts.
Mother was called to testify. Mother never put any child pornography on Father's computer. Mother had been contacted by a man who claimed he met Father on Craigslist under a men meeting men site; he knew information about her and J.Y. Mother spoke with T.H. about one week after the search warrant was executed at Father's house; T.H. told Mother that Father had molested her and he frequently masturbated in his home. Mother had discussed with Father that it was not appropriate for Minor to sleep in his bed.
Father testified on his own behalf. Father felt that Dr. Leitman was inappropriate while he was evaluating the family. Father never admitted to Dr. Leitman that he acted inappropriately with R.H. He denied any sexual abuse of either R.H. or T.H. He never touched the niece. He blamed all of the accusations by R.H., T.H. and the niece on G.H. Many people, including J.Y., had access to his computer. Father had told Mother about the accusations of abuse by R.H., T.H. and the niece when they first met.
Father denied he created the email account from which the video was uploaded from his house, which depicted an eight-year-old girl showing her genitals and a man ejaculating on her. He did not put any child pornography on his computer. Father claimed he and Minor were best friends. Father denied he ever exposed himself to R.H. Father believed the child pornography was planted on his computer so that Mother could get custody of Minor.
Social Worker Edward Araiza prepared the jurisdiction/disposition report and the addendum to the report. Araiza explained there was substantial risk of Minor being exposed to child pornography if she stayed in the home based on the investigation by law enforcement. She was at risk of being exposed to inappropriate sexual behavior and possible sexual abuse. The investigation caused him to be concerned about Minor. Araiza also considered the prior cases involving R.H., T.H. and the niece in determining Minor was at risk in Father's home. Araiza considered there was child pornography in the home and that Minor could be exposed to it accidently. He admitted the past allegations were not enough on their own. The fact the SAFE Task Force found child pornography on Father's computer was also a factor. It was Araiza's opinion that Mother should have physical custody of Minor for Minor's well-being and safety.
At the end of the hearing, Father's counsel argued the evidence did not support the b-2 allegation. The substantiated allegation for R.H. was 14 years old. Also, as to the b- 1 allegation, Father had denied he uploaded the image. Finally, the d-1 allegation was not supported because there was no evidence that Father failed to protect Minor from sexual abuse.
Minor's counsel was very concerned with the behavior that Father exhibited in front of Minor. However, Minor's counsel was concerned about terminating the dependency and cutting Minor off from Father. She needed to be in counseling. Continuing the dependency would assure she received counseling.
The Department's counsel argued there was a historical pattern of inappropriate boundaries with children. The Department relied on the history, the child pornography and Father's claim he had done nothing wrong. Terminating the dependency and issuing family law orders would provide permanency to Minor. Father could petition to change the orders if in the future he was able to get help and make changes.
The juvenile court first noted it only needed to find the allegations true by a preponderance of the evidence. The juvenile court found Father's claim that the child pornography and email were all planted on his computer was not true. The juvenile court found b-1 to be true "because there was child pornography found in the home, and there was nothing done by father to prevent [Minor] from even accidently seeing child pornography on his computer." This constituted a failure to protect. The court found the b-2 allegation was true because of the substantiated referral for R.H. and investigations by the Department and the family law court. The juvenile court found the d-1 allegation not true because there was not substantial evidence there had been sexual abuse, or that Minor was at a substantial risk of sexual abuse. Father engaged in inappropriate sexual behavior but not sexual abuse.
The juvenile court turned to the disposition. The juvenile court first noted that Minor made very similar comments to those made by the other children in the house about Father's behavior. "The codependency comments of a child this age is very alarming to this court. The emotional harm coming from this kind of a relationship, I think, is very concerning." The juvenile court also looked to statements made by Father to Dr. Leitman about T.H. being his best friend and admitting making inappropriate comments to R.H.
The juvenile court noted the risk in the case was that Father did not recognize the boundaries between a father and a child and had never addressed the issues. The comments Father made to Minor were "highly detrimental to her well-being." The juvenile court felt it was best to terminate the dependency because it was best for Minor to have permanency. Further, the matter could be addressed at a later time in family court.
At the conclusion of the hearing, the juvenile court found there was clear and convincing evidence of the circumstances under section 361, subdivision (c)(1) for Father. Physical custody of Minor was removed from Father; sole physical custody was awarded to Mother. Joint legal custody was awarded to Mother and Father. Father was granted visitation. Upon the filing of the family law order, the dependency was terminated.
A custody order was signed by the juvenile court on February 19, 2016. It awarded sole physical custody to Mother; joint legal custody to Mother and Father. Jurisdiction was terminated; visitation was ordered.
Father filed a notice of appeal stating the order appealed from was "2/16/2016—Court found the allegations true, removed custody and grant sole physical custody to mother."
DISCUSSION
Father contends the evidence was insufficient to support jurisdiction pursuant to section 300, subdivision (b). He further argues the order removing Minor from his custody was not supported by clear and convincing evidence.
Although not raised by the respondent on appeal, we conclude these issues are not moot based on the termination of dependency in this case. "Arguably termination of the court's jurisdiction renders the appeal moot." (In re J.K. (2009) 174 Cal.App.4th 1426, 1431.) However, since the jurisdictional findings have an adverse impact on Father's custody rights, we conclude the challenge is not moot. (Id. at p. 1432.)
A. STANDARD OF REVIEW
"The standard of proof at the jurisdictional stage of the proceeding is a preponderance of the evidence." (In re P.A. (2006) 144 Cal.App.4th 1339, 1344.) "On appeal, in reviewing a challenge to the sufficiency of the dependency court's jurisdictional findings, our power begins and ends with a determination as to whether substantial evidence exists, contradicted or uncontradicted, supporting the dependency court's determinations. We review the evidence in the light most favorable to the dependency court's findings and draw all reasonable inferences in support of those findings." (In re Noe F. (2013) 213 Cal.App.4th 358, 366.)
At the dispositional phase of dependency proceedings, the juvenile dependency court must find clear and convincing evidence to remove a child from his or her parents. (See § 361, subd. (c)(1); In re Henry V. (2004) 119 Cal.App.4th 522, 528.) "On appeal from a dispositional order removing a child from her parent, we apply the substantial evidence standard of review, keeping in mind that the trial court was required to make its order based on the higher standard of clear and convincing evidence." (In re Noe F., supra, 213 Cal.App.4th at p. 367.)
We must uphold the court's jurisdictional and dispositional 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.'" (In re J.N. (2010) 181 Cal.App.4th 1010, 1022.)
B. JURISDICTIONAL FINDINGS
Section 300, subdivision (b), provides that a child is within the jurisdiction of the juvenile 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) requires '(1) neglectful conduct by the parent in one of the specified forms; (2) causation; and (3) "serious physical harm or illness" to the minor, or a "substantial risk" of such harm or illness." (In re Noe F., supra, 213 Cal.App.4th at p. 366.)
Section 300, subdivision (b) authorizes the court to exercise jurisdiction if a child is at substantial risk of harm, and does not prohibit jurisdiction simply because the harm has not yet materialized. (In re Leticia S. (2001) 92 Cal.App.4th 378, 383, fn. 3.) Jurisdiction under subdivision (b) requires proof of a current risk to the child. (In re Destiny S. (2012) 210 Cal.App.4th 999, 1004.)
The record supports the juvenile court's finding of jurisdiction over Minor. Father was the subject of a search warrant by the SAFE Task Force due to a finding that he had uploaded a sexually explicit video involving a child. Father did not dispute the images on the video, which were extremely graphic. Further, the juvenile court discounted Father's claim that someone else planted the child pornography in his home, and concluded child pornography was found in the home. Minor was at a substantial risk of being exposed to child pornography in the home. This reasonably also could be considered to result in the substantial risk of sexual abuse to Minor.
Father argues on appeal that since the juvenile court found the allegation under section 300, subdivision (d) not true, that it could not find the allegation that Minor was at substantial risk of being sexually abused true under section 300, subdivision (b). In making its ruling on the section 300, subdivision (d) allegation, which was identical to the b-1 allegation, the juvenile court, after reading the allegation, stated, "I don't think given the information I have before me, although there is obviously a risk that [Minor] will be exposed and could be sexually abused, I really can't say that there is a substantial risk that she will be sexually abused. So I'm not going to find d-1 true, because the entire 15, 16 years of history shows his inappropriate sexual behavior or deviant behavior or exposure, but there is no actual sexual abuse in terms of any touching or anything that the father did. So I don't think it rises to the level of committing sexual abuse."
It appears here the juvenile court believed it must find that actual sexual abuse had to occur in order to find the section 300, subdivision (d) offense true. However "a child comes within subdivisions (b) and (d), if he or she has been harmed or abused or is at risk of being harmed or abused." (In re Carlos T. (2009) 174 Cal.App.4th 795, 803.) Despite this comment regarding the d-1 allegation, the record does not unequivocally support that the juvenile court did not make the necessary finding for the b-1 allegation.
Moreover, to the extent the juvenile court improperly concluded that the b-1 allegation supported jurisdiction, the finding of the b-2 allegation supported jurisdiction. "As long as there is one unassailable jurisdictional finding, it is immaterial that another might be inappropriate." (In re Ashley B. (2011) 202 Cal.App.4th 968, 979.)
Here, the first allegation of abuse came from R.H. and was substantiated in 1998. Father asked to her to look at his private parts and he wanted to look at her breasts. Father's niece reported in 1999 that Father had touched her private parts; he had fondled her vagina. A police report was generated regarding the incident, although charges were not filed. T.H. reported that in 2002, Father put his hands under her panties. Although the accusation was not substantiated, a stipulation in his divorce from G.H. specifically required that Father act appropriately and that any inappropriate behavior was to be reported to Dr. Leitman. This showed by a preponderance of the evidence that Father engaged in sexually inappropriate behaviors.
Additionally, child pornography was found in Father's home while Minor was living with him. This showed his interest in young girls continued until the time Minor was detained. Here, J.Y. reported she felt that Minor living with Father was "unhealthy." Minor reported feeling like she was living in a cage and that she was not meant to live with Father. Father would cry in front of her and say he was going to kill himself.
"The court may consider past events in deciding whether a child presently needs the court's protection. [Citation.] A parent's '"[p]ast conduct may be probative of current conditions" if there is reason to believe that the conduct will continue.'" (In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216.) The evidence established that this type of behavior by Father would continue and would present a substantial risk of harm to Minor.
C. DISPOSITION FINDINGS
"Under section 361, subdivision (c)(1) children may not be removed from their home 'unless the juvenile court finds clear and convincing evidence' of a substantial danger to the children's physical health, safety, protection, or physical or emotional well-being 'and there are no reasonable means' for protecting the children other than removal from their home. The statute 'is clear and specific: Even though children may be dependents of the juvenile court they shall not be removed from the home in which they are residing at the time of the petition unless there is clear and convincing evidence of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no "reasonable means" by which the child can be protected without removal.'" (In re Ashly F. (2014) 225 Cal.App.4th 803, 809; see also In re Henry V, supra, 119 Cal.App.4th at p. 528.) "This is a heightened standard of proof from the required preponderance of evidence standard for taking jurisdiction over a child." (In re Hailey T. (2012) 212 Cal.App.4th 139, 146.)
"A removal order is proper if it is based on proof of parental inability to provide proper care for the Minor and proof of a potential detriment to the Minor if he or she remains with the parent. [Citation.] 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." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, disapproved on other grounds in Renee J. v. Superior Court (2001) 26 Cal.4th 735.)
Substantial evidence supported removal of Minor from Father's custody. Father was under investigation for suspicion of child pornography. Father repeatedly blamed others for his problems. He insisted that G.H. coerced R.H. and T.H. to accuse him of sexual abuse. With R.H., he admitted being inappropriate, but claimed he was only joking. Father had been exhibiting these inappropriate behaviors for years and failed to acknowledge he ever was inappropriate with the children. Without any insight into his problems, Father was doing nothing to remedy his issues. The juvenile court was concerned with Minor's well-being based on comments made by Father that he would die without her, and that she was his best friend. Removal was necessary as Father refused to have any boundaries between himself and Minor.
Moreover, Father had held a gun to his head and threatened to kill himself in front of his girlfriend and J. Minor did not witness the event, but was in the house. This put Minor's safety at substantial risk.
Finally, the juvenile court properly considered that Mother lived in another state and that placement with Mother was necessary to protect Minor. Moreover, as recognized by the juvenile court, if Father addressed his issues, he could seek to modify the placement in family court. Substantial evidence supported the disposition in this case.
DISPOSITION
The juvenile court orders are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.