Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ORIGINAL PROCEEDING. Petition for extraordinary writ. (Cal. Rules of Court, rule 8.452.), Los Angeles County Super. Ct. No. CK42669, Stanley Genser, Commissioner. Petition denied.
Konrad S. Lee for Petitioner.
No appearance for Respondent.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Judy A. Luby, Deputy County Counsel, for Real Party in Interest Department of Children and Family Services.
RUBIN, J.
INTRODUCTION
Petitioner S.C. was the legal guardian of T.P., born October 1994. After a lengthy jurisdiction hearing with much conflicting evidence, the juvenile court found T.P. was a child described by section 300, subdivision (b), of the Welfare and Institutions Code and terminated the guardianship. The court’s ruling was based upon its finding that petitioner had (1) failed adequately to supervise T.P., and (2) allowed an unrelated foster child with an interest in pornography unlimited access to a home computer. Petitioner challenges the ruling under section 300, subdivision (b), claiming there is no substantial evidence to support it. We disagree and deny the petition.
All further statutory references are to the Welfare and Institutions Code. We refer to the principal code section as 300(b).
PROCEDURAL BACKGROUND AND FACTS
A.
Petitioner and Los Angeles County Department of Children and Family Services (DCFS) set out the complete history of the juvenile court proceedings, which does not require repetition except when necessary to address the specific claims for extraordinary relief.
T.P., now 13 years old, was removed from his mother’s care in 2001 due to her drug abuse. He was placed in petitioner’s home in 2005 and, in July 2006, petitioner became T.P.’s legal guardian. Seven other foster youths lived in petitioner’s home at the same time.
Throughout April 2007, a social worker’s investigation revealed problems in the home that suggested petitioner had failed to supervise the boys properly. For example, J.K., age 11, was found with a two-inch bruise on his chin, which resulted when he and J.R., age 12, had a physical fight after J.R. fondled and squeezed J.K.’s breasts in a sexualized manner. J.K. said he had not been enrolled in school for three weeks, did not have lunches for school, and petitioner did not provide him with shoes or clothing. J.K. also revealed that petitioner shared a bedroom with J.F., age 13, who had spent an inordinate time viewing pornography on petitioner’s bedroom computer. J.K. said he never felt safe in petitioner’s home, which smelled foul and had a kitchen counter covered with filth. Another foster child, J.F., confirmed that he shared a bed with petitioner, and they both wore pajamas and joked about their penis size.
DCFS removed T.P. from petitioner’s home on April 30, 2007, and placed him with Mrs. R., the foster parent who was already caring for T.P.’s biological brother. In its section 300 petition, DCFS alleged that petitioner had failed to supervise properly the eight boys in his care, leaving them without supervision on a daily basis. About two months later, DCFS filed a section 388 petition to terminate petitioner’s guardianship of T.P. T.P., it was alleged, did not want to return to petitioner’s home.
B.
From August 2007 to January 2008, most of the minors who had been living with petitioner testified regarding the allegations in the section 300 petition. Petitioner, his former social worker, J.F.’s social worker, J.F.’s former foster parent, J.F.’s principal, and one of the minors’ babysitters also testified about supervision of the minors. The following is a summary of some of that testimony.
C.B.’s Testimony
C.B., who had lived with petitioner for 10 months, testified that the house had four bedrooms, but J.F. regularly slept in petitioner’s bed and was there all night. Petitioner sometimes did not return home until 11:00 pm. George, the person who was supposed to supervise the boys, was in the home only three or four times during the 10 months C.B. lived there. Thus, petitioner knew George lied when George told C.B.’s social worker George supervised the boys on a regular basis. Because petitioner had problems with his foster care license, he told C.B. to say George was an extended relative. Petitioner also told C.B. to lie about petitioner going shopping for him and George being the babysitter when, in fact, petitioner had never bought anything for C.B., and George was rarely at the home.
C.B. also testified all of the boys were present when petitioner showed a video involving a man masturbating, a video petitioner said was “funny.” One day, when E.Z., then 17, used C.B.’s cell phone to take a picture of his penis, C.B. showed the picture to petitioner, who thought it was funny. Also, the boys and petitioner called each other names like “Cracker” and “Beaner,” and petitioner had used the “N” word with T.P., as a joke. Petitioner admitted to C.B. he did not like African-Americans, but liked T.P. because petitioner had “made him into a good kid.” C.B. also said petitioner wrestled with him a few times and once gave him a black eye. Another boy, E.Z., told C.B. that he would not wrestle with petitioner because petitioner got “carried away.”
J.K.’s Testimony
J.K., who had lived with petitioner for four weeks in March 2007, also testified that J.F. slept in petitioner’s room, where all his belongings were located. J.F. spent considerable time there with the door closed. Petitioner typically came home from work between 9:00 and 9:30 p.m. While J.K. had heard of caretaker George, J.K. never saw him. Petitioner asked J.K. to lie about George and say he was the boys’ babysitter. J.K. heard petitioner say African-Americans were not welcome in his home (except T.P.) and use the “N” word. During the first three weeks he lived with petitioner, J.K. did not attend school. He also did not feel safe in petitioner’s home after the fight he had with J.R., describing the conditions as “horrible,” the other boys were mean, and they ate only fast food. During outings in petitioner’s car, some of the boys did not wear seatbelts.
J.F.’s Testimony
J.F. testified petitioner “put his hands down people’s pants” and “would try to play around with your thing.” Petitioner would talk a lot about gay sex, showed the boys sexual content on the internet, and sang songs about J.F.’s penis. J.F. said he slept with petitioner many nights, as did another boy, Oscar. He thought petitioner was touching other boys as well, but he did not see it. J.F. and other boys had taken pictures of their body parts and e-mailed them, using petitioner’s computer. J.F. indicated that the boys were supposed to be supervised, but the babysitter was there only when the social workers came. Petitioner was inconsistent about providing food.
The juvenile court later indicated it had not found J.F.’s testimony fully credible as he gave conflicting testimony.
T.P.’s Testimony
T.P. testified he lived with petitioner for a year and a half. He was aware that J.F. spent more time than anyone else in petitioner’s room, using the computer. T.P. said petitioner never showed him a sex video, nor did he call any of the boys derogatory names. J.F. did not tell T.P. petitioner had touched his private parts, but he did say he was the king of the house and could get T.P. kicked out. Petitioner did not return home in the evening until about 8:00 p.m. The boys were usually unsupervised before that. T.P. did not remember petitioner ever talking to his teachers.
Petitioner’s Testimony
Petitioner testified that his foster care license had been revoked in 2003. He said that in the spring of 2005 he learned that J.F. had pictures of naked men in his backpack. Petitioner confronted J.F. and restricted his use of the computer room. Petitioner admitted, however, at times he did not monitor J.F.’s computer use, especially just before the boys were detained. Petitioner testified J.F. did not sleep in his bed, he did not grab J.F.’s private parts or buttocks, and he did not walk around naked in front of J.F. He acknowledged sometimes J.F. showered in petitioner’s bathroom. Petitioner did not expose himself to any of the boys, nor did he comment about J.F.’s buttocks or penis. Petitioner testified he never called the children names, but heard them call each other names.
Petitioner admitted he wanted to terminate his guardianship over T.P.
C.
On April 2, 2008, the juvenile court sustained the petition as to T.P. The court amended the petition to conform to proof, finding that petitioner knowingly and inappropriately allowed an unrelated 13-year-old child, J.F., and other children placed in his care, unlimited access to internet pornography on a computer located in petitioner’s bedroom and inappropriately allowed J.F. to sleep in petitioner’s bed on a regular basis. The court further found petitioner failed to supervise the boys properly, leaving them without supervision on a regular basis and causing the children to lie to their social workers about the lack of supervision.
The juvenile court explained its decision was based on the court’s assessment of the witnesses’ credibility. The court found J.K. and C.B. to be “far more credible than any of the other child witnesses that were called to testify by both their demeanor and [the] content of their testimony.” The court found other witnesses less credible. The court described the evidence of lack of supervision as overwhelming.
The court then granted the section 388 petition, ordered no reunification services for petitioner, and terminated the legal guardianship over T.P. The court set the matter for hearing under section 366.26 for the purpose of ordering a new legal guardianship for T.P. with his caretaker, Mrs. R. This petition followed.
DISCUSSION
Petitioner argues there is no evidence to support the juvenile court’s finding that T.P. was at substantial risk of serious physical harm, as specified in section 300(b). We reject this assertion and deny the petition for extraordinary relief.
1. Controlling Law and Standard of Review.
Section 300(b) allows jurisdiction where “[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 juvenile court’s jurisdiction determination, its denial of reunification, and its findings that reunification is not in a child’s best interest are reviewed for substantial evidence. (In re James C. (2002) 104 Cal.App.4th 470, 482; In re Brook C. (2005) 127 Cal.App.4th 377, 382; In re Ethan N. (2004) 122 Cal.App.4th 55, 65.) An appellate court must construe the evidence in the light most favorable to the finder of fact (In re Michael G. (1993) 19 Cal.App.4th 1674, 1676), and the juvenile court’s exercise of discretion will not be disturbed except on a showing that the trial court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (In re Brequia Y. (1997) 57 Cal.App.4th 1060, 1068; see also In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 [in the presence of substantial evidence, appellate justices are without power to reweigh conflicting evidence and alter a dependency court determination]; In re Sheila B. (1993) 19 Cal.App.4th 187, 199 [an appellate court has no power to consider the credibility of witnesses].)
2. Substantial Evidence Supports the Juvenile Court’s Ruling.
There is ample evidence in the record to support the juvenile court’s ruling that T.P. was a child described by section 300(b). The testimony from C.B., J.K., and T.P., and others demonstrated that petitioner failed to supervise and protect adequately T.P. and other boys entrusted to his care. This evidence showed that petitioner (1) regularly did not come home from work until the late evening hours and left the boys to fend for themselves without supervision; (2) asked and encouraged the boys to lie to social workers about being supervised; (3) did not communicate with school teachers or supervise T.P.’s schoolwork; (4) placed the boys at physical risk of harm by roughly wrestling with them and allowing the boys to engage in excessive roughhousing; and (5) placed the boys at physical risk of harm by allowing them to be without seatbelts when driving with petitioner.
There was also substantial evidence to support the court’s finding that petitioner allowed the boys access to internet pornography on a computer located in petitioner’s bedroom, and did not respect appropriate boundaries by allowing J.F. to sleep in petitioner’s bed on a regular basis. While much of the evidence concerned only J.F.’s exposure and access to pornography, a reasonable and logical inference from the evidence is that all the boys, including T.P., had similar access, making them vulnerable to predatory practices. Indeed, C.B.’s testimony suggests petitioner encouraged exposure to pornography because he showed the boys a video of a man masturbating and made light of the boys’ photographing their genitals.
Petitioner argues the juvenile court erred in sustaining the amended petition because once he agreed to terminate the legal guardianship, and thus removed himself from T.P.’s life, DCFS could not possibly demonstrate T.P. was at risk of future harm. We disagree.
It is true that during his testimony on October 16, 2007, petitioner testified he would agree to terminate the guardianship. But during closing arguments before the juvenile court on January 23, 2008, petitioner’s counsel emphatically stated she would not submit to termination of the guardianship. To the contrary, counsel insisted that petitioner was entitled to a reunification plan and services because petitioner wanted to continue his contact with T.P. Counsel said, “I’m indicating for the record, and to be clear for appellate purposes, that the guardian is allowed to [sic] reunification services at disposition.” Counsel stated that petitioner would not agree to termination of the guardianship unless the court first dismissed the section 300 petition.
The record indicates petitioner did not unconditionally agree to terminate the guardianship over T.P. Thus, when the juvenile court sustained the section 300 petition on April 2, 2008, the possibility existed that reunification services could be granted, including visitation, and that T.P. might be returned to petitioner’s care, all to his future detriment. Accordingly, we conclude substantial evidence supports the jurisdictional ruling.
Disposition
The petition is denied on the merits. This opinion is final forthwith as to this court pursuant to rule 8.264 of the California Rules of Court.
WE CONCUR: COOPER, P. J., FLIER, J.