Opinion
A166117
07-28-2023
In re C.C.-H. et al., Persons Coming Under the Juvenile Court Law. v. J.C., Defendant and Respondent SOLANO COUNTY HEALTH AND SOCIAL SERVICES DEPARTMENT, Plaintiff and Respondent, A.H., Defendant and Appellant.
NOT TO BE PUBLISHED
Solano County Super. Ct. Nos. J45565, J45566, J45567
GOLDMAN, J.
After receiving reports of physical and emotional abuse by J.C. (Mother) against three children, C.H., D.H., and G.H. (collectively, the Children), the Solano County Health and Social Services Department (Department) initiated dependency proceedings against Mother and the Children's alleged father, A.H. (Father). At the jurisdictional and dispositional hearing, the court sustained a single basis for jurisdiction relating to Father. The court found that Father posed a substantial risk of serious harm to the Children pursuant to Welfare and Institutions Code section 300, subdivision (b)(1), due to his conviction for possessing child pornography. The court also found it had jurisdiction of the children on three bases relating to Mother. The court ordered reunification services for Mother, but "bypassed" Father pursuant to section 361.5, subdivisions (b)(16) and (b)(17) (subdivisions (b)(16) and (b)(17)).
Undesignated statutory references are to the Welfare and Institutions Code.
Father challenges the court's jurisdictional findings as to him, contending there was no substantial evidence to conclude he posed a substantial risk of serious harm to the Children. Absent a valid jurisdictional basis implicating him, he argues that the court's dispositional orders should be reversed. The Department urges us not to review this appeal, which it argues is moot. If we do consider the appeal, the Department argues the jurisdictional findings and dispositional orders are valid.
Applying the principles recently articulated in In re D.P. (2023) 14 Cal.5th 266 (D.P.), we conclude that it is appropriate to review Father's appeal. We affirm the court's jurisdictional findings. As to the dispositional orders, we conclude that the court erred insofar as it held that subdivision (b)(17) was applicable to Father, but we affirm the orders because they also rested on the court's proper application of subdivision (b)(16).
BACKGROUND
1. The Family
In May 2022, the Department received reports that Mother emotionally abused D.H., causing him to act out. In a social worker's follow up visit with the family, the Children reported physical and emotional abuse by Mother, and Mother reported that she suffered serious mental health symptoms and related behaviors. While questioning Mother and D.H. about an incident the previous day, the social worker observed Mother physically abuse D.H. That evening, the social worker, aided by law enforcement, removed the Children from the home. The Children were seven, six, and four years old.
The Department had worked with the family in the past, mainly due to reports that Mother's mental illness hindered her ability to manage the Children on her own and at times caused her to neglect them or abuse them emotionally. There were also unsubstantiated reports that Father had watched pornography with the then-five-year-old C.H., causing him to act out sexually, and that the Children had injuries consistent with physical abuse in the home. In 2019, Mother and the Children participated voluntarily in family maintenance services focused on providing the family mental health support.
2. Father's History
Father was charged in 2017 with felony possession of child pornography (Penal Code § 311.11, subd. (a)); not long afterward, Mother and Father divorced. Thereafter, Mother restricted contact between the Children and Father. She believed she had to protect the Children from Father and not let them have contact with him because, in addition to his crime, Father had "exposed himself to other children." Father was later convicted of possessing child pornography, and sentenced to jail and three years of probation. He was also required to register as a sex offender pursuant to Penal Code section 290. He completed his probation requirements, including a two-year sex offender program.
In 2020, Father was subject to dependency proceedings with respect to two different children and their mother, but the case was dismissed after three weeks. The Department investigated later reports against Father about the same two children, but as of April 2022, the eight- and four-year-old children, along with their mother, were already receiving services in another county. The reports included concerns that the children were at risk of sexual abuse; that Father resided with the children in violation of his restrictions as a sex offender; and that he and the children's mother planned to move out of state.
Roughly 10 days after these reports, Father was charged with violating his probation. The record does not reveal the outcome of the charge or whether it was related to the reports and proceedings involving the two children.
In 2022, Father was expecting a child with his new wife. During supervised video visits with the Children, Father was "appropriate . . ., asking questions about school, their interest[s], and keep[ing] the focus on them." He stated to a Department social worker: "I made a mistake, and paid for them."
3. Court Proceedings
Following the social worker's visit with Mother and the Children, the Department filed a dependency petition. At the initial hearing on the petition, the court detained the Children.
The court held a contested jurisdiction and disposition hearing in August 2022. Before the hearing, the Department filed a jurisdiction and disposition report and family case plan. The Department alleged three jurisdictional counts as to Father. As for disposition, the Department cited "non-reunification issues" with Father under subdivisions (b)(16) and (b)(17), due to Father's sex offender registration requirement and because Father "knowingly participated in, or permitted, sexual exploitation of [sic] child," citing his conviction. The Department recommended that Mother, but not Father, receive reunification services. Father was offered continued weekly virtual visitation with the Children.
At the hearing, the court accepted Father's offer of proof that he "has completely successfully completed probation.... [¶] . . . He's successfully completed a two-year sex offender program. He's no longer on probation. He has not re-offended since his conviction, and currently there are no conditions that he cannot . . . see his children."
The Department submitted the stipulated testimony of its social worker, who had interviewed Father's probation officer regarding his crime. The social worker testified "that [Father] was involved in downloading, possessing seven years['] worth of child pornography, which includes [pre]pubescent subjects between the ages of 2 and 10 years old." Father participated in his sex offender program from May 2019 through February 2022. The program "met once a week for approximately one hour or an hour and a half, and they would discuss matters surrounding the 13 dynamic risk factors that contribute to a person acting on a sexual offense." Father also passed a polygraph examination. Although Father "successfully complete[d] the program," the probation officer believed that Father "should not have any custody of any children due to the nature" and duration of his criminal conduct.
The Department argued that Father was subject to the "bypass" provisions under subdivisions (b)(16) and (b)(17), due to the requirement that he register as a sex offender and because, "under (b)(17) . . . where a parent . . . engages in sexual exploitation, possession, downloading, dissemination of child pornography . . . the Court shall not order [reunification] services." The Department cited Father's lack of involvement in the Children's lives and his out-of-state residence as indicating that it was not in the Children's best interest to reunify with Father. Mother supported the court's jurisdiction due to Father's conviction and the probation officer's testimony, and also joined the Department's recommendation to bypass Father for reunification services, "given his prior conduct."
Father argued that he had been brought into the proceedings based only on Mother's conduct; he had completed his probation and sex offender course; his sex offender status did not preclude him from seeing his children; he had had a relationship with the Children in the past; and he had continued to support them financially.
The court found that Father presented a substantial risk of serious harm to the Children pursuant to section 300, subdivision (b), and confirmed three jurisdictional counts as to Mother. The court ordered reunification services for Mother, but bypassed Father, citing subdivisions (b)(16) and (b)(17). The court ordered continued virtual visitation for Father.
Mother did not appeal. Father timely appealed.
DISCUSSION
The Department contends that we should not consider this appeal because it is moot and discretionary review is not warranted. Father argues that we should exercise our discretion to consider the appeal and reverse the trial court's jurisdictional findings that he presents a substantial risk of serious harm to the Children. He asks us to void the court's dispositional orders because they flow from the jurisdictional findings, and that any remand include direction to the Department to deem Father a nonoffending parent entitled to placement consideration under section 361.2.
We first consider whether the appeal is justiciable.
1. Mootness and Discretionary Review
Because Mother did not appeal the jurisdictional findings implicating her, the Department argues that even if we reversed the jurisdictional count as to Father, the court would retain jurisdiction over the Children so we could not grant Father effective relief. At the least, the Department argues that we should not review the appeal because the jurisdictional findings cause Father no non-speculative harm. Father acknowledges the appeal may be moot, but requests discretionary review.
a. Mootness
Courts must"' "decide actual controversies by a judgment which can be carried into effect, and not [] give opinions on moot questions or abstract propositions." '" (D.P., supra, 14 Cal.5th at p. 276.) Mootness must be decided on a case-by-case basis. (Ibid.)
Generally speaking, "where a jurisdictional finding 'serves as the basis for dispositional orders that are also challenged on appeal' [citation], the appeal is not moot." (D.P., supra, 14 Cal.5th at p. 283; see also In re S.F. (2023) 91 Cal.App.5th 696, 712.) Here, Father does challenge both the jurisdictional findings and dispositional orders below. D.P. does not, however, mean that any appeal challenging dispositional orders along with jurisdiction is necessarily not moot; other circumstances may still moot the appeal. (See In re Dani R. (2001) 89 Cal.App.4th 402, 404-406 [appeal from dispositional order and jurisdictional findings was moot where appellants subsequently stipulated to facts that constituted substantial evidence supporting the findings and order].) The Department argues that even if we overturned the dispositional orders, no relief would be available to Father and the appeal is moot.
Specifically, the Department points out that Father, as an alleged father, does not have any custody, reunification, or placement rights.(In re A.H. (2022) 84 Cal.App.5th 340, 350; In re J.W.-P. (2020) 54 Cal.App.5th 298, 301; see also § 361.5, subd. (a) [child welfare services shall be provided to "presumed father," and may also be provided to "the biological father"].) The Department also contends that, due to his sex offender status and consistent with the court's dispositional orders, Father could not have custody of the Children even if the jurisdictional findings were overturned. Father does not dispute these points. Nor have we received supplemental information indicating Father has become a presumed father or otherwise changed his legal status vis-a-vis the Children. (In re N.S. (2016) 245 Cal.App.4th 53, 58 ["[P]arties in dependency appeals are expected to forward postappeal rulings by the juvenile court when they affect the appellate court's ability to grant effective relief or may play a proper role in the consideration of the appeal's merits"].) We therefore assume that, even were we to consider Father's appeal, he would not be entitled to reunification, custody, or placement consideration under section 361.2.
"A biological father is one' "who is related to the child by blood."' [Citation.] A 'presumed father' is one '" 'who "promptly comes forward and demonstrates a full commitment to . . . paternal responsibilities-emotional, financial, and otherwise[.]"' . . ." [Citation.] An 'alleged father' 'may be the father of a dependent child. However, he has not yet been established to be the child's natural or presumed father.'" (In re Jovanni B. (2013) 221 Cal.App.4th 1482, 1488.)
Father has not identified any relief potentially available to him. His appeal is moot. (Cf. D.P., supra, 14 Cal.5th at p. 283 [appeal is not moot if "parent has demonstrated a specific legal or practical consequence that will be averted upon reversal"]; In re John S. (2001) 88 Cal.App.4th 1140, 1143 [appeal was not moot, despite challenge to just one jurisdictional finding, where outcome could impact placement and reunification].) We next consider whether to exercise our discretion and review the appeal.
b. Discretionary Review
D.P. established a non-exhaustive list of factors an appellate court should consider when determining whether to review a moot dependency appeal. (D.P., supra, 14 Cal.5th at pp. 285-286.) Those factors are (1) whether the subject jurisdictional finding may prejudice the appellant in this or future proceedings, including where it may show a pattern of abusive conduct or support a future dependency petition; (2) whether the jurisdictional finding "is based on particularly pernicious or stigmatizing conduct"; and (3) "why the appeal became moot." (Ibid.) Speculative and stigmatic harms, standing alone, are not sufficient to avoid mootness. (Id. at pp. 277-281.) The overarching concerns guiding the court's analysis are (1) to avoid insulating an erroneous or arbitrary ruling from review, and (2) to maximize the child's safety while preserving the family to the extent consistent with the child's safety. (Id. at pp. 283-285, 286-287; see § 300.2, subd. (a) [purpose of legislative scheme is "to provide maximum safety and protection for children"].)
The third factor is not relevant to this appeal.
Several factors here support our review. At least two considerations implicate the first D.P. factor-whether the jurisdictional findings may impact future dependency or other proceedings. First, we find it significant that the trial court sustained a single jurisdictional count against Father; if that count were overturned, Father would be a nonoffending parent in these proceedings. (In re Drake M. (2012) 211 Cal.App.4th 754, 763, overruled on other grounds in D.P., supra, 14 Cal.5th at p. 283; cf. In re Briana V. (2015) 236 Cal.App.4th 297, 309 (Briana V.) [declining to consider appeal where father challenged only one of three jurisdictional findings, so there was "not a single jurisdictional finding making the difference between father being a so-called offending or a nonoffending parent"]; but see id. at p. 310 [noting that because father was a registered sex offender, he was "already living with a presumption that his children are subject to dependency jurisdiction," pursuant to section 355.1, subdivision (d)].) Father was also expecting a new child. Findings in these proceedings could very well trigger new proceedings and impact his legal status with respect to that child. (See § 300, subds. (a), (j) [dependency jurisdiction over child appropriate based on sibling abuse or neglect].) Both circumstances create a real, nonspeculative risk that erroneous jurisdictional findings here could set a precedent, establish a pattern of abusive conduct, and/or precipitate additional dependency proceedings as to Father's new child.
Briana V. also notes the "unfortunate" nature of the stigma attached to the term "offending" in dependency law, given that "dependency jurisdiction is not [meant to be] about parental fault." (Briana V., supra, 236 Cal.App.4th at p. 310, fn. 3.) We lament this stigma as well. In this context, however, we still find Father's status relevant: Whether he was officially-but potentially erroneously-deemed to have engaged in "offending" conduct may matter in future proceedings.
Of course, no matter the outcome here, Father's conviction and his underlying conduct will not disappear. Still, a finding that the Children are at risk of substantial harm is an additional judicial decision, on top of the conviction, complicating his rights with respect to any of his offspring.
We also note with particular concern the risk of potentially erroneous findings in this case. The Department's recommended jurisdictional findings rested solely on the existence of Father's conviction. The trial court affirmed those findings without elaboration. The jurisdictional findings could therefore be interpreted as “go to jail, lose your child” (In re S.D. (2002) 99 Cal.App.4th 1068, 1077)-i.e., that Father's conviction means the Children are per se subject to dependency jurisdiction. That is not the law. (Cf. In re J.N. (2021) 62 Cal.App.5th 767, 776 [father's history of violent crimes, alone, not sufficient to establish jurisdiction over children].) Instead, a court weighing the risk to children of a parent's sex crime must consider the totality of the circumstances. (In re I.J. (2013) 56 Cal.4th 766, 774 (I.J.) [interpreting § 300, subd. (j)]; see In re S.R. (2020) 48 Cal.App.5th 204, 223 (S.R.) [applying I.J. to dispositional order removing child from father's custody due to child pornography conviction].)
As to the second D.P. factor, we note that allegations of child sexual abuse are "particularly pernicious." (D.P., supra, 14 Cal.5th at pp. 285-286; In re M.W. (2015) 238 Cal.App.4th 1444, 1452.) While Father's conviction will not disappear, a judicial conclusion that Father not only possessed child pornography, but also presents a substantial risk of committing a "hands-on" offense against his own children (see S.R., supra, 48 Cal.App.5th at p. 223) would increase the potential harm of an erroneous ruling.
Given the foregoing considerations, we will exercise our discretion and review Father's appeal.
2. Father's Challenge to the Jurisdictional Findings
Father argues that no substantial evidence supported the trial court's jurisdictional findings that he presented a substantial risk of serious harm to the Children.
a. Standard of Review
On review," 'we determine if substantial evidence, contradicted or uncontradicted, supports'" a jurisdictional finding. (I.J., supra, 56 Cal.5th at p. 773.)"' "[W]e draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court's determinations; and we note that issues of fact and credibility are the province of the trial court." [Citation.] "We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court." '" (Ibid.)
b. Substantial Evidence of Risk to the Children
Substantial evidence supports the court's jurisdictional findings. Here, as in I.J., there is no evidence that Father "sexually abused or neglected the [Children] themselves. But section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction. The subdivision[] at issue here require[s] only a 'substantial risk' that the child will be abused or neglected." (I.J., supra, 56 Cal.4th at p. 773.) The legislature's prophylactic approach is meant" 'to provide maximum safety and protection for children who are currently being . . . abused, . . . and to ensure the safety, protection, and physical and emotional well-being of children who are at risk of that harm.' [Citation.] 'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.'" (Ibid.) And where the magnitude of potential harm is great, "it becomes more necessary to protect the child from even a relatively low probability of that abuse." (Id. at p. 778.)
Here, the central risk to the Children was Father's possession of child pornography that he had collected over the course of seven years. The "prolonged nature" of Father's criminal conduct "supports the juvenile court's finding that the risk of abuse [to the Children] was substantial." (I.J., supra, 56 Cal.4th at p. 778 .) Father's probation officer also believed that due to the extent of Father's downloads, and the associated risk, he "should not have any custody of any children."
It is also probative that at least some of the subjects of the pornography Father possessed were prepubescent children between the ages of two and ten years old. When these proceedings were initiated, the Children were seven, six, and four years old-precisely within this age range. (See S.R., supra, 48 Cal.App.5th at pp. 206, 221 [age similarity between dependent child and subjects of child pornography in father's possession supported finding of risk of sexual abuse]; cf. In re Y.G. (2009) 175 Cal.App.4th 109, 114-116 [mother's physical abuse of unrelated same-age minor supported jurisdictional finding of risk that mother would physically abuse her own child].)
Mother also repeatedly stated to the Department her belief that she had to protect the Children from Father by preventing contact. Her concern was not only Father's conviction, but also that Father had exposed himself to other children. Indeed, Mother prevented contact between Father and the Children even to her own severe detriment; Mother suffered from serious mental illness, which was exacerbated in significant part by the stress of caring for the Children on her own.
The record also suggests that Father's criminal conduct may have reflected a deeper and ongoing pattern of behavior. Although earlier reports to child welfare authorities on behalf of the Children were, upon investigation, deemed inconclusive or unfounded, other reports in 2020 and 2022 indicated that Father was living in a home with two children in violation of his restrictions as a sex offender. The two children were eight and four years old-also within the age range of some victims of Father's crime. One report resulted in the children being detained by child welfare authorities for three weeks. Although the reports did not indicate Father physically or sexually abused the two children, they support a finding that Father violated legal restrictions put in place to protect children from him. They therefore tend to show that Father presented a risk of harming the Children. (In re Y.G., supra, 175 Cal.App.4th at p. 116 ["[A] parent's abuse of an unrelated child may well tend to prove that the parent suffers from characteristics that also place the parent's child at substantial risk of similar abuse . . . "].)
We also note the evidentiary presumption set forth in section 355.1, subdivision (d): "Where the court finds that . . . a parent . . . of[] a minor who is currently the subject of the petition filed under Section 300[] has been previously convicted of sexual abuse . . . or [] is required, as the result of a felony conviction, to register as a sex offender pursuant to Section 290 of the Penal Code, that finding shall be prima facie evidence . . . that the" minor is a dependent child. The presumption "evinces a legislative intent that sexual abuse of someone else, without more, at least supports a dependency finding." (I.J., supra, 56 Cal.4th at p. 779; see also S.R., supra, 48 Cal.App.5th at p. 222.)
The Department does not argue that the presumption applies to an alleged father. (Cf. In re John S., supra, 88 Cal.App.4th 1140, 1145 [presumption applies broadly, even to noncustodial parents and guardians, because typically "such individuals have the legal right to have contact with the child"].) Nor does the Department argue section 355.1, subdivision (d) otherwise applies here, perhaps because the presumption dissipated upon Father's proffer of contrary evidence. (See In re Quentin H. (2014) 230 Cal.App.4th 608, 620-621.) We cite the presumption only as an expression of legislative intent supporting the trial court's findings.
Father contends there was no risk to the Children because there was no evidence he had sexually or physically abused them or that his criminal history caused them physical harm. But the legislative intent embodied in section 355.1 and in section 300.2 more generally, along with the case law interpreting section 300 (I.J., supra, 56 Cal.4th at p. 773), dispense with that contention. The court was not required to find that Father had abused the Children in the past; it was required to evaluate the risk of future harm to the Children based on the totality of facts presented. And while Father presented evidence to show he was rehabilitated and positively impacted the Children's lives, we do not reweigh that evidence on appeal. (Ibid.) We also do not reweigh the evidence indicating that it was unlikely Father would have contact with the Children-i.e., that Father did not have custody of the Children, had not lived with them for some time, resided out of state, and had a new wife and a child on the way, and that Mother was determined to keep the Children away from him.
3. Dispositional Orders
Father argues that the dispositional orders "should be reversed as void" because the jurisdictional findings are invalid. Father identifies no error in the application of subdivision (b)(16) here (In re A.L. (2022) 73 Cal.App.5th 1131, 1161), and we find none. We do not, however, believe that subdivision (b)(17) applies to Father.
We have found no published case interpreting subdivision (b)(17). The provision's plain language states that it applies when the court finds "[t]hat the parent . . . knowingly participated in . . . the sexual exploitation . . . of the child." (Italics added.) We interpret statutes to give them the meaning the legislature intended. (In re S.C. (2009) 179 Cal.App.4th 1436, 1439; Code Civ. Proc., § 1858.) And we assume the legislature chose the statute's language intentionally. (In re R.L. (2016) 4 Cal.App.5th 125, 138 [quoting Day v. City of Fontana (2001) 25 Cal.4th 268, 272].) We therefore assume the legislature's use of the term "the" child-rather than "a" child-is meaningful.
Other dependency statutes, like subdivision (b)(17), differentiate between "the" child and other types of children. Section 300-which establishes the bases for dependency jurisdiction-uses "the" child to refer to the child who is subject to the court's jurisdiction, and "a" child to refer to children who are not. Similarly, section 300.2, which expresses the legislature's general intent, differentiates between "the child" subject to the dependency proceedings and "children" more generally. We also note that, in arguing that subdivision (b)(17) applies to Father, the Department twice paraphrases-but does not quote- subdivision (b)(17), stating that it requires that the parent have sexually exploited "a" child, not "the" child.
In context, "the" child in subdivision (b)(17) can only be read to mean the child subject to the dependency proceedings at issue. The record contains no evidence that Father's sexual exploitation of children involved "the" Children. Accordingly, the trial court improperly relied on subdivision (b)(17) to bypass Father.
DISPOSITION
The trial court's jurisdictional findings are affirmed. The subdivision (b)(17) finding is vacated, but the dispositional orders are otherwise affirmed.
WE CONCUR: STREETER, Acting P. J. FINEMAN, J. [*]
[*]Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.