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Yolo Cnty. Health & Human Servs. Agency v. J.M. (In re S.H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
Jan 30, 2020
No. C088947 (Cal. Ct. App. Jan. 30, 2020)

Opinion

C088947

01-30-2020

In re S.H. et al., Persons Coming Under the Juvenile Court Law. YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. J.M., Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JVSQ-18-532, JVSQ-18-533)

Father of minor S.H. appeals from the juvenile court's dispositional exit orders awarding legal and physical custody of S.H. to mother. Father contends insufficient evidence supported the taking of jurisdiction over S.H. We agree and shall reverse the disputed jurisdictional finding and vacate the resulting orders.

BACKGROUND

On October 12, 2018, Yolo County Health and Human Services Agency (Agency) filed a Welfare and Institutions Code section 300 petition for juvenile dependency jurisdiction over then 12-year-old S.H. and her older brother, J.H., based on the allegation that father had sexually abused S.H.

Further undesignated statutory references are to the Welfare and Institutions Code.

Allegations regarding mother's failure to protect were subsequently withdrawn. The juvenile court declined to take jurisdiction of J.H., thus his case is not before us.

Mother contacted the Agency on October 9, 2018, to report that S.H. had told her that father "touched her vagina under her underwear" while she was with him on October 6. Mother and father had separated in 2016 but then had continued to live in the same home. Father was awarded 70 percent custody of the minors in March 2018; mother unsuccessfully challenged that order. The divorce was final in July 2018, but mother continued to live in the home until father insisted she move out. At the time of her October 2018 report, she was homeless but employed.

S.H. was interviewed that same day, and indicated she understood the social workers were speaking with her regarding a " 'misunderstanding' " between her and father. She said the misunderstanding had already been " 'cleared up.' " She explained that she woke up to find her father sleeping next to her in bed. In the past, she had asked her mother to sleep with her because she gets scared easily and it makes her feel better. Father had slept in her bed "on a couple of occasions," although she said she had not asked him to do so. On October 8, she woke up to father " 'touching my private area.' " She did not provide any other details but began to cry; she said she had taken it the wrong way and that she thinks her father was sleeping when he touched her. When asked if she felt safe with her father, she replied, " 'I am feeling fine now because we talked about it just now.' " When asked why she thought the incident was a misunderstanding, S.H. explained that father was "shocked and confused" when she told him he touched her because he was asleep when it happened and did not realize he touched her private area.

J.H. reported that mother and S.H. had told him about the incident. He reported that father was "worried and upset" because he was "half asleep" when he went from his bedroom to S.H.'s room. Both S.H. and J.H. stated they preferred to live with mother.

Mother was interviewed on October 10, 2018. She reiterated that S.H. had reported that father had gone into her bedroom and touched her inside her underwear. Mother also stated S.H. said she was scared, and she was putting pillows around her bed so that her father would not sleep there with her. Mother reported that J.H. had sent her a text in July 2018 stating that he was "uncomfortable because his sister was sleeping on the couch and 'dad is rubbing at her back and rubbing at her butt. He is acting weird.' "

Father was also interviewed on October 10. He reported to law enforcement that S.H. had told him he had touched her. He had asked S.H. if it had happened when he had climbed into bed with her and she said "yes." She told him his hand had been on her privates, over her clothing. He told her that he was asleep and had been in bed with her for about an hour. He told her he was sorry, he was asleep, and did not intentionally touch her. Father told the investigating officer that he had been awakened by S.H. at 6:30 a.m. and he went to her room. He had been wearing shorts and a T-shirt and S.H. had been wearing long pajamas. He had slept in S.H.'s bed in the past, and on about three occasions in the month prior to the incident. When he slept in her bed, it was usually on the edge of the bed with his arms toward her back and around her.

On October 16, 2018, the court granted the ex parte request for a temporary restraining order, stay away order, and peaceful conduct order, ending November 6, 2018. Mother was living at her place of employment. The minors were temporarily placed in the care of mother by the juvenile court. On November 1, 2018, the court ordered the restraining order case consolidated into the juvenile cases.

On May 31, 2019, this court took judicial notice of filings relating to the temporary restraining order.

A Multi-Disciplinary Interview Center (MDIC) interview of S.H. took place on October 15, 2018. In her MDIC interview, S.H. said she thought father had touched her, but she " 'took it the wrong way' " and it had only happened once. She said it was an accident and " 'lasted half a second, it stopped because he lifted his hand, he moved' " and described the touch as " 'a quick tap.' " When asked if the touching was over or under her clothes, she responded that, " 'I thought it was under my clothes, but now that I think about it, I don't remember.' " S.H. reported that " 'it only happened one time' " and " 'I thought he [father] touched me, but he would never do that . . . I was sleeping in my bedroom, my dad came in and laid down and that's when it happened.' "

In his MDIC interview, J.H. reported that S.H. had told him his father was half asleep and touched her by accident. When the social worker sought clarification regarding J.H.'s report to mother that he felt he had seen inappropriate behavior, J.H. explained that "[o]ne time months before this happened, we were in the living room. My sister was watching some show. My dad was touching her butt; I guess in a loving way, it's what he said, it wasn't in a sexual way. My sister and my dad were laying down together." He explained that "she was laying on her side and he was laying by her legs half on the ottoman half on the floor and his hand was on her butt; he was rubbing it." He reported that he was on the other couch and saw this occur. He described that "it lasted for like 10 seconds, it was pretty short." J.H. also reported that father sleeps in S.H.'s bed "once in a while" because S.H. gets scared and wants him to sleep in the same bed with her.

At the November 27, 2018 jurisdiction hearing, S.H. testified that she had been living with father for about a month and a half following her parents' separation. She saw mother a couple of times a week. S.H. thought father touched her in a bad way but it was just "miscommunication." She also said she made the statement because she was kind of mad at him: "Because me and my dad, we just weren't really - me and my brother were kind of mad at him"; "Because my mom had to leave." She testified she thought it was an "inappropriate touch, but he didn't mean it like that." She could not tell whether the touch was under or over her clothes; she was not sure if he reached underneath her clothing.

S.H. also testified that her parents lay down with her a lot because she gets scared easily. When she wakes up in the morning, her mother or father may be laying in bed next to her. Sometimes she would not want her father to sleep in the bed with her, because she was mad at him. In those circumstances, she would put pillows around her. She said she did that once or twice. She testified she is not afraid of father and wants to live with both parents. She also testified that father never touched her bottom -- only her side, "like a hug" and was not inappropriate.

J.H. testified that he had never seen father touch S.H. in an inappropriate manner. One time he saw his father rubbing the side of his sister's bottom on the couch, but it was not in a sexual way. J.H.'s understanding of the October 2018 incident was that "[father's] hand went on her butt or something. And - yeah. And then my sister moved away, like, for his hand not to be there." After it happened, S.H. said, "it was, like, a mistake I guess, or like he didn't - he wasn't, like, intentionally trying to do that, like he was half asleep I guess."

The juvenile court found the evidence sufficient to support jurisdiction over S.H. based on sexual abuse by father. Opining that father's "conduct is questionable throughout this whole period of time," the court stated it found S.H.'s testimony credible and "[t]he fact that she later backtracked some of the statement is consistent with the Court's view that she is immature, that she wants to avoid being in the middle of the conflict between her parents." The court also found credible the testimony that father rubbed "the girl's butt or bottom while they are on the couch and it's a very strange physical touching," although it also found J.H. believed the action was not sexual in nature. Characterizing "the sleeping with the 12-year-old daughter under the covers" as "highly unusual," the court found that, "based on the totality that [sexual abuse] occurred by a preponderance of evidence and that there was an intent for sexual gratification, and I do believe that even if that were not the case, that there is a substantial risk that this would occur to the daughter, and so 300(d) is hereby sustained."

The juvenile court issued a restraining order protecting S.H. only, with supervised visitation with father allowed at a minimum of three hours per month. The court awarded mother sole physical and legal custody of S.H., with the supervised visitation order in place, and dismissed dependency jurisdiction. The court left mother's additional request to move out-of-state with the minors to the family court. Father appeals these orders.

We took judicial notice of the family court's July 15, 2019 orders granting sole legal and physical custody of both minors to mother and ordering supervised visitation for father in Yolo County Superior Court case Nos. JVSQ18532 and JVSQ18533, the minute orders for the family court's July 15, 2019 hearing, and father's July 29, 2019 notice of appeal from these July 15, 2019 orders. (Evid. Code, §§ 452, 459.)

DISCUSSION

Father contends there is insufficient evidence to support jurisdiction over S.H. under section 300, subdivision (d). In supplemental briefing, the Agency contends the issue is moot because the family court has since entered visitation and custody orders of its own, awarding mother full legal and physical custody and authorizing her to move to Texas with the minors, with some telephonic and supervised visitation for father.

Father disagrees that the challenged orders have been rendered moot by subsequent events, and we agree with father.

I

Mootness

The dismissal of a dependency case and issuance of subsequent orders of the family court do not preclude review of the basis for assertion of jurisdiction where exercise of that jurisdiction has resulted in orders which continue to adversely affect the appellant. (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547-1548.) Appeals in dependency matters are not moot if "the purported error is of such magnitude as to infect the outcome of [subsequent proceedings] or where the alleged defect undermines the juvenile court's initial jurisdictional finding." (Id. at p. 1547.) Adverse jurisdictional findings that father sexually abused a child aggrieve that party because such findings are binding in future litigation, affect his visitation and custody rights, and could influence subsequent dependency proceedings with regard to the minor or the father's other children. (Ibid.; In re J.K. (2009) 174 Cal.App.4th 1426, 1431-1432.)

Here, it appears the family court orders were based at least in part on the jurisdictional findings of the juvenile court. The family court took judicial notice of the juvenile court's records and noted that there was an allegation of sexual abuse. Although the Agency contends there was an independent trial on the validity of the sexual abuse allegation, the record reflects only that there was some testimony taken and some exhibits presented at the hearing. The record does not reflect the subject matter of the testimony or exhibits, or whether the family court made independent findings regarding the alleged sexual abuse. Independent findings are unlikely because the jurisdictional issues were actually litigated in the dependency proceeding and thus father would generally be collaterally estopped from relitigating those issues in the family law court. (In re Joshua C., supra, 24 Cal.App.4th at p. 1548.) In any event, the contested jurisdictional finding continues to aggrieve father because it formed the basis for the restraining order at issue in this appeal, which remains in effect. Thus we will reach the merits of father's contention that there is insufficient evidence to support jurisdiction in this case.

The parties did not provide transcripts of the family court proceedings.

II

Sufficiency of the Evidence

In order to take jurisdiction under section 300, subdivision (d), the juvenile court must find that "[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, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse." As relevant here, Penal Code section 11165.1 provides that sexual abuse includes: "The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose." (Id., § 11165.1, subd. (b)(4.)

The Agency has the burden to prove jurisdiction by a preponderance of the evidence. (§ 355, subd. (a); In re I.J. (2013) 56 Cal.4th 766, 773; In re Matthew S. (1996) 41 Cal.App.4th 1311, 1318.) We review the jurisdictional finding for substantial evidence, reviewing the record in the light most favorable to the judgment and drawing all reasonable inferences from the evidence to support the findings and orders of the dependency court. (In re I.J., at p. 773.)

Here, evidence of intent is in short supply, and evidence of any purpose of sexual gratification is absent. The undisputed fact is that father touched S.H. in her crotch area while in bed with her. We certainly understand why this fact is concerning. However, without more, this fact does not support a finding of sexual abuse or risk thereof.

S.H.'s testimony established the improper touch, but when asked to elaborate she consistently asserted that she thought father was asleep, or half asleep, and had touched her by accident. She consistently described a quick touch, that lasted a fraction of a second, or a quick tap. She could not confirm that the touch was to her skin rather than to her clothing. Further, S.H. provided no evidence of sexual gratification, nor did anyone else. "Because intent can seldom be proved by direct evidence, it may be inferred from the circumstances. [Citations.] Circumstances which have been considered relevant to proving intent to satisfy sexual desires include: the charged act, extrajudicial statements, the relationship of the parties, other acts of lewd conduct, coercion or deceit used to obtain the victim's cooperation, attempts to avoid detection, offering of a reward for cooperation, a stealthy approach to the victim, admonishment of the victim not to disclose the occurrence, physical evidence of sexual arousal and clandestine meetings. [Citations.]" (In re Jerry M. (1997) 59 Cal.App.4th 289, 299.)

Although the juvenile court suggested S.H. "backtracked on some of her testimony," she described the event consistently throughout the record before us. The discrepancy in the location of the touch (as inside versus outside of her underwear) was actually provided by mother, whose initial report described contact with S.H. that was under her clothing. But S.H. never confirmed that report. She consistently reported only very quick contact that she had "misunderstood" and that she was unable to describe in any detail, including the precise location of the glancing touch.

Here, other than the act of improper touching described as a tap, none of these circumstances appear. There is no evidence that father's hand lingered or otherwise caressed, fondled, or groped the minor, or that he even moved his hand (other than away). There were no statements, no other acts, no coercion or deceit, no attempt to hide his conduct by father, no reward or stealth or admonishment or clandestine meetings--only a shared belief by both siblings and father that he was asleep or half asleep at the time of the incident and thus the touch was accidental.

Further, there was no physical evidence of arousal whatsoever, either by sight, touch, or vocalization. (Cf. In re Paul C. (1990) 221 Cal.App.3d 43, 54 [erection is substantial evidence of lewd or lascivious intent].) There was simply no evidence to support a finding that father intentionally touched the minor's crotch area, or that the touching was for the purpose of sexual arousal or gratification.

To the extent that the juvenile court commented on the admitted co-sleeping that went on between father and S.H., labeling it as "highly unusual," we do not minimize the concern. But under the circumstances of this case, where some co-sleeping was apparently part of this family's routine interaction, the fact that it occurred does not in and of itself supply the missing elements of proof required to show sexual abuse or the risk of abuse. The evidence showed that S.H. had a history of asking a parent to sleep in her bed because she was frightened, and the record shows that both parents had slept with the minor many times. Indeed, the minor stated she "didn't have a problem with it." The fact that father was admittedly in the minor's bed, in this case, is not sufficient evidence of intent. Nor is it sufficient to show risk to the minor of intentional sexual abuse as defined by the relevant Penal Code section discussed ante.

The prior "rubbing" of the minor's bottom, described by J.H. as "weird" but not sexual and described by S.H. as not inappropriate and just like "hugging," does not provide the missing evidence. It is insufficient to show any pattern of sexual and self-gratifying behavior that would substantially support the inference that the later limited touching while co-sleeping was intentionally done for the purpose of sexual gratification or arousal.

We shall reverse the juvenile court's jurisdictional findings and order with respect to S.H. The court's finding that the evidence was insufficient to assume jurisdiction over J.H. is not contested and remains intact. As a result, because the court did not have proper jurisdiction over either minor, as there was no basis for jurisdiction as to either, the court did not have jurisdiction to enter the resulting orders. This includes the restraining order and exit orders that form the bases for father's appeal. We shall vacate those orders and any other orders that were made as a result of the reversed jurisdictional finding as to S.H.

DISPOSITION

The juvenile court's jurisdictional findings and orders regarding S.H. are reversed. The resulting orders are vacated. A certified copy of this opinion and the remittitur in this case shall be forwarded to the family court to be considered in connection with Yolo County case No. FL 17-405.

/s/_________

Duarte, Acting P. J. We concur: /s/_________
Renner, J. /s/_________
Krause, J.


Summaries of

Yolo Cnty. Health & Human Servs. Agency v. J.M. (In re S.H.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
Jan 30, 2020
No. C088947 (Cal. Ct. App. Jan. 30, 2020)
Case details for

Yolo Cnty. Health & Human Servs. Agency v. J.M. (In re S.H.)

Case Details

Full title:In re S.H. et al., Persons Coming Under the Juvenile Court Law. YOLO…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)

Date published: Jan 30, 2020

Citations

No. C088947 (Cal. Ct. App. Jan. 30, 2020)