Filed 8/30/17 In re Daniel M. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Debra L. Losnick, Commissioner. Affirmed.

Andre F. F. Toscano, under appointment by the Court of Appeal, for Defendant and Appellant L.M.

Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant Hector F.

Mary C. Wickham, County Counsel, R. Keith Davis, Assistant County Counsel and Stephanie Jo Reagan, Deputy County Counsel for Plaintiff and Respondent.

_________________________

L.M. (mother) and Hector F. (father) challenge the juvenile court’s exercise of jurisdiction over their infant son, Daniel M.[1] On appeal, mother and father contend that substantial evidence did not support the juvenile court’s findings that mother’s mental and emotional problems, including depression and visual and auditory hallucinations, and father’s criminal conviction of continuous sexual abuse of a child, which was distant in time, placed Daniel at risk of physical harm and sexual abuse. We find that substantial evidence supported the juvenile court’s exercise of jurisdiction, and thus we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Detention

Daniel was born in June 2015. On June 20, the Los Angeles County Department of Children and Family Services (DCFS) received a referral that mother was not attentive to newborn baby Daniel and did not have a car seat for him. Mother said she did not know the identity of Daniel’s father and that she had no means to care for Daniel.[2] She denied being romantically involved with father, with whom she was living.

A children’s social worker (CSW) visited mother and Daniel at home on June 21. Mother said she had been in tremendous pain and still under the influence of anesthesia for two days after Daniel’s birth, but that Daniel was one of the best things that had ever happened to her. There were a crib, car seat, stroller, diapers, formula, and baby clothes in the home, and the CSW observed mother to be interacting appropriately with Daniel.

On August 4, 2015, mother was placed on an involuntary psychiatric hold pursuant to Welfare and Institutions Code section 5150[3], and Daniel was released to father. Mother told nurses and the CSW that she sometimes heard voices that told her to jump out the window or to kill herself or hurt others. She had delusions that people followed her, laughed at her, and would attack her. Mother said the voices and delusions had been present for about three years, but she never spoke about them to anyone. She said she used to go to therapy but did not recall where, and used to take medication for depression but did not recall when or why she stopped. Mother reported that she had tried to kill herself when she was 14 years old.

Father reported that mother suffered from rheumatoid arthritis. When mother’s arthritis flared up, she “is argumentative and seems to be out of it because she is in so much pain.” Mother had been homeless for a period of time, but moved in with father when she became pregnant.

On August 4, DCFS learned that father had served time in prison for sexual abuse of a child. Father’s pre-plea probation report stated that in 2000, father was charged with engaging in sexual acts with his younger sisters, Wendy and Marisol, between 1990 and 1996. When the abuse began in 1990, father was 16 years old, Wendy was 11 years old, and Marisol was seven years old. Father pleaded guilty to two counts of continuous sexual abuse of a child (Pen. Code, § 288.5) and was sentenced to 16 years in prison. Father admitted committing the crimes for which he served time, but said did not remember the details because he tried to forget that part of his life.

On August 11, DCFS placed Daniel in protective custody.

II.

Petition

DCFS filed a juvenile dependency petition on August 14, 2015. It alleged the following counts: (b-1) mother had mental and emotional problems, including visual and auditory hallucinations, that rendered her unable to provide regular care and supervision of Daniel, and father failed to protect Daniel from mother; and (b-2, d-1) father had a criminal conviction for continuous sexual abuse of a child, was a registered sex offender, and his criminal history and mother’s failure to protect placed Daniel at risk of physical harm and sexual abuse.[4]

On August 14, 2015, the juvenile court found a prima facie case for detaining Daniel.

III.

Jurisdiction and Disposition

A. Reports

The jurisdiction/disposition report, dated October 16, 2015, stated that mother had a flat affect and appeared extremely depressed. Mother said she grew up in the Ukraine, where her parents still live. She denied auditory hallucinations, but admitted having visual hallucinations that “come[] and go[].” She said she did not know if her hallucinations “[were] related to mental illness or if [she was] spiritually attached to [her] grandma.” She reported having a nervous breakdown when she learned father was a registered sex offender.

Father said he served eight years of his 16-year sentence and was released from prison in 2008. He was on parole from 2008 to 2011 without incident. He could not recall for how many years he had abused his sisters. He believed he was not a risk to Daniel because he “is not a homosexual.”

A report prepared by a Multidisciplinary Assessment Team said that during a September 23, 2015 meeting, mother appeared disoriented and said she was not taking her medication.

In December 2015, mother’s therapist told the CSW that mother was attending therapy weekly. The therapist believed mother was “ ‘mentally capable of taking care of a child.’ ”

In February 2016, DCFS advised the court that mother spoke to her therapist by phone weekly, and met with him in-person monthly. Father had met three times with a therapist, but had declined to enroll in a sex offender program. Mother and father both had completed 12 sessions of parenting group counseling.

When interviewed by the CSW on February 10, mother denied any mental health issues and denied saying she was suicidal or heard voices. Mother said she had not learned of father’s sexual abuse conviction until she was two or three months pregnant. Mother reported being shocked by the disclosure, but said it was in “the past.” Mother also said she stayed with father because she had no support system and nowhere else to go.

The CSW supervising the parents’ visits with Daniel reported in January 2016 that she had serious concerns about mother’s interactions with Daniel: “[CSW] stated that mother is not emotionally bonded to the child and Daniel has no attachment to mother. [CSW] stated that she has guided mother [on] how to talk to and interact with the baby with no success. [CSW] stated that Daniel can get fussy when his diapers are being changed and she tried to model for mother how to talk to and soothe the baby while changing his diapers. [CSW] stated that mother was quiet and said nothing to the baby. [¶] [CSW] stated that mother talks about her trauma that she experienced in her country and [says] she has ‘bad luck’ and doesn’t understand why her child has been removed from her care. [¶] [CSW] stated that mother recently disclosed that she has [l]upus and during the visits says she can’t interact much with Daniel because of her [a]rthritis. [CSW] stated that mother changes diapers, holds the bottle, and then passes the child to father. [¶] [CSW] repeatedly stated that mother does not interact with Daniel and often just stares at Daniel without saying a word. [¶] As to father, [CSW] stated that although father interacts with the child appropriately, she has concerns due to the fact that father is a registered sex offender. [CSW] stated that father has to often tell mother what to do in regards to Daniel and to interact with and care for him.”

In March 2016, the CSW said there had been no improvement in mother’s interactions with Daniel, noting that mother “only changes diapers and feeds Daniel but does not interact at all with him. [The CSW] stated that mother does not talk to Daniel or play with him.”

B. Hearing

The court held a contested jurisdiction and disposition hearing on March 15, 2016. Father testified that he had sexually abused one of his sisters^[5] when he was “around 18, . . . plus [or] minus two or three years.” The abuse began in the early 1990’s and continued for “around four to five years.” Father said he was “a little bit off on the dates” because “t has been quite a while.” Father believed the sexual abuse was consensual while it was occurring, but said he now understands that he was “being selfish . . . catering to my own needs.” Father said the abuse stopped prior to his arrest, when he confessed his actions to a priest. Father explained: “I sought . . . counseling from a priest, and I said . . . [t]his is what I have done. What do I do? [¶] And he says, well, I am glad you came here, that you want to change your soul. And it just stopped. I felt bad. . . . It was creating havoc on my life. It was [wreaking] havoc on my sister’s life. I saw a change in me. I didn’t like who I was. I just stopped.” Father said he had not sexually abused anyone since that time, had “no desire, no need, no moral inclination to do so.”

C. [i]Court Order

On March 15, 2016, the court sustained the allegations of the petition, explaining as follows:

“The therapist talks mostly in generalities, and albeit he hasn’t seen the father since he finished treatment with him. I don’t think his testimony is terribly helpful to me because he didn’t give me enough specifics in this case.

“I then go to father’s testimony. I think the father is not accepting all of the responsibility for his actions. I think there was more than one sister involved. The father’s testimony is self-serving, cavalier, and at times sounded detached like he was talking about someone else.

“I look at the mother’s statements. She says in the detention report that she thinks father is a gay male. Then she is not sure. The father’s statements in the same report indicate that he is not homosexual, and, therefore [father claims] this type of abuse could not happen to his young infant son.

“The mother’s statements include to the nurse and the social worker, ‘If you think I’m crazy, you are the ones that released this baby to a registered sex offender,’ which causes me to believe that the mother didn’t think it was such a swell idea in the beginning either.

“If the mother was concerned about the father being a registered sex offender, once she found out during her pregnancy, she stayed there. She didn’t move. She didn’t ask father to move. The court is very concerned about this situation.

“I do not find that the presumption has been rebutted. In fact, I think that I am finding the opposite.

“Looking at [mother’s counsel’s] argument about the mother and her visits, the last minute [information] for today indicates that the visits do not go well. In fact, it indicates that the mother does not talk to the child or play with him. She feeds him and changes his diapers but doesn’t interact with the child. But the father does. So I don’t think that the mother has shown me [count b-1] is not true. In other words, I believe that . . . [count b-1] is true. And I think the mother still has this issue with mental health, and I think the mother needs to address it more directly. I am finding that [count b-1] is true.”

With respect to the counts relating to father’s criminal conviction and the impact thereof, “I am finding [count b-2] to be true, and I am finding [count d-1] to be true by preponderance of the evidence. [¶] There is a factual basis contained in all of the reports that I have read for these findings as well as the testimony that the court has listened to for this trial.”

With regard to disposition, the court ordered reunification services for both parents. The court ordered mother to attend a parenting class and sexual abuse awareness counseling, to continue to see her psychiatrist, and to take all prescribed psychotropic medication; and it ordered father to complete a parenting class and individual counseling to address case issues, including sexual abuse. Mother and father were both granted monitored visits with Daniel, with DCFS discretion to liberalize.

Mother and father timely appealed from the March 15, 2016 order.

During the pendency of the appeal, the court ordered Daniel released to mother on the condition that mother remain in full compliance with her case plan. The court ordered that father was not to spend the night in the mother’s home without DCFS approval, but gave DCFS discretion to allow father overnight visits and/or to allow father to move back in to the family home.

DISCUSSION

Mother and father contend that there was insufficient evidence to support the jurisdictional findings that mother had mental or emotional problems that rendered her unable to care for Daniel, and that father’s criminal history placed Daniel at risk of physical harm and sexual abuse. For the reasons that follow, we disagree and affirm.

I.

Substantial Evidence Supported the

Jurisdictional Findings

A. Standard of Review

We review the juvenile court’s jurisdictional findings for substantial evidence and will affirm if “there is reasonable, credible evidence of solid value to support them.” (In re Jonathan B. (2015) 235 Cal.App.4th 115, 119.) In making this determination, “[w]e draw all reasonable inferences from the evidence to support the findings and orders of the juvenile court and review the record in the light most favorable to the court's determinations; we do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the trial court’s findings. [Citation.] Thus, we do not consider whether there is evidence from which the juvenile court could have drawn a different conclusion but whether there is substantial evidence to support the conclusion that the court did draw. [Citation.]” (In re M.R. (2017) 8 Cal.App.5th 101, 108.)

B. Substantial Evidence Supported the Juvenile Court’s Finding That Daniel Was at Risk of Sexual Abuse

Section 300, subdivision (d) provides a basis for juvenile court jurisdiction if a 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.” In the present case, there is no evidence that father has sexually abused Daniel; we therefore consider whether the juvenile court properly found that Daniel is at “substantial risk” of sexual abuse.

Section 355.1, subdivision (d) creates a rebuttable presumption that a parent who has been convicted of sexual abuse or is required to register as a sex offender poses a substantial risk of harm to a child in his or her care or custody. “The prior sexual abuse conviction functions as prima facie evidence of risk and imposes on the parent the burden of producing some evidence to show he or she does not pose a substantial risk of harm to the child. If evidence is introduced that would support a contrary finding, the presumption disappears.” (In re Quentin H. (2014) 230 Cal.App.4th 608, 610.) In that event, “the matter must be determined based on all the evidence presented, including the fact of the prior conviction and reasonable inferences derived from it.” (Id. at p. 610.)

We assume without deciding that father’s evidence was sufficient to rebut the section 355.1 presumption, and we therefore consider whether substantial evidence supported the trial court’s conclusion, based on all the evidence before it, that Daniel was at risk of sexual abuse. For the reasons that follow, the trial court’s conclusion was supported by substantial evidence.

Our Supreme Court has explained that section 355.1, subdivision (d), expresses a legislative judgment “ ‘that children of the State of California are placed at risk when permitted contact with a parent or caretaker who has committed a sex crime. . . .’ ” (In re I.J. (2013) 56 Cal.4th 766, 779.) It is for this reason that “sexual abuse of one child may constitute substantial evidence of a risk to another child in the household—even to a sibling of a different sex or age or to a half sibling.” (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 968, fn. omitted.) Further, “the more severe the type of [sexual] abuse, the lower the required probability of the child’s experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300. If the [sexual] abuse is relatively minor, the court might reasonably find insubstantial a risk the child will be similarly abused; but as the abuse becomes more serious, it becomes more necessary to protect the child from even a relatively low probability of that abuse.” (In re I.J., supra, 56 Cal.4th at p. 778.)

DCFS contends, and father concedes, that the sexual abuse of which he was convicted was both prolonged and severe. We agree. Our record does not reveal the precise nature of the sexual conduct at issue, but it is clear that father engaged in sexual acts with one or two of his sisters for six years; their ages at the inception were seven and eleven.^[6] Through his conduct, father took advantage of the intimacy of the sibling relationship, his position of trust in the family, and his sisters’ young ages. The length and severity of the abuse, coupled with father’s skill at hiding it, suggests that Daniel may similarly be at risk of sexual abuse. Accordingly, the juvenile court could properly infer from the severity of the sexual abuse of which father was convicted that Daniel was at substantial risk of sexual abuse. We note, moreover, that at the time of the jurisdiction hearing, Daniel was only nine months old. He thus was far too young either to report inappropriate activity by father, or to be in regular contact with mandated child abuse reporters, such as teachers and coaches, who could report such activity on Daniel’s behalf.

Father concedes that his sexual abuse was “egregious,” but he urges that on the record presented, no reasonable trier of fact could conclude that he posed a risk to Daniel. Specifically, father asserts Daniel is unlike father’s prior victims because they were female and Daniel is male; sixteen years elapsed between father’s arrest in 2000 and the jurisdictional hearing in 2016; there is no evidence that father has committed any sex crimes in the approximately eight years since his release from prison; father participated in rehabilitative services after his release; and father’s therapist believed he presented a low risk of reoffending. For the reasons that follow, we conclude that father’s evidence, while relevant, is not dispositive.

Gender of father’s victims. Father urges that Daniel is not at risk for abuse because unlike father’s prior victims, Daniel is male. Father concedes, however, that our Supreme Court has rejected the contention that sexual abuse of a child of one gender does not put children of the other gender at risk: “When it enacted subdivision (d) of section 355.1, the Legislature found ‘that children of the State of California are placed at risk when permitted contact with a parent or caretaker who has committed a sex crime. . . .’ [Citation.] Nothing in this subdivision suggests it is limited to sexual abuse of a person of the same gender as the child before the court. . . . [¶] . . . [¶] . . . For present purposes, we may assume that father’s [daughters are] at greater risk of sexual abuse than are his sons. But this does not mean the risk to the sons is nonexistent or so insubstantial that the juvenile court may not take steps to protect the sons from that risk. ‘Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of sexual abuse of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still substantial.’ [Citation.]” (In re I.J., supra, 56 Cal.4th at pp. 779–780.)

Passage of time since the offenses for which father was incarcerated. Father notes that sixteen years elapsed between father’s arrest in 2000 and the jurisdictional hearing in 2016; and, further, there is no evidence that father committed any sex crimes in the approximately eight years since his release from prison. However, the length of time that has passed since a parent’s earlier sex crimes, taken alone, is not determinative, especially where the parent has spent a substantial amount of time in confinement, with no access to potential child victims. (Los Angeles Dept. of Children and Family Services v. Superior Court (2013) 222 Cal.App.4th 149, 162.) In the present case, father spent eight of the 16 years since his arrest in prison; and although he has been out of prison for the last eight years, there is no evidence that, until Daniel’s birth, father has had access to a young child, particularly in the intimacy of a home environment.

Father’s rehabilitative services and therapist’s belief that father is at low risk for reoffending. Father urges that Daniel is not at risk because father participated in rehabilitative services after his release from prison and his therapist believed he presented a low risk of reoffending. We agree with father’s characterization of the evidence only in part. As father suggests, the record demonstrates that father regularly attended monthly post-release sessions with Dr. Rezaipour, and that Dr. Rezaipour testified that father was open to the therapeutic process and presented a low risk of reoffending. However, as the juvenile court noted, Dr. Rezaipour qualified his opinion in significant ways: He testified that he “did not have any major concern” that father was at risk of reoffending, and he did not believe there was a “major risk” that father would sexually abuse Daniel “[b]ased on the information that I remember and I have and I can recall.” (Italics added.) Further, Dr. Rezaipour admitted that his monthly sessions with father had been only 30 to 45 minutes long and that he had not treated or otherwise had contact with father in approximately six years. And, he pointedly refused to opine that father would be “safe” around children, stating only that father’s risk of reoffending “was at the low side.”

The juvenile court was in the best position to evaluate the witnesses who were present in court and to make findings of fact based on that assessment. Here, the juvenile court found that Dr. Rezaipour’s testimony was “[not] terribly helpful” because Dr. Rezaipour had not seen father in many years and “talks mostly in generalities.” Further, the court said that it did not find persuasive father’s testimony that he had abused only one of his sisters and had taken responsibility for his actions: “I then go to father’s testimony. I think the father is not accepting all of the responsibility for his actions. I think there was more than one sister involved. The father’s testimony is self-serving, cavalier, and at times sounded detached like he was talking about someone else.” The juvenile court was entitled to conclude that father was not truthful based on the court’s evaluation of father’s manner and affect on the witness stand, and it is not our role to second-guess that evaluation.

Based on the foregoing, we conclude that substantial evidence supported the trial court’s finding that Daniel was at risk of sexual abuse, and thus was within the jurisdiction of the juvenile court pursuant to section 300, subdivision (d).[7]

C. Substantial Evidence Supported the Juvenile Court’s Finding That Mother’s Mental Illness Placed Daniel at Risk of Harm

Section 300, subdivision (b), provides that a child is within the jurisdiction of the juvenile court if “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, . . . or by the inability of the parent or guardian to provide regular care for the child due to the parent’s . . . mental illness.”

Mother does not dispute that she suffers from depression and anxiety, experiences visual hallucinations, and had a psychiatric hospitalization in August 2015. However, mother contends that at the time of the adjudication in March 2016, her psychiatric issues did not put Daniel at risk. For the reasons that follow, we do not agree.

There is substantial evidence in the record that mother has struggled with mental illness for many years. Mother admitted that she had tried to kill herself when she was 14 years old, and that for the last several years she had sometimes heard voices that told her to jump out a window, kill herself, or hurt others. When Daniel was less than two months old, mother’s condition had worsened to the point that she was placed on an involuntary psychiatric hold. The juvenile court reasonably could conclude that mother’s mental illness, including her depression and auditory and visual hallucinations, would interfere with her ability to be attentive to and safely care for an infant.

Mother suggests that the juvenile court should have concluded Daniel was not at risk because “mother had properly addressed her mental health issues, and her hospitalization was a one-time occurrence caused by stress and lack of sleep.” We do not agree. Mother’s statements to nurses and social workers at the time of her hospitalization suggest that what precipitated mother’s hospitalization was not an isolated incident—to the contrary, mother had been experiencing mental health issues for many years. Further, although at the time of the jurisdictional hearing mother was receiving some counseling, the juvenile court was not required to conclude that her longstanding depression and anxiety, accompanied by hallucinations and paranoid delusions, were being adequately managed by weekly phone calls and monthly in-person visits with a therapist.

Finally, there is abundant evidence in the record of mother’s difficulty in bonding with or caring for Daniel. The CSW who supervised mother’s visits reported in January 2016 that mother had a flat affect, interacted minimally with Daniel, and repeatedly had to be instructed on how to interact with and care for Daniel. The CSW’s attempts to teach mother how to talk to and comfort Daniel were not successful; according to the CSW, mother “does not interact with Daniel and often just stares at Daniel without saying a word.” Several months later, the CSW again reported “no improvement” in mother’s interactions with Daniel; although mother fed Daniel and changed his diapers, she “does not talk to Daniel or play with him.”

For all of these reasons, substantial evidence supported the juvenile court’s jurisdictional findings.

DISPOSITION

The jurisdictional findings and dispositional order of March 15, 2016, are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

BACHNER, J.^*