Filed 5/24/22 In re E.C. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Marcos R. Camacho, Judge.

Sean Burleigh, under appointment by the Court of Appeal, for Defendant and Appellant.

Margo A. Raison, County Counsel, and Elizabeth M. Giesick, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

E.M., Sr., father of now three-year-old E.M., Jr., appeals from the juvenile court’s jurisdictional finding under Welfare and Institutions Code section 300, subdivision (d)[1] that he sexually abused his stepdaughter. He contends there was insufficient evidence that sexual abuse occurred as defined by the statute because there was no evidence that he intentionally touched his stepdaughter for sexual arousal or self-gratification as required by law. Respondent Kern County Department of Human Services (department) concedes error and the parties have stipulated to a reversal of the jurisdictional finding and remand to the juvenile court to vacate the finding. We accept the parties’ stipulation, grant the request for a stipulated reversal, remand directing the juvenile court to vacate the finding and order an immediate issuance of the remittitur.

PROCEDURAL AND FACTUAL SUMMARY

Police Investigation and Father’s Arrest

On August 13, 2020, a police officer with the Bakersfield Police Department responded to a report of child molestation at the home father shared with his girlfriend, Linda, her 14-year-old son, Martin, 12-year-old daughter, E.C. (the stepdaughter), nine‑year-old son, Z.L., five-year-old son, B.S. and their one-year-old son, E.M., Jr. Linda said she left the four younger children with father while she took Martin to register for school. She estimated she was gone for 20 minutes. When they returned home, the stepdaughter told Martin that father “rubbed” her “ ‘butt’ ” while they were gone. Martin told Linda. The stepdaughter told Linda she was lying on her stomach in the bedroom when father started rubbing her “ ‘butt.’ ” When Linda confronted father, he became upset and left the residence. He returned hours later, stating it was an accident. Linda asked him to leave and not return for the time being.

Z.L. stated he was in the master bedroom. Father was sitting on the bed with him when the stepdaughter entered the bedroom and laid next to the bed on her stomach. Father reached down and started rubbing his sister’s “butt” with his hand in a circular motion. The stepdaughter told him to stop and left the room. The following day, Z.L. told the officer that he did not see what happened.

The stepdaughter told the officer she entered the master bedroom to play with her youngest brother E.M., Jr. Father and Z.L. were sitting on the bed talking and E.M., Jr., was on the ground playing. She laid on her stomach next to the bed to play with E.M., Jr. She felt an adult-sized hand rubbing her “butt” for approximately five seconds over her clothes in a circular motion. She felt “icky” inside and told father to stop. She got up and left the room and waited until her mother arrived home. The stepdaughter did not believe the touching was accidental.

Father confirmed that he was sitting on the bed and the stepdaughter was lying on her stomach on the floor to his right. He was going through his wallet and the stepdaughter asked if she could count his money. She returned the money to him and as he was putting the cash in his wallet, he dropped a piece of paper. The paper floated over the stepdaughter’s body onto the floor. As father reached to pick up the paper, his hand accidentally brushed up against the stepdaughter’s buttocks. He denied rubbing her buttocks or allowing his hand to linger there. He said he was not aroused and it was completely unintentional. She was wearing pants and he did not touch her skin. He denied that she told him to stop. He knew he had to leave the residence after the stepdaughter told Linda that he touched her. As he was leaving, the maternal grandmother’s boyfriend punched him in the face. Linda kicked him in the head while he was down and the boyfriend continued to beat him. He was able to get to his feet and flee. The officer saw a small scrape on his left elbow and a cut on the right side of his head.

Father was arrested the following day for lewd acts with a child. He was not on probation or parole, did not have any warrants for his arrest and had no prior sexual allegations. The maternal grandmother was present at his arrest. She told the officer that she confronted father about touching the stepdaughter. He cried, put his head in his hands and admitted doing it.

The Department’s Investigation and Petition

The department received the referral on August 20, 2020. By that time, father was released on bail and the department was concerned that he was living in the home. A social worker went to the home the following day. Father was not there and Linda did not know where he was living. However, Z.L. told her that the incident did not happen and that the stepdaughter lied sometimes. Linda and father were high school sweethearts and she believed he was a good person. She was not going to prevent him from coming to their home. The social worker spoke separately with the stepdaughter who described the incident with father. She said she was afraid of him but had not seen him since. She told Martin about it because it had never happened before.

On September 16, 2020, a social worker met with Linda and the stepdaughter. Linda said the stepdaughter told her that she lied about father touching her. The stepdaughter confirmed that she lied but could not explain why. No one told her to change her story. She talked to father and he apologized.

The department took the children into protective custody and placed the stepdaughter with her father and the other children together in foster care. The department filed a petition on the children’s behalf under section 300, subdivision (d), alleging father sexually abused the stepdaughter and Linda failed to protect her, thus placing them all at risk.[2]

Section 300, subdivision (d) allows the juvenile court to exercise jurisdiction over a child if “[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 the child’s parent … or a member of the child’s household, or the parent … has failed to adequately protect the child from sexual abuse when the parent … knew or reasonably should have known that the child was in danger of sexual abuse.” Penal Code section 11165.1, in turn, defines “sexual abuse” to include “sexual assault,” which as relevant here includes “[t]he intentional touching of the genitals or intimate parts, including the … buttocks, or the clothing covering them, of 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.” (Pen. Code, § 11165.1, subd. (b)(4).)

Detention and Issues Regarding the Stepdaughter’s Mental Health

The juvenile court ordered the children detained, and offered the parents counseling in parenting and neglect, father counseling in sexual abuse as a perpetrator and Linda counseling in failure to protect from sexual abuse. A combined jurisdictional/dispositional hearing initially set in September 2020, was continued multiple times, and conducted as a contested hearing on March 22, 2021 (contested hearing).

In the interim, the stepdaughter’s mental health was raised as an issue in the proceedings. She had a history of mental illness and claimed “ ‘demons’ ” made her say she was inappropriately touched and got mad if she did not do what they told her. She was diagnosed with psychosis and prescribed a medication that she was not taking at the time she made the allegation. Father and Linda continued to deny that father sexually abused the stepdaughter and asked the juvenile court to have her mental health records reviewed by a medical expert and possibly have her undergo a psychological evaluation. The department opposed the request and the court denied it.

In February 2021, Linda and father informed the social worker the charges against father were being dismissed.

Contested Jurisdictional Hearing on March 22, 2021, and Mistrial

Linda testified the stepdaughter was receiving mental health treatment when she accused father of sexual molestation. She was having difficulty sleeping and thought someone was watching her. Linda did not know if the doctor diagnosed the stepdaughter with a mental illness but knew the doctor prescribed a medication to help her sleep. The stepdaughter had a history of lying. She said demons made her lie and do things she did not want to do. The stepdaughter told her the demon made her lie about the molestation but also said that it did not.

Martin testified he never saw father do anything inappropriate and believed the stepdaughter was lying because she “switch[ed] up” her story. He believed she did it for “pay back.”

The stepdaughter denied telling Martin she accused father for pay back. She maintained that father touched her as she originally described and denied saying a demon told her to accuse him. She admitted she heard voices and received treatment, including medication, for the voices. However, the voices did not tell her to lie. The juvenile court clarified that the voices came from a different person. The stepdaughter said father apologized to her.

Then ten-year-old Z.L. testified he did not see what happened. Nearly

six-year-old B.S. testified he was in the room and father did not touch the stepdaughter. He saw Z.L. touch her buttocks. He said the stepdaughter lied sometimes.

Father’s attorney argued the stepdaughter’s allegation father sexually molested her was not credible, citing her history of mental illness, her brothers’ testimony that she lied, her inconsistent statements about whether the demons told her to lie about the incident with father, and the implausibility that father could have physically touched her from where he was sitting on the bed. His attorney also argued there was no evidence father touched her for sexual gratification. County counsel acknowledged the stepdaughter told the social worker she lied about the incident with father but believed she said that because mother was listening to the conversation. County counsel argued the stepdaughter was unwavering in her story during testimony and was credible whereas her brothers’ testimony was coached. County counsel argued the facts that came out of the initial investigation were the most telling. County counsel did not cite any evidence to support a finding father touched the stepdaughter for his own sexual gratification.

Following argument, the juvenile court found that minors’ counsel had a conflict and declared a mistrial. The matter was continued multiple times until July 27, 2021, when the court made a tentative ruling, finding the section 300, subdivision (d) allegation true. The court found the initial facts at the time of the incident most credible. Specifically, the court noted Linda was sufficiently convincing that the maternal grandmother had her boyfriend beat father up, Martin did not question the stepdaughter’s statement that father touched her and Linda confronted father about it. It was only after that that the stories emerged. The jurisdictional hearing remained on calendar for August 10, 2021, to coincide with the dispositional hearing.

In June 2021, the stepdaughter contacted the social worker to say that she lied about father touching her inappropriately. He never touched her or did anything to her. She lied about him because she wanted to live with her father and Linda would not allow it. She no longer wanted to live with her father because he did not give her any privacy and argued with his girlfriend.

Jurisdictional/Dispositional Hearing on September 13, 2021

The August 10, 2021, jurisdictional/dispositional hearing was continued to September 13, 2021. By that time, father had completed counseling for sexual abuse as a perpetrator and the children were having overnight extended visitation with him and Linda.

On September 13, 2021, Linda’s attorney argued there was insufficient evidence the stepdaughter was sexually assaulted as defined in the Penal Code, including that any touching was done for the purpose of sexual arousal. Father’s attorney joined, adding there was no evidence the children were at risk in his care since they were at home with him. The stepdaughter’s attorney argued she was “very clear about what happened to her” but that it was a single incident and the parents had completed their case plans. He believed the court could “go either way” but requested ongoing supervision. County counsel maintained its position that father’s conduct rose to the level of sexual abuse and exploitation under the Penal Code, warranting a true finding under section 300, subdivision (d).

The juvenile court found the section 300, subdivision (d) allegation true, dismissed the petition as to Linda’s sons, including father’s child E.M., Jr., without prejudice, and returned the stepdaughter to Linda’s care with family maintenance services.

DISCUSSION

The main issue father raises in his opening brief[3] is that the juvenile court erred in finding he sexually abused the stepdaughter under section 300, subdivision (d).[4] After father filed his opening brief, the parties filed a “Joint Application and Stipulation for Reversal of Judgment and Remand of Action to the Superior Court,” in which they stipulate to reversal of the juvenile court’s finding pursuant to section 300, subdivision (d), including the factual finding that father sexually abused the stepdaughter.

Having reviewed the record, we concur substantial evidence does not support a finding father sexually assaulted the stepdaughter as defined under Penal Code section 11165.1. Even assuming he touched the stepdaughter’s buttocks over her clothing as she alleged, there was no evidence it was intentionally committed for the purpose of sexual gratification.

A stipulated reversal under Code of Civil Procedure section 128, subdivision (a)(8) is permissible in a dependency case when the stipulated reversal will not adversely affect the rights of any nonparty or the public, the reasons for requesting reversal outweigh the erosion of public trust that may result from nullification of a judgment, and “ ‘the risk that availability of stipulated reversal will reduce the incentive for pretrial settlement.’ ” (In re Rashad H. (2000) 78 Cal.App.4th 376, 379–382.)

None of these factors preclude us from accepting the parties’ stipulated reversal. The stipulated reversal only affects the rights of the parties, not the rights of any nonparty or the public. The reason for requesting reversal, namely, judicial error in finding father sexually abused his stepdaughter, outweighs any conceivable erosion in public trust, as there is clear judicial error the resolution of which the parties have sought to expedite and return the case to the juvenile court to correct. Finally, settlement is not an issue here. In that the parties have identified a specific error that would lead to reversal of the jurisdictional finding, we grant the motion.

DISPOSITION

The request for stipulated reversal is granted. The matter is remanded to the juvenile court with instructions to reverse its September 13, 2021, jurisdictional finding that the stepdaughter, E.C., was a child described under section 300, subdivision (d), including the factual finding that father sexually abused her. The Clerk/Executive Officer of this court is directed to issue a remittitur forthwith. (Cal. Rules of Court, rule 8.272(c)(1).)

* Before Franson, Acting P. J., Peña, J. and DeSantos, J.

[1] Statutory references are to the Welfare and Institutions Code unless otherwise indicated.

[2] The department also alleged the boys were described under section 300, subdivision (j) (abuse of sibling). However, the juvenile court subsequently found that the department failed to meet its burden as to that allegation and dismissed it.

[3] We concur that father has standing to appeal the juvenile court’s jurisdictional finding he sexually abused his stepdaughter. He was a party to the proceedings and aggrieved by a judicial finding that he sexually abused a minor. (In re K.C. (2011) 52 Cal.4th 231, 236.)

[4] Father also raised a subsidiary issue—whether the juvenile court erred in excluding the stepdaughter’s mental health records. He requested we take judicial notice of information related to her mental health status and treatment; specifically, Taber’s Medical Dictionary definition of psychosis and the box labels for Abilify and Seroquel. In light of the stipulated reversal, we need not address this issue and we deny the request for judicial notice.