L.A. Cnty. Dep't of Children & Family Servs. v. Richard H. (In re Quentin H.)

• Decision Date: 14 October 2014
• Docket Number: B253816
• Citation: 179 Cal.Rptr.3d 58,230 Cal.App.4th 608
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE QUENTIN H. et al., Persons Coming Under the Juvenile Court Law. Los Angeles County Department of Children And Family Services, Plaintiff and Respondent, v. Richard H., Defendant and Appellant.

230 Cal.App.4th 608

179 Cal.Rptr.3d 58

IN RE QUENTIN H. et al., Persons Coming Under the Juvenile Court Law.Los Angeles County Department of Children And Family Services, Plaintiff and Respondent

v.Richard H., Defendant and Appellant.

B253816

Court of Appeal, Second District, Division 7, California.

Filed October 14, 2014

Aida Aslanian, Glendale, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

Opinion

PERLUSS, P.J.

Welfare and Institutions Code section 355.1, subdivision (d),¹ creates a rebuttable evidentiary presumption that a parent who has previously been convicted of sexual abuse as defined in Penal Code section 11165.1 or is required as the result of a felony conviction to register as a sex offender pursuant to Penal Code section 290 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 and the matter must be determined based on all the evidence presented, including the fact of the prior conviction and reasonable inferences derived from it.

Richard H., father of eight-year-old Quentin H. and six-year-old Linda H., appeals from the jurisdiction findings and disposition order declaring his children dependents of the juvenile court. Richard, who was convicted in 1987 of sexual abuse of a child under 14 years old, contends the court erred in basing its jurisdiction findings on the section 355.1 presumption of risk. We agree Richard adequately rebutted the presumption of current dangerousness by identifying contrary evidence in the department's own reports. Because the juvenile court improperly relied solely on the presumption to sustain the allegations in the dependency petition relating to Richard, rather than evaluating the totality of the evidence in the record, we reverse and remand with directions to the juvenile court to consider the evidence without regard to the section 355.1 presumption.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition

On August 19, 2013 the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition alleging Natasha W., mother of Quentin, Linda, then 16-year-old Marcus W. and then 10-year-old S.H.,² had a history of illicit drug use and was a current user of cocaine and marijuana, making her incapable of caring for her children. As to Richard, who had not lived in the family home since his relationship with Natasha had ended several years earlier but who still visited regularly with Quentin and Linda, the petition contained counts under section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse), alleging in identical language solely that his conviction in 1987 (when he was 18 years old) for forcible oral copulation with a minor under 14 years old (Pen.Code, § 288a ) and status as a registered sex offender endangered his children.³ Quentin, Linda and their older siblings were detained following a detention hearing.

2. The Jurisdiction and Disposition Hearing

At the January 8, 2014 hearing Natasha signed a waiver of rights and submitted the issue of jurisdiction to the court based on the Department's social study reports. The jurisdiction report and last-minute information provided to the court identified Richard's sexual abuse conviction and also recounted his more recent failure to register as a sex offender, an offense for which he was convicted in 2013 and sentenced to probation. Richard's probation officer told social workers there were no restrictions on Richard's ability to be with his children, although he also stated it was generally the policy of the probation department to require monitored visitation for sex offenders.

The jurisdiction report also included statements from Marcus and S.H. to social workers that Richard had lived with them for a substantial amount of time while he and their mother were romantically involved and Richard had not engaged in any inappropriate conduct with either one of them or with their siblings in their presence. Quentin and Linda also told social workers Richard had always behaved appropriately with them and they felt safe in his care. Natasha told social workers she had never witnessed Richard behave inappropriately with any of her children and none of them had complained about him. Richard told social workers he did not commit sexual abuse in 1987 and had been falsely accused.

Richard denied the allegation he was a danger to his children and moved to dismiss the petition for lack of evidence. Although he did not request a trial or introduce any additional evidence, he argued the evidence in the Department's own reports, including the staleness of his sexual abuse conviction and statements from Natasha and his children, showed he was not a danger to his children. Quentin and Linda's counsel agreed the evidence as to Richard was too insubstantial to support jurisdiction.

The Department, however, argued Richard's prior conviction and status as a registered sex offender, coupled with the absence of any evidence he had received rehabilitative therapy since his 1987 conviction, were sufficient to find him a danger to his children. It also argued the passage of time since Richard's qualifying conviction was insufficient to rebut the section 355.1 presumption of risk.

The court sustained the allegations in the petition as to both Natasha and Richard and found Quentin and Linda to be persons described by section 300, subdivisions (b) and (d). As to Richard, the court stated the prior sex abuse conviction was prima facie evidence he was a danger to his children and that the passage of time since his conviction was, by itself, insufficient to rebut that presumption. The court determined that, apart from emphasizing the staleness of the conviction, Richard had failed to present any other evidence to rebut the section 355.1 presumption. ⁴

The court did not address the evidence in the jurisdiction report Richard had cited to rebut the presumption.

At the disposition hearing conducted the same day, the court declared Quentin and Linda dependent children of the court and released them to Natasha with family maintenance services to address the issues that had led to the assertion of dependency jurisdiction. The court removed Quentin and Linda from Richard's care and custody and ordered services for him, including monitored visitation, participation in sexual abuse counseling for perpetrators, drug testing and a parenting class.

DISCUSSION

1. We Exercise Our Discretion to Consider Richard's Jurisdiction Challenge

The Department urges this court to refrain from considering Richard's appeal because jurisdiction over Quentin and Linda is proper based solely on the court's findings regarding Natasha's conduct. (See In re I.A. (2011) 201 Cal.App.4th 1484, 1492, 134 Cal.Rptr.3d 441 [jurisdiction finding involving one parent is good against both; “the minor is a dependent if the actions of either parent bring [him or her] within one of the statutory definitions of a dependent”]; In re Alexis E. (2009) 171 Cal.App.4th 438, 451, 90 Cal.Rptr.3d 44 [same].) However, when, as here, the outcome of the appeal could be “the difference between father's being an ‘offending’ parent versus a ‘non-offending’ parent,” a finding that could result in far-reaching consequences with respect to these and future dependency proceedings, we find it appropriate to exercise our discretion to consider the appeal on the merits. (See In re Drake M. (2012) 211 Cal.App.4th 754, 762–763, 149 Cal.Rptr.3d 875 ; In re D.P. (2014) 225 Cal.App.4th 898, 902, 170 Cal.Rptr.3d 656 ; In re I.A., at p. 1494, 134 Cal.Rptr.3d 441.)

2. Standard of Review

Ordinarily we review the juvenile court's jurisdiction findings and disposition orders for substantial evidence. (Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 215 Cal.App.4th 962, 966, 156 Cal.Rptr.3d 502 ; In re R.C. (2012) 210 Cal.App.4th 930, 940, 148 Cal.Rptr.3d 835.) Under this standard “[w]e review the record to determine whether there is any substantial evidence to support the juvenile court's conclusions, and we resolve all conflicts and make all reasonable inferences from the evidence to uphold the court's orders, if possible.” (In re David M . (2005) 134 Cal.App.4th 822, 828, 36 Cal.Rptr.3d 411 ; accord, In re Drake M., supra, 211 Cal.App.4th at p. 763, 149 Cal.Rptr.3d 875.)

Here, however, in making its jurisdiction finding the court relied solely on the evidentiary presumption contained in section 355.1. The question whether the statute was properly applied in light of undisputed contrary evidence and, if not, whether the Department had met its duty at the jurisdiction hearing to show by a preponderance of the evidence that Quentin and Linda were children described by one of the subdivisions of section 300, are legal questions subject to de novo review. (See Farr v. County of Nevada (2010) 187 Cal.App.4th 669, 682, 114 Cal.Rptr.3d 36 [question whether board properly followed statute requiring shifting burden of proof in accordance with rebuttable presumption affecting burden of proof is legal determination reviewed de novo]; see generally Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1163, 117 Cal.Rptr.3d 126 [“ ‘[t]he mere introduction of evidence sufficient to sustain a finding of the nonexistence of the presumed fact causes the presumption, as a matter of law, to disappear’ ”] italics added.)

3. Richard Adequately Rebutted the Presumption Contained in Section 355.1 ; Remand Is Necessary for the Juvenile Court to Properly Consider the...