L.A. Cnty. Dep't of Children & Family Servs. v. Raul C. (In re K.C.)
| Decision Date | 19 March 2020 |
| Docket Number | B297790 |
| Parties | In the Matter of K.C., A Person Coming Under Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Appellant v. Raul C., Defendant and Appellant. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. 19CCJP01526A)
APPEAL from orders of the Superior Court of Los Angeles County, Rudolph A. Diaz, Judge. Affirmed in part, reversed in part.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant Raul C. Office of the County Counsel, Mary C. Wickham, County Counsel, Kristine Miles, Assistant County Counsel and Kim Nemoy, Deputy County Counsel for Plaintiff and Appellant Los Angeles County Department of Children and Family Services.
____________________
Appellant Raul C. is the father of K.C. (born June 2011). In the course of investigating a referral alleging that mother Lidia R. negligently allowed K.C. to have access to a gun, Los Angeles County Department of Children and Family Services (DCFS) discovered that K.C. shared a bed with Raul, which made her "uncomfortable." DCFS also discovered that Raul's brother Rigo sometimes slept in the same bed with the two of them. Additionally, K.C. revealed that when Raul thought she was asleep, he would be "on Snapchat watching girls take their clothes off," and she would see what he was watching. Based on these discoveries, DCFS filed a petition under Welfare and Institutions Code section 300, subdivisions (b)(1) (Section 300(b)(1)) and (d) (Section 300(d))1 alleging that Raul's actions of sharing a bed with K.C. (and sometimes Rigo) and "caus[ing] the child to watch pornographic videos with thefather . . . plac[ed] the child at risk of suffering serious physical harm, damage, danger and sexual abuse."2
The court found jurisdiction over K.C. under the Section 300(b)(1) count pled against Raul, and ordered K.C. removed from Raul and placed with Lidia. Raul appeals the court's finding of jurisdiction under Section 300(b)(1) and the removal of K.C. from his custody. DCFS appeals from the court's refusal to find jurisdiction under the Section 300(d) count. Because we find that substantial evidence does not support the court's conclusion that Raul's conduct placed K.C. at a substantial risk of suffering serious physical harm, we reverse the trial court's finding of jurisdiction under Section 300(b)(1) and its subsequent removal of K.C. from Raul's custody, and otherwise affirm the court's orders.
On February 19, 2019, DCFS received a referral alleging K.C. was a victim of general neglect by her mother Lidia and Lidia's boyfriend. The referral alleged that in January 2019, K.C. disclosed that, between the months of October and December 2018, Lidia's boyfriend (who was a police officer) was leaving his gun on a table where K.C.could easily reach it. K.C. reportedly stated the last time the gun was on the table, Lidia was sleeping and the boyfriend was watching TV. The reporting party stated a restraining order was issued to protect K.C., and K.C. had not seen her mother since December 2018.
A children's social worker (CSW) interviewed Raul on the same day. Raul explained that in December, Lidia took K.C. to the house of Lidia's police-officer boyfriend, and that at the house there was a gun on the table "with bullets" and it scared K.C. Because K.C. was scared, Raul requested and received a temporary restraining order against Lidia, and filed a report with the Long Beach Police Department regarding Lidia's boyfriend. He also informed the CSW that the restraining order was subsequently dismissed for insufficient evidence. Raul admitted Lidia had told him the gun was fake, but Raul insisted it was real. Raul stated K.C. saw Lidia only once or twice a month; Raul and Lidia had no family law custody order, but Raul advised he would be filing for sole custody because Lidia was a liar, drank too much, had previous suicidal ideations, had an unstable living environment, and neglected K.C. Raul also reported that K.C. was "sexually abused by her M[aternal] U[ncle] Brian awhile back . . . ."3
The CSW also interviewed K.C. K.C. stated her mother had a lot of secrets, and had instructed her not to tellRaul about the secrets. The gun was one of the secrets, and it scared K.C. because she thought it was a real gun, and accurately described it as the size of a real gun. K.C. did not touch the gun because she knew guns were dangerous. Lidia and her boyfriend put the gun away after K.C. stated it scared her.
After K.C. responded that she only "sometimes" liked living with Raul, she explained the qualifier was because she shared a bed with him, which made her uncomfortable. However, she stated she felt safe living with him. K.C. was very chatty and spoke with the CSW regarding many issues. She stated that her father sometimes drank alcohol, but her mother would get drunk and smoke marijuana. She confirmed that her uncle Brian had "touched her private parts with his hand" some time ago, but could not say when.
On February 20, 2019, the CSW separately interviewed Lidia and her boyfriend. Lidia stated the gun K.C. saw was a replica, and she and the boyfriend had explained to K.C. the difference between a fake gun and a real one, and showed K.C. where the real gun was kept. Lidia denied any past drug or alcohol abuse and stated she never smoked marijuana or drank around K.C. Lidia consented to a drug test, and tested negative. She admitted to a previous DUI.
The boyfriend confirmed the gun was a replica, used in his Halloween costume, and that he had explained to K.C. the gun was fake. His real gun was locked in a safe in the closet, and the boyfriend stated he would never leave it out when children were present. Viewing pictures of both guns,the CSW could see the difference between them. Later, when viewing the actual replica gun, the CSW noted it looked real, though there was no chamber or clip for any ammunition. The boyfriend stated he had never seen Lidia abuse alcohol or any other substance, and they had been in a relationship for about a year.
During a February 26, 2019, interview with Lidia, Lidia told the CSW about arriving early at Raul's to pick up K.C. for a visit on February 23. When she walked in, she claimed K.C. was sleeping on the bed between Raul and his brother, K.C.'s uncle Rigo (not the uncle who had allegedly molested her), which she felt was inappropriate.
Lidia also stated that later, at her house, K.C. was watching a movie on a tablet beside her while Lidia took a nap. At some point, Lidia noticed she could not hear the movie anymore, and Lidia asked K.C. what she was doing. K.C. responded by clutching the tablet to her chest, and then closing the apps on it. Lidia took the tablet, checked its search history, and saw that K.C. had searched for "see people have sex."4 Lidia took a screenshot of this search and sent it to Raul, who responded "'it was nature'" and maybe Lidia should have been more involved in K.C.'s life. Lidia also stated that she had decided to take K.C.'s tablet awayand, in response, Raul bought K.C. an iPhone with full internet access.5
After speaking with Lidia, the CSW called Raul. He confirmed Rigo had slept over on the weekend, but claimed Rigo slept on one side of the bed, Raul slept in the middle, and K.C. slept on the other side. Raul stated this sleeping arrangement was "'not a big deal.'" When the CSW opined that K.C. should not be sleeping in a bed with any other adult males because she was a victim of sexual abuse, Raul responded that K.C. "'was not really sexually abused, it was just touching, and it was by another child and not a grown man.'" When the worker stated that "unwanted touching was still considered sexual abuse," Raul disagreed.
When asked about K.C.'s search for "see people have sex," Raul stated it was unclear what K.C. was really searching for, because she actually searched for "see people have xex" (i.e., not sex). Raul also claimed K.C. would never search for this, and Lidia "had to be making it up." When confronted with his text to Lidia claiming K.C.'s search was just "nature," Raul stated that "everyone has feelings about sex, and it was normal for [K.C.] to want to explore those thoughts." When the CSW disagreed and stated K.C. should be in therapy due to the molestation, Raul accused her of "trying to take mother's side in this."
When asked why he purchased an iPhone for K.C. after Lidia took K.C.'s tablet away, Raul stated it was so he couldtalk to K.C. In response to the CSW's concerns over the iPhone's ability to search the Internet, Raul claimed the phone "was locked and could only be used to make phone calls." When the CSW stated she had seen the phone, and that it had full Internet access, Raul blamed T-Mobile and agreed to block the Internet on K.C.'s devices.
On February 27, 2019, the CSW asked Raul about a Family and Children's Index (FCI) report from the Los Angeles Sheriff's Department accusing Raul of "rape by intoxication as well as sodomy." Raul stated the charges were dropped, and the complainant had invented the allegations "because she had been caught underage drinking and her parents had been upset."
On March 1, 2019, the CSW interviewed K.C. at school. K.C. stated that Rigo had lived in the house with Raul and her since at least before Christmas, and confirmed they all slept in the same bed. She confirmed Raul's description of how they slept, with Raul in the middle. She denied being afraid of Rigo. When asked if anyone had ever touched...
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