Filed 9/14/20 In re Mia S. CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re MIA S. et al., Persons Coming B300204
Under the Juvenile Court Law.
(Los Angeles County
Super. Ct. Nos.
19CCJP03735B-C)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
EDWIN T. et al.,
Defendants and Appellants,
MIA S. et al.,
Minors and Appellants.
APPEALS from jurisdiction findings and disposition orders
of the Superior Court of Los Angeles County, Craig S. Barnes
Judge. Affirmed in part, reversed in part and remanded with
directions.
Mary C. Wickham, County Counsel, Kristine P. Miles and
Jessica S. Mitchell, Assistant County Counsel, for Plaintiff and
Appellant.
Jesse McGown, under appointment by the Court of Appeal,
for Defendant and Appellant Edwin T.
Cristina Gabrielidis, under appointment by the Court of
Appeal, for Defendant and Appellant Maricela H.
Marissa Coffey for Minors and Appellants.
________________________
Maricela H. and Edwin T., the mother and presumed father
of nine-year-old Mia S. and four-year-old Emma S., appeal the
juvenile court’s jurisdiction findings and disposition orders
declaring Mia and Emma dependent children of the court under
Welfare and Institutions Code section 300, subdivision (b)(1)
1
(failure to protect), following Edwin’s arrest for arranging over
the Internet to have sexual intercourse with a 16-year-old minor.
Mia and Emma also appeal, joining their parents’ arguments.
The Los Angeles County Department of Children and Family
Services (Department) cross-appeals, contending the juvenile
court erred when it dismissed an identically pleaded count
alleging Mia and Emma were at substantial risk of sexual abuse
by Edwin within the meaning of section 300, subdivision (d). We
1
Statutory references are to this code unless otherwise
stated.
2
reverse the subdivision (b)(1) findings, affirm the subdivision (d)
finding and remand with directions to the juvenile court to
dismiss the petition.
FACTUAL AND PROCEDURAL BACKGROUND
1. Edwin’s Attempted Sexual Liaison, Arrest and
Conviction
Using the messaging feature on a social media website, on
March 11, 2019 Edwin contacted an undercover officer from the
Los Angeles County Sheriff’s Department’s human trafficking
bureau posing as Dejanira, a 16-year-old female, based on
Dejanira’s profile indicating she was sexually available.
According to the incident report prepared the day after Edwin’s
arrest, Edwin texted Dejanira for several days after first
contacting her; and on March 17, 2019 asked, “Are you available
$$$.” Dejanira replied, “I’m young is dat ok?” Edwin asked how
old she was, and Dejanira answered she would turn 17 the
following month. Edwin asked what she was offering and the
price. Dejanira responded $60 for sexual intercourse and $40 for
oral sex. Edwin texted, “I want both Lets get a room [where] u
at.” After further exchanges that again included specific
reference to Dejanira’s age and Edwin’s promise of payment for
sexual acts, as well as mutual assurances they were not police
officers, they agreed to meet on March 18, 2019 at a convenience
store, later changed to a liquor store. When he arrived at the
meeting location, Edwin was arrested for arranging to meet with
a minor to engage in lewd acts (Pen. Code, § 288.4, subd. (b)).
On May 7, 2019 Edwin pleaded no contest to attempted
unlawful sexual intercourse with a minor more than three years
younger than the perpetrator, charged as a felony. (Pen. Code,
§§ 664, 261.5, subd. (c).) Edwin, who had no prior criminal
3
record, was placed on formal probation for five years and
required to participate in a 52-week sex offender counseling
program. As an additional condition of probation Edwin was
prohibited from having any unsupervised contact with minors.
Based on the judge’s instructions, Edwin understood his own
2
children were included in the court-ordered restriction.
2. The Department’s Petition
Edwin resided in a two-bedroom home with Maricela, his
13-year-old son Edwin S., Mia, Emma and the children’s paternal
grandmother. Following a routine compliance check on Edwin at
the family home on June 10, 2019, Edwin’s probation officer
notified the Department of Edwin’s conviction and the conditions
of his probation, including the prohibition of unsupervised
contact with minors.
An emergency response children’s social worker visited the
home and interviewed Edwin, Maricela, Edwin S., Mia and the
paternal grandmother. The social worker learned that Edwin
had not shared the details of his arrest and conviction with
Maricela, claiming only that he had been “set up.” For her part,
Maricela knew Edwin had been convicted of a crime but declined
to obtain more information because she was afraid of what she
might learn. Although Edwin had told Maricela he needed to be
supervised around children, Maricela did not understand this
restriction applied to his own children. Nonetheless, Edwin,
Maricela and the paternal grandmother, who apparently was the
children’s primary caregiver because both parents worked,
insisted Edwin was never alone with any of the children;
2
The criminal court minute order simply states, “No
unsupervised contact with minors.”
4
Maricela or the paternal grandmother was always present when
Edwin and one of the children were together. Edwin S. and Mia
confirmed they were never alone with their father. (Emma was
too young to provide meaningful information.)
The Department initiated dependency proceedings on
behalf of Edwin S., Mia and Emma on June 13, 2019 under
section 300, subdivisions (b)(1) and (d). In identical language for
both counts the Department alleged, “From 3/11/19 to 3/18/19,
the children, Edwin S[.], Mia[ ] and Emma[’s] father, Edwin T[.]
engaged in a course of conduct with the purpose of having sexual
contact with a minor. The children’s father communicated with a
person the father believed to be an underage female on-line. The
female told the father her age and the father continued to
communicate with her and the father arranged to meet and have
sex with the person the father believed to be a minor for the
purpose of engaging in lewd and lascivious conduct. The mother,
[Maricela], failed to protect the children in that the mother was
aware the father engaged in a crime which resulted in father’s
contact with children was restricted, yet mother failed to ensure
father was participating in sex offender class to address his
conduct and allowed father to reside in the children’s home and
have unlimited access to the children. On 5/7/19, the father was
convicted of Arranging A Meeting With A Minor. The father’s
conduct and the mother’s failure to protect the children endanger
the children’s physical health and safety and place the children
at risk of harm, damage, danger, sexual abuse and failure to
protect.”
At an initial petition hearing on June 14, 2019 the court
found a prima facie case had been made that the children came
within section 300, but, on the Department’s recommendation,
5
released the children to their parents. The court ordered Edwin
to comply with the criminal court order regarding unsupervised
contact with his children.
3. The Jurisdiction/Disposition Hearing
In its report for the August 21, 2019 jurisdiction/disposition
hearing, the Department summarized interviews with Edwin S.,
Mia, Edwin, Maricela and the paternal grandmother. Edwin S.
and Mia denied any abuse in the home; Edwin S. said he and his
sisters were safe; and Mia described her parents as getting along
very well with each other.
Edwin agreed the description of his conduct in the
Department’s petition was accurate and admitted, “I wasn’t
thinking properly. . . . I was being a dumbass.” However, Edwin
disagreed that Maricela had failed to protect the children,
describing her as “very protective.” He insisted that, since his
release from custody, he had not been alone with any of the
children. Maricela or the paternal grandmother always
supervised his contact with them. Edwin acknowledged he had
been slow to enroll in the court-ordered sex offenders program,
but explained the delay was due to difficulty he had getting a
correct referral from the probation department. The report
attached an enrollment verification form indicating Edwin had
registered for the 52-week sex offender counseling program on
June 11, 2019.
Maricela again stated she did not fully understand the
nature of Edwin’s conduct prior to initiation of the dependency
proceedings when she finally saw the police report. He had told
her he needed to stay off social media and could not be left alone
with children, including Edwin S., Mia and Emma; but she
“didn’t want to see the reality of it. It’s his mess.” Maricela told
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the social worker she and the paternal grandmother monitored
all of Edwin’s contact with the children and stated she had no
concerns regarding the children’s safety with Edwin living in
their home. Both Edwin and Maricela agreed they had
communication issues and believed couples counseling would be
helpful.
The paternal grandmother reported the children were well
cared for by both parents, confirmed they were never left alone
with Edwin and said she had no concerns for their safety. She
described Maricela as protective of the children.
The Department had initially categorized the children as
“‘Very High’ for future risk of general neglect/sexual abuse living
under the care of their parents” because of Edwin’s criminal
conduct and Maricela’s reluctance to learn the details of his
offense. Nevertheless, as it had when it filed the dependency
petition, the Department continued to believe the children could
remain safely in the home with their parents as long as Edwin
complied with the conditions of his probation. The report
indicated the children were healthy with no signs of abuse or
neglect. A last minute information report filed shortly before the
hearing advised that Edwin and Maricela had enrolled in a
couples counseling program on August 3, 2019.
Maricela testified at the jurisdiction hearing she would
move out with the children if that were necessary to keep them
safe from Edwin, and she also explained she would have reacted
very differently if Edwin had attempted to have sex with a
10-year-old. After Maricela’s testimony her lawyer and counsel
for Edwin and the children urged the court to dismiss the
petition, emphasizing Mia and Emma were not only Edwin’s
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biological children but also significantly younger than the
unrelated 16-year-old Edwin believed he was contacting for sex.
The court dismissed the subdivision (d) count and, after
3
deleting Edwin S. from the subdivision (b)(1) count, sustained
that count as pleaded as to both Edwin and Maricela.
Concerning Edwin the court stated, “Father’s conduct does not
appear to be in dispute, and it’s the kind that would place the
young girls at risk.” As to Maricela it explained, “I tell you why I
see [the parent’s communication issue] as a risk, because if what
you’re on probation for is kept a secret and part of it is mom
supposed to watch you to make sure you’re abiding, she’s got to
know what risks are attendant to that. And if their relationship
is such that that’s not being shared, then the children are
basically walking in a risky environment.” It continued,
“Mother’s testimony highlights her concerns for the children and
the challenges she faces. However, it also highlights some of the
triggering events that places them at risk by Father’s conduct.”
Proceeding to disposition, the court declared Mia and
Emma dependents of the court, allowed them to remain in their
parents’ care and ordered Maricela and Edwin to participate in
family maintenance services. Maricela’s case plan included
participation in a sex abuse awareness counseling program and
specified she was to ensure that Edwin was not left alone with
3
Although urging the court to dismiss the entire petition,
minors’ counsel argued there was absolutely no basis for
believing Edwin S., a 14-year-old boy, was at risk: “We have no
reason to believe that Father other than this incident has ever
had any contact but particularly with a boy.” The court asked the
Department’s counsel why Edwin S. had been named. Counsel
agreed he should be dismissed from the petition.
8
the children pursuant to the terms of his probation. Edwin’s case
plan required him to comply with all orders of the criminal court,
including completion of a 52-week sex offenders program.
Maricela, Edwin, Mia and Emma timely appealed the
juvenile court’s jurisdiction findings and disposition orders. The
Department cross-appealed dismissal of the subdivision (d) count
as it related to Edwin, but concedes on appeal the jurisdiction
finding as to Maricela under subdivision (b)(1) was error.
DISCUSSION
1. Governing Law and Standard of Review
A child may be adjudged a dependent child of the juvenile
court under section 300, subdivision (d), if there is a substantial
risk the child will be sexually abused, as defined by Penal Code
section 11165.1, by a parent or a member of the child’s household.
(In re D.G. (2012) 208 Cal.App.4th 1562, 1571-1572; see In re I.J.
(2013) 56 Cal.4th 766, 773.) Penal Code section 11165.1 defines
“sexual abuse” to include acts that violate Penal Code
sections 261.5 (sexual intercourse with a minor), 288 (lewd or
lascivious acts upon a child) and 647.6 (annoying or molesting a
4
child). Jurisdiction under section 300, subdivision (d), may also
be asserted over a parent who knew or reasonably should have
known a child was in danger of sexual abuse and who failed to
adequately protect the child.
Section 300, subdivision (b)(1), authorizes the court to
adjudge a child a dependent of the juvenile court if “[t]he child
4 A violation of Penal Code section 261.5 (unlawful sexual
intercourse with a child under 18 years old) is not specifically
enumerated in Penal Code section 11165.1 as constituting sexual
abuse.
9
has suffered, or 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.” Courts have frequently
summarized subdivision (b)(1) as requiring proof of:
“(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) ‘serious physical harm or illness’ to the
minor, or a ‘substantial risk’ of such harm or illness.” (In re
Rocco M. (1991) 1 Cal.App.4th 814, 820; see In re Joaquin C.
(2017) 15 Cal.App.5th 537, 561; see also In re Jesus M. (2015)
235 Cal.App.4th 104, 111; In re Savannah M. (2005)
131 Cal.App.4th 1387, 1395-1396.) However, the Supreme Court
in In re R.T. (2017) 3 Cal.5th 622 clarified section 300,
subdivision (b)(1), does not require a parent commit neglect or
deserve blame for being unable to supervise or protect the child,
only that a failure or inability to provide the necessary
supervision or protection exists. (In re R.T., at p. 629.)
The Department has the burden of proving by a
preponderance of the evidence a child should be declared a
dependent of the court under section 300. (In re I.J., supra,
56 Cal.4th at p. 773; see § 355, subd. (a).) When the juvenile
court finds the Department has carried that burden and sustains
a section 300 petition, we review the court’s findings for
substantial evidence. (In re R.T., supra, 3 Cal.5th at p. 633; In re
I.J., at p. 773.) Under that standard we inquire whether the
evidence, contradicted or uncontradicted, supports the court’s
determination. We resolve all conflicts in support of the
determination, indulge in all legitimate inferences to uphold the
findings and may not substitute our deductions for those of the
juvenile court. (In re R.T., at p. 633; In re I.J., at p. 773.)
10
However, “[s]ubstantial evidence is not synonymous with any
evidence. [Citation.] To be substantial, the evidence must be of
ponderable legal significance and must be reasonable in nature,
credible, and of solid value.” (In re M.S. (2019) 41 Cal.App.5th
568, 580; accord, In re J.A. (2020) 47 Cal.App.5th 1036, 1046
[while substantial evidence may consist of inferences, any
inferences must rest on the evidence; inferences based on
speculation or conjecture cannot support a finding].)
When the Department appeals the juvenile court’s
conclusion it failed to carry its burden of proof, as in all failure-of-
proof cases, we determine only whether the evidence compelled a
finding in favor of the Department as a matter of law. (In re R.V.
(2015) 61 Cal.4th 181, 218 [“‘where the issue on appeal turns on a
failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the
appellant as a matter of law,’” quoting In re I.W. (2009)
180 Cal.App.4th 1517, 1528]; accord, In re Luis H. (2017)
14 Cal.App.5th 1223, 1227; Dreyer’s Grand Ice Cream, Inc. v.
County of Kern (2013) 218 Cal.App.4th 828, 838.)
2. The Evidence Does Not Compel a Finding of a
Substantial Risk Mia and Emma Will Be Sexually
Abused by Edwin
When evaluating the Department’s evidence regarding the
subdivision (d) count, the juvenile court stated, “I just don’t think
you make it because Father’s conduct gets stopped before any of
the elements of a (d)(1) is there.” That rationale for dismissing
the subdivision (d) count was mistaken: Although Edwin’s
attempted crime did not constitute sexual abuse within the
meaning of Penal Code section 11165.1, the issue before the court
was not whether Edwin had already committed sexual abuse as
11
defined in that provision, but whether Mia and Emma were at
risk for such sexual abuse in the future. A parent’s attempt to
commit a serious sexual offense, even if not successful, could
certainly create the substantial risk Welfare and Institutions
Code section 300, subdivision (d) addresses.
Similarly focusing on the nature of Edwin’s criminal act,
rather than the risk to Mia and Emma, the Department explains
a violation of Penal Code section 647.6 (annoying or molesting a
child) constitutes sexual abuse within the meaning of Penal Code
section 11165.1 and, therefore, Welfare and Institutions Code
section 300, subdivision (d), and physical contact between
perpetrator and victim is not required for a violation of
section 647.6. (See, e.g., In re R.C. (2011) 196 Cal.App.4th 741,
750 [“[n]o touching is required, but the statute requires conduct
that would unhesitatingly irritate a normal person, and ‘“conduct
“‘motivated by an unnatural or abnormal sexual interest”’ in the
victim”’”].) Edwin violated section 647.6, the Department
continues, by soliciting a sexual act from a minor. (See People v.
Kongs (1994) 30 Cal.App.4th 1741, 1750; People v. LaFontaine
(1978) 79 Cal.App.3d 176, 179-180 [predecessor to Penal Code
5
section 647.6].)
5
A conviction for violating Penal Code section 647.6 would
have created a rebuttable evidentiary presumption under Welfare
and Institutions Code section 355.1, subdivision (d), that Mia and
Emma were at substantial risk of abuse. Even if otherwise
applicable, however, that presumption would have no effect in
this case because, once 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
12
Edwin’s conduct, even though his first criminal offense of
any sort, might support a finding under subdivision (d), as the
Department contends. Indeed, the juvenile court said as much
when it sustained the subdivision (b)(1) count. Without in any
way intending to suggest we excuse Edwin’s behavior, however,
given the significant differences between Edwin’s nearly 17-year-
old, unrelated, intended victim and his two prepubescent
daughters, the evidence did not compel a finding Mia and Emma
were at substantial risk of sexual abuse from their father. There
was no evidence he had ever acted inappropriately toward either
child, sexually or otherwise; and both Maricela and the paternal
grandmother confirmed he was a good father and they believed
the children were safe in the home. (See In re B.T. (2011)
193 Cal.App.4th 685, 695 [mother’s sexual relationship with the
15-year-old son of a neighbor, which resulted in her pregnancy,
did not place the mother’s infant daughter at risk of sexual
abuse]; see generally In re I.J., supra, 56 Cal.4th at p. 780
[juvenile court is not compelled, “as a matter of law, to assume
jurisdiction over all the children whenever one child is sexually
abused”].)
3. Substantial Evidence Does Not Support the
Subdivision (b)(1) Jurisdiction Finding as to Edwin
As discussed, the Department’s section 300 petition alleged,
in identical language, that Mia and Emma came within the
jurisdiction of the juvenile court under both subdivisions (b)(1)
and (d) based on Edwin’s attempted sexual liaison with
“Dejanira” and Marcela’s inattention to the circumstances of his
arrest and conviction and the consequent need to protect the
inferences derived from it.” (In re Quentin H. (2014)
230 Cal.App.4th 608, 610.)
13
children by keeping Edwin from having unsupervised contact
with them. Whatever substantial risk of future serious physical
harm the juvenile court may have believed Edwin’s conduct
created, however, it was necessarily the result of Edwin’s
intentional acts, not a consequence of his failure or inability to
protect or supervise his children. And no other evidence relating
to Edwin supports a subdivision (b)(1) finding: There was no
evidence of domestic violence between Edwin and Maricela, and
no suggestion either parent used inappropriate physical
discipline or otherwise physically or emotionally abused the
children. In short, the finding as to Edwin under section 300,
subdivision (b)(1), lacked any evidentiary support.
4. Substantial Evidence Does Not Support the Jurisdiction
Finding as to Maricela
Unlike the allegations concerning Edwin, the petition’s
subdivision (b)(1) allegations regarding Maricela describe her
failure to adequately protect Mia and Emma by allowing Edwin
to remain in the home with them, permitting him to have
unlimited access to the children and not ensuring he was
participating in a sex offender class to address his conduct, as
ordered by the criminal court. The evidence before the court,
however, disproved those allegations. Maricela, Edwin and the
paternal grandmother all affirmed that Edwin was not allowed
unsupervised contact with children following his arrest, and none
had occurred. No contrary evidence was presented. In addition,
Edwin had enrolled in the required sex offender program two
days before the dependency petition was filed, as established by
the registration form submitted to the court by the Department
prior to the jurisdiction hearing. As discussed, the Department
14
has conceded it was error to sustain the subdivision (b)(1) finding
as to Maricela.
The juvenile court’s concerns about Maricela and Edwin’s
lack of communication and Maricela’s initial unwillingness to
learn the details of Edwin’s criminal conduct and conditions of
probation are similarly insufficient to support a subdivision (b)(1)
finding. Section 300 generally requires proof the child is subject
to the defined risk of harm at the time of the jurisdiction hearing.
(In re Kadence P. (2015) 241 Cal.App.4th 1376, 1383;
In re Savannah M., supra, 131 Cal.App.4th at p. 1396.) While
the court may consider past events in deciding whether a child
currently needs the court’s protection, there must be some reason
to believe that the conduct will continue to support the exercise of
jurisdiction. (In re Kadence P., at p. 1384; In re Christopher R.
(2014) 225 Cal.App.4th 1210, 1216; see In re S.O. (2002)
103 Cal.App.4th 453, 461.) Here, as Maricela argues, and the
Department implicitly agrees, by the time of the jurisdiction
hearing Maricela was well aware of the circumstances that led to
Edwin’s conviction and the conditions of his probation. As she
testified, she was determined to honor the prohibition of
unsupervised contact between Edwin and the children and was
fully prepared to move from the family home if necessary to
protect them: “The safety of my children will be first.” There was
no evidence of any current risk to the children as a consequence
of Maricela’s failure to supervise or protect them.
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DISPOSITION
The juvenile court’s finding of a lack of jurisdiction under
section 300, subdivision (d), is affirmed. The jurisdiction finding
under subdivision (b)(1) and disposition orders are reversed. The
juvenile court is directed to dismiss the petition.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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