In re A.A.

 

 

 

 

 

Filed 1/29/14  In re A.A.
CA2/5

 

 

 

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NOT TO BE PUBLISHED IN THE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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

SECOND APPELLATE DISTRICT

 

DIVISION FIVE

 

 
>

In re A.A., a Person Coming Under the Juvenile Court Law.	B248695       (Los Angeles County       Super. Ct. No. CK98208)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,               Plaintiff and Respondent,               v.   ROBERTO A.,               Defendant and Appellant.

 

            APPEAL
from orders of the Superior Court of Los
Angeles County, Marilyn Martinez, Temporary Judge.  (Pursuant to Cal. Const., art.
VI, §21.)  Affirmed.

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

            John F. Krattli,
County Counsel, James M. Owens,
Assistant County Counsel and William D. Thetford, Deputy County Counsel for
Plaintiff and Respondent.

 

Appellant Roberto
A. (“father”) is the father of the male infant, A.A.  After federal authorities found href="http://www.fearnotlaw.com/">child pornography on father’s computer,
mother voluntarily submitted to the jurisdiction of the court.  Father did not and appeals the court’s
jurisdictional findings made pursuant to href="http://www.sandiegohealthdirectory.com/">Welfare and Institutionshref="#_ftn1" name="_ftnref1" title="">[1] Code section 300,
subdivision (d).  He contends there is
insufficient evidence to support a finding that his son was at substantial risk
of being sexually abused, as required by subdivision (d).  We sustain the court’s findings and orders.

 

FACTS

            On
March 6, 2013, federal authorities executed a search warrant at a duplex in Los Angeles because
child pornography was being downloaded and viewed via the Internet at that
location.  Special Agent Neal Jetton
contacted the Los Angeles County Department of Children and Family Services (“DCFS”)
to request a child welfare
check of two-month old A.A., who lived at that location with his parents.

When DCFS social
worker Raul Perez (“CSW Perez”) arrived at the home, he learned that father had
admitted downloading child pornography. 
Agent Jetton described the pornography as depicting minor females from
six to fifteen years old engaged in sexual activity.  Father usually viewed pre-teen girls.  Agent Jetton also told CSW Perez that someone
at the IP address was “actively sharing” child pornography.

            CSW
Perez interviewed father, who acknowledged watching child pornography, but
initially claimed it was by “mistake” and only took place a few times.  When CSW Perez informed him that his IP
address had been monitored, father admitted that he started watching about a
year ago, and then watched more because he was “curious.”  Father also admitted that he knew that child
pornography was illegal. 

Dependency
Investigator Veronica Reyes interviewed father on March 13, 2013.  Father admitted viewing and
downloading child pornography for about a year. 
He was surprised the first time he downloaded the pornography.  Thereafter, he used the term “PTHC” to search
for the pornography, although he did not know what it meant.  He subsequently learned from CSW Perez that
it meant “pre-teen hard core.”  He
downloaded 60 videos in all.  Father
always viewed the videos alone in his bedroom with the door closed.  He initially intended to show the
pornography  to the police, but then
decided not to.  Father was not sure if
watching child pornography was illegal, but he believed it to be immoral.

 

DISCUSSION

The court
amended and then sustained the allegation that A.A. was a child described by
section 300, subdivision (d) who was at risk of being abused.  The sustained allegation read:  â€œ[Father] established a detrimental and
endangering home environment for the child in that father downloaded and viewed
frequently and for [a]1 year duration child pornography of pre-teen females, in
the child’s home.  Such a detrimental and
endangering home environment established for the child by the father endangers
the child’s physical health and safety and places the child at risk of physical
harm, danger and sexual abuse.” 

            Father
contends that his action of watching child pornography alone in his bedroom
does not constitute sexual abuse of his son and does not create a substantial
risk that A.A. will be sexually abused by him. 
He further contends there is insufficient evidence to support the
juvenile court’s jurisdictional and dispositional findings and orders.

Section 300
provides in pertinent part:  â€œAny child
who comes within any of the following descriptions is within the jurisdiction
of the juvenile court which may adjudge that person to be a dependent child of
the court:  [¶] . . . [¶] (d) The 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 or a member of his or her household . . . .”  DCFS has the burden of proving by a
preponderance of the evidence that a child is a dependent of the court under
section 300.  (In re I.J. (2013) 56 Cal.4th 766, 773.)

“In reviewing
the jurisdictional findings and the disposition, we look to see if substantial
evidence, contradicted or uncontradicted, supports them.  [Citation.] 
In making this determination, we draw all reasonable inferences from the
evidence to support the findings and orders of the dependency court; we review
the record in the light most favorable to the court’s determinations; and we
note that issues of fact and credibility are the province of the trial court.  [Citation.]” 
(In re Heather A. (1996) 52
Cal.App.4th 183, 193.)  “We do not
reweigh the evidence or exercise independent judgment, but merely determine if
there are sufficient facts to support the findings of the trial court.”  (In re
Matthew S. (1988) 201 Cal.App.3d 315, 321.)

            Here,
the juvenile court stated:  “It appears
to the court that [father] was not able to stay away from viewing, from
downloading, and perhaps from exchanging these pornographic videos of very
young children.  Because he was not able
to control what he seemed to believe was wrong and ought to have been reported
to the police is an important factor in the court finding that at some point,
he may not be able to control himself to the extent that as his son grows older
and more mobile, that his son may be exposed to the screens that he himself is
viewing.  [¶]  There isn’t any evidence that he has acted
out inappropriately towards his son, but he was unable to control himself, [and]
his urges to repeatedly watch videos.”

There is
substantial evidence to support this finding. 
Father admitted to downloading 60 child pornography videos over the
period of one year.  His statements show
that he knew his acts were illegal and believed them to be immoral.  Yet he did not stop until federal authorities
seized his computers and did not seek help until DCFS came on the scene.  Even then, father continued to minimize his
actions.  It is more than reasonable to
infer that, absent intervention, father would continue to view child
pornography and that his inability to control his viewing would eventually
result in A.A. viewing the images. 
Exhibiting child pornography to a minor is a violation of Penal Code section
311.2, subdivision (d), and is sexual abuse within the meaning of Penal Code section
11165.1, subdivision (c)(1).  There is no
requirement that the minor be old enough to understand the meaning of the
pornography.

To the extent
that father contends there could be no risk to A.A. until he becomes mobile,
and so the court must wait until that occurs, he is mistaken.  Father is engaging in conduct which if it continues
creates a substantial risk that the child will be sexually abused.  “[S]ection 300 does not require that a child
actually be abused or neglected before the juvenile court can assume
jurisdiction.  The subdivisions at issue
here require only a ‘substantial risk’ that the child will be abused or
neglected.  The legislatively declared
purpose of these provisions ‘is to provide maximum safety and protection for
children who are currently being physically, sexually, or emotionally abused,
being neglected, or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk of that harm.’  (§ 300.2, italics added.)  â€˜The court need not wait until a child is
seriously abused or injured to assume jurisdiction and take the steps necessary
to protect the child.’  [Citation.]”  (In re
I.J., supra, 56 Cal.4th at p. 773.) 

The juvenile
court also stated:  “I find also by the
preponderance of the evidence that he may not be able to use good judgment and
preclude himself from inappropriately handling his child in a sexual manner.  He acknowledges that he wants therapy to assist
him with these urges.  [¶]  He says he’s never been aroused.  Perhaps it’s matter of semantics what is
aroused.  Perhaps he never had penile
erection, but there was something that kept him going back time and time and
time again.  He was unable to stop
himself.”

There is
substantial evidence to support the trial court’s finding.  The differences between a child rapist and a
child pornographer “are not as great as they might seem at first glance.  The child pornographer, like the child rapist,
displays a sexual interest in children.  See
140 Cong. Rec. S12900 (daily ed. Sept. 20, 1994). . . .”  (>U.S.> v. Bentley (2007 N.D. Iowa) 475 F.Supp.2d 852, 858.)href="#_ftn2" name="_ftnref2" title="">[2]  “In addition to indicating a broader abnormal
sexual attraction to children, child pornography shares a strong nexus with
pedophilia.  In the Child Pornography
Prevention Act of 1996, Congress found that ‘child pornography is often used by
pedophiles and child sexual abusers to stimulate and whet their own sexual
appetites, and as a model for sexual acting out with children.’  Pub.L. No. 104–208, § 121, 110 Stat. 3009,
*3009–26 (1996).  This is wholly
consistent with earlier findings that ‘child pornography may induce viewers to
commit sex crimes on children.’  [(>U.S. v. Byrd (5th Cir. 1994) 31 F.3d 1329)] at 1336 n. 9 (citing David B.
Johnson, Why the Possession of
Computer–Generated Child Pornography Can Be Constitutionally Prohibited, 4
Alb.L.J.Sci. & Tech. 311, 326 & n. 141 (1994) (citing 1 U.S. Dep’t of Justice,
Attorney General’s Commission on Pornography: Final Report 649–50 (1986)).”  (>U.S.> v. Brand (2d Cir. 2006) 467 F.3d 179, 198.)

Thus, father’s
viewing of child pornography showed that he had a sexual interest in children,
may have stimulated his sexual appetite and might induce him to commit sex
crimes on children.  Taken together with
father’s inability to control his urges to watch child pornography, this is
substantial evidence that A.A. is at risk of being sexually abused by father.

Father contends
there is no evidence that he viewed child pornography for sexual
gratification.  Father testified that he
watched the pornography out of “curiosity.” 
The juvenile court found this testimony incredible, as do we.  Curiosity does not cause one to watch something
60 times.  Further, one can infer sexual
interest in children from watching child pornography.  (See People
v. Memro (1995) 11 Cal.4th 786, 865 [sexually explicit photographs of young
boys were “evidence from which the jury could infer that [defendant] had a
sexual attraction to young boys and intended to act on that attraction”]; see
also U.S. v. Brand, supra, 467 F.3d
at pp. 198-199 [possession of child pornography admissible to show intent to
meet minor for sex].) 

To the extent
that father contends A.A. will not be at risk of sexual abuse until he is the
age of the children in the pornography, and so jurisdiction now is unwarranted,
we do not agree.  Father’s inability to
control himself was a problem at the time the court took jurisdiction and
continued until the dispositional hearing. 
There is nothing to suggest that, absent intervention, father would have
been able to control himself until A.A. was six years old, or would want to.

Father contends
that even if the jurisdictional findings were supported by a preponderance of
the evidence, the court’s findings at the dispositional hearing show that there
was no clear and convincing evidence that A.A. was at risk of sexual
abuse.  Father concludes the court erred
prejudicially in not dismissing the entire dependency petition.

The court
stated:  “I do order the matter be
referred to family preservation, and the reasons are as follows:  While I have just sustained a petition by a
preponderance of the evidence, I cannot find by clear and convincing evidence
today that [father] poses a risk to his child and without reiterating
everything I’ve already stated, he has acknowledged his errors.”

Jurisdictional
findings must be made by a preponderance of the evidence, while an order at
disposition removing a child from parental custody must be made by clear and
convincing evidence.  (§§ 355, 361, subd.
(c); In re Henry V. (2004) 119
Cal.App.4th 522, 528-529.)  The law
specifically allows a juvenile court to sustain a dependency petition and
declare a child a dependent, but allow the child to remain in parental custody
and order family maintenance services. 
(§ 361, subd. (c); § 364; see, e.g., In
re Henry V., supra, 119 Cal.App.4th at p. 525.)  Thus, the trial court’s finding that there was
not clear and convincing evidence to support removing A.A. from the home did
not require a dismissal of the petition.

Father’s
reliance on section 390 is misplaced. 
That section permits the court to dismiss a petition if the interests of
justice and the welfare of the minor so require and if the parent of the minor
is not in need of treatment or rehabilitation.  (§ 390.) 
Here, the court found that father was in need of treatment, specifically
counseling, to deal with his viewing of child pornography.  Although father had sought counseling on his
own, he did not do so until DCFS became involved with his family.  The juvenile court was justified in
continuing supervision of father to ensure that he continue with counseling.

Father contends
that six months of supervision would serve no purpose because A.A. would still
be an infant.  To the contrary, it would
ensure that father attended counseling for six months.  Father’s successful completion of counseling
would protect A.A.  If father did not
comply, the court could consider that factor at the six-month hearing.

 

ISPOSITION

            We
affirm the juvenile court’s jurisdictional and dispositional findings and
orders.

 

                        NOT TO BE PUBLISHED IN
THE OFFICIAL REPORTS

                                   

                                   

MINK, J.href="#_ftn3" name="_ftnref3"
title="">*

 

We concur:

 

 

            TURNER,
P. J.                                  

 

 

KRIEGLER, J.