In re Reynaldo G.
Filed 12/17/13 In
re Reynaldo G. CA2/4
NOT TO BE PUBLISHED IN THE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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
In re REYNALDO
G., A Person Coming Under the Juvenile Court Law.
B245361
(Los
Angeles County
Super. Ct. No. CK93998)
LOS ANGELES
COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Appellant,
v.
LEONARD G.,
Defendant and Appellant.
APPEAL
from an order of the Superior Court of Los
Angeles County, Veronica McBeth, Judge.
Reversed.
Lori A.
Fields, under appointment by the Court of Appeal, for Defendant and Appellant.
John F.
Krattli, Office of the County Counsel,
James M. Owens, Assistant County Counsel and Aileen Wong, Deputy County
Counsel, for Plaintiff and Appellant.
Appellant
Leonard G. (Father) appeals the
juvenile court’s jurisdictional and dispositional orders. Father contends the court violated due
process by providing him no opportunity to contest the allegations in the original
Welfare and Institutions Code
section 300 petition, and by materially amending the petition without providing
additional notice and opportunity to defend.
allegation does not support jurisdiction under section 300. Respondent Department of
appeals, contending the evidence presented at the jurisdictional hearing obliged
the court to find that jurisdiction was appropriate under section 300,
subdivision (d) (sexual abuse). We
conclude that the court could reasonably find, based on the evidence presented,
that minor Reynaldo G., the son of Father and Guadalupe M. (Mother), was not at
risk of sexual abuse.
name="_ftnref2" title="">[2] We find, however, that the court’s alternate
finding, that on one occasion, Father “made inappropriate physical gestures and
inappropriate comments that caused the child to experience nervousness, to change
his sleeping and eating habits, and to express fear,†did not support the
court’s finding of jurisdiction under section 300, subdivision (b) (failure to
protect) and did not support jurisdiction under any other provision of section
300. Accordingly, we reverse the
jurisdictional and dispositional orders.
FACTUAL AND PROCEDURAL
BACKGROUND
In June 2012, Reynaldo, who was then almost six, reported
to Mother and a DCFS caseworker that Father had lifted his shirt and asked
Reynaldo if he wanted to suck or kiss his “chi[-]chis†(a slang term for breasts)
and then took off his pants and underwear and asked if Reynaldo wanted to suck or
kiss his “pee pee.†Reynaldo reenacted
the incident, making it appear that Father had sucked his own breast and
touched his own penis when he made the alleged statements. Reynaldo stated that nothing further happened
-- he had not touched Father and Father had not touched him. Reynaldo later repeated the allegations to
police officers, further stating that Father also exposed his buttocks and that
the incident occurred when they were getting ready for bed. Prior to reporting the incident to Mother,
Reynaldo had told his grandmother that Father had lifted his shirt and grabbed
his “breast,†but said nothing about Father touching or displaying his penis or
buttocks.
a petition alleging that Father “sexually abused the child,†in that “[Father]
asked the child to kiss [Father’s] penis†and “suck [Father’s] nipples,â€
“exposed [Father’s] penis to the child,†and “masturbate[d] . . . in the
child’s presence.†The petition sought assertion
of jurisdiction under subdivisions (b) (failure to protect) and (d) (sexual
abuse).
Prior
to the jurisdictional hearing, the caseworker re-interviewed Reynaldo. This time the boy stated that Father had “grabbed
his [Father’s] chi-chis and his pee-pee and his butt†and “tasted it.†Reynaldo’s described Father’s actions as
“gross.â€
Mother reported that Reynaldo had again
reenacted the incident by trying to kiss his own breasts while taking a shower.
Both Father and Reynaldo were in therapy
at the time.
title="">[6] Reynaldo’s therapist, Dr. Rolando Espinoza,
stated that the boy had reported Father exposing himself and touching different
parts of his own body, including his penis, but not touching Reynaldo. Father continued to insist that the
allegations were not true and contended that Mother had induced the child to
make the allegations.
name="_ftnref7" title="">[7]
At the September 24, 2012 jurisdictional hearing, counsel for
Reynaldo called the child’s therapist, Dr. Espinoza, who testified that in
June, Reynaldo had said Father stood naked in front of him and asked Reynaldo
to touch his genitals or “pe[e] pe[e].†Reynaldo
told the therapist Father’s actions were “gross†and indicated being disgusted
by them. The boy became clingy and
fearful of sleeping in his own bed for a time.
It took several months after the incident for Reynaldo to enjoy visiting
Father again.
Minor’s
counsel next called Reynaldo who testified that on one occasion, when he and
Father were getting ready to go to bed, Father took off his clothing, grabbed
his “boobies†and “pe[e] pe[e]†and asked if Reynaldo wanted to touch his “pe[e]
hole†or “pe[e] pe[e]†or “smell his butt.†When Reynaldo testified, he demonstrated by grabbing
his own breast area. Reynaldo testified
he had not touched Father, but said the incident made him feel “really
bad.†Reynaldo said he was not afraid of
Father, but did not like to visit Father’s home because Father and Reynaldo’s
half-brother did “scary things†and the half-brother sometimes hit him. Mother was called by DCFS and testified she
had not coached Reynaldo or encouraged him to do anything but tell the truth.
After
these three witnesses had testified, Father’s counsel moved for dismissal of
all the allegations under section 350, subdivision (c).â€
court stated its belief that the incident happened essentially as described but
that it was not sexual molestation. According
to the court, Father had acted “incredibly inappropriate[ly]†and “like a
buffoon,†but there had been nothing sexual in his conduct or in his intent. The court concluded that because Father’s intent
was not sexual, the incident did not “rise[] to the level of what ha[d] been
pl[ed].†The court indicated an intent
to sustain the petition based on inappropriate behavior, not sexual abuse.
The
next day, counsel for Father argued that Mother had coached Reynaldo to make
the accusation. The court stated: “I don’t think [Mother] planted anything in
this child’s head. I think he reported
to her something that happened. And I’ll
tell [you] what I think it was that happened later . . . .†The court further stated: “There’s absolutely no sexual intent shown
anywhere in any of the testimony. . . . The case is about a couple of things. Your client needs to learn how to act
appropriately in front of his son. I
don’t believe a number of things that were said. I’ll tell you later what I believe happened
between the two of them.†Minor’s
counsel argued in favor of dismissing the sexual abuse allegation, stating she
believed Father had “some boundary issues†and “a way of . . . interacting that
is not appropriate,†but agreed that the incident did not rise to the level of
sexual abuse. DCFS’s counsel argued in
favor of sustaining the allegations as pled under both subdivision (b) and
subdivision (d). During this argument,
the court stated, “I believe that the father squeezed his own breast while he
was looking in the mirror and they were brushing their teeth, getting ready for
bed.†But the court found “not
. . . one shred of sexual intent,†repeating that the conduct
“wasn’t sexual in nature . . . .†When DCFS’s counsel referred to evidence that
Father had asked Reynaldo to touch his penis, the court responded, “That is not
the behavior that I have found.â€
In
making its jurisdictional ruling, the court stated that it believed the
incident described by Reynaldo had happened, but not “every single word.†The court found that “Father and son were in
the bathroom and Father . . . did squeeze [Father’s] breasts.†The court also found true that Father played
too rough and in ways that were “scary†to Reynaldo, and that Father needed to “have
some boundaries.†The court found that as
a result of Father’s actions, Reynaldo was “afraid to sleep in his own bed for
a little while,†he became “a little more aggressive,†and “his appetite
increas[ed] a bit,†indicating “possible emotional harm to the child by [Father’s]
inappropriate behavior.†The court went
on to explain that Father’s behavior “places the child at risk of emotional
harm as verified by his therapist, as verified by the testimony I heard from
the child.†The court indicated its
intent to dismiss the allegations of the petition and draft an allegation to
state that on one occasion, Father engaged in annoying, inappropriate behavior
that placed Reynaldo at risk.
name="_ftnref9" title="">[9] Significantly, the court added: “I toyed with a [section 300, subdivision] ‘c’
[allegation] except I don’t . . . think the therapist[’s testimony] rose to the
level of ‘c’.â€
title="">[10] The parties went on to discuss disposition,
and the court issued its dispositional order.
When the
parties returned on October 3, the court presented them with the following allegation
it had drafted to replace those in the original petition: “[Father] lacks appropriate parental
boundaries and parental judgment that causes the child to suffer stress and
anxiety. On one occasion [Father] made
inappropriate physical gestures and inappropriate comments that caused the
child to experience nervousness, to change his sleeping and eating habits, and
to express fear. [Father’s] failure to
appropriately parent and provide parental supervision and to understand the
consequences of his inappropriate conduct places the child at risk of physical
and emotional harm and danger.†Counsel
for Father objected to the proposed allegation, stating it had been her
understanding that the amendment would say “on one occasion [Father] exhibited
inappropriate behavior which places the child at risk.†The court sustained the petition as amended,
finding jurisdiction appropriate under subdivision (b). Father appealed. DCFS cross appealed.
DISCUSSION
A.
that Father’s Actions Did Not Constitute
Sexual Abuse
We
first address DCFS’s contention as cross-appellant that the court erred in
dismissing the allegations as pled and in finding that the evidence did not
support sexual abuse or assertion of jurisdiction under subdivision (d). Jurisdiction is appropriate under section
300, subdivision (d) if “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 a parent, guardian, or other member of his or her
household. Section 11165.1 defines
sexual abuse as conduct in violation of certain criminal statutes. The parties agree that the only statute potentially
applicable here is Penal Code section 647.6.
DCFS contends that under the evidence presented, the court was compelled
to find a violation of section 647.6. Based
on the factual findings of the court, we disagree.
Penal
Code section 647.6 is violated where “‘a person engage[s] in acts or conduct,
directed at a child under the age of 18, which would unhesitatingly disturb or
irritate a normal person, if directed at such person’†and “‘[s]uch acts or
conduct were motivated by an unnatural or abnormal sexual interest in [the
child].’†(People v. Maurer (1995) 32 Cal.App.4th 1121, 1125, quoting CALJIC
No. 16.440; see People v. Shaw (2009)
177 Cal.App.4th 92, 103 [explaining that “there can be no normal sexual interest
in any childâ€] (Italics omitted.).) To complete the crime “‘[i]t is not necessary
that the acts or conduct actually disturb or irritate the child, or that the
body of the child be actually touched.’â€
(People v. Maurer,
16.440; see e.g., People v. Brandao
(2012) 203 Cal.App.4th 436, 440 [defendant sent multiple inappropriate text
messages to teenage girls indicating interest in their bodies];
459, 461-462, 466-467 [defendant slowly followed 12-year old victim in his car
while staring at her legs and making ambiguous gestures].) Because the conduct of a person who violates Penal
Code section 647.6 need not involve touching and may not appear overtly sexual,
the motivation of the defendant is key to establishing the crime: “There is no doubt that in proving the mental
state element of the section 647.6 offense, the prosecution must show that the
acts or conduct ‘were motivated by an unnatural or abnormal sexual
interest.’†(People v. Maurer, supra,
at p. 1127; accord, People v. Brandao,
supra, 203 Cal.App.4th at p. 445
[Penal Code section 647.6 “is limited to a ‘comparatively narrow province,’
i.e., to offenders whose conduct, in addition to being objectively irritating
and disturbing, is motivated by an unnatural or abnormal sexual interest in
children.â€].) A defendant who is not
motivated by sexual interest in minors is not guilty of the crime, however
inappropriate his conduct. (See
teacher engaged in frank and graphic sexual discussions with teenagers, jurors
“could have determined that defendant’s conduct was motivated by other than an
unnatural or abnormal sexual interest†if comments were made in “a joking wayâ€
or “a counseling modeâ€].)
Where the
party bearing the burden of proof appeals the trier of fact’s conclusion that
its burden was not met, “‘the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a matter of law’â€
and specifically, “‘whether the appellant’s evidence was (1) “uncontradicted
and unimpeachedâ€â€™â€ and (2) “‘“of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a
finding.†[Citation.]’†(
962, 967, quoting In re I.W. (2009)
180 Cal.App.4th 1517, 1528.) In
undertaking this analysis, “[i]t is not our function to retry the case.†(In re
I.W., supra, at p. 1528.)
To
support its contention that the evidence irrefutably established that Father engaged
in criminal sexual conduct, respondent relies on the most extreme conduct
described by Reynaldo in his statements and testimony, suggesting it was indisputable
that Father exposed and touched his penis and asked Reynaldo to kiss or suck it. A court, acting as the trier of fact, is not
obliged to conclude that a generally credible witness’s testimony is accurate
in every detail, but may “accept or reject all or any part of the testimony of
any witness . . . .†(
Cal.App.4th 397, 409.) Here, the court
observed that Reynaldo had told different versions of the incident over time, and
made clear it did not believe “a number of things†the boy said. Ultimately, the court found the evidence
established that Father had grabbed his own breasts and pretended to suck
them. There is no basis on this record
to reach a different conclusion as a matter of law. Reynaldo was not quite six years old when the
incident occurred, and his statements and testimony regarding it were not
always consistent. He was, however,
consistent in stating that Father had lifted his shirt, grabbed his breasts,
and pretended to suck them. And in reenacting
the incident, the boy invariably grabbed his own breasts and attempted to pull them
toward his mouth. This behavior on
Father’s part, while inappropriate, was not necessarily sexual, and the court
made express findings that in the circumstances described, it was not. There was no evidence that on any other
occasion Father had expressed a sexual interest in Reynaldo or young children
in general. On this record, the court could
reasonably conclude that Father’s conduct was not motivated by sexual interest
in Reynaldo.
B.
Made Inappropriate Physical Gestures and Inappropriate Comments that Caused
Reynaldo to Experience “Emotional Harm and Danger†Did Not Support Jurisdiction
The court found that Father’s inappropriate actions and
comments supported assertion of dependency jurisdiction under section 300,
subdivision (b). Father contends the court’s
factual findings did not support jurisdiction under that provision. We conclude the court’s factual findings did
not support jurisdiction under subdivision (b) or any other provision of
section 300.
Section
300, subdivision (b) provides a basis for assertion of dependency jurisdiction
if “[t]he child 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 . . . to adequately supervise or protect the
child, or the willful or negligent failure of the child’s parent . . . to
adequately supervise or protect the child from the conduct of the custodian
with whom the child has been left . . . or by the inability of
the parent . . . to provide regular care for the child due to the parent’s . .
. mental illness, developmental disability, or substance abuse.â€
“‘A
jurisdictional finding under section 300, subdivision (b) requires: “‘(1) neglectful conduct by the parent in one
of the specified forms; (2) causation; and (3) “serious physical harm or
illness†to the child, or a “substantial risk†of such harm or illness.’ [Citation.]†[Citations.] The third element “effectively requires a
showing that at the time of the jurisdictional hearing the child is at
substantial risk of serious physical harm in the future (e.g., evidence showing
a substantial risk that past physical harm will reoccur).†[Citation.]’†(In re
A.G. (2013) 220 Cal.App.4th 675, 683, quoting In re James R. (2009) 176 Cal.App.4th 129, 135.) “‘Subdivision (b) means what it says. Before courts and agencies can exert
jurisdiction under section 300, subdivision (b), there must be evidence indicating
that the child is exposed to a substantial risk of serious physical harm or
illness.’†(In re Noe F. (2013) 213 Cal.App.4th 358, 366, italics omitted, quoting
In re Rocco M. (1991) 1 Cal.App.4th 814,
823; see In re T.V. (2013) 217 Cal.App.4th
126, 132.)
Here,
the court found true that Reynaldo was placed at risk of “physical . . . harm
and dangerâ€; however, nothing in the record indicates how or in what way
Father’s admittedly inappropriate antics placed the boy in physical
danger. The court’s specific findings
focused on the evidence that Reynaldo was suffering from or at risk of
emotional distress. At the hearing, the
court stated that as a result of Father’s actions, Reynaldo was “afraid to
sleep in his own bed for a little while,†became “a little more aggressive,â€
and “his appetite increas[ed] a bit,†acknowledging that this indicated only “possible
emotional harm to the child by [Father’s] inappropriate behavior.†The court drafted and sustained an allegation
that Reynaldo suffered “stress and anxiety,†“nervousness,†and “fear,†and
that his “sleeping and eating habits†were disrupted. These statements indicate the court’s
conclusion that Reynaldo had suffered and was at risk of suffering emotional
harm of some type. But subdivision (b) requires
“serious physical harm†or a “substantial risk of serious physical harm,†and does
not permit assertion of jurisdiction based on emotional harm. (§ 300, subd. (b); In re Noe F., supra, 213 Cal.App.4th
at p. 366, italics omitted; In re Daisy H.
(2011) 192 Cal.App.4th 713, 718.) Accordingly,
the court’s finding of jurisdiction under subdivision (b) cannot be affirmed.
Nor
does any other provision of section 300 permit the court to assert jurisdiction
over a minor based on the emotional distress described by the court and
included in its jurisdictional finding. Subdivision
(c) provides for assertion of jurisdiction where the child is at risk of “emotional
damage,†but only if it is “serious†and evidenced by “severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward self or others .
. . .†(§ 300, subd. (c); see, e.g.,
1261-1263 [diagnosis of “anxiety†and “adjustment disorder†did not support
finding of detriment]; In re Brison C.
(2000) 81 Cal.App.4th 1373, 1377, 1378-1380 [although conflict between parents
caused child to exhibit “upset, confusion and gastrointestinal distress†and to
express “deep dislike and fear†of his father, subdivision (c) of section 300
jurisdiction not established].) Here,
there was no evidence that Reynaldo was suffering from severe anxiety,
depression, withdrawal, or untoward aggressive behavior toward himself or
others. Indeed, the court specifically
found that Reynaldo’s emotional distress did not reach the level necessary to establish jurisdiction under
subdivision (c). Nothing in the record
suggests the court was uninformed about the magnitude of Reynaldo’s emotional suffering
or the level necessary to support jurisdiction under subdivision (c). It follows that we cannot affirm the court’s
jurisdictional finding on an alternate ground and must reverse both the
jurisdictional order and the dispositional order that relied on it.
Our
conclusion is in line with that of the court in In re Daisy H. There, the
father made derogatory statements about the children’s mother, referring to her
as a “‘“bitch, hoe [sic] and prostitute,â€â€™â€ and issued threats against her in
the children’s presence. (
The juvenile court found insufficient evidence the children were
suffering severe emotional distress to support jurisdiction under subdivision
(c) of section 300, but sustained jurisdiction under subdivisions (a) and (b)
on the ground the father “‘emotionally abuse[d]’†the children. (Ibid.) The Court of Appeal agreed that the evidence
was insufficient to establish that the children were at risk of serious
emotional damage, and further held that the juvenile court could not rely on
the same inadequate evidence of emotional harm to find that the children were subject
to jurisdiction under section 300, subdivisions (a) and (b): “Neither section 300, subdivision (a) nor (b)
provides for jurisdiction based on ‘emotional harm.’ Subdivisions (a) and (b) state that the court
may adjudge a child a dependent of the court if ‘[t]he child has suffered, or
there is a substantial risk that the child will suffer, serious
Nor does any other provision of the dependency law support jurisdiction
on the ground of ‘emotional harm.’ The
court had no authority to assert jurisdiction on grounds not contained in the
code.†(192 Cal.App.4th at pp. 717-718.) We reach the same conclusion on the record
before us.
The
court here understandably sought to protect Reynaldo from a repeat of Father’s
inappropriate behavior and to assist Father in attaining some level of
understanding of the proper boundaries between a parent and a young child. However, there was nothing to suggest that
Reynaldo was at risk of physical injury.
If Father’s conduct did not expose the boy to the risk of sexual abuse
under subdivision (d) as the court found, and the distress suffered by the boy
did not rise to the level necessary to support jurisdiction under subdivision
(c) as the court also found, the court could not base its jurisdictional
finding on a provision enacted to protect children from serious physical
injury.
The
court’s jurisdictional and dispositional orders are reversed.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
MANELLA,
J.
We
concur:
EPSTEIN,
P. J.
WILLHITE,
J.
statutory references are to the Welfare and Institutions Code.
asserted or sustained with respect to Mother, who is not a party to this
appeal.
