Opinion
B299720
03-16-2020
In re ETHEN E., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ALVIN E., Defendant and Appellant.
Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Alvin E. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 19CCJP01348A) APPEAL from an order of the Superior Court of Los Angeles County, Craig S. Barnes, Judge. Affirmed. Megan Turkat Schirn, under appointment by the Court of Appeal, for Defendant and Appellant Alvin E. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, Sally Son, Deputy County Counsel, for Plaintiff and Respondent.
Alvin E., father of eight-year-old Ethen E., appeals the juvenile court's June 20, 2019 jurisdiction findings and disposition order declaring Ethen a dependent of the juvenile court, removing the child from parental custody and ordering a case plan for Alvin that included monitored visitation, drug/alcohol testing and treatment, sexual abuse counseling for perpetrators and individual counseling. Alvin contends the court's jurisdiction findings that Ethen was at substantial risk of sexual abuse and, due to Alvin's substance abuse and possession of child pornography, of serious physical harm were not supported by substantial evidence, requiring reversal of its disposition order. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Initial Dependency Petition
On March 1, 2019 the Los Angeles County Department of Children and Family Services (Department) filed a petition under Welfare and Institutions Code section 300 to declare Ethen a dependent child of the juvenile court. The petition alleged Alvin had been arrested for felony possession of child pornography, he was incarcerated and unable to provide care for Ethen, and his conduct placed Ethen at substantial risk of serious physical harm and sexual abuse. (§ 300, subds. (b)(1), (d).) The petition also alleged Alvin had a history of substance abuse and was a current abuser of marijuana and alcohol, rendering him incapable of providing Ethen with regular care and supervision, and Alvin's substance abuse placed the child at substantial risk of serious physical harm. (§ 300, subd. (b)(1).) As for Ethen's mother, Jocelyn G., the petition alleged she had a history of substance abuse and was a current abuser of methamphetamine, marijuana and alcohol, rendering her incapable of providing Ethen and his younger half-brother, Levi B., with regular care and supervision, and her substance abuse placed her children at substantial risk of serious physical harm. (§ 300, subd. (b)(1).)
Statutory references are to this code unless otherwise stated.
Alvin, who is not Levi's father, does not challenge any aspect of the juvenile court's findings and orders regarding Levi.
2. The Jurisdiction/Disposition Hearing
a. Evidence of substantial risk of sexual abuse
The combined jurisdiction and disposition hearing occurred on June 20, 2019. According to the Department's reports, the Los Angeles Police Department Internet Crimes Against Children Task Force, along with members of the Department of Homeland Security, executed a search warrant at Alvin's residence on February 27, 2019. An individual using an account on an online social media and networking service had uploaded several pornographic videos of male and female children, some between the ages of five and seven. The videos included not only exposure of genitalia but also depictions of sexual acts. For example, one contained a photographic image of vaginal penetration of a young child by a male adult, and another depicted anal sex between two male children aged seven to 10. The Internet Protocol (IP) address had been traced to the house where Alvin, then 23 years old, was living with his mother, an older half-brother and Ethen, who at the time was seven years old. Alvin was found at the house with Ethen, and he spontaneously stated he never touched or abused his son. Alvin admitted he was the user of the online social media account and had uploaded the pornographic videos of children. He did not know how many pornographic images and videos he shared but admitted he "shared a lot." A search of Alvin's cell phone revealed a video of a nude girl seven to 10 years old exposing herself. Alvin was arrested for possession of child pornography, and two cell phones and a hard drive were seized. Alvin admitted he used both cell phones to access pornographic videos and images of children.
The house Alvin and Ethen shared with Alvin's mother and half-brother was a converted garage that had no bedrooms and contained three beds in an open space. Ethen stated in an interview with the Department's caseworker he and Alvin shared a bed. Although Ethen denied that he had been physically abused or that Alvin touched private parts of his body, Ethen stated Alvin had in the past, while Ethen showered, washed him with soap; however, this did not make Ethen feel uncomfortable or afraid. Ethen denied ever seeing Alvin view pornographic images on any electronic device.
In statements to the Department and law enforcement personnel, Alvin admitted he uploaded videos of males and females of all ages engaging in sexual acts and shared these types of videos and images on his social media account to gain popularity. His account had 800 followers, and he wanted to acquire more. He would search for child pornography specifically requested by others. He denied being sexually aroused by the videos, but admitted he knew it was illegal to share the videos, as they contained child pornography. He also admitted uploading the images and videos while in the house, but denied Ethen was home when he did so.
Alvin stated to the Department he had been sexually abused by a neighbor for several years, starting when he was six or seven years old until he was nine or 10 years of age, but he never disclosed this to his family or to law enforcement because he had been afraid or embarrassed. He believed his history of sexual abuse as a child was related to his involvement as an adult in child pornography, which led to his arrest and Ethen's detention, but denied physically or sexually abusing Ethen or having the urge to sexually abuse Ethen or any other child
As shown by the Department's evidence, Alvin had been charged on March 1, 2019 with two felony counts of possession and distribution of child pornography (Pen. Code, §§ 311.1, subd. (a), 311.11, subd. (a)). While his criminal case was pending, Alvin had been released from custody on condition he not use the Internet or have unmonitored contact with a minor.
b. Jocelyn's and Alvin's substance abuse
According to the Department's reports, Jocelyn, who at first explained Ethen had begun living with Alvin in 2017 after Jocelyn had become homeless but then stated Ethen had lived with Alvin since birth, admitted smoking marijuana every other day and using methamphetamine. Alvin stated Jocelyn was unstable and unable to care for Ethen. Ethen could not recall when he last saw Jocelyn.
Alvin's mother ensured Ethen ate three meals a day and had clean clothes. Alvin, unemployed and financially supported by his mother, stayed home and was on the computer all night and day. Alvin admitted smoking marijuana once a month when Ethen was at school but stated he no longer smoked at home. The Department's reports showed Alvin had negative drug test results on April 29, May 3 and May 28, 2019.
When asked during one of the Department's interviews if he knew what drugs were, Ethen replied in the affirmative and stated, "[T]hey roll it up." Ethen explained Alvin smoked and drank with Alvin's younger brother and another man in a car parked in front of the house. This happened several times a week; but in the past, Alvin and the other man had smoked every day. The three men smoked something they passed to each other and used a green bottle that Ethen believed contained beer or other alcohol, which the men occasionally shared. Sometimes, after Alvin had been in the car with the two other men, he returned to the house with Ethen while Alvin's mother was away.
When Alvin and his younger brother became drunk, they argued and engaged in fist fights. Ethen also recalled two separate occasions when Alvin became so drunk he could not recall anything he did. During one incident Alvin was drunk in the car; when Ethen approached Alvin to tell him to go inside the house, Alvin picked Ethen up, started walking toward the house and almost fell. At times Alvin drank so much he passed out or vomited. Ethen recalled a time he had been asleep when he heard the sound of Alvin regurgitating. Alvin vomited on his side of the bed, and Alvin's mother told Ethen to go with her to sleep. When intoxicated, Alvin said he loved Ethen and would always take care of the child no matter what, which made Ethen "feel weird and shy."
According to Jocelyn, Ethen had told her Alvin was drinking alcohol heavily with his younger brother and the other man. When Jocelyn went outside to have a cigarette, Ethen would ask her if she "was going out to smoke that stuff [Alvin] rolls in paper and smokes."
Alvin's mother told the Department, although Alvin drank, she did not believe he did so every day. However, she said in the same interview Alvin, his younger brother and the third man talked outside almost every day and it was possible they also smoked marijuana and drank alcohol when they did. She stated she could occasionally smell marijuana outside the house, coming from where Alvin and the other two men were socializing.
The only evidence submitted by Alvin at the jurisdiction and disposition hearing was a drug testing receipt dated May 3, 2019.
c. The juvenile court's jurisdiction findings and disposition order
The juvenile court sustained the substance abuse allegations under section 300, subdivision (b), as to both Jocelyn and Alvin. It also sustained amended allegations under section 300, subdivisions (b) and (d), that Ethen was at substantial risk of serious physical harm and sexual abuse as a result of Alvin's downloading, possessing and disseminating images of children engaged in sexual conduct.
Proceeding to disposition the juvenile court declared Ethen a dependent of the court and ordered Ethen removed from parental custody and suitably placed under the Department's supervision, with the Department to provide family reunification services. The court-ordered case plan for Alvin included monitored visitation, with discretion to liberalize the visits subject to criminal court orders; drug/alcohol treatment services with weekly drug/alcohol testing; sexual abuse counseling for perpetrators; and individual counseling to address substance abuse, relapse issues related to viewing child pornography, and parenting.
DISCUSSION
1. Substantial Evidence Supports the Juvenile Court's Jurisdiction Finding That Ethen Was at Substantial Risk of Sexual Abuse
The juvenile court's jurisdiction finding that Jocelyn's substance abuse placed Ethen at substantial risk of serious physical harm, unchallenged by Alvin in this appeal, provides an independent basis for affirming dependency jurisdiction over Ethen regardless of any alleged error in the jurisdiction findings relating to Alvin. (In re Briana V. (2015) 236 Cal.App.4th 297, 309; In re I.A. (2011) 201 Cal.App.4th 1484, 1492.) We nonetheless exercise our discretion to review the finding that Alvin placed Ethen at substantial risk of sexual abuse because it both carries a particularly harmful stigma and serves as the basis for a disposition order challenged by Alvin on appeal. (See In re M.W. (2015) 238 Cal.App.4th 1444, 1452; In re D.P. (2015) 237 Cal.App.4th 911, 917.)
Section 300, subdivision (d), authorizes dependency jurisdiction when 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." Penal Code section 11165.1 defines sexual abuse to mean sexual assault or sexual exploitation, with the latter defined to include "[a] person who depicts a child in, or who knowingly develops, duplicates, prints, downloads, streams, accesses through any electronic or digital media, or exchanges, a film, photograph, videotape, video recording, negative, or slide in which a child is engaged in an act of obscene sexual conduct . . . ." (Pen. Code, § 11165.1, subd. (c)(3).)
Substantial evidence supports the juvenile court's finding Ethen was at substantial risk of being sexually abused by Alvin within the meaning of section 300, subdivision (d). Alvin possessed, uploaded and shared numerous graphic pornographic images and videos of children even though he knew such conduct was illegal. The videos included pornographic content involving boys who were the same or similar age as Ethen. Alvin himself had been sexually abused by a neighbor when he was Ethen's age and admitted his childhood sexual abuse history was related to his involvement as an adult in child pornography. There is no indication he had previously submitted to therapy or other treatment to help him confront and address his lingering emotional trauma from that abuse in a healthy fashion; to the contrary, Alvin admitted he, due to fear or embarrassment, never told his family or law enforcement he had been sexually abused as a child.
"'In reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings and disposition, we determine if substantial evidence, contradicted or uncontradicted, supports them. "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.] "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 I.J. (2013) 56 Cal.4th 766, 773.) We review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find that the order is appropriate. (Ibid.; see In re Quentin H. (2014) 230 Cal.App.4th 608, 613.)
Alvin contends the court's finding should be reversed because the criminal charges against him were still pending at the time of the jurisdiction hearing, he had no criminal history prior to his February 27, 2019 arrest, and there was no evidence he had any prior child welfare history. However, Alvin admitted he knowingly disseminated videos containing child pornography; thus, there is no need to resort to the evidentiary presumption, provided by section 355.1, subdivision (d), that a child is at substantial risk of sexual abuse when a parent has been convicted of sexual abuse.
Welfare and Institutions Code section 355.1, subdivision (d), provides that a finding a parent has been convicted of sexual abuse as defined in Penal Code section 11165.1 or a parent is required as the result of a felony conviction to register as a sex offender pursuant to Penal Code section 290 is prima facie evidence that the child of that parent is a person described by Welfare and Institutions Code section 300 and is at substantial risk of abuse or neglect.
Alvin argues there was no evidence or expert testimony victims of sexual abuse are more likely to abuse children, but he fails to give due consideration to his own admission his childhood sexual abuse history was related to his activity as an adult in possessing, uploading and disseminating child pornography, which constitutes abuse of children. Moreover, Alvin does not cite any legal authority requiring introduction of expert testimony before his history of childhood sexual abuse may be considered in determining whether Ethen is at substantial risk of sexual abuse. Indeed, the Supreme Court in In re I.J. (2013) 56 Cal.4th 766 rejected a similar argument that a court must rely on scientific authority or empirical evidence before concluding a father who abuses his daughter is likely to abuse his son. The Court stated, "[N]othing in the statutes suggests a legislative intent to require a court to consult scientific authority or empirical evidence before it makes the 'substantial risk' determination. The specific factors the Legislature stated in section 300, subdivision (j) do not include such evidence." (Id. at pp. 778-779.)
Section 300, subdivision (j), provides for dependency jurisdiction over a child when the child's sibling has been abused, and there is a substantial risk that the child will be abused, as defined in subdivision (d), among other provisions.
As for Alvin's contention he possessed and uploaded the pornographic videos for online popularity (to gain social media followers) and not for sexual reasons, his admission of the impact of his sexual abuse history on his current pornographic activities belies his claim. In any event, in determining Ethen to be at substantial risk of sexual abuse by Alvin due to Alvin's possession of child pornography, the juvenile court impliedly found not credible Alvin's statements he did not possess the pornographic videos for his own sexual arousal. (See People v. Gomez (2018) 6 Cal.5th 243, 309 ["'[i]n deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts'"]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925 ["[a]ll issues of credibility are likewise within the province of the trier of fact"].)
Also unavailing is Alvin's assertion there was no evidence, and there was evidence disputing, Ethen had access to Alvin's child pornography collection. Although the risk of Ethen's access to child pornography creates an additional reason for concern, its absence is not dispositive. The danger of sexual exploitation/sexual abuse from Alvin's interest in child pornography is acute regardless of Ethen's access to the obscene material. (Cf. In re D.G. (2012) 208 Cal.App.4th 1562, 1571 ["'[t]here can be no normal sexual interest in any child'"].) Moreover, that Ethen had not yet been exploited did not mean jurisdiction was unwarranted. (See In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216 ["the court need not wait until a child is seriously abused or injured to assume jurisdiction and take steps necessary to protect the child"]; In re R.V. (2012) 208 Cal.App.4th 837, 843 [same].)
Alvin's reliance on In re B.T. (2011) 193 Cal.App.4th 685 (B.T.) to contend otherwise is misplaced. In B.T. a 38-year-old mother engaged in a sexual relationship with the 15-year-old son of a neighbor that resulted in her pregnancy. Criminal charges were filed against the mother. The juvenile court found the mother's affair with her teenage neighbor put her children, including her infant daughter, at risk of sexual abuse. The B.T. court disagreed, finding no substantial evidence to support that leap—the mother's older children were all well-adjusted and denied being abused, sexually or otherwise, and there was no expert testimony or other evidence to suggest her sexual relationship with an unrelated 15-year-old boy placed her infant daughter at risk. (Id. at pp. 695, 697-698.)
In requiring expert testimony, the B.T. court relied on In re Maria R. (2010) 185 Cal.App.4th 48, 68. (B.T., supra, 193 Cal.App.4th at p. 694.) The Supreme Court in In re I.J., supra, 56 Cal.4th at pages 778-779 expressly rejected In re Maria R. to the extent it required citation of scientific authority or empirical evidence.
Unlike the teenage children in B.T., Ethen was only seven years old; and, unlike the infant in B.T., Ethen is the same gender as at least two of the young children in the pornographic videos Alvin possessed and uploaded. (See B.T., supra, 193 Cal.App.4th at p. 694 [distinguishing circumstances when minor target of parent's sexual interest is same gender as child that is subject of dependency proceedings].) Moreover, while the B.T. court deemed the Department's position that "an adult woman who has had a consensual relationship with an unrelated 15-year-old boy will probably sexually abuse her infant daughter" "a complete non sequitur" (ibid.), the same cannot be said for a parent's interest in child pornography. Quite the contrary, as discussed, the Legislature has deemed a criminal conviction for possessing child pornography prima facie evidence the child is in danger of sexual abuse while in that parent's custody. Although that evidentiary presumption is inapplicable when, as here, criminal charges were still pending at the time of the jurisdiction hearing, it is certainly not a leap, much less a non sequitur, to conclude that Alvin's admission of activities relating to child pornography created a substantial risk to Ethen of sexual abuse.
Finally, Alvin argues there is no risk of future abuse because the police had seized all of his cell phones and his hard drive and the criminal court had ordered him not to use the Internet or have unmonitored contact with a minor. Alvin, however, has not argued the criminal court's order may never be modified, nor has he shown he has been prohibited from purchasing new electronic devices. Moreover, the substantial risk to Ethen of sexual abuse is not remedied by the assumption Alvin will abide by the criminal court's orders, particularly given his involvement in child pornographic activity despite his knowledge it was illegal.
2. Alvin Has Failed To Establish the Juvenile Court's Disposition Order Should Be Reversed
Alvin's sole argument for reversal of the juvenile court's disposition order is that it was based on jurisdiction findings that are not supported by substantial evidence. The evidence supporting the juvenile court's finding of substantial risk of sexual abuse supplies ample evidence for the court's order removing Ethen from parental custody, providing for visitation to be monitored and requiring Alvin to complete sexual abuse counseling for perpetrators and individual counseling to address relapse issues related to viewing child pornography and parenting.
As for the court's requirement that Alvin complete drug/alcohol treatment services with weekly drug/alcohol testing and individual counseling to address substance abuse, we need not review the merits of the juvenile court's additional jurisdiction finding relating to Alvin's substance abuse because a finding sustaining this allegation was not necessary for the court to enter the disposition order. (In re Briana V. (2015) 236 Cal.App.4th 297, 311 ["The problem that the juvenile court seeks to address need not be described in the sustained section 300 petition. [Citation.] In fact, there need not be a jurisdictional finding as to the particular parent upon whom the court imposes a dispositional order"]; see also In re Daniel B. (2014) 231 Cal.App.4th 663, 673 ["'"The juvenile court has broad discretion to determine what would best serve and protect the child's interests and to fashion a dispositional order accordingly. On appeal, this determination cannot be reversed absent a clear abuse of discretion"'"].)
The juvenile court did not abuse its discretion in ordering Alvin to complete drug/alcohol treatment services with weekly drug/alcohol testing and individual counseling to address substance abuse. There was substantial evidence of Alvin's substance abuse interfering with his ability to provide regular care for Ethen. Ethen was only seven years old when the Department initially intervened, but he was able to describe the heavy nature of Alvin's drug and alcohol use. Alvin at times drank so much he vomited or passed out, and at least once vomited in bed next to Ethen. There was also evidence from which the court could reasonably infer Alvin at times was drunk inside the house with Ethen when Alvin's mother, who was essentially Ethen's primary caregiver, was not there. On one occasion Alvin, drunk, nearly fell carrying Ethen. In other instances, Alvin's intoxicated state led to violent behavior between him and his younger brother. Alvin also admitted using marijuana but denied the frequency of his use. Although Alvin claimed to have smoked it only once a month, Ethen observed Alvin smoking and drinking with Alvin's younger brother and friend several times a week and, at one period, having smoked as frequently as every day. Although Alvin submitted negative drug results for a one-month period (April 29, May 3 and May 28, 2019) prior to the June 20, 2019 jurisdiction and disposition hearing, Alvin's denial of the severity of his drug use renders questionable the prospect of sustained recovery in the absence of treatment. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1044 ["denial is a factor often relevant to determining whether persons are likely to modify their behavior in the future without court supervision"]; see also In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["[o]ne cannot correct a problem one fails to acknowledge"].) On this record, and in light of the juvenile court's provision for reunification efforts between Alvin and his son, the court's requirements that Alvin complete substance abuse treatment, testing and counseling, far from being arbitrary and capricious, were reasonably related to the care and protection of Ethen.
Expressing concern Ethen would speak "in conversational terms" about Alvin's excessive drug and alcohol use, including Ethen's describing having observed his father, on a "not . . . infrequent basis," inebriated, vomiting on himself and passed out or otherwise unable to respond, the juvenile court found a substantial risk of physical harm from placing a minor of such a young age with "someone who cannot care for a person," as opposed to "a parent who's taking time and attention to make sure that their child is safe and taken care of." The drug/alcohol treatment, testing and counseling ordered by the court were essentially designed to eliminate the conditions that led to that finding.
DISPOSITION
The juvenile court's jurisdiction findings and disposition order are affirmed.
PERLUSS, P.J.
We concur:
SEGAL, J.
FEUER, J.