Los Angeles County Department of Children & Family Services v. Richard H.

Opinion

Welfare and Institutions Code section 355.1, subdivision (d),^[1] creates a rebuttable evidentiary presumption that a parent who has previously been convicted of sexual abuse as defined in Penal Code section 11165.1 or is required as the result of a felony conviction to register as a sex offender pursuant to Penal Code section 290 poses a substantial risk of harm to a child in his or her care or custody. The prior sexual abuse conviction functions as prima facie evidence of risk and imposes on the parent the burden of producing some evidence to show he or she does not pose a substantial risk of harm to the child. If 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 inferences derived from it.

Richard H., father of eight-year-old Quentin H. and six-year-old Linda H., appeals from the jurisdiction findings and disposition order declaring his children dependents of the juvenile court. Richard, who was convicted in 1987 of sexual abuse of a child under 14 years old, contends the court erred in basing its jurisdiction findings on the section 355.1 presumption of risk. We agree Richard adequately rebutted the presumption of current dangerousness by identifying contrary evidence in the department’s own reports. Because the juvenile court improperly relied solely on the presumption to sustain the allegations in the dependency petition relating to Richard, rather than evaluating the totality of the evidence in the record, we reverse and remand with directions to the juvenile court to consider the evidence without regard to the section 355.1 presumption.

1. The Dependency Petition

On August 19, 2013 the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition alleging Natasha W., mother of Quentin, Linda, then 16-year-old Marcus W. and then 10-year-old S.H.,^[2] had a history of illicit drug use and was a current user of cocaine and marijuana, making her incapable of caring for her children. As to Richard, who had not lived in the family home since his relationship with Natasha had ended several years earlier but who still visited regularly with Quentin and Linda, the petition contained counts under section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse), alleging in identical language solely that his conviction in 1987 (when he was 18 years old) for forcible oral copulation with a minor under 14 years old (Pen. Code, § 288a) and status as a registered sex offender endangered his children.^[3] Quentin, Linda and their older siblings were detained following a detention hearing.

2. The Jurisdiction and Disposition Hearing

At the January 8, 2014 hearing Natasha signed a waiver of rights and submitted the issue of jurisdiction to the court based on the Department’s social study reports. The jurisdiction report and last-minute information provided to the court identified Richard’s sexual abuse conviction and also recounted his more recent failure to register as a sex offender, an offense for which he was convicted in 2013 and sentenced to probation. Richard’s probation officer told social workers there were no restrictions on Richard’s ability to be with his children, although he also stated it was generally the policy of the probation department to require monitored visitation for sex offenders.

The jurisdiction report also included statements from Marcus and S.H. to social workers that Richard had lived with them for a substantial amount of time while he and their mother were romantically involved and Richard had not engaged in any inappropriate conduct with either one of them or with their siblings in their presence. Quentin and Linda also told social workers Richard had always behaved appropriately with them and they felt safe in his care. Natasha told social workers she had never witnessed Richard behave inappropriately with any of her children and none of them had complained

Richard denied the allegation he was a danger to his children and moved to dismiss the petition for lack of evidence. Although he did not request a trial or introduce any additional evidence, he argued the evidence in the Department’s own reports, including the staleness of his sexual abuse conviction and statements from Natasha and his children, showed he was not a danger to his children. Quentin and Linda’s counsel agreed the evidence as to Richard was too insubstantial to support jurisdiction.

The Department, however, argued Richard’s prior conviction and status as a registered sex offender, coupled with the absence of any evidence he had received rehabilitative therapy since his 1987 conviction, were sufficient to find him a danger to his children. It also argued the passage of time since Richard’s qualifying conviction was insufficient to rebut the section 355.1 presumption of risk.

The court sustained the allegations in the petition as to both Natasha and Richard and found Quentin and Linda to be persons described by section 300, subdivisions (b) and (d). As to Richard, the court stated the prior sex abuse conviction was prima facie evidence he was a danger to his children and that the passage of time since his conviction was, by itself, insufficient to rebut that presumption. The court determined that, apart from emphasizing the staleness of the conviction, Richard had failed to present any other evidence to rebut the section 355.1 presumption.^[4] The court did not address the evidence in the jurisdiction report Richard had cited to rebut the presumption.

At the disposition hearing conducted the same day, the court declared Quentin and Linda dependent children of the court and released them to Natasha with family maintenance services to address the issues that had led to the assertion of dependency jurisdiction. The court removed Quentin and Linda from Richard’s care and custody and ordered services for him, including monitored visitation, participation in sexual abuse counseling for perpetrators, drug testing and a parenting class.

3. Richard Adequately Rebutted the Presumption Contained in Section 355.1; Remand Is Necessary for the Juvenile Court to Properly Consider the Question of Jurisdiction

a. Governing law

Section 355.1 provides that a parent or guardian’s prior conviction of sexual abuse as defined in Penal Code section 11165.1 or the parent’s legal obligation to register as a sex offender as a result of a felony conviction pursuant to Penal Code section 290 constitutes “prima facie evidence in any proceeding that the [child who is the subject of the dependency proceeding] is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.”^[5]

The effect of a presumption affecting the burden of producing evidence is well established: It “require[s] the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604; see In re A.S. (2011) 202 Cal.App.4th 237 , 242-243 [ 134 Cal.Rptr.3d 664 ]; Farr v. County of Nevada, supra, 187 Cal.App.4th at pp. 681, 682 [“[a] rebuttable presumption affecting the burden of producing evidence ‘is merely a preliminary assumption in the absence of contrary evidence, i.e., evidence sufficient to sustain a finding of the nonexistence of the presumed fact’ ”; “ ‘[i]f contrary evidence is introduced then the presumption has no further effect and the matter must be determined on the evidence presented’ ”]; Fisher v. City of Berkeley (1984) 37 Cal.3d 644 , 693 [ 209 Cal.Rptr. 682 , 693 P.2d 261 ] [same].) Once rebutted, the presumed fact may still be considered by the fact finder, as well as any

b. The record contained contrary evidence rebutting the presumption; the court erred in applying the section 355.1 presumption rather than weighing the evidence to determine whether the Department had met its burden of proof

Richard argues the court improperly relied on the section 355.1 presumption to find under section 300, subdivisions (b) and (d), that Quentin and Linda were in danger of being sexually abused even though he had adequately rebutted the presumption with evidence contained in the Department’s own reports, including statements from his children, their older siblings and their mother, that he had not behaved inappropriately with any child in his care, and the fact that he had not reoffended in the more than 20 years since he had been freed from custody.

Initially, Richard contends the court erred in determining the passage of time since his conviction was, by itself, insufficient to rebut the statutory presumption of risk of harm and urges this court to reject the authorities that have held, expressly or implicitly, otherwise. (See Los Angeles County Dept. of Children & Family Services v. Superior Court (2013) 222 Cal.App.4th 149 , 162 [ 166 Cal.Rptr.3d 67 ] (Los Angeles County) [“length of time that had passed since father’s earlier sex crimes, taken alone, is not enough to overcome the presumption”]; cf. In re John S., supra, 88 Cal.App.4th at p. 1146 [holding presumption properly triggered as to father whose prior conviction requiring his registration as a sex offender occurred more than 13 years earlier].) Although not cited by Richard or addressed by the authorities that have rejected his position, there is some support in the legislative history

Los Angeles County, supra, 222 Cal.App.4th 149 , on which the juvenile court (and the Department) relied in determining Richard had failed to rebut the section 355.1 presumption, is factually and procedurally distinguishable and does not compel a different result.^[7] There, our colleagues in Division Five granted a petition for writ of mandate reversing the juvenile court’s determination that a father had rebutted the section 355.1 presumption and that, without the benefit of the presumption, the Department had failed to prove the father’s two-year-old boy was at substantial risk of abuse when in his care and custody. In that highly disturbing case, the father had been convicted 25 years earlier of sodomizing two boys, ages six and 10 years old. He served seven years in prison as a result of those convictions and was civilly committed for another 13 years as a sexually violent predator. (Los Angeles County, at pp. 155-156.) The father was released from civil commitment in April 2009 without conditions. The record before the juvenile court contained no evidence explaining the basis for his release. (Id. at p. 163.) The father ceased therapy for sexual predators upon release. His son was bom the following year. In December 2012 the Department filed a section 300 petition alleging the father’s history as a sex offender made him a danger to his young child. The juvenile court held a contested jurisdiction hearing in which it admitted numerous reports and psychological evaluations of the father prepared during his civil commitment and following his release and determined he had rebutted the presumption and the Department had not proved he was a current risk to his children.

c. Remand is necessary for the juvenile court to weigh evidence

The Department nonetheless contends that remand for the juvenile court to weigh the evidence is unnecessary here because there was overwhelming evidence in this record to conclude Richard was a current danger to his children; In addition to Richard’s 1987 sex abuse conviction and status as a registered sex offender, Richard had not received any rehabilitative therapy following his 1987 conviction. Moreover, Richard has demonstrated a lack of insight into his own behavior by failing to take any responsibility for the sexual misconduct that was the subject of his 1987 conviction and to comply with the registration requirements for sex offenders.

The Department’s substantial evidence argument, however strong it may ultimately prove to be, is misdirected here. The question is not whether this evidence is sufficient to support a jurisdiction finding because the court did not weigh this evidence or make any findings as to the significance or weight of the Department’s evidence relative to Richard’s. Instead, it erroneously relied on the presumption to sustain the petition as to Richard, mistakenly believing no contrary evidence apart from the date of the conviction had been presented to overcome the presumption of dangerousness contained in section 355.1. This was error.

Accordingly, we reverse the court’s jurisdiction finding and disposition order.^[8] On remand, the juvenile court will have the opportunity to consider all of the evidence the Department cites, including the fact of Richard’s prior sex abuse conviction and any reasonable inferences to be derived from it (Evid. Code, § 604), along with the evidence identified by Richard, and to determine

DISPOSITION

The January 8, 2014 jurisdiction finding and disposition order as to Richard is reversed. On remand the juvenile court shall conduct a new jurisdiction hearing as to Richard to determine whether the Department has sustained its burden of proof as to the allegations in the petition without regard to the section 355.1 presumption and giving appropriate weight to the family’s current situation.

Woods, J., and Segal, J.,^[10] concurred.