Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV9700229-2
Lambden, J.
Humboldt County Department of Social Services (department) filed a petition pursuant to section 300, subdivisions (b) and (g) of the Welfare and Institutions Code on behalf of M.S. M.S. had been residing with her temporary guardians, and that guardianship was terminated prior to the jurisdiction hearing. Department presented evidence at the jurisdiction hearing that James S. (father), the presumed father of M.S., had been convicted of two misdemeanors for annoying/molesting a child under the age of 18 years (Pen. Code, § 647.6) and contributing to the delinquency of a minor (id., § 272, subdivision (a)(1)). The juvenile court took jurisdiction under section 300, subdivisions (b) and (g), and set the disposition hearing. At the disposition hearing, department submitted evidence that defendant had provided marijuana and alcohol to M.S. and her friends and that he had made sexually inappropriate statements and advances to M.S.’s friend. Additionally, department presented evidence that computers in father’s possession contained nude images of prepubescent children. The court detained M.S. and placed her outside the care of her parents. The court ordered department to provide reunification services to both parents.
All further unspecified code sections refer to the Welfare and Institutions Code.
Father maintains that substantial evidence did not support the jurisdiction and disposition findings. He also challenges the requirement in his reunification plan that he submit to an alcohol and drug assessment. We are unpersuaded by his arguments and affirm.
BACKGROUND
Father is the presumed father of M.S. M.S. was born in October 1991. In August 1997, M.S. was in the custody of father and her mother. At that time, M.S. was taken into protective custody based on her parents’ inability to provide supervision, adequate food, and safe shelter. M.S. was placed into the care of L.W. and Kenneth L. She remained with them from August 1997 until May 1999, and then she was returned to the care of father. Mother’s reunification services were terminated. The dependency case was closed in June 2000 with father being awarded full custody of M.S.
M.S. remained with father until the summer of 2005. In 2005, father pled guilty to misdemeanor charges of annoying/molesting a child under the age of 18 years (Pen. Code, § 647.6) and contributing to the delinquency of a minor (id., § 272, subd. (a)(1)). The charges stemmed from his giving alcohol and brownies with marijuana to his daughter’s friend and making inappropriate sexual comments and advances to M.S.’s friend. Anticipating his incarceration, father arranged for M.S. to live with L.W. and Kenneth.
The foster care license of L.W. and Kenneth was revoked on July 19, 2002, for child abuse and failing to comply with foster care provider rules.
The court sentenced father to two one-year sentences, which he was to serve consecutively. Father chose to serve his sentence in jail rather than receive probation because probation would have required him to participate in treatment for sex offenders. Father was released from jail on January 20, 2007; he had to register as a transient sex offender under Penal Code section 290.
On January 24, 2007, M.S. was booked into juvenile hall after she allegedly hit her guardian, Kenneth. On February 9, 2007, department filed a petition under section 300, subdivisions (b) and (g). The petition named L.W. and Kenneth as the guardians and father and mother as her parents. With regard to father, the petition alleged that he had pled guilty to contributing to the delinquency of a minor and to annoying/molesting a child under the age of 18 years. It also asserted that he had to register under Penal Code section 290. The petition further alleged that M.S. stated that she did not want to live with her father because he was a registrant pursuant to Penal Code section 290 and she did not currently trust him. The petition stated: “The recent criminal history of [father] that involved his actions toward a friend of his daughter’s in his home pose a risk of abuse or neglect.”
With regard to mother, the petition alleged that M.S. stated that she did not want to live with her mother because her mother was currently married to and living with a man who is a sex offender under Penal Code section 290. Department verified that mother’s husband was a convicted sex offender and therefore his presence in the home “would constitute a risk of abuse or neglect” to M.S.
The court held a detention hearing on February 13, 2007, and the court detained M.S. Following this hearing, father’s counsel filed a demurrer to the section 300 petition. Father claimed that the allegations against him appeared to be based on an isolated incident in the past, which did not involve parental abuse. He claimed that the petition may have been relying on section 355.1, subdivision (d), which creates a presumption in favor of the assumption of jurisdiction when the parent is a convicted sex offender. He argued, however, that this provision did not apply to him because M.S. was not removed from his care and he was not required to register as a sex offender as a result of a felony conviction. Father stressed that his convictions were for misdemeanors, not felonies.
On February 27, 2007, the court sustained father’s demurrer without prejudice and gave department 10 days to amend the petition. Department filed an amended petition on March 6, 2007, and father again demurred. On March 14, 2007, the court granted L.W.’s petition to terminate the guardianship.
On March 19, 2007, department filed a second amended petition. The petition alleged the following regarding father under section 300, subdivision (b): “[Father] pled guilty to a charge of [Penal Code section] 647.6, annoying/molesting a child under the age of 18, and [Penal Code section] 272[, subdivision] (a)(1), contributing to the delinquency of a minor on [December 7, 2005]. He received one-year sentences on both charges and they were to be served consecutively. He registered as [a transient sex offender] under [Penal Code section 290 on January 29, 2007]. [S]ection 355.1[, subdivision] (d) indicates that the presence of an adult who is a registrant under the [Penal Code] 290 section constitutes a detrimental condition to a child who has come under a petition filed under the . . . 300 section. The conviction of [father] was for misdemeanors. [Penal Code] section 11165.1 includes convictions for [Penal Code section] 647.6 as being ‘sexual abuse.’ [M.S.] stated to [the social worker] on [February 8, 2007,] that she did not want to live with him because he was a 290 registrant and she does not trust him at this time.”
The following sentence originally included in the amended petition was later stricken: “The recent criminal history of [father], which falls under the category of child sexual abuse, poses a risk of abuse or neglect.”
Under subdivision (g) of section 300, the petition alleged regarding father: “The father’s criminal actions led to his arrest and incarceration in Humboldt County Correctional Facility. Following his release, he has registered with Humboldt County Sheriff’s Office as a transient under the [Penal Code section] 290 regulations. His arrangement for the care of his child by [L.W.] had not been successful as of [February 7, 2007]. The termination of the Guardianship of [M.S.] by [L.W.] has left the child at risk of abuse and neglect because she has no legal custodian.”
The court held the jurisdiction hearing on April 25, 2007, and sustained department’s amended petition in its entirety. The court found that M.S. came within the provisions of section 300, subdivisions (b) and (g), and set the matter for a disposition hearing.
A police report attached to a copy of father’s arrest submitted by department was stricken as the writer of the report was no longer a police officer and father’s counsel stated that the former officer was a convicted perjurer.
Department filed its disposition report on May 31, 2007. The report included the Child Abuse Services Team (CAST) interview with M.S.’s friend who had been the victim of father’s illegal actions. She reported that father smoked marijuana with M.S. and her friends and supplied them with alcohol. She also detailed the sexual comments and sexual advances father made towards her. Additionally, she related that she had used the computer in M.S.’s bedroom and noticed that it had pornography on it when it was in father’s room. The pornography depicted girls who appeared to be the same age as she was.
The disposition report also stated that the computer in father’s home had been examined by agents of the Northern California Computer Crimes Task Force on August 10, 2005. An agent determined that the data on the computer had been recently altered. He still, however, was able to locate thousands of still images depicting children engaged in or simulating lewd acts as described in Penal Code section 311 et seq. A few of the still images were of adults, but the majority depicted female children who appeared to be under the age of 12 years. He found 134 still images that he labeled child pornography and 72 images he considered to be child erotica. He located over 6000 still images that appeared to be child pornography. He performed a search for words commonly associated with a sexual interest in children, which resulted in over 65,000 hits.
On December 14, 2005, a second computer was removed from father’s home and another forensic analysis was completed. The agent found at least two still images depicting nude males who appeared to be preteens and at least seven nude images of prepubescent children. He noted that at least three of the images appeared to depict females engaged in or simulating lewd activity in violation of Penal Code section 311.11, subdivision (a).
Department recommended, among other things, that the court find by clear and convincing evidence that the return of M.S. to either parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of M.S. It requested that the court declare M.S. a dependent of the court and that department be authorized to place M.S. in a suitable foster care home. It also recommended that the court offer reunification services for both parents and that the court find that the case plans for both parents were appropriate and reasonable.
The court held the disposition hearing on May 31, 2007. Father’s counsel stated that he was appealing the jurisdiction findings. Father also was objecting to department’s recommendation that he be subjected to a substance abuse evaluation and that he attend a sexual abuse program. Counsel for father explained: “So if the court would allow us to object and make our record that we are objecting to those two recommendations in the case plan and also to the recommendation that [M.S.] be a dependent based upon the allegations that were sustained against the father at the jurisdictional hearing, we would be prepared to submit the matter to your honor today.” With those objections, father submitted on department’s report.
The court declared M.S. a dependent child of the court and found that she could not be safely returned to parental care. The court adopted department’s recommendations and findings and ordered M.S. placed outside parental care under the supervision of department and ordered department to provide father (and mother) with reunification services.
Father filed a timely notice of appeal from the jurisdiction and disposition orders.
DISCUSSION
I. Jurisdiction Findings
Father contends that substantial evidence did not support the lower court’s finding of jurisdiction under section 300 subdivisions (b) and (g) against him. Subdivision (b) of section 300 provides that the court may adjudge a minor to be a dependent child of the court if the child has suffered, or there is a substantial risk the child will suffer, serious physical harm or illness as a result of the parent’s inability to provide regular care for the child. Section 300, subdivision (g) allows the court to adjudge a minor a dependent child of the court where the child has been left without any provision for support. The burden of proof at jurisdiction is preponderance of the evidence. (§ 355, subd. (a); In re P.A. (2006) 144 Cal.App.4th 1339, 1334.) Only one ground needs to be sustained for the court to take jurisdiction. (§ 300; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875.)
We review the jurisdiction findings under the substantial evidence test. (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) Under this standard of review, we examine the whole record in a light most favorable to the findings and conclusions of the juvenile court and defer to the lower court on issues of credibility of the evidence and witnesses. (In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.) Just one incident and one witness’s testimony can support jurisdiction under section 300. (In re Sheila B. (1993) 19 Cal.App.4th 187, 200.) We must resolve all conflicts in support of the determination and indulge all legitimate inferences to uphold the court’s order. (In re Katrina C. (1988) 201 Cal.App.3d 540, 547.) “ ‘The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.’ ” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1394.)
Father argues that jurisdiction could not be taken against him because M.S. was in the custody of the guardians at the time the petition was filed, and he therefore could not have protected her or provided for her support. Additionally, he maintains that his criminal offenses were misdemeanor sex offenses and did not support jurisdiction against him.
With regard to father’s argument that M.S. was in the custody of the temporary guardians when department filed its petition and therefore jurisdiction could not be found against him, he maintains that he was not responsible for the protection or support of M.S. at the time department filed its section 300 petition. Father, however, ignores that by the time the amended petition was filed, the court had terminated the guardianship. Thus, the petition properly concerned the issue of whether M.S. could be appropriately placed with mother or father.
With regard to his second argument, father contends that the mere fact that he was a sex offender and had to register under Penal Code section 290 did not establish that he could not care for M.S. He claims that the presumption that his home constitutes a detrimental condition under section 355.1, subdivision (d), because he is a registered sex offender, applies only to convictions for felonies. Since his convictions were for misdemeanors, the presumption does not apply and department failed to meet its burden of establishing detriment.
Section 355.1, subdivision (d) provides: “Where the court finds that either a parent, a guardian, or any other person who resides with, or has the care or custody of, a minor who is currently the subject of the petition filed under Section 300 (1) has been previously convicted of sexual abuse as defined in Section 11165.1 of the Penal Code, (2) has been previously convicted of an act in another state that would constitute sexual abuse as defined in Section 11165.1 of the Penal Code if committed in this state, (3) has been found in a prior dependency hearing or similar proceeding in the corresponding court of another state to have committed an act of sexual abuse, or (4) is required, as the result of a felony conviction, to register as a sex offender pursuant to Section 290 of the Penal Code, that finding shall be prima facie evidence in any proceeding that the subject minor 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.”
Section 355.1 does state under subdivision (d)(4) that the presumption only applies to persons who register as sex offenders if they are convicted of a felony. However, under subdivision (d)(1), the presumption also applies if the person has been convicted of sexual abuse as defined in Penal Code section 11165.1. This provision does not require that the conviction be for a felony. Penal Code section 11165.1 provides in pertinent part: “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following: [¶] (a) ‘Sexual assault’ means conduct in violation of one or more of the following sections: . . . [section] 647.6 (child molestation).” Father pleaded guilty to violating Penal Code section 647.6.
The presumption of detriment under section 355.1, subdivision (d)(1) applies to any violation defined in Penal Code section 11165.1, and there is no requirement that the conviction be for a felony. Penal Code section 647.6 is included in the definition under Penal Code section 11165.1 and, as already stressed, father pleaded guilty to violating Penal Code section 647.6. Accordingly, the presumption of detriment under section 355.1 applied to father.
Section 355.1, subdivision (d), creates a rebuttable presumption, but father offered no evidence to rebut the presumption. Father argued that he never molested M.S., but the statute does not require that the sexual crime be committed against the parent’s own child. Rather, “the intent of the Legislature was to focus on the heightened risk facing minors who come into contact with sex offenders and to ensure the juvenile court has information about such persons when assessing jurisdictional facts.” (In re John S. (2001) 88 Cal.App.4th 1140, 1145.) The Legislature enacted section 355.1 because it found “ ‘that children are placed at risk when permitted contact with a parent or caretaker who has committed a sex crime. Further, . . . children subject to juvenile court dependency jurisdiction based on allegations of molestation are in need of protection from those persons. Therefore, the purpose of this act is to ensure that information regarding those acts is appropriately considered by the juvenile court in determining whether a child is in need of juvenile court dependency protection.’ ” (In re John S., supra, at p. 1145.)
Father presented no evidence that his status as a violator of Penal Code section 647.6 did not put M.S. at substantial risk. (See In re John S., supra, 88 Cal.App.4th at pp. 1145-1146.) Not only does the record contain evidence of father’s conviction for violating Penal Code section 647.6, but it includes evidence that father refused probation because he was not willing to attend treatment for sex offenders. Father’s refusal to address his attraction to underage females put M.S., an underage female, at risk if placed in his home. Accordingly, we conclude that the record contained substantial evidence to support the juvenile court’s finding of jurisdiction.
Since we have rejected father’s argument on its merits, we need not address father’s argument that his challenge to the jurisdiction findings is not moot.
II. Disposition Findings
Father contends that the evidence does not support the disposition findings that M.S. cannot be placed with him. Department counters that we do not have jurisdiction over any appeal from the disposition order because father’s notice of appeal does not include any disposition order. Although the notice of appeal states it is appealing the orders from the dates of the disposition and jurisdiction hearings, department emphasizes that the only order attached to the notice is the one making M.S. a dependent based on the jurisdiction findings.
We construe a parent’s notice of appeal in dependency proceedings liberally. (See, e.g., In re Madison W. (2006) 141 Cal.App.4th 1447, 1450-1451.) In the present case, father indicated on his notice of appeal that he was appealing the orders dated May 31 and April 25, 2007. May 31, 2007, is the date of the disposition order. Since the notice does not completely omit any reference to the disposition order, we conclude that we have jurisdiction over father’s appeal from this order.
To remove children from a parent’s custody, the juvenile court must find by clear and convincing evidence that there is a substantial danger to the child’s physical health, safety, protection, or physical or emotional well-being if the child is returned home, and there is no “reasonable means” by which the child can be protected without removal. (§ 361, subd. (c)(1); see also In re James T. (1987) 190 Cal.App.3d 58, 66.) We review the finding under the standard of substantial evidence. (See, e.g., In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695.)
Father argues that any allegation that M.S. would be at risk of sexual abuse if placed with him was speculative and contrary to the evidence that he had previously provided care to M.S. without engaging in any sexually inappropriate behavior with her. Further, he claims that, even if he posed some risk, there was no evidence that M.S. could not be protected in a closely supervised plan of family maintenance.
Father claims this case is similar to In re Steve W. (1990) 217 Cal.App.3d 10. In In re Steve W., the infant was removed from the mother’s custody because the father had killed the infant’s five-year-old, half brother and the lower court was concerned that the mother had a tendency to enter into relationships with dangerous men. (Id. at pp. 14-15.) The appellate court reversed and concluded that the lower court improperly speculated that mother would again become involved with a man who would be dangerous to her child despite there being no substantial evidence to support the removal order. (Id. at p. 22.) Similarly, here, father argues that the finding that M.S. would be at risk because he acted inappropriately with M.S’s friend was based on speculation.
The present case is not similar to In re Steve W., supra, 217 Cal.App.3d 10. The mother in that case had not, herself, engaged in any criminal or abusive act. In the present case, father is the offending parent. Further, the mother in In re Steve W., presented evidence that she would not expose her child to an abusive adult. The mother had expressed her clear desire not to have anything to do with the abuser and assisted in his prosecution. (Id. at p. 22.) Moreover, there was no evidence that the mother would again become involved with an abusive person. At the time of the hearing, the mother had started counseling, was living in an adequate apartment, and was self-supporting. (Ibid.) In contrast, here, father presented no evidence that he had done anything to deal with his problem. Indeed, the record contains evidence to the contrary: he refused probation after pleading guilty to the misdemeanors because probation would have required him to participate in a program for sexual abusers.
The record before us contains ample evidence to support the court’s finding that M.S. would be at risk if placed in father’s physical custody. The victim stated that father had given M.S. and her friends alcohol and marijuana. Not only had father furnished the teenagers with alcohol and drugs and made inappropriate sexual advances to M.S.’s friend, but his computers contained sexual images of prepubescent children. There were over 6000 still images on the computer that appeared to be child pornography. Father refused to participate in a sex offender program. Thus, the court’s conclusion that M.S. would be at risk if placed in his home was based on evidence, not pure speculation.
Father argues that department failed to show that M.S. could not be safely placed with him under a closely supervised plan of family maintenance. Again, he stresses that he never targeted M.S. for inappropriate sexual advances. He ignores, however, the evidence that he provided M.S. with alcohol and marijuana. This behavior posed a clear danger to his daughter.
Father claims his situation is similar to In re Jeannette S. (1979) 94 Cal.App.3d 52 and In re Henry V. (2004) 119 Cal.App.4th 522. In In re Jeannette S., the child was removed because of the unsanitary conditions in the home and the appellate court concluded that removal from the mother’s custody had not been established because homemaker services could have been ordered to assist the mother in keeping her home clean. (In re Jeannette S., supra, at p. 60.) Similarly, here, father maintains that removal was unnecessary and department could have implemented a plan of family maintenance. We conclude, however, that no family maintenance plan would have allowed M.S. to be safely placed with father because he refused to attend a program for sexual offenders. Since he had not addressed his sexual attraction to underage girls, removing M.S., an underage female, from his home was necessary.
In re Henry V., supra, 119 Cal.App.4th 522 is similarly unhelpful to father. In In re Henry V., the appellate court reversed an order removing a child with first and second degree burns on his buttocks. (Id. at pp. 525-526, 529.) There was no indication the juvenile court “understood the necessity of making the dispositional findings on clear and convincing evidence.” (Id. at p. 530.) Additionally, there was “ample evidence” of specific services available that would “mitigate the risk of further physical abuse.” (Id. at p. 529.) In contrast, as already stressed, here, there was ample evidence that services were not available that would minimize the risk to M.S. since father had refused to attend any program for sexual offenders.
We conclude that the record contains no evidence that a closely supervised plan would have been sufficient to avoid removing M.S. from father’s home because father had refused to participate in any program that would help him gain insight into his behavior. Accordingly, we conclude that substantial evidence supported the disposition order.
III. Requiring Father to Submit to a Drug and Alcohol Assessment
At the conclusion of the disposition hearing, the juvenile court adopted department’s recommended case plan, which included a requirement that father submit to a drug and alcohol assessment. Father complains that that his case plan should not require him to submit to a drug and alcohol assessment because the record contains no evidence that he ever abused drugs or alcohol. Further, he points out that the section 300 petition did not mention any alcohol or drug problem.
At the disposition hearing, the juvenile court must order child welfare services for the minor and the minor’s parents to facilitate reunification of the family. (§ 361.5, subd. (a); Cal. Rules of Court, rule 5.695(f)(1).) The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a disposition order in accord with this discretion. (In re Jose M. (1988) 206 Cal.App.3d 1098, 1103-1104.) We only reverse the lower court’s ruling if we conclude it abused its discretion when fashioning the reunifications plan. (Ibid.) Moreover, the juvenile court’s findings are subject to review for substantial evidence. (In re Jasmin C. (2003) 106 Cal.App.4th 177, 180.)
The reunification plan “ ‘must be appropriate for each family and be based on the unique facts relating to that family.’ ” (In re Michael S. (1987) 188 Cal.App.3d 1448, 1458.) Section 362, subdivision (c) states in pertinent part: “The program in which a parent or guardian is required to participate shall be designed to eliminate those conditions that led to the court’s finding that the child is a person described by section 300.” The department must offer services designed to remedy the problems leading to the loss of custody. (Robin V. v. Superior Court (1995) 33 Cal.App.4th 1158, 1165.)
Father argues that the court heard no evidence suggesting he abused drugs or alcohol, and there was no allegation in the section 300 petition that M.S. was removed due to father’s abuse of any substance. He claims this case is similar to the one in In re Basilio T. (1992) 4 Cal.App.4th 155 (superseded by statute on another point). In Basilio, the reviewing court reversed the requirement in the parents’ reunification plan that required drug testing because there was no evidence of any substance abuse problem. (Id. at p. 173.) Similarly, here, father maintains the record is devoid of any evidence that he had any substance abuse problem.
Contrary to father’s assertion, unlike the situation in In re Basilio T., supra, 4 Cal.App.4th 155, the record in the case before us does contain evidence of substance abuse. Attached to the disposition report was the CAST interview with the victim. The victim reported that father smoked “weed” with M.S. and her friends and that he ate marijuana brownies. Further, the victim stated that father drank alcohol and provided alcohol to M.S. and her friends. The day father approached the victim for sex, he gave M.S. and the victim brownies, which the victim stated made her feel high for several hours. Thus, father’s conviction for violating Penal Code section 647.6 was connected to his use of alcohol and marijuana with young teenagers.
The court can require conditions in a reunification plan that include issues not alleged or proved in the section 300 petition. The court has broad discretion to determine what would best serve and protect the child’s interest and to fashion a disposition order in accord with this discretion. (In re Jose M., supra, 206 Cal.App.3d at pp. 1103-1104.) When the juvenile court is aware of a problem the parent has that may impede the parent’s ability to reunify with his or her child, the court may address that problem in a reunification plan, even when it is not the reason the child was brought into custody. (In re Christopher H. (1996) 50 Cal.App.4th 1001, 1006-1008.) Thus, a court may impose a drug and alcohol testing condition as part of a reunification plan even when the allegation that the child is at risk because of the parent’s substance abuse problems is not proven and has not yet affected the parent’s ability to care for the child. (Ibid.)
In the present case, substantial evidence supported a finding that father potentially had an alcohol and drug problem. The record contained evidence that father used alcohol and drugs when committing his criminal offenses and that he supplied his daughter and her friends with alcohol and drugs. Thus, we conclude that the juvenile court did not abuse its discretion when it ordered father to have a drug and alcohol assessment. Such an order was appropriate to address a problem, which the facts in the record indicated existed.
DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Richman, J.