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In Re Alexis S. et al., Persons Coming Under the Juvenile Court v. Alejandro S

April 19, 2012

IN RE ALEXIS S. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, PLAINTIFF AND RESPONDENT,
v.
ALEJANDRO S., DEFENDANT AND APPELLANT.



(Los Angeles County Super. Ct. No. CK85089) APPEAL from orders of the Superior Court of Los Angeles County, Rudolph Diaz, Judge.

The opinion of the court was delivered by: Manella, J.

CERTIFIED FOR PUBLICATION

Reversed in part, affirmed in part.

Appellant Alejandro S. appeals the dispositional order detaining his two young sons, Alexis and Alejandro, and limiting appellant to monitored visitation with them. Appellant contends that evidence he inappropriately touched the boys' adolescent half-sister, E.G., did not support that the boys were at risk of sexual abuse or otherwise justify the dispositional order. We agree and reverse the dispositional order only.*fn1

FACTUAL AND PROCEDURAL BACKGROUND

Appellant and Mother have been together as a couple since 2000, when E.G. was approximately one year old.*fn2 Their sons, Alexis and Alejandro, were born in 2001 and 2003. The sexual abuse allegations came to the attention of the Department of Children and Family Services (DCFS) in November 2010 after E.G., then 13, ran away from home.*fn3 When E.G. was located, she informed police officers and the caseworker that she did not want to go back home because appellant had been touching her inappropriately. E.G. reported that the touching had begun approximately six months earlier and described two specific occasions. On one occasion, when Mother was in the bathroom and E.G. was waiting by the door, appellant hugged E.G. from behind and grabbed her breasts. The younger boys were in their bedroom asleep at the time. On another occasion, appellant touched E.G.'s breasts and bottom and kissed her on the mouth.

Interviewed at the time of the detention, appellant denied touching E.G. inappropriately or kissing her on the mouth. Both Alexis and Alejandro, then nine and seven, denied seeing appellant touch E.G. inappropriately. Both boys denied that appellant or anyone else had ever touched them inappropriately or abused them. Mother reported that E.G. had not informed her of appellant's actions. Mother stated that because she had been abused as a young girl, she made efforts to protect E.G. which included not leaving her home alone with appellant. DCFS agreed to leave the children with Mother as long as appellant moved out of the family home.*fn4

Interviewed a month later for the jurisdictional/dispositional report, E.G. initially recanted, stating that appellant only slapped her bottom to get her to hurry up and accidentally touched her breasts when he hugged her. Confronted with statements from prior interviews, E.G. stated that the inappropriate touching had occurred, and this time claimed it had happened approximately twice per week from May to October 2010. E.G. further reported that appellant touched her when other family members were not around, for example, when Mother was in the shower and the boys were outside playing. Appellant would not stop when she asked him, but would leave her alone if she called her younger brothers into the house.

Appellant continued to deny the allegations. Mother reported that E.G. refused to talk to her about what had happened and had begun acting out. Alexis was uncooperative during this stage of the investigation, giving little new information to the caseworker. Alejandro continued to deny having been sexually abused by anyone or knowing about any sexual abuse occurring in the home.

At the jurisdictional hearing which took place over three days in February and March 2011, appellant continued to deny the abuse, testifying that he hugged E.G. normally and kissed her on the forehead and cheek. E.G. testified that appellant had begun touching or rubbing her bottom or breasts in May or June of 2010, when she was in seventh grade, and that once during that period had kissed her on the mouth. E.G. described an occasion when appellant slapped or touched her bottom while she was lying on the bed where her brothers were sleeping. At around the time the touching incidents began, appellant got her a cell phone. E.G. was surprised because she had not been behaving well or getting good grades in school. The touching occurred when members of the family were not present or were otherwise occupied.*fn5 To keep appellant from bothering her, E.G. would call her brothers into the room or inside the house.

After hearing the evidence, the court found true that "on numerous prior occasion[s]," appellant sexually abused E.G. by fondling her breasts and buttocks and by kissing her on the mouth. The court found that such sexual abuse "endangers the child's physical and emotional health, safety and well-being, creates a detrimental home environment and places the child and the child's siblings [Alexis and Alejandro] at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect." Based on these factual findings, the court found jurisdiction supported with respect to all three children under Welfare and Institutions Code section 300 subdivisions (b) (failure to protect) and (d) (sexual abuse).*fn6 In response to arguments made by appellant's counsel, the court agreed that the impact on the boys of appellant's actions was difficult to determine. The court was, however, "persuaded they are at risk," not necessarily "physically," but "[e]motionally."*fn7

The dispositional hearing took place six weeks after the jurisdictional hearing, by which time appellant had completed 12 individual counseling sessions and 37 parenting classes. At the May 2011 dispositional hearing, counsel for DCFS argued that the evidence of appellant's inappropriate touching of E.G. was sufficient to support that Alexis and Alejandro were in danger of sexual abuse, which counsel defined to include accidentally coming upon appellant improperly touching E.G. Counsel for Alexis and Alejandro, joined by appellant's counsel, asked the court to grant appellant joint custody of the boys, essentially allowing appellant to have unmonitored visits with and part time custody of them, with the understanding that appellant would stay away from Mother's home and E.G. Both the minors' counsel and counsel for appellant argued that there was no clear and convincing evidence that appellant posed a risk to the boys. The minors' counsel stressed that appellant was no longer living with Mother and E.G., there was a "no contact" order in place prohibiting contact with E.G., and there was no evidence that appellant would return to the family home or violate the no contact order. Mother's counsel stated that Mother believed the boys loved appellant and were very comfortable around him. The court found there was a substantial risk that appellant would "sexually abuse[]" the boys and issued orders detaining the boys from appellant's physical custody and requiring visitation to be monitored. This appeal followed.

DISCUSSION

Appellant contends the evidence does not support that he posed a risk to his biological sons and seeks reversal of the portion of the dispositional order detaining them from his legal custody and requiring visitation to be ...


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