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Los Angeles County Department of Children & Family Services v. Superior Court (D.S.)

California Court of Appeals, Second District, Fifth Division

December 17, 2013

THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent D.S., et al., Real Parties in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Marguerite Downing, Judge. L.A. Super. Ct. No. CK95882

John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jessica Paulson-Duffy, Senior Associate County Counsel, for Petitioner.

No appearance for Real Party in Interest.

No appearance for Respondent.


The Department of Children and Family Services (Department) seeks a writ of mandate to reverse respondent court’s order dismissing a petition filed under Welfare and Institutions Code section 300, subdivisions (b) and (d).[1] Respondent court dismissed the petition, finding that a two-year-old male, S.G., was not at substantial risk of sexual abuse by S.G., Sr. (father), even though father was convicted of sexually assaulting young boys on two separate occasions, was civilly committed as a sexually violent predator (SVP) for almost 13 years after his 7-year prison term, and discontinued any sex offender treatment after his release in 2009. We conclude the record does not contain substantial evidence to overcome the presumption of jurisdiction set forth in section 355.1, subdivision (d). The Department’s petition is therefore granted.


Father’s 1986 and 1989 Sex Crimes

In 1986, father pled guilty to violating Penal Code section 288, committing lewd and lascivious acts with a minor under 14. According to the police report, father sodomized a ten-year-old boy on June 5, 1986. The crime took place at an elementary school, and the victim claimed father grabbed the victim around his neck, choking him, and kept him from screaming by placing his hand over the victim’s mouth. Afterwards, father told the victim “You better not tell anybody or I’ll kill you.” The victim reported the incident to his grandmother, who notified police. A medical exam confirmed signs of sexual assault. Police questioned father, and he admitted to sodomizing the victim. Nothing in the police report mentions any other suspects or participants.

Father again sodomized a young boy in January 1989 while on probation for his earlier sex crime. Father was 20 years old and his victim was six years old. Father lured the victim to his bedroom with a promise of toys, and after sodomizing the child, father gave the victim a Twinkie and told him not to tell anyone because father would get in trouble. The victim reported the incident to his mother, and a medical examination revealed a small tear on the top of his anus, which “was good evidence that the victim had been the victim of a recent sexual assault.” When questioned by police, father again admitted the crime and also disclosed that he had been arrested two years earlier for a similar crime. He was convicted of violating Penal Code section 288 and subdivision (c) of Penal Code section 286 (sodomy of person under 14 years with a 10-year age difference). Father served seven years in prison.

Father’s Civil Commitment as an SVP

Father was clinically evaluated during his prison sentence to determine whether he qualified as an SVP under sections 6600 et seq. The evaluating psychologist, Dr. Gary Zinik, Ph.D., opined father was sexually attracted to males and also suffered from polysubstance abuse for cocaine, alcohol, marijuana, and PCP (phencyclidine). Dr. Zinik noted alcohol and drugs made it easier for father to act without conscience on his sexual impulses toward children. The doctor further observed that a widely accepted psychiatric reference guide explained that pedophilia “is usually chronic especially those attracted to males. The recidivism rate for individuals with pedophilia involving a preference for males is roughly twice that for those who prefer females.” Father’s “offense record shows that he clearly fits this profile.” The district attorney petitioned for father to be civilly committed as an SVP in June 1996 and again in December 1999. Father was evaluated by mental health professionals who concluded that he suffered from a diagnosed mental disorder, and as a result of the disorder is “predisposed to the commission of sexual acts to such a degree that he constitutes a menace to the health and safety of others.” Although the disposition of the 1996 petition is not in the record, a jury found the 1999 petition true, and in December 1999, father was civilly committed as an SVP.

Father was held in state mental hospitals for nearly 13 years and was subject to numerous psychological evaluations during that time. The record at trial included 24 psychological evaluations between April 26, 1996, and February 9, 2009. Until 2005, the evaluators consistently concluded that father was likely to commit sexually violent offenses in the future. Father was not willing to enroll in the second phase of a four-phase treatment program for sexual offenders because he did not consider himself a child molester. In a January 2003 evaluation with Dr. Dawn Starr, Ph.D., father stated his plans after release would be to move in with his mother in Alabama and care for her, then get a job and move in with his girlfriend, register as a sex offender, continue with Narcotics Anonymous (NA) and Alcoholics Anonymous (AA) meetings, and continue his Muslim beliefs. He said he did not participate in sex offender treatment because he considered it a waste of time. He identified alcohol, drugs, and having too much spare time as potential risks. A report by Dr. Douglas Korpi, Ph.D., in the same time frame states father “has consistently informed all who have asked that he does not suffer a sexual disorder, is not a child molester and does not require treatment. He has been quite frank about this: If he is released he will not seek treatment.”

For the first time in a report dated March 5, 2005, Dr. Starr concluded father was no longer likely to commit sexually violent crimes in the future. Dr. Starr’s conclusion was based on the fact that father planned to seek therapy with Jan Brown, a sex therapist, when he returned to Alabama and appeared committed to sobriety and a socially acceptable lifestyle. Dr. Starr reiterated her concern about father’s likelihood of future sexual offending and recognized that without a court order, father’s participation in treatment would be voluntary. She believed, however, with the support of his family, father would stay committed to therapy. Given father’s new commitment to therapy, Dr. Starr concluded father was not likely to commit future sexually violent offenses.

Dr. Gary Zinik evaluated father in the same time frame and concluded that father remained a danger to others, was likely to commit sexually violent crimes in the future due to a mental disorder, and continued to meet the criteria of an SVP. Dr. Zinik recognized that father had quit smoking, attended anger management and interpersonal skill classes, and regularly participated in Muslim religious activities. Father seemed sincere about his Muslim religious practices and hoped his religion would keep him from reoffending. Dr. Zinick noted father had stopped attending NA/AA meetings eight months earlier. Father identified himself as a sex offender and admitted he needed sex offender and substance abuse treatment, but refused to participate in the hospital’s sex offender treatment program because he did not believe he had a mental disorder. Dr. Zinik was aware of father’s plans to seek therapy from Jan Brown after his release, but considered this plan insufficient because the proposed group therapy sessions met only once every two weeks. In Dr. Zinik’s opinion, father needed intensive sex offender treatment and his history of refusing treatment lowered the chances he would stay in treatment. Dr. Zinik notes: “[Father’s] motivation for sex offender treatment is questionable, since he has refused sex offender treatment at [the state hospital] for the past six years.... If he were to [be released], he would not be under any supervision. He would be accountable to no one and there would be no way to ensure that he would get the treatment he needs to reduce the risk to reoffend.”

Father began the second phase of a five-phase treatment program for sex offenders in early 2008. When asked what motivated him to begin the second phase after almost 10 years of civil commitment, he explained that he did not like the way the program was run at Atascadero State Hospital, but that the program at Coalinga was different. Specifically, the treatment contract at Atascadero required him to admit he had a “problem, ” but the contract at Coalinga made no mention of such a requirement. Later in 2008, he prepared a “Release Plan” detailing the steps he planned to follow to make a successful transition back into the community when released. Father stated that upon his release, he would leave California to reside with his mother and 24-year-old nephew in Alabama. The “Release Plan” stated father understood the responsibility of being accountable. He planned to follow all sex offender registration laws, keep a daily journal, set up daily “check-in call times” so that his support group knows his whereabouts at all times, and practice full disclosure with employers, landlords, neighbors, and members of the NA group he planned to attend.

Psychological evaluations in 2007 and 2008 reached varying conclusions about father’s likelihood to commit future sex crimes. Those psychologists who concluded father no longer met the criteria for SVPs emphasized father’s attendance at NA/AA programs, his Muslim faith, and his recognition of the need for continued treatment. Evaluators responded positively to the fact that father was attending treatment and appeared committed to continuing treatment after his release. They continued to diagnose father as suffering from mental disorders, including pedophilia and drug and alcohol dependence. At least one psychologist diagnosed him as having pedophilia, drug and alcohol dependence, and antisocial personality disorder but ...

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