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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

LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent D.S., et al., Real Parties in Interest.

Order Modifying Opinion Filed Date 12/30/13

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, Jessica Paulson-Duffy, Senior Associate County Counsel, and Aileen Wong, Deputy County Counsel, for Petitioner.

No appearance for Real Party in Interest.

No appearance for Respondent.

ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]

It is ordered that the opinion filed herein on December 17, 2013, and, be modified in the following particulars:

On the title page, Ailene Wong, Deputy County Counsel, was inadvertently omitted appearing on behalf of petitioner. The first full paragraph is deleted and replaced with the following:

There is no change in the judgment.

KRIEGLER, J.

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.

FACTUAL AND PROCEDURAL BACKGROUND

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 ...


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