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In re J.S.

California Court of Appeals, Fourth District, Second Division

August 19, 2014

In re J.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, A.S. et al., Defendants and Appellants.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from the Superior Court of San Bernardino County. Nos. J248187, J248188 Lily L. Sinfield, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Hassan Gorguinpour, under appointment by the Court of Appeal, for Defendant and Appellant A.S.

Mitchell Keiter, under appointment by the Court of Appeal, for Defendant and Appellant P.B.

Jean-Rene Basle, County Counsel, Kristina M. Robb, and Adam Ebright, Deputy County Counsel, for Plaintiff and Respondent.

Nicole A. Williams, under appointment by the Court of Appeal, for Minors.

OPINION

RICHLI ACTING P. J.

A.S. (the mother) and P.B. (the father) appeal from orders asserting dependency jurisdiction over their children, N.S. and J.S. (collectively the children), and removing the children from their custody.

In the unpublished portion of this opinion, we will hold that there was insufficient evidence to support jurisdiction based on the mother’s alleged failure to protect the children against sexual abuse by the father. However, there was sufficient evidence to support jurisdiction based on the mother’s

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substance abuse; moreover, the juvenile court also found jurisdiction on other grounds, which the parents do not challenge.

In the published portion of this opinion, we will hold that there was sufficient evidence to support the removal of the children from both parents based on domestic violence. We will also hold that, even though the father’s 1997 Kentucky conviction for second degree sexual abuse was a misdemeanor under Kentucky law, it constituted a “violent felony” for purposes of the denial of reunification services under California law.

We find no other error. Accordingly, we will modify the jurisdictional findings, and we will affirm the jurisdictional and dispositional orders as modified.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. Detention Phase.

The mother and the father have two sons together, N.S. and J.S. N.S., the older boy, was born in 2007; he was five when this dependency was filed, and he is seven now. J.S., the younger boy, was born in 2010; he was two when this dependency was filed, and he is five now.

The father is the presumed father of N.S. However, the mother claimed another man was N.S.’s biological father. That other man denied paternity; he was named in the dependency as an alleged father. The father is both the presumed and the biological father of J.S.

In March 2012, San Bernardino County Children and Family Services (Department) received a report that the children were being abused. Allegedly, the father used drugs, and the mother allowed the children to visit the father, even though he was a registered sex offender. When the Department investigated, the mother agreed not to let the father visit the children. Because she “appeared protective, ” the investigation was closed.

Also in March 2012, the police searched the father’s home pursuant to a warrant. They found a shotgun hidden between the mattress and box spring of his bed and bullets in a shed. They also found marijuana on a dresser; the marijuana was accessible to the children, who were in the home at the time. The father claimed to have a medical marijuana recommendation. Eventually,

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he pleaded nolo contendere to unlawful possession of a firearm and unlawful possession of ammunition; charges of child endangerment and failure to register as a sex offender were dropped. He was sentenced to 16 months; with applicable credits, he was actually incarcerated for eight months, from March through November 2012.

In December 2012, the Department received a “hotline” report that the children were being abused. Allegedly, the mother hit J.S, the mother did not cook for J.S., and the mother had been prescribed Prozac but did not take it.

As a result, in February 2013, social workers interviewed the father. The children were in his home at the time.[1]

The father denied that the mother hit the children. However, he confirmed that she did not take her prescription Prozac. He said that she had “mental health illnesses.”

Initially, the father also said that the mother did not use drugs. However, he then volunteered that she used methamphetamine and marijuana and was currently staying with her uncle in Simi Valley to “detox.”

The father admitted that, in 1997, he had been convicted of a sexual offense in Kentucky. However, he denied actually committing the offense. He explained that his ex-wife had accused him falsely of molesting her then-10-year-old daughter. He also admitted prior convictions for possession of ephedrine with the intent to manufacture methamphetamine, possession of a controlled substance, and driving under the influence.[2]

After this interview, the Department detained the children and filed dependency petitions as to them. They were placed in a foster home.

A social worker then interviewed the mother.

The mother admitted that she had been prescribed Prozac for bipolar disorder but had not taken it for a year because she no longer had Medi-Cal.

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The mother also admitted that she used marijuana daily; she had started using it when she was 13. She admitted using methamphetamine in the past but claimed to have stopped in March 2007.

The mother said that she did not know the father was a sex offender until the March 2012 investigation. She claimed she did not know that the children were not supposed to have contact with him. When reminded that she had agreed to that in March 2012, she said she thought it was “okay” for him to have contact with the children because the charges of child endangerment and failure to register as a sex offender had been dropped.

The mother admitted that she and the father had engaged in mutual domestic violence since 2008; the most recent incident was in December 2012. She also admitted that the children had been present during the domestic violence.

B. Jurisdictional Phase.

The mother’s first drug test was positive for marijuana. She told a social worker that she used marijuana in lieu of Prozac for her bipolar disorder. She indicated that she was going to start taking Prozac again because she had located an inexpensive source. Just two days before making this statement, ...


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