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In re Quentin H.

California Court of Appeals, Second District, Seventh Division

October 14, 2014

In re Quentin H. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
v.
RICHARD H., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, No. DK00500 Veronica S. McBeth, Judge. (Retired Judge of the L.A. Sup.Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

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[Copyrighted Material Omitted]

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COUNSEL

Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.

John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel and Jessica S. Mitchell, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

PERLUSS, P. J.

Welfare and Institutions Code section 355.1, subdivision (d), [1] creates a rebuttable evidentiary presumption that a parent who has previously been convicted of sexual abuse as defined in Penal Code section 11165.1 or is required as the result of a felony conviction to register as a sex offender pursuant to Penal Code section 290 poses a substantial risk of harm to a child in his or her care or custody. The prior sexual abuse conviction functions as prima facie evidence of risk and imposes on the parent the burden of producing some evidence to show he or she does not pose a substantial risk of harm to the child. If evidence is introduced that would support a contrary finding, the presumption disappears; and the matter must be determined based on all the evidence presented, including the fact of the prior conviction and reasonable inferences derived from it.

Richard H., father of eight-year-old Quentin H. and six-year-old Linda H., appeals from the jurisdiction findings and disposition order declaring his children dependents of the juvenile court. Richard, who was convicted in 1987 of sexual abuse of a child under 14 years old, contends the court erred in basing its jurisdiction findings on the section 355.1 presumption of risk. We agree Richard adequately rebutted the presumption of current dangerousness by identifying contrary evidence in the Department’s own reports. Because the juvenile court improperly relied solely on the presumption to sustain the allegations in the dependency petition relating to Richard, rather than evaluating the totality of the evidence in the record, we reverse and remand with directions to the juvenile court to consider the evidence without regard to the section 355.1 presumption.

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FACTUAL AND PROCEDURAL BACKGROUND

1. The Dependency Petition

On August 19, 2013 the Los Angeles County Department of Children and Family Services (Department) filed a section 300 petition alleging Natasha W., mother of Quentin, Linda, then 16-year-old Marcus W. and then 10-year-old S.H., [2] had a history of illicit drug use and was a current user of cocaine and marijuana, making her incapable of caring for her children. As to Richard, who had not lived in the family home since his relationship with Natasha had ended several years earlier but who still visited regularly with Quentin and Linda, the petition contained counts under section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse), alleging in identical language solely that his conviction in 1987 (when he was 18 years old) for forcible oral copulation with a minor under 14 years old (Pen. Code, § 288a) and status as a registered sex offender endangered his children.[3] Quentin, Linda and their older siblings were detained following a detention hearing.

2. The Jurisdiction and Disposition Hearing

At the January 8, 2014 hearing Natasha signed a waiver of rights and submitted the issue of jurisdiction to the court based on the Department’s social study reports. The jurisdiction report and last-minute information provided to the court identified Richard’s sexual abuse conviction and also recounted his more recent failure to register as a sex offender, an offense for which he was convicted in 2013 and sentenced to probation. Richard’s probation officer told social workers there were no restrictions on Richard’s ability to be with his children, although he also stated it was generally the policy of the probation department to require monitored visitation for sex offenders.

The jurisdiction report also included statements from Marcus and S.H. to social workers that Richard had lived with them for a substantial amount of time while he and their mother were romantically involved and Richard had not engaged in any inappropriate conduct with either one of them or with their siblings in their presence. Quentin and Linda also told social workers Richard had always behaved appropriately with them and they felt safe in his care. Natasha told social workers she had never witnessed Richard behave inappropriately with any of her children and none of them had complained

Page 612

about him. Richard told social workers he did not commit sexual abuse in 1987 and had ...


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