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Name: In re L.O.
Case #: E075921
Opinion Date: 07/29/2021
Court: CA Court of Appeal
District 4 DCA
Division: 2
Citation: 67 Cal.App.5th 227
Summary

Insufficient evidence supported the juvenile court’s finding under Welfare and Institutions Code section 300, subdivision (d) where minor displayed sexualized behavior after having possibly witnessed a parent engaging in sexual activity. Following removal from his parents, L.O. was exhibiting troubling sexualized behavior and each parent blamed the other for exposing L.O. to inappropriate sexual conduct. At the jurisdictional and dispositional hearing, jurisdictional allegations under section 300, subdivision (d) were found true as to Father. The appellate court reversed in part, and affirmed in part. A child comes under section 300, subdivision (d), when the child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in section 11165.1 of the Penal Code. Here, there was no evidence that Father had inappropriately touched L.O., so Father’s conduct must be shown to be motivated by an unnatural or abnormal sexual interest. There was no evidence here that Father’s conduct was sexually motivated, but rather was an accidental viewing. Due to the seriousness of allegations of child molestation, jurisdiction in the circumstances of this case where a child has witnessed a parent engaging in sexual acts and the parent is aware of the child acting out sexually can been established under section 300, subdivision (b)(1), but not under section 300, subdivision (d).

Substantial evidence supported the juvenile court’s finding under Welfare and Institutions Code section 300, subdivision (b) where parents had historically engaged in domestic violence in front of minor and continued to have custody disagreements. L.O. was removed from the parents after he disclosed physical abuse by Mother’s boyfriend, and had marks and bruises consistent with his statements. The parents shared joint custody of L.O. and had been in a physical altercation involving Mother, Father and Mother’s boyfriend. Mother and Father both reported previous domestic violence in their relationship. A section 300(b) allegation was found true as to Father, alleging that Father’s history of domestic violence placed L.O. at risk. Exposure to domestic violence may support jurisdiction under section 300, subdivision (b)(1). Although there must be a present risk of harm to the minor, the juvenile court may consider past events to determine whether the child is presently in need of juvenile court protection. Here, Father admitted that he and Mother had previous incidents of domestic violence and L.O. may have witnessed some of these incidents. Mother also reported times when arguments had become physical and a time where she had tried to stop an altercation between Father and her boyfriend while L.O. was in her arms. Father and Mother were still involved in an acrimonious family law matter and had domestic violence issues during custody exchanges. L.O. was acting out violently. This amounted to substantial evidence to support the section 300, subdivision (b) jurisdictional finding against Father.

Substantial evidence supported the juvenile court’s removal order under section 361, subdivision (c) where the child displayed troubling behaviors and it was unclear which parent caused the issues. In his placement, L.O. displayed troubling behavior such as cursing, sexually inappropriate behaviors, and attempting to strangle his six-year-old cousin. L.O. was removed from the custody of both parents and Father appealed the dispositional order. The appellate court affirmed the orders. Substantial evidence supported removal of L.O. from Father’s custody because the parents could not agree who had caused the physical harm to L.O. or how L.O. had learned his sexualized behavior. Without acknowledgment by the perpetrator, L.O. remained unsafe in the custody of either parent. Until it was determined how or where L.O. had learned this inappropriate behavior, he was at a substantial risk of serious physical harm if returned to Father’s care.