Los Angeles County Department of Children & Family Services v. Edwin H.
196 Cal. App. 4th 741
| Cal. Ct. App. | 2011Background
- Edwin, a 32-year-old, kissed 12-year-old D.C. with tongue on at least three occasions in a household setting.
- Department filed a dependency petition under Welfare and Institutions Code §300(b) and §300(d) alleging failure to protect and sexual abuse by Edwin against D.C.
- D.C. described a romantic relationship with Edwin, involving tongue kissing and declarations of love; Reyna reported threats and serious family distress.
- D.C. recanted or softened some statements at a PRC, and Reyna denied previous knowledge of the abuse; Edwin did not participate in the interview.
- The juvenile court dismissed the §300(d) count, altered the petition language to “inappropriate physical contact,” and ordered reunification services with Edwin slated for a sexual abuse awareness program rather than a perpetrator program.
- On appeal, the court reversed and remanded to reinstate the §300(d) count and reconsider Edwin’s required treatment on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tongue kissing a minor constitutes sexual abuse under §300(d) and §11165.1. | Department contends the conduct is inherently sexual under §288/§11165.1. | Edwin argues the act was not for sexual gratification and involved a romantic, delayed gratification. | Yes; the conduct is inherently sexual and satisfies §300(d) as sexual abuse. |
| Whether the §300(d) dismissal was proper given the undisputed facts. | Department argues §300(d) should apply based on the touching and circumstances. | Defendants contend the act did not meet sexual abuse criteria. | The court reversed; the §300(d) count must be sustained on remand. |
| Whether Edwin should be ordered to complete a perpetrator sexual abuse program on remand. | Department recommended a perpetrator program. | The court initially ordered a sexual abuse awareness program. | Remand for reconsideration of the appropriate program; perpetrator-focused program may be required. |
Key Cases Cited
- People v. Martinez, 11 Cal.4th 434 (Cal. 1995) (sexual intent governs 288 touching; intent to arouse or gratify sexual desires)
- People v. Lopez, 19 Cal.4th 282 (Cal. 1998) (any touching of a minor under 14 can be criminal if intended to arouse sexual desire)
- People v. Panah, 35 Cal.4th 395 (Cal. 2005) (Penal Code §288—touching for sexual arousal/gratification; broad interpretation)
- In re Karen R., 95 Cal.App.4th 84 (Cal. App. Dist. 2) (definition of aggravated conduct under §647.6 and requirement of abnormal sexual interest)
- People v. Calusinski, 314 Ill.App.3d 955 (Ill. App. 2000) (French kissing of a child inherently sexual; not innocuous)