In Re Jason L.
The lower court entered judgments declaring Jason L. and Brandi L. dependents of the juvenile court and removing Jason from the physical custody of defendant Joseph L., the minors’ father. (
I
PROCEDURAL BACKGROUND
On February 9, 1989, plaintiff Orange County Social Services Agency (SSA) filed petitions seeking to declare Brandi and Jason dependents of the juvenile court. Brandi‘s petition alleged appellant had sexually molested her. (
At the detention hearing, the court appointed separate counsel for each parent. Harold F. La Flamme was appointed to represent both minors. The parents denied each petition‘s allegations. The court released Brandi and Jason to their mother under SSA‘s supervision with directions to arrange and monitor visitation with appellant.
When the jurisdiction hearing began, Mr. La Flamme advised the court that, while he felt capable of adequately representing both minors during the jurisdiction hearing, a clear conflict of interest would arise if the matter proceeded to a disposition hearing. Mr. La Flamme noted Jason‘s petition alleged only sibling abuse, and stated that he did not expect Jason to testify at the hearing, and did not believe Jason would contradict Brandi even if both of them took the stand. Appellant‘s counsel replied she intended to call Jason as a witness and made an offer of proof that Jason would testify
After taking evidence, the court sustained both petitions. At that time, Mr. La Flamme declared a conflict as to Jason and another attorney was appointed to represent him.
The court held a disposition hearing May 25 and 26. The matter was uncontested as to Brandi. After taking evidence the court found, by clear and convincing evidence, it would be detrimental for Jason to remain in appellant‘s custody. The court adopted a reunification plan that included the following terms: (1) Brandi was not to have contact with appellant until she wanted to see him and her therapist felt it would not be contrary to her interests; (2) monitored visitation between Jason and appellant, and, upon verification that both were in counseling, increased visitation with the social worker‘s approval; (3) family therapy for the minors, their parents and stepfather; and (4) appellant was to secure housing that would provide Jason with a private bedroom and establish he could adequately support the minor before they reunify.
Appellant timely appealed in both cases.
II
FACTS
Appellant and Sherri A. married in 1974. Brandi, born May 4, 1975, and Jason, born May 19, 1978, were the product of this union. While married to Sherri, appellant had one or two homosexual affairs with adult partners. In May 1980, appellant and Sherri separated. Their marriage was dissolved in 1981.
By court order, appellant and Sherri were awarded joint legal custody of Brandi and Jason with appellant receiving physical custody of them. The custody order was never formally modified. However, the minors moved back and forth between appellant and Sherri after the divorce. When these proceedings commenced, Brandi lived with her mother and stepfather and Jason lived with appellant.
Appellant and Sherri each separately remarried. Appellant‘s second marriage also ended in divorce. At the time of trial, Sherri‘s second marriage was still intact.
When Brandi was seven or eight years old, appellant would lie down with her while he was naked and watch X-rated movies. During these encounters, appellant placed his erect penis between Brandi‘s legs. On other occasions, appellant kissed and licked Brandi‘s body. These incidents occurred once or twice a week for approximately seven months. Brandi did not report the molestation because she was afraid her father might begin to hate her and she would never see him again.
Appellant frequently walked around home naked. On one occasion, he directed Brandi to kiss his penis when she inadvertently touched it. Just before Brandi entered the fifth grade, appellant had her masturbate him once.
In January 1989, appellant molested Brandi again when she visited him one weekend. Brandi slept with appellant on a bed. Jason slept on a mat on the floor. During the night, appellant moved his hand up and down on her buttocks and put his finger under her panties for approximately one minute.
Brandi did not immediately tell anyone about the incident. However, a few weeks later Brandi reported it to a school guidance counselor because she was about to visit her father and did not want to be molested again.
Appellant also took showers with Jason. Brandi testified the most recent joint shower she knew about occurred at the end of the summer of 1988. When appellant asked Jason to shower with him, Jason replied he did not want to do so. By stipulation, the parties agreed that, if called as a witness, Jason would testify he and appellant occasionally took showers together to save time, and appellant never touched him in an inappropriate manner.
Appellant initially told the social worker he and Jason had not jointly showered together since Jason was very young. At the jurisdictional hearing, appellant admitted showering with Jason twice during the summer of 1988, once to save time, and on a second occasion to ensure Jason properly cleaned himself.
Appellant denied molesting Brandi, and claimed she became very angry with him for criticizing Sherri just before making the molestation charge. Appellant claimed Brandi threatened to do anything to hurt him. The court sustained the allegations of both petitions finding Brandi‘s account of the events more credible than appellant‘s.
At the disposition hearing, Jason testified he missed school while living with his father due to illness and to assist his father. Jason believed appellant was not able to manage without his help. The grades Jason received when living with his father ranged between B‘s and D‘s. Since being placed in his mother‘s custody, his grades had improved slightly. Jason did not feel he had any need for counseling.
When living with his father, Jason went to appellant‘s place of work every day after school and on weekends, usually remaining there until 9 or 10 p.m. Occasionally, Jason complained about the length of time spent at the office. Appellant felt having Jason at his workplace was good for the child.
Wardrop testified she believed it was not in Jason‘s best interest to be placed with his father because Jason felt responsible for appellant‘s welfare, and this feeling affected the truthfulness of his testimony. Jason was also at risk of being molested by appellant. In addition, Wardrop felt Jason needed more routine and structure in his life.
Jason reported no dissatisfaction with the living arrangement in his mother‘s home. Jason had his own bedroom, and his school attendance and grades had improved. Sherri had not placed Jason in counseling because she and her husband could not afford to do so. However, he was on a waiting list for counseling.
Wardrop stated she had not offered appellant any services to reunite with Jason since he was already in a counseling relationship with a therapist and had not asked for other referrals. She recommended counseling for Jason, joint counseling for appellant and Jason, and before they could reunify,
III
DISCUSSION
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3. Welfare and Institutions Code section 361
Appellant argues the evidence is insufficient to support removing Jason from his custody, and the lower court failed to make the findings required by
a. Sufficiency of the evidence
In re James T. (1987) 190 Cal. App.3d 58 [235 Cal. Rptr. 127] explained the statute‘s purpose: “The language of section 361 is both clear and specific. In
The evidence is sufficient to support a finding appellant sexually abused Brandi. Indeed, appellant does not challenge the judgment in Brandi‘s case.
But the question remains whether section 361 precludes the removal of Jason from appellant‘s custody where there is no evidence he actually molested Jason. We have found no case authority construing the portions of section 361, subdivision (b) quoted above to an analogous set of facts. At our request the parties submitted supplemental briefs on the legislative history of
(2) A court must interpret a statute in accord with its legislative intent. Where the Legislature expressly declares its intent, the court must accept that declaration. (Tyrone v. Kelley (1973) 9 Cal.3d 1, 10-11 [106 Cal. Rptr. 761, 507 P.2d 65].) Absurd or unjust results will never be ascribed to the Legislature, and a literal construction of a statute will not be followed if it is opposed to its legislative intent. (Webster v. Superior Court (1988) 46 Cal.3d 338, 344 [250 Cal. Rptr. 268, 758 P.2d 596]; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104 Cal. Rptr. 761, 502 P.2d 1049].)
(3) The paramount purpose underlying dependency proceedings is the protection of the child. (In re Kerry O. (1989) 210 Cal. App.3d 326, 333 [258 Cal. Rptr. 448]; In re Nicole B. (1979) 93 Cal. App.3d 874, 879-880 [155 Cal. Rptr. 916].) “The parents do not represent a competing interest in this respect.” (In re Michael S. (1981) 127 Cal. App.3d 348, 359 [179 Cal. Rptr. 546].) Section 300 states in part: “It is the intent of the Legislature in enacting this section to provide maximum protection for children who are currently being physically, sexually, or emotionally abused, being neglected, or being exploited, and to protect children who are at risk of that harm....”
Prior to 1989,
Effective January 1, 1989, the Legislature added
Section 361 was derived from
At the same time, the Legislature also enacted former
In 1982 the Legislature amended section 361 to incorporate the provisions of former section 361.5. (Stats. 1982, ch. 978, § 20, pp. 3535-3536.) A review of the legislative history indicates this amendment was part of an effort to shift the emphasis of the child dependency laws to maintaining children in their natural parents’ homes where it was safe to do so, and to clarify the conditions in which a minor could be removed from his or her parents’ custody. (See Review of Selected 1982 California Legislation (1982) 14 Pacific L.J. 667-675.)
(4) Section 361, subdivision (b)(1) applies where there is “a substantial danger to the physical health of the minor.” The operative phrase in this subdivision is “physical health.” The term “physical” has been construed in other contexts as synonymous with “bodily.” (
People v. Lamport, supra, 165 Cal. App.3d 716 is analogous to the present appeal. There, the defendant suffered from pedophilia and was committed to a state hospital as a mentally disordered sex offender. (Former
As noted, section 300, subdivision (j), gives the juvenile court jurisdiction over a minor if his or her sibling has been sexually abused and there is a substantial risk the minor will be similarly mistreated. The term “sexual abuse” includes intentionally touching the intimate parts of either a child‘s body, or the perpetrator‘s body by a child, for sexual arousal or gratification, or where a perpetrator intentionally masturbates in a child‘s presence. Since the term “physical” is synonymous with “bodily,” and under Lamport the phrase “bodily harm” includes the unlawful touching of young children for sexual gratification, we conclude Welfare and Institutions Code section 361, subdivision (b)(1)‘s requirement of “substantial danger to the physical health of the minor” includes sexual abuse.
The evidence in this case also supports the judgment. In addition to the proof of appellant‘s sexual molestation of Brandi, there was evidence appellant had one, possibly two, previous adult homosexual relationships, shared a bedroom with Jason, showered with him at least twice when Jason was ten years old, and initially denied the joint showers occurred. Mrs. Wardrop testified Jason felt responsible for appellant, and was very protective of him. As a result, she was concerned Jason might not be entirely truthful about his relationship with appellant.
The cases appellant relies on are distinguishable. In In re Jeannette S. (1979) 94 Cal. App.3d 52 [156 Cal. Rptr. 262], the Court of Appeal found it possible to place a dependent child with her father even though he was an alcoholic and once had been convicted of child molestation, since the father was living in a home with another married couple. (Id. at p. 60.) In re James T., supra, 190 Cal. App.3d 58, involved the removal of a dependent child from his mother under
Therefore, we conclude substantial evidence supports the lower court‘s removal of Jason from appellant‘s custody under
b. Welfare and Institutions Code section 361, subdivision (c)
(5) In addition, appellant argues the lower court was required to state the facts supporting its decision to remove Jason from appellant‘s custody and to determine whether reasonable efforts were made to prevent or eliminate the need for removing him. This contention has merit.
Failure to make the required findings was error. (In re B.G. (1974) 11 Cal.3d 679, 699 [114 Cal. Rptr. 444, 523 P.2d 244]; In re Robert P. (1976) 61 Cal. App.3d 310, 320 [132 Cal. Rptr. 5].) However, cases involving a court‘s obligation to make findings regarding a minor‘s change of custody or commitment have held the failure to do so will be deemed harmless where “it is not reasonably probable such finding, if made, would have been in favor of continued parental custody.” (In re Clyde H. (1979) 92 Cal. App.3d 338, 346-347 [154 Cal. Rptr. 727]. See also In re Richard S. (1990) 221 Cal. App.3d 210, 222 [270 Cal. Rptr. 411] review granted on specified issues Aug. 23, 1990 (S016631); In re Corienna G. (1989) 213 Cal. App.3d 73, 83-84 [261 Cal. Rptr. 462]; In re Cindy E. (1978) 83 Cal. App.3d 393, 408-409 [147 Cal. Rptr. 812]; In re Robert W. (1977) 68 Cal. App.3d 705, 721-722 [137 Cal. Rptr. 558].)
In re Corienna G., supra, 213 Cal. App.3d 73, affirmed a permanency planning order although the trial court failed to expressly determine the minors would not be returned to their parents within six months. (
Both appellant and Jason made contradictory statements regarding their showering together. The social worker‘s report considered the possibility of leaving Jason in appellant‘s custody, but rejected that alternative. Jason‘s allegiance to his father made him an unreliable reporting source regarding appellant‘s conduct. Given the close quarters in which the two lived, Jason‘s belief he was responsible for his father‘s welfare, and his desire not to see appellant viewed in a negative light, no reasonable effort could be made by SSA to protect Jason if he remained in appellant‘s custody.
We conclude that, had the lower court properly complied with subdivision (c), it undoubtedly would have made findings adverse to appellant. Therefore, the lower court‘s failure to make the required findings was harmless error.
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IV
DISPOSITION
The judgments of the lower court are affirmed.
Sonenshine, Acting P.J., and Cox, J.,† concurred.