IN RE: EDGAR V. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Edgar V. (Edgar) and Felipe V. (father) appeal from the judgment and orders of April 23, 2010, declaring Edgar a dependent of the court under Welfare and Institutions Code section 360, subdivision (d).¹  Edgar contends the petition fails to state a cause of action.   Edgar and father contend substantial evidence does not support the jurisdictional findings under section 300, subdivision (b).  We conclude:  Edgar forfeited the contention that the petition fails to state a cause of action by failing to demur to the petition;  and the jurisdictional findings are supported by substantial evidence.   We affirm the judgment.

STATEMENT OF FACTS AND PROCEDURE

Edgar was born in 1996 to father and R.V. (mother), who were married and living together.²  Mother ran a licensed day care program in the home.   N. and L., two girls who were previously in the day care program, disclosed that father sexually molested them until 2008 or 2009.   L. also disclosed that Edgar's 18-year-old brother sexually molested her in day care.   Father forced the girls to masturbate his penis, play with a sex toy, and watch pornography.   He fondled their private parts and licked their vaginas.   Father forced N. to masturbate him until he ejaculated.   The children were sexually abused during nap time when they slept on the floor in the bedroom.   The abuse also occurred in a shed in the back yard, where father forced L. to watch pornography on his computer as he rubbed his penis on her bare buttocks.   Father forced L. to masturbate him when she was watching television in the master bedroom.   Father would walk up behind L. and another child while the children were standing at a computer and rub himself on their buttocks.   Father would force L. and other children to watch pornographic videos on his cell phone, and he would not permit them to avert their eyes.   L. stated father sexually abused N. and other children whose names she could not recall.   Father warned L. not to tell anyone.

Edgar was detained from father on March 9, 2010, by the Department of Children and Family Services (the Department) and placed with mother, when father was arrested for lewd acts with L. and N. Edgar stated he was not aware of the abuse and father had not sexually abused him.   Edgar stated he knew father had pornographic movies “in the back of the house in the shed” and had guns, but claimed they were locked away and he never watched pornography with father.   Edgar stated he had seen father watch pornographic movies.

Father denied molesting the girls.   He acknowledged he possessed a sex toy and kept it in his room, but claimed it was out of Edgar's reach.   He denied he possessed pornographic movies.   The police recovered pornographic materials and several firearms from the home.

On April 20, 2010, the dependency court found true the allegation under section 300, subdivision (b), that there is a substantial risk Edgar will suffer serious physical harm or illness as a result of the failure or inability of his parent to supervise or protect him adequately, based on the following supporting facts.   In b-1 of the petition, on prior occasions during the past two years, father sexually abused N. by forcing her to masturbate his penis while viewing pornographic material and by orally copulating her vagina and fondling her vagina and buttocks.   In b-2, on prior occasions during the past two years, father sexually abused L. by forcing her to masturbate his penis, view pornographic material, rubbing his penis on her buttocks, and fondling her vagina, buttocks, and breasts.   In b-3, on prior occasions, father sexually abused Edgar by exposing him to pornographic material.   The facts in b-1, b-2, and b-3 endangered Edgar's physical and emotional health and safety and placed him at risk of physical and emotional harm, damage, danger, and sexual abuse.

An informal Department Team Decision Meeting was held with mother and father to develop a safety plan for Edgar once father moved back into the home.   Father agreed to receive family maintenance services and follow the case plan.   The family was instructed that no pornography was allowed on the premises, mother must supervise father when young children were in the home and not leave father alone with young children, the parents must enroll in sexual abuse awareness counseling and individual counseling, and Edgar must receive individual counseling.

On April 23, 2010, Edgar was declared a dependent of the court and ordered placed in the parents' home under Department supervision.   The Department was ordered to provide family maintenance services.   Father was ordered to participate in individual counseling to address sex abuse for perpetrators and in parenting education.   The dependency court ordered that there be no pornography in the home.  “The viewing of pornography is very harmful to minors regardless of whether you viewed it with him or without him or he saw it inadvertently or purposely.”

DISCUSSION

Sufficiency of the Allegations of the Petition

Edgar contends the allegations in b-3 (father exposed Edgar to pornography) and b-1 and b-2 (father sexually abused N. and L.) fail to state a cause of action under section 300, subdivision (b), because no facts were alleged demonstrating Edgar suffered, or was at substantial risk of suffering, serious physical harm or illness.   The contention was forfeited by father's failure to file a demurrer.   In any event, any deficiency of the petition was rendered harmless by the fact that a jurisdictional hearing was held and substantial evidence supports the finding of jurisdiction.

The legal sufficiency of a petition cannot be challenged for the first time on appeal.  (In re Christopher C. (2010) 182 Cal.App.4th 73, 82-83;  In re David H. (2008) 165 Cal.App.4th 1626, 1636-1640;  In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329;  contra, In re Alysha S. (1996) 51 Cal.App.4th 393, 397.)   To test the legal sufficiency of a petition, a demurrer must be filed in the dependency court pursuant to the procedure set forth in Los Angeles County Superior Court Rules, rule 17.15(d).³  If a demurrer is not filed, any challenge on appeal to the legal sufficiency of the petition is forfeited.  (In re Christopher C., supra, at p. 83 [the appellant “forfeited his claim by failing to demur to the petition in the trial court”];  In re David H., supra, at pp. 1636-1640;  In re Shelley J., supra, at p. 328.)

Edgar contends he preserved the contention for appeal.   This is incorrect, as he did not demur to the petition.   He argued in his trial brief that possession of pornography is not jurisdictional, but he did not argue that the allegation in b-3 that he exposed a child to pornography is not jurisdictional.   After the close of evidence, he argued the section 300, subdivision (b) allegations were not proven.   He did not argue the petition was facially insufficient.

Even had Edgar not forfeited the issue and the petition was found to be deficient, there is no basis for reversal because as we conclude in the next section of this opinion, the evidence at the jurisdictional hearing was sufficient to support jurisdiction.  (In re Athena P. (2002) 103 Cal.App.4th 617, 628 [“if the evidence was sufficient to support the [dependency] court's findings, any failure of the petition to state a cause of action became harmless error”];  Cal. Const., art.   VI, § 13 [“No judgment shall be set aside ․ for any error as to any matter of pleading ․ unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”].)

Substantial Evidence

Edgar and father contend substantial evidence does not support the findings under section 300, subdivision (b).  They do not challenge the findings that father forcibly orally copulated, fondled, and sexually rubbed against two young girls and forced them to masturbate him and watch pornography with him.   They contend father's sexual predations did not place Edgar at substantial risk of suffering serious physical harm or injury under section 300, subdivision (b).  We disagree with the contention.

In determining whether substantial evidence supports the factual findings, “all intendments are in favor of the judgment and [we] must accept as true the evidence which tends to establish the correctness of the findings as made, taking into account as well all inferences which might reasonably have been drawn by the trial court.”  (Crogan v. Metz (1956) 47 Cal.2d 398, 403-404.)  “ ‘ “[T]he [appellate] court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ․ such that a reasonable trier of fact could [make the findings made].” ’  [Citations.]”  (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)  “[I]ssues of fact and credibility are the province of the trial court.  [Citation.]”  (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)   “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.”  (In re Matthew S., supra, at p. 321.)

If supported by substantial evidence, the judgment or finding must be upheld, even though substantial evidence may also exist that would support a contrary judgment and the dependency court might have reached a different conclusion had it determined the facts and weighed credibility differently.  (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)   Thus, the pertinent inquiry when a finding is challenged on sufficiency of the evidence grounds is whether substantial evidence supports the finding, not whether a contrary finding might have been made.  (Ibid.)

Section 300, subdivision (b) describes, inter alia, a child who has suffered or is at substantial risk of suffering serious physical harm or illness as a result of “the failure or inability of [the] parent or guardian to adequately supervise or protect the child.”  “While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.”  (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [italics omitted].)   The purpose of the juvenile court law is to provide “maximum safety and protection for children” being harmed or who are at risk of harm;  “[t]he focus shall be on[, inter alia], the safety, protection, and physical and emotional well-being of the child.” (§ 300.2.)

Substantial evidence supports the finding under section 300, subdivision (b), that father's conduct created a present substantial risk Edgar would suffer serious physical harm or injury.   Father was an aggressive sexual predator in the home where Edgar lived.   It is reasonable to infer that the children in daycare had access to the family residence, which is where the molestations took place.   It is a fair inference that, as a member of the household, Edgar knew about and was exposed to father's sexually predatory behavior.   Edgar knew about father's pornography and saw father watching pornography in the home.   In this environment, Edgar's older brother followed in father's footsteps and became a sexual predator.   Father's denial of his sexual misconduct with children shows he was not rehabilitated and is likely to reoffend.   Not only did Edgar risk learning to become a sexual predator like father, just as the older brother had learned, but he risked learning from father it is appropriate to use force and fear on others more vulnerable.   A sexually abusive and manipulative father in the home supports finding “the home environment of the children is extremely dysfunctional, and poses a risk to their well-being.”   (In re Maria R. (2010) 185 Cal.App.4th 48, 69.)   Exposing Edgar to father's behaviors creates a danger that Edgar will end up in a juvenile detention facility, which jeopardizes his physical health and safety.   Moreover, a violent reaction to father's sexual molestations by a victim or victim's relative exposes Edgar to risk of physical injury.   Required to focus “on the safety, protection, and physical and emotional well-being of the child” (§ 300.2), the dependency court found Edgar to be a child described by section 300, subdivision (b).  Based on the foregoing, we conclude substantial evidence supports the court's determination.

Edgar and father ask us to reweigh the evidence and find father presents no substantial risk of harm because the court permitted father to have unmonitored visits with Edgar.   We will not exercise our independent judgment.  (See, e.g., Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465 [“When considering a claim of insufficient evidence on appeal, we do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment.”].)

DISPOSITION

The judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

MOSK, J.

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.

FN2. The dependency court found father is Edgar's presumed father..  FN2. The dependency court found father is Edgar's presumed father.

FN3. “Demurrers and Motions to Strike.   A party may file a demurrer to challenge the legal sufficiency of a dependency petition that alleges facts which, even if determined to be true, (a) are not sufficient to state a cause of action, or (b) are not sufficiently clear or precise for the party to prepare a defense.   A party may also move to strike certain allegations from the petition.   For simplicity, both demurrers and motions to strike are referred to in these Rules as ‘demurrers.’  [¶] Unless otherwise agreed upon, a demurrer shall be made in writing and shall be before the entry of a denial or admission or plea of ‘no contest.’   Notice shall be given at the detention hearing or first appearance after the petition or amended petition is filed.  [¶] A hearing on a demurrer shall be set on the calendar no later than 10 calendar days following the notice of the demurrer.   Counsel shall file and personally serve or serve by facsimile supporting memorandum of points and authorities no later than 3 court days prior to the hearing on the demurrer.   The responding party shall file and personally serve or serve by facsimile opposing points and authorities no later than 1 day prior to the commencement of the hearing on the demurrer.  [¶] If the demurrer is sustained, the Court may grant leave to amend the petition upon terms as may be just and calendar a date within which any amendment or amended pleading must be filed.   However, absent unusual circumstances, the Court will not continue the adjudication for this purpose.   In such cases, a timely opportunity for the petitioner to amend the petition in accordance with the Court's findings shall be granted.   Accordingly, Counsel for the Department of Children and Family Services should anticipate an adverse ruling and be prepared to amend the petition in a timely manner.”  (Super.  Ct. L.A. County, Local Rules, rule 17.15(d).).  FN3. “Demurrers and Motions to Strike.   A party may file a demurrer to challenge the legal sufficiency of a dependency petition that alleges facts which, even if determined to be true, (a) are not sufficient to state a cause of action, or (b) are not sufficiently clear or precise for the party to prepare a defense.   A party may also move to strike certain allegations from the petition.   For simplicity, both demurrers and motions to strike are referred to in these Rules as ‘demurrers.’  [¶] Unless otherwise agreed upon, a demurrer shall be made in writing and shall be before the entry of a denial or admission or plea of ‘no contest.’   Notice shall be given at the detention hearing or first appearance after the petition or amended petition is filed.  [¶] A hearing on a demurrer shall be set on the calendar no later than 10 calendar days following the notice of the demurrer.   Counsel shall file and personally serve or serve by facsimile supporting memorandum of points and authorities no later than 3 court days prior to the hearing on the demurrer.   The responding party shall file and personally serve or serve by facsimile opposing points and authorities no later than 1 day prior to the commencement of the hearing on the demurrer.  [¶] If the demurrer is sustained, the Court may grant leave to amend the petition upon terms as may be just and calendar a date within which any amendment or amended pleading must be filed.   However, absent unusual circumstances, the Court will not continue the adjudication for this purpose.   In such cases, a timely opportunity for the petitioner to amend the petition in accordance with the Court's findings shall be granted.   Accordingly, Counsel for the Department of Children and Family Services should anticipate an adverse ruling and be prepared to amend the petition in a timely manner.”  (Super.  Ct. L.A. County, Local Rules, rule 17.15(d).)