Filed 11/9/15 In re Sean M. CA2/7
                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                         SECOND APPELLATE DISTRICT

                                                      DIVISION SEVEN

In re SEAN M. et al., Persons Coming                                         B261499
Under the Juvenile Court Law.
                                                                             (Los Angeles County
                                                                             Super. Ct. No. DK06735)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES et al.,

          Plaintiffs and Appellants,

          v.

JUAN M.,

          Defendant and Respondent.


          APPEAL from an order of the Superior Court of Los Angeles County, Robert S.
Draper, Judge. Affirmed.
          Tyna Thall Orren, under appointment by the Court of Appeal, for Plaintiffs and
Appellants Sean M. and Christine M.
          No appearance for Plaintiff and Appellant, Los Angeles County Department of
Children and Family Services.
          Sherman & Associates and Kenneth P. Sherman, for Defendant and Respondent
Juan M.
                                                ______________________
       The juvenile court dismissed for insufficient evidence a petition filed on behalf of
then 12-year-old Sean M. and 10-year-old Christine M. by the Los Angeles County
Department of Children and Family Services (Department) pursuant to Welfare and
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Institutions Code section 300, subdivisions (b) (failure to protect) and (d) (sexual abuse).
On appeal Sean and Christine contend the court failed to understand the scope of its
discretion to find they were at risk of sexual abuse based on the criminal conduct of their
father, Juan M., in exchanging lewd emails and sexually explicit photographs with an
individual he believed to be a 13-year-old girl, arranging to have a sexual encounter with
that individual and going to the arranged meeting place at the arranged time. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       1. Juan’s Internet Chat and Attempted Sexual Contact with a 13-year-old Girl
       On May 14, 2014 a detective with the Alhambra Police Department created a post
on Craigslist for Shannon “Shannie” Nguyen: “i am yung n curious . . . want 2 explr.
                                                                                    2
lmk if age dusnt bother u. hmu please lookn 2 get out of aunts house for awhile.”
Shortly after the posting Juan responded by email, using the screen name Orion2k, and
began a series of conversations that lasted until May 22, 2014. During the conversations
Orion2k indicated his name was Jon, told Shannie he was 33 years old and stated he
wanted to engage in sexual acts with her.
       Shannie initially told Orion2k she was 13 years old and asked if that was “okay.”
Orion2k replied, “sure, send a picture.” The subsequent conversations generated more
than 200 pages of emails. Juan sent his picture and several photographs of his penis.
According to the police report, “1 of these photographs was his penis and it appeared that
he had just ejaculated, 1 photograph of what appears to be semen, and 3 pictures of his
crotch area (two of these photographs of his crotch were with his pants on, however, the
third picture had his zipper open and it appeared that his genitals are showing).” Three

1
       Statutory references are to this code.
2
     “lmk” is a common abbreviation on social media websites for “let me know”;
“hmu” for “hit me up,” or contact me.
                                                2
photographs were sent to Juan, including two of a female detective when she was
14 years old. Juan and Shannie discussed various sexual topics during their email
conversations. At one point Juan asked Shannie if one of her friends would be interested
in watching him masturbate. Shannie apparently indicated she had not previously had
sexual intercourse and said she wanted to lose her virginity.
       After several days of email exchanges, Juan asked Shannie for her telephone
number. On May 21, 2014 Juan called the number that had been provided; a female
detective posed as Shannie. Juan asked Shannie if she wanted to “really go through with
the whole thing.” The detective responded she did. Shortly after the telephone
conversation ended, another email exchange was initiated. A meeting place was set for
3:00 the following afternoon at Story Park in Alhambra. Juan arrived at the park at the
designated time and was arrested.
       During questioning following advisement of his Miranda rights (Miranda v.
Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]), Juan admitted he had
engaged in sexual conversations with Shannie and had arranged the meeting at the park
for the stated purpose of having sexual intercourse with her. However, he told the officer
he did not actually intend to go through with a sexual encounter but had simply come to
the park out of curiosity.
       Juan was subsequently charged with violating Penal Code sections 288.2 (sending
lewd material to a minor) and 288.4 (arranging a meeting with a minor with intent to
commit a lewd act). He pleaded not guilty at his arraignment. No resolution of those
charges had occurred prior to the juvenile court’s January 2, 2015 order dismissing the
dependency petition.
       2. The Failed Section 301 Safety Plan and the Department’s Petition
       Juan told the arresting officers he had two children. The Department was notified
and promptly made contact with Sean, Christine and Bertha M., Juan’s wife and the
mother of the two children.



                                             3
       Bertha, who said she was shocked by Juan’s arrest, nonetheless arranged for his
bail and told the Department’s social worker she intended to remain in the family home
with Juan pending the outcome of the criminal proceedings. Bertha reported she had
asked the children if they had ever been touched inappropriately by anyone; both had said
no. The two children were then interviewed privately by the social worker. They
appeared healthy and showed no signs of abuse. Each child confirmed that no one had
ever touched them inappropriately.
       At the Department’s request Juan agreed to an informal program of supervision
under section 301 (a “safety plan”) under which he agreed to move out of the family
home on a temporary basis. By mid-July 2014, however, after proceedings in the
criminal case had been continued, Juan (through counsel) advised the Department he
wanted to move back to the family home, explaining his absence had created a financial
and emotional hardship on the family. Bertha supported that request. After conducting
additional interviews with Bertha, Sean and Christine, the Department maintained its
position it was not appropriate for Juan to return to the family home.
       On August 1, 2014 the Department obtained an order authorizing the removal of
the children from Juan and on August 6, 2014 filed a dependency petition alleging,
pursuant to section 300, subdivisions (b) and (d), Juan’s conduct in May 2014
endangered Sean and Christine’s physical health and safety and placed them at risk of
harm, including sexual abuse. At the contested detention hearing, after declaring Juan the
presumed father of Sean and Christina, the court found the Department had established a
prima facie case the children were persons described by section 300, subdivisions (b) and
(d), and for detaining them from Juan. Sean and Christine were released to Bertha on
condition Juan not reside in the family home.
       3. The Contested Jurisdiction Hearing
       A two-day contested jurisdiction hearing was held on December 16, 2014 and
January 2, 2015. The Department’s evidence consisted of its September 16, 2014
jurisdiction/disposition report, together with its attachments (the detention report and the

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police report from the Alhambra Police Department), which the court admitted without
objection, and testimony from Barry Levy, Juan’s therapist, who is a certified sex
offender treatment specialist. Juan presented expert testimony and a written report from
                                                                                     3
Dr. Hy Malinek, a clinical psychologist with expertise in assessing sexual offenders, as
                                                                                         4
well as testimony from Levy. Juan, who had not been interviewed by the Department,
did not testify.
       According to the jurisdiction/disposition report, Juan had a college education and
worked full time. Prior to the May 2014 incident Juan had no criminal record. Bertha
told the Department social worker Juan is “a great dad. He would sit down with the kids
and do their homework.” Sean and Christine were healthy, well-behaved and doing well
in school. There was no indication of domestic violence or substance abuse in the home.
No pornography was found on the family computer, which Juan, Bertha and the two
children all used.
       At the suggestion of his counsel, Juan had begun a course of therapy with Levy in
late August 2014 and undergone psychological testing by Dr. Malinek. Therapy with
Levy involved weekly group sessions and one-per-month individual counseling sessions.
Levy also observed visits by Juan with the children, who were happy to see him and
exhibited no fear. Levy’s knowledge of Juan’s sexual history was based entirely on
Juan’s own statements during therapy sessions and a short telephone call with
Dr. Malinek.




3
       In a written order the court overruled the objections of the Department and Sean
and Christine to the admission of Dr. Malinek’s report. That ruling is not challenged on
appeal.
4
       Juan initially declined to be interviewed while criminal charges were pending. He
subsequently agreed to be interviewed if the session was audiotaped. The Department
did not accept that invitation. During closing argument Juan’s counsel commented it was
Department policy not to conduct taped interviews (which, if true, he presumably knew
when the offer was made), but there is nothing in the record to confirm that statement.
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         Levy testified Juan’s disclosures to him indicated that Juan had no sexual interest
in prepubescent children and felt remorse for his actions involving Shannie. There was
nothing about the criminal incident that caused Levy to be concerned for the safety of
Sean and Christine or suggested Juan presented a significant risk of reoffending. Based
on published research with which he was familiar, Levy testified that individuals who
sexually abuse strangers are “less likely” to sexually abuse their own children. He also
reported he had spoken to one of the Department’s social workers while observing Juan’s
visits with his children and the social worker had told him she felt Juan “was at low
     5
risk.” Levy conceded his risk assessment was based on less information than he
generally received about his patients and rested primarily on Juan’s own reports of his
conduct and feelings. Levy believed it was appropriate for Juan to continue with group
therapy, suggesting a 52-week program would be adequate.
         Dr. Malinek similarly testified that individuals who sexually abuse children from
outside their family rarely offend against their own biological children and those who
sexually abuse teenagers rarely commit crimes against prepubescent children.
Dr. Malinek acknowledged that Juan had shown unusually poor judgment in his contacts
with Shannie but, based on the tests he had administered and his interview with Juan,
believed he presented a low risk for recidivism. Dr. Malinek doubted that Juan “harbored
a long-term and sexually deviant interest in children or non-consenting victims.” Rather,
as he wrote in his report, Juan’s conduct in May 2014 “was likely strongly influenced by
an essentially sexless marriage, feelings of low-self-esteem and long-term difficulties in
                                                                          6
initiating and maintaining satisfying intimate and sexual relationships.” Dr. Malinek
also recommended ongoing therapy for Juan.

5
       There was no objection to this portion of Levy’s testimony. During closing
argument the court asked county counsel if there was anything in the record that
contradicted that testimony. Counsel replied there was nothing in the record that
supported or contradicted it.
6
      Dr. Malinek reported Juan’s first sexual experience was with a prostitute when he
was 27 or 28 years old. Neither the age nor gender of the prostitute was indicated in the
                                            6
       In closing argument the Department asked the court to sustain the petition, arguing
the information in the police report describing Juan’s interaction with Shannie—the
evidence of the crimes committed—established a risk of sexual abuse to Sean and
Christine, and recommended the children remain with their mother with Juan limited to
visitation monitored by someone other than his wife. The Department also requested that
Juan be ordered to continue to participate in the therapy sessions that his own therapist
had testified were appropriate in the case. Counsel for Sean and Christine joined in those
recommendations, arguing that the two experts conceded they did not have all the
information necessary to make a proper risk assessment and, therefore, their opinions
were inherently unreliable. For example, Dr. Malinek had not seen the graphic pictures
Juan sent to Shannie. (The court noted the photographs were not in the record, so it could
not draw any conclusion about their significance.)
       Juan’s counsel argued, even without considering the experts’ opinions, the
Department had failed to sustain its burden of proving the children were at substantial
risk of sexual abuse if not removed from Juan’s care and custody. In view of the
evidence presented concerning the family’s stable situation and the children’s care to
date, the single criminal incident with a teenage girl that triggered the Department’s
involvement did not establish Juan was a danger to his two preteenage children. In
addition, counsel argued the experts’ risk assessments were well founded and emphasized
no evidence in the record indicated Juan had been untruthful in his self-reporting or
otherwise contradicted the assumptions on which the experts’ opinions were based.
       4. The Juvenile Court’s Ruling Dismissing the Petition
       Following argument the court declined to assume jurisdiction and dismissed the
petition, explaining “What we have here, I think, is a very crude act, but we also have
two reports from two highly qualified experts in this exact area as to the question I have

report. Juan told Dr. Malinek his wife had not been sexually interested in him for
approximately five years; they rarely engaged sexually. As her sexual interest waned,
Juan began looking at pornographic websites and subsequently had an affair with
someone he met online on Craigslist.
                                             7
before me, which is what is the risk or is there a risk to the children. I think you can
always pick at any report but, in order for me to find that the opinions of the experts
expressed were invalid or should be discounted, I need to have evidence that something is
out there, such as a picture or some other information that they didn’t have and that might
have changed their opinion. I don’t have any of that evidence. All I have is evidence that
they may have considered this or they may not have considered that if this and that were
true.
        “The Department has the burden by a preponderance of the evidence. If I had any
substantial concern that the children are at risk, I would not stand on the formality of who
has the burden of proof. But I do not believe the children are at risk and, based upon that,
I am dismissing the petition.”
        The court noted the Department’s and Sean and Christine’s objection to its order
of dismissal and denied the Department’s request for a stay. Sean and Christine filed a
notice of appeal the following court day.
                                        DISCUSSION
        1. Governing Law and Standard of Review
        A child may be adjudged a dependent child of the juvenile court under
section 300, subdivision (d), if there is a substantial risk the child will be sexually abused
by a parent or a member of the child’s household. (In re P.A. (2006) 144 Cal.App.4th
1339, 1347; see In re I.J. (2013) 56 Cal.4th 766, 773.) Section 300, subdivision (b),
authorizes the court to adjudge a child a dependent of the juvenile court if: “[t]he child
has suffered, or there is a substantial risk that the child will suffer, serious physical harm
or illness, as a result of the failure or inability of his or her parent or guardian to
adequately supervise or protect the child . . . .” A true finding under subdivision (b)
requires proof of: “(1) neglectful conduct by the parent in one of the specified forms;
(2) causation; and (3) ‘serious physical harm or illness’ to the minor, or a ‘substantial




                                                8
                                                                                  7
risk’ of such harm or illness.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 820.) “The
Department has the burden of proving by a preponderance of the evidence that the
children are dependents of the court under section 300.” (In re I.J., at p. 773; see § 355,
subd. (a).)
       Although the juvenile court’s findings sustaining a section 300 petition are
generally reviewed for substantial evidence (In re I.J., supra, 56 Cal.4th at p. 773;
Los Angeles County Dept. of Children & Family Services v. Superior Court (2013)
215 Cal.App.4th 962, 966), the Department’s failure to meet its burden of proof is
properly reviewed, as in all failure-of-proof cases, for whether the evidence compels a
finding in favor of the appellant as a matter of law. (See Dreyer’s Grand Ice Cream, Inc.
v. County of Kern (2013) 218 Cal.App.4th 828, 838 [“where the issue on appeal turns on
a failure of proof at trial, the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law”]; In re I.W.
(2009) 180 Cal.App.4th 1517, 1527-1528 [same].)
       Sean and Christine concede no such showing can be made in this case. They
acknowledge substantial evidence was presented that they are not at risk of harm
(including sexual abuse) from Juan and, therefore, the juvenile court was not obligated to
sustain the petition as a matter of law. Rather, they contend the court’s decision was
flawed because the court may have misunderstood both the applicable law regarding the
significance of Juan’s crimes as evidence of risk and the scope of its discretion to accept
or reject the experts’ opinion testimony.


7
       As discussed, the Department’s section 300 petition alleged, in identical language,
that Sean and Christine came within the jurisdiction of the juvenile court under both
subdivisions (b) and (d) based on Juan’s actions in May 2014, which endangered their
physical health and safety and placed them at risk of harm, including sexual abuse.
Although our review of scores of dependency cases on appeal suggests that the
Department routinely includes a subdivision (b) allegation even when, as here, the only
alleged misconduct creating a risk of future harm was necessarily intentional, not
“neglectful conduct by the parent in one of the specified forms,” a subdivision (b)
allegation under these circumstances is unwarranted.
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       2. The Record Does Not Reflect Any Misunderstanding by the Juvenile Court of
          the Elements for a Finding of Dependency Under Section 300, Subdivision (d),
          the Governing Law or Its Role in Evaluating Expert Testimony
       Sean and Christine correctly observe the Supreme Court in In re I.J., supra,
56 Cal.4th at page 779, stated, “[S]exual abuse of someone else, without more, at least
supports a dependency finding.” The Court specifically held a father’s prolonged and
egregious sexual abuse of his daughter “may provide substantial evidence to support a
finding that all his children [including his sons] are juvenile court dependents.” (Id. at
p. 770.) Juan’s counsel had argued, however, that the court was not permitted to find a
substantial risk to the children in this case merely because the crimes had occurred
without any additional assessment (or even an interview) of Juan by the Department—a
position arguably at odds with In re I.J.
       Based on counsel’s argument, Sean and Christine assert the court may have been
unaware of In re I.J., supra, 56 Cal.4th 766, or believed substantial risk could not be
proved solely by evidence of prior sex crimes against another child. Nothing in the
record supports that suggestion. To the contrary, the police report describing Juan’s
misconduct was the basis for the same court’s earlier determination the Department had
established a prima facie case for detaining the children; and the contested jurisdiction
hearing, which included questioning by the court, focused on the extent to which the
experts’ assessment of a low risk that Juan would either reoffend or commit similar acts
with his own biological children outweighed the risk inherent in the initial commission of
the crimes involving Shannie. Moreover, “[i]n the absence of evidence to the contrary,
we presume that the court ‘knows and applies the correct statutory and case law.’”
(People v. Thomas (2011) 52 Cal.4th 336, 361; see Keep Our Mountains Quiet v. County
of Santa Clara (2015) 236 Cal.App.4th 714, 741 [“‘[i]t is a basic presumption indulged in
by reviewing courts that the trial court is presumed to have known and applied the correct
statutory and case law in the exercise of its official duties’”].) No such evidence exists.
       Similarly misplaced is Sean and Christine’s contention the court failed to
understand its discretion to accept or reject the experts’ views. They are correct, of

                                             10
course, that expert opinion testimony, even if uncontradicted, is not binding on the court.
(In re R.V. (2015) 61 Cal.4th 181, 219 [“as a general rule, the trier of fact remains free to
reject even uncontradicted expert testimony after considering the expert’s opinion,
reasons, qualifications, and credibility, so long as it does not act arbitrarily”]; Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 [“[a]s a general rule, ‘[provided] the trier
of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even
though the witness is uncontradicted’”].) And, as Sean and Christine argue, the court
here stated it needed evidence Juan’s experts had failed to consider something that might
have changed their opinions in order to discount or disregard their risk assessments. Far
from indicating the court’s lack of familiarity with the controlling evidentiary principle,
that comment demonstrates an appropriate application of the requirement that the court,
as finder of fact, not act arbitrarily in ignoring a witness’s uncontradicted testimony. In
any event, even if the court’s statement were somehow ambiguous on this point, we
would necessarily reject Sean and Christine’s argument: “The most fundamental rule of
appellate review is that a judgment is presumed correct, all intendments and
presumptions are indulged in its favor, and ambiguities are resolved in favor of
affirmance.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.)
                                      DISPOSITION
       The order dismissing the petition is affirmed.


                                                  PERLUSS, P. J.


       We concur:


       SEGAL, J.                                  BECKLOFF, J.*



*     Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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