Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County. No. CK-80755, Randolph Hammond, Referee.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Navid Nakhjavani, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Father Wesley R. appeals from the dependency court order taking jurisdiction of his son, C.R., contending there was insufficient evidence that his son was at risk of harm just because he sexually molested his daughter. Because the circumstances of the daughter’s molestation show that such a risk existed, we affirm.
As is often the case in these proceedings, the record is long and detailed. We have distilled the facts to those essential to our decision.
In January 2010, the Los Angeles County Department of Children and Family Services (DCFS) filed a petition under Welfare and Institutions Code section 300, seeking jurisdiction over 11-year-old M.R. because she had been sexually abused by her father, Wesley R. (father). The petition also sought jurisdiction over M.R.’s nine-year-old brother, C.R., because father molested M.R. while all three slept in the same bed. Father was divorced from M.R.’s and C.R.’s mother, and the children stayed with father at his one-bedroom home every other weekend.
All further section references are to the Welfare and Institutions Code.
After a contested hearing, the dependency court took jurisdiction of both children under section 300, subdivision (d), which applies to children who have been, or are at risk of being, sexually abused. The court also took jurisdiction of C.R. under subdivision (j), which applies to children whose siblings have been abused pursuant to section 300, subdivisions (a) [serious physical harm], (b) [inadequate care], (d) [sexual abuse], (e) [severe physical abuse], or (i) [acts of cruelty], and there is a risk that the other sibling will suffer one of those types of harm.
M.R. claimed that father fondled her genitals and inserted his fingers inside her vagina on several occasions as she slept in a bed with both father and C.R. Although father points to weaknesses and inconsistencies in M.R.’s story, along with his theory that his ex-wife and her mother concocted the allegations and convinced M.R. to lie, he concedes that there was sufficient evidence to support the court’s decision to assume jurisdiction of his daughter. However, father contends that the court erred by assuming jurisdiction over C.R. because there was no evidence to suggest that the boy was at risk of being sexually abused by him.
Father contends the following evidence shows he posed no risk to C.R.: C.R. was a boy, and nothing suggests father had a predilection to sexually abuse boys; C.R. said he was unaware of what was happening to his sister, and denied that he had every been physically or sexually abused by father; father remarried six months before the petition was filed, and the sleeping arrangements in his new home changed at that time, so that the children no longer shared a bed with him; M.R. said the sex abuse stopped at that time; and father’s new wife was a teacher and was therefore a legally mandated reporter of suspected child abuse, thereby adding another level of scrutiny and security for C.R.’s safety.
DISCUSSION
DCFS bore the burden of proving by a preponderance of the evidence that jurisdiction was proper as to C.R. under either subdivision (d) or subdivision (j) of section 300. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.) We review the trial court’s order under the substantial evidence standard of review. (Ibid.) Subdivision (d) applies when the child has been sexually abused, or there is a substantial risk that he will be sexually abused. Subdivision (j) applies when a sibling has been abused as defined in section 300, subdivisions (a) [serious physical harm], (b) [inadequate care], (d) [sexual abuse], (e) [severe physical abuse], or (i) [acts of cruelty], and there is a risk that the other sibling will suffer one of those types of harm. (In re Maria R. (2010) 185 Cal.App.4th 48, 63-65 (Maria R.).)
Relying on In re Rubisela E. (2000) 85 Cal.App.4th 177 (Rubisela E.), father contends that his molestation of daughter M.R. is insufficient to show he might also be disposed to sexually molest a male child. In that case, two sisters slept in the same room as their father. Father molested one of the girls, and the dependency court assumed jurisdiction over both sisters and their four brothers. The Court of Appeal affirmed the order as to both girls, but reversed the jurisdictional order as to the four boys because there was no evidence the father might molest them.
The Rubisela E. court agreed that brothers of molested sisters could also be molested by the offending parent, or be harmed emotionally by the knowledge of what happened to their sisters. However, because there was no evidence of suspicious conduct by the father toward his sons, the court held that the dependency court erred by assuming jurisdiction of them. (Rubisela E., supra, 85 Cal.App.4th at pp. 198-199.)
Other courts have disagreed with Rubisela E., at least to the extent it suggests that male siblings are not at risk of sexual abuse when their father has molested only female children. The court in In re P.A. (2006) 144 Cal.App.4th 1339 affirmed an order taking jurisdiction of two boys based on their father’s sexual molestation of their sister. Even though the sons claimed their father never molested them, the boys were approaching the age at which the sister was first abused. The court held that where a younger sibling is nearing the age of his older abused sibling, “aberrant sexual behavior by a parent places the victim’s siblings who remain in the same home at risk of aberrant sexual behavior.” (Id. at p. 1347, fn. omitted.)
The court in In re Karen R. (2001) 95 Cal.App.4th 84, considered a dependency court order taking jurisdiction of a son whose older sister had been beaten by both parents and raped by their father. The appellate court affirmed that order because the evidence showed the son saw both parents beating the sister, and later saw the sister crying as she reported the rape, therefore making him a victim of sexual abuse. Taking issue with the holding in Rubisela E., the Karen R. court held that although the danger of sexual abuse to a female sibling of the victim might be greater than the risk to a male sibling, the danger to the male sibling was still substantial. (Karen. R. at pp. 90-91.)
In In re Andy G. (2010) 183 Cal.App.4th 1405 (Andy G.), we sided with the In re P.A. court and held that aberrant sexual behavior by a parent creates a risk that other siblings who remain in the home will also be abused, even if their gender differs from that of the abused sibling. In that case, the father sexually abused his daughter in the presence of her two-and-one-half-year-old brother. Although the boy was too young to be aware of what was happening, this evidence allowed the dependency court to infer that the father used the boy to get the daughter to approach him so he could expose himself to her. This showed, at best, a complete lack of concern for whether the son might witness the father’s aberrant sexual behavior. Also, the father argued on appeal that he should not have to undergo sexual abuse counseling. Based on this, the record permitted the dependency court to conclude that the father’s aberrant sexual behavior with the daughter put the son at risk of sexual abuse. (Id. at pp. 1414-1415.)
This case falls within the parameters of Andy G. Here, father abused his daughter while the son lay next to them in bed. Although the son did not wake up to witness the abuse, it was certainly a possibility that he might awake, showing a complete disregard for whether he might do so. By contrast, the sons in Rubisela E., supra, 85 Cal.App.4th 177, slept in an area that was separated from the room where the father and daughters slept. (Id. at p. 183, fn. 6.) On this record, we hold there was sufficient evidence that father’s aberrant sexual behavior toward M.R. created a risk that C.R. might also become a victim of such behavior pursuant to section 300, subdivision (d), and pursuant to subdivision (j) to the extent it incorporates subdivision (d).
DCFS contends we should also affirm under the rationale of Maria R., supra, 185 Cal.App.4th 48, because even if C.R. was not at risk of sexual abuse under section 300, subdivision (d), the court could have found he was at risk of the other forms of abuse included within section 300, subdivision (j). However, apart from the risk of sexual abuse, the other forms of potential abuse that would allow a finding under subdivision (j) are serious physical harm, inadequate care, severe physical abuse, or acts of cruelty. DCFS does not identify which was present here, and there is no evidence in the record that suggests there was a risk of any such harm apart from sex abuse, which also qualifies as at least one of the risks identified in subdivision (j).
DISPOSITION
The dependency court’s order assuming jurisdiction over minor C.R. is affirmed.
I CONCUR: GRIMES, J.
Flier, J., Dissenting.
Finding no substantial evidence to support jurisdiction over C.R., I respectfully dissent. The sole issue on appeal is whether evidence supported the finding that C.R. was at risk of sexual abuse. (Maj. opn. ante, at p. 6, fn. 3.) Respondent argues that father’s abuse of M.R. while C.R. slept in the same bed was “so aberrant that it cannot be said [C.R.] is not at risk of the same sexual abuse merely because of his gender.”
Contrary to respondent’s argument, C.R.’s gender was relevant to assessing whether C.R. was at risk of sexual abuse. Speculation that a father may sexually abuse a male child because the father abused a female child is insufficient to support jurisdiction over the male child. (In re Maria R. (2010) 185 Cal.App.4th 48, 68 (Maria R.).) “None of the courts that have held or impliedly concluded that a child, regardless of gender, whose sibling was sexually abused, may be found to be at risk of sexual abuse under [Welfare and Institutions Code section 300, ] subdivision (d), either directly or under [Welfare and Institutions Code section 300, ] subdivision (j), has cited any scientific authority or empirical evidence to support the conclusion that a person who sexually abuses a female child is likely to sexually abuse a male child.” (Ibid.; see also In re Rubisela E. (2000) 85 Cal.App.4th 177, 199 [finding that father’s abuse of his daughter did not constitute substantial evidence his sons were at risk of sexual abuse].)
Maria R. cites In re P.A. (2006) 144 Cal.App.4th 1339 and In re Andy G. (2010) 183 Cal.App.4th 1405 as examples of cases holding or impliedly concluding that a male child is at risk because his female sibling was sexually abused. (Maria R., supra, 185 Cal.App.4th at p. 68.) In re Karen R. (2001) 95 Cal.App.4th 84, 90-91, reaches the same conclusion, holding that “a father who has committed two incidents of forcible incestuous rape of his minor daughter reasonably can be said to be so sexually aberrant that both male and female siblings of the victim are at substantial risk of sexual abuse within the meaning of [Welfare and Institutions Code] section 300, subdivision (d), if left in the home.” As Maria R. explains, those cases are not persuasive because there is no evidence “that a perpetrator of sexual abuse of a female child is in fact likely to sexually abuse a male child.” (Maria R., supra, at p. 68.)
There was no evidence here that C.R. was at risk of sexual abuse as defined by the relevant statues, which refer to specific sex acts. There was no evidence father engaged in any sexual abuse of C.R. In fact, C.R. reported just the opposite, telling a social worker that father never abused him. Nor was there any evidence of a risk father would engage in sexual conduct with a male child. Evidence that C.R. slept in the same bed as father and M.R., (apparently the only bed in father’s apartment), does not support the inference that father posed a risk to C.R. because it does not show father was likely to sexually abuse C.R. as defined by the relevant statutes. Even though father’s conduct with M.R. was aberrant, there was no evidence C.R. was at substantial risk of sexual abuse. Following Maria R., I would remand the case to the juvenile court and, if warranted by evidence that C.R. was at risk of abuse or neglect, allow the Los Angeles County Department of Children and Family Services to file an amended or supplemental petition. (Welf. & Inst. Code, § 300, subd. (j); Maria R., supra, 185 Cal.App.4th at pp. 71-72.)
Welfare and Institutions Code section 300, subdivision (d) defines sexual abuse in pertinent part as follows: “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, by his or her parent or guardian or a member of his or her household.” Penal Code section 11165.1 “refers to specific sex acts committed by the perpetrator on a victim, including child molestation... and does not include in its enumerated offenses the collateral damage on a child that might result from the family’s or child’s reaction to a sexual assault on the child’s sibling.” (Maria R., supra, 185 Cal.App.4th at pp. 67-68.) The children’s counsel argued that with respect to M.R., there was evidence that father violated Penal Code section 11165.1, subdivision (b)(3) and (b)(4) which define sexual abuse as follows: “(3) Any intrusion by one person into the genitals or anal opening of another person, including the use of any object for this purpose, except that, it does not include acts performed for a valid medical purpose. [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”