Opinion
B311876
03-11-2022
In the Matter of ELIJAH G., A Person Coming Under Juvenile Court Law. v. ERIC G., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 20CCJP05332C, Debra R. Archuleta, Judge. Affirmed.
Jesse McGowan, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, Rodrigo A. Castro-Silva, County Counsel, Kim Nemoy, Assistant County Counsel, and Stephen Watson, Deputy County Counsel, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
In March 2021, the juvenile court asserted jurisdiction over five-year-old Elijah G., finding the child at risk because appellant-father Eric G. had sexually abused him, because Father had sexually abused Elijah's teenage half-sister Brianna (who was not Father's daughter), and because the children's mother (non-party R.E.) had failed to protect Elijah from Father. The court subsequently removed Elijah from both parents' custody. On appeal, Father argues the jurisdictional finding must be reversed because: (a) substantial evidence did not support the finding that he sexually abused Elijah; and (b) the court did not find Elijah was at risk from Father's abuse of Brianna, and in any case, such a finding was unsupported by substantial evidence.The Los Angeles County Department of Children and Family Services (DCFS) disagrees. It further argues Father's appeal is not justiciable, asserting that Father neither challenged the finding that Elijah was at risk from Father's abuse of Brianna nor challenged any dispositional orders arising from the jurisdictional order, and noting that jurisdiction over Elijah would remain regardless of the outcome of this appeal as Mother did not appeal. We find Father's appeal justiciable because Father adequately challenged both the finding that Elijah was at risk due to his abuse of Brianna and the dispositional order arising from the jurisdictional order, and because were we to reverse the jurisdictional finding, Father's parental status as to Elijah would change from offending to non-offending. However, because substantial evidence supported the finding that Elijah was at risk from Father's abuse of Brianna, we affirm the juvenile court's orders on that basis, without considering whether substantial evidence also supported the finding that Father had abused Elijah directly.
Father's notice of appeal also states he is appealing from the court's dispositional order removing Elijah from his custody. Because Father's appellate brief assigns no error to the court's dispositional order, we understand his argument to be that the court erred in removing Elijah solely because it erred in finding jurisdiction.
STATEMENT OF RELEVANT FACTS
A. Family Background
Non-party R.E. is the mother of Jocelyn G. (born April 2005), Brianna G. (born September 2006), and Elijah G. (born November 2015). Non-party Jose G. is the father of Jocelyn and Brianna. Appellant Eric G. is the father of Elijah.
B. DCFS Investigates a Referral
On August 19, 2020, DCFS received a referral alleging that Father was sexually abusing Brianna. The behavior was described as "ongoing."
A children's social worker (CSW) visited the family home and spoke with Mother, who informed the CSW that she had been in a relationship with Father for seven or eight years. She reported that a month ago, Brianna had told her Father was abusing her, and that the abuse had been going on for a year. Mother stated she had "addressed" the allegations with Father, and that he had "'not confirm[ed] or den[ied] anything.'" Father had offered to leave the home, but Mother "did not push the issue of him leaving." Thus, Father was still residing in the home, and Jocelyn and Brianna were staying with their maternal aunt because they felt uncomfortable staying at the family home. Mother stated that Father had always treated Jocelyn and Brianna "like daughters and played a father figure role in their lives" because their biological father "was not always present . . . ." At the conclusion of the interview, Mother agreed to a safety plan in which Father would stay with his sister while DCFS investigated. Mother repeatedly asked whether Father could have contact with Elijah, but agreed not to leave Father alone with him.
Later in the interview, Mother admitted she needed Father's help with the rent and bills and said she could not afford to live on her own. However, she stated she would not move out and live with her mother because the two did not get along, and she did not want to keep Elijah away from Father. She stated she did not believe Father had abused Elijah.
The CSW also spoke with Elijah, who was then nearly five. She explained the difference between the truth and a lie, and he appeared to understand. When asked about Jocelyn and Brianna, he stated that they were not at home because "'he might do something.'" But when asked who "he" was, Elijah ran away and then answered, "'nobody.'" When asked who "'he'" did things to, Elijah identified Brianna. Elijah did not answer whether he had witnessed this person do things to Brianna. Elijah ignored several more attempts at discovering who "he" referred to. The CSW also showed Elijah a blank body chart and assisted him in identifying his private areas. The CSW then asked Elijah whether anyone ever touched him in his private areas and he responded, "'yeah my dad.'" When asked for details, he added, "'in the bed'" and indicated the bed where he slept. When asked how many times Father had touched him, he stated "'three times.'" But when asked how and when he was touched, "Elijah continued to say 'I don't know.'"
The next day, the CSW visited the home of Jocelyn's and Brianna's maternal aunt and spoke with the aunt as well as both children. The aunt stated that Brianna, then nearly 14, had told her of the abuse approximately one week before July 5. She confirmed that the girls refused to return to the family home due to Father's behavior.
Jocelyn, then 15, stated that she had not seen Father abuse Brianna, but that Brianna had told her about it. Jocelyn also had observed Father behaving inappropriately with Brianna, wrapping his arm around her while watching television, getting on top of her and tickling her despite her objecting, and staring at Brianna's buttocks when she bent down. Jocelyn also reported Father would stare at her and Brianna as if "checking them out" and would look at her breasts. On one occasion, Father commented on the shorts a friend of Brianna's was wearing, making the friend uncomfortable. Jocelyn stated that when Father hugged her, he would "hold her for a long time," making her feel uncomfortable. However, when she and Brianna were younger, Father treated them like daughters. Jocelyn denied ever seeing Father act inappropriately with Elijah.
Brianna reported that Father began abusing her sometime before November 2019. She stated the abuse was ongoing, and consisted of Father forcibly kissing her on the lips, touching her breasts (both over and under her clothes), and attempting to pin her down on the bed. Father also attempted to touch her vaginal area over her clothing, but Brianna was able to stop him. Sometimes, he would try to remove her shirt. Brianna stated the abuse occurred when Mother was not at home. Brianna denied ever seeing Father touch Jocelyn or Elijah inappropriately.
A week later, the CSW contacted Father to arrange for an interview. Father voiced his intention to consult with his attorney. The CSW informed Father that CSWs did not speak with attorneys, and that this was Father's opportunity to tell "his side of the story . . . ." Father stated that he loved Elijah very much, would never do anything to harm him, and had never done anything to "violate" the child. When informed that DCFS was also concerned with Brianna's and Jocelyn's allegations, Father began to cry, explaining that he had "offered to leave the home when the news came out" but claiming Mother "did not want him to . . . ."
A week before, Father's attorney had informed the CSW that Father was represented, and was exercising his Fifth Amendment rights.
Mother subsequently told the CSW she was no longer in a relationship with Father but said they communicated about Elijah. Mother also reported that Father was "firm when he says that he has never harmed or violated Jocelyn or their son Elijah in any way" and that he was "certain that Jocelyn and Elijah will not accuse him of anything." Mother stated she believed Father "'molested'" Brianna.
A CSW interviewed Elijah again at a DCFS office but, despite Mother's efforts, he proved to be "very uncooperative." He ran around and, when questioned, would stay silent, look toward Mother, or hide behind her.
On October 2, 2020, the court granted an order to remove the children from both parents' custody. The children were removed on October 5.
C. DCFS Files a Petition
On October 7, 2020, DCFS filed a petition on behalf of Jocelyn, Brianna, and Elijah, alleging counts under Welfare and Institutions Code section 300, subdivisions (a), (b)(1), (d), and (j). Counts a-1 and b-3 identically alleged that Mother and Father had a history of engaging in violent altercations in the children's presence. Counts b-1, d-1, and j-1 identically alleged that Father sexually abused Brianna by fondling her breasts, kissing her on the lips, grabbing and pulling at her, and attempting to fondle her vaginal area, and that Mother knew of the abuse but permitted Father to reside in the home and have unlimited contact with Brianna. Counts b-2, d-2, and j-2 identically alleged that Father sexually abused Elijah on numerous occasions by touching his "private area" while in bed with him, and that Mother knew of the abuse but permitted Father to reside in the home and have unlimited contact with Elijah.
Undesignated statutory references are to the Welfare and Institutions Code.
Because the court later dismissed these counts for lack of evidence, we omit discussion of them.
At the initial detention hearing, both DCFS's counsel and the children's counsel requested the children remain detained from both parents, and neither parent objected. The court agreed and detained them. At the request of Father's counsel, DCFS was directed not to interview Father outside the presence of counsel.
D. DCFS Continues Investigating
In October 2020, the children underwent forensic interviews. Jocelyn and Brianna reiterated their previous statements regarding Father's abuse of Brianna, with Jocelyn mentioning an additional incident where Father slapped Brianna's buttocks while telling Elijah to do the same. Brianna added that Father's abuse also consisted of his kissing and sucking on her breasts, that Father would pin her to the bed without letting her up, that the abuse began before her 13th birthday in September of the previous year, and that it would occur "not every day but like, every other day." They also corroborated Mother's statements that Father used to hit her, but no longer did. Brianna reported that when Father was abusing her, Elijah wandered in several times, but that he thought Father was just "play fighting" with Brianna.
The transcript from Elijah's interview demonstrated his inability to stay on topic or engage in a meaningful conversation. Additionally, when asked if he promised to tell the truth, he responded, "I don't know." When asked if he knew what the truth was, he responded, "I don't know." After the interviewer attempted to explain what it meant to tell the truth, Elijah promised he would do so. When asked whether anyone had ever touched the parts of the body he used to defecate and urinate, Elijah said no. Many of his answers to the interviewer's questions were unintelligible.
In January 2021, a dependency investigator (DI) re-interviewed the children. In separate interviews, the DI read the allegations of the petition to Jocelyn and Brianna. Both indicated they had no knowledge that Father had ever abused Elijah. As to the other allegations, both sisters agreed with all of them, except the allegation that Mother failed to protect the children despite knowing of Father's abuse of Brianna; the sisters stated Mother did not know of the abuse. Elijah was still "unable to maintain any conversation . . . long enough to discuss the allegations."
Mother reported Father had moved back in with her due to COVID-19, but claimed they communicated only because of Elijah. She had asked Father about the allegations, and he had denied them. However, Mother stated she believed Father had sexually abused Brianna. Mother did not believe the allegations regarding Elijah, stating that she was "always around" when Father was with him, and noting that Elijah loved Father and was not afraid of him. She stated that Father would "change" Elijah and play around with him, and reported that Elijah had never claimed Father had done anything, nor had she noticed anything untoward.
The DI attempted to contact Father but received no response. DCFS later received progress letters, showing that Father had enrolled in individual counseling, parenting classes, and a sexual abuse awareness class.
E. Adjudication and Disposition
At the March 2011 adjudication hearing, no witnesses testified. DCFS's counsel requested the court sustain the petition as pled. The children's counsel asked the court to sustain the allegations as to Father regarding his abuse of Brianna, but dismiss the allegations that Mother failed to protect the children. Children's counsel additionally asked the court to dismiss the counts relating to domestic violence and abuse of Elijah. While acknowledging that Elijah had stated Father touched him several times in his "private area," counsel theorized those attempts could have been part of normal parenting, such as helping Elijah change clothes, or changing his diaper. Mother's counsel requested the court dismiss the domestic violence allegations, dismiss the allegations that Mother failed to protect Brianna from Father's abuse, and dismiss the allegations regarding Father's alleged abuse of Elijah. Father's counsel also requested the court dismiss the domestic violence allegations and the allegations of abuse relating to Elijah. As to the allegations regarding Brianna, Father's counsel denied Father had been "sexually untoward" with Jocelyn or Brianna, but argued that Father's concern was Elijah, and there was no evidence that Elijah was in danger from Father's alleged actions. In rebuttal, DCFS's counsel acknowledged they had no "recent evidence" of domestic violence, but argued the evidence of previous domestic violence still sufficed for jurisdiction under section 300, subdivision (b)(1). As to the allegations of Mother's failure to protect Brianna, DCFS's counsel pointed out that although Mother knew of the abuse allegations a month prior to DCFS's involvement, she did not report the allegations, and continued to live with Father and to permit him access to the children. As to Elijah, DCFS's counsel argued that sufficient evidence existed to find jurisdiction because he initially claimed Father touched him three times, because he saw Father engage in inappropriate conduct with Brianna, and because Father once told Elijah to slap Brianna's buttocks. The court dismissed the domestic violence allegations for lack of evidence. The court sustained the allegations regarding the abuse of Brianna as to both Mother and Father, stating there was ample evidence that Father was abusing Brianna, that Jocelyn was at risk, and that Mother had ignored signs of Father's abuse. The court additionally sustained the allegations regarding the abuse of Elijah as to both Mother and Father, stating its belief that Elijah was sexually abused by Father, and opining there was "no reason to have private parts touched in bed" as it would not be "assisting the child [to] dress or use the bathroom." The court additionally noted that while it had found Father abused Elijah, it found applicable the case of In re I.J. (2013) 56 Cal.4th 766 (I.J.) because Father "poses a risk, not only [due] to the actual acts inflicted upon his biological son, but the fact that [Father] . . . remains in the home with his sisters or has been in the home prior to his removal because of the nature of the abuse going on between [Father] and the girls. The court does find that Elijah, the minor, is also at risk, given the nature of the circumstances of [Father]'s conduct towards the girls."
After a short recess to permit the children's counsel to attend to an unrelated matter in another courtroom, the court clarified that it "'didn't even think that the In re I.J. case applies because [the court was] finding direct abuse to . . . Elijah.'"
For disposition, Mother's counsel asked the court to return the children to her custody or, if the court were unwilling to do so, to grant her unmonitored visitation. Father's counsel asked that the court return Elijah to him or, if the court were disinclined to do so, to release Elijah to Mother, who would no longer be residing with Father. Father's counsel also requested increased visitation with Elijah. The children's counsel argued that returning Jocelyn and Brianna to Mother's custody was premature, but requested the court return Elijah to Mother's custody after verifying that she had moved out of Father's home. DCFS's counsel asked the court to remove the children from both parents.
The court removed the three children from both parents. Father was granted monitored visitation only with Elijah and was ordered to have no contact with Jocelyn or Brianna. Father timely appealed.
DISCUSSION
F. Father's Appeal Is Justiciable
DCFS argues the appeal is not justiciable because Father did "not challenge the findings pertaining to his own conduct in counts b-1 or d-1, which included that his sexual abuse of Brianna placed Elijah at risk of serious physical harm and sexual abuse," because Mother did not appeal, and because Father did not challenge any dispositional orders based on the challenged jurisdictional order. We disagree.
First, while Father does not challenge the findings that he abused Brianna, he does challenge the finding that this abuse placed Elijah at risk. Specifically, as discussed below, he argues both that the court did not find that his abuse of Brianna put Elijah at risk, and that substantial evidence would not support such a finding.
Second, while Mother's failure to appeal could mean that jurisdiction would exist over Elijah regardless of the outcome of this appeal, were we to reverse, Father would be found a non-offending parent as to Elijah. (See In re Drake M. (2012) 211 Cal.App.4th 754, 763 [deciding potentially moot appeal because "the outcome of this appeal is the difference between father's being an 'offending' parent versus a 'non-offending' parent"].)
Finally, Father's notice of appeal states he is appealing from the dispositional order, and while his brief does not assign error to that order, by concluding that the "jurisdictional order as to Elijah must be reversed, and the child discharged from any detention or restriction previously ordered," he impliedly argues the order should be reversed because the jurisdictional order was defective. For these reasons, we find Father's appeal justiciable.
G. Substantial Evidence Supported the Finding of Jurisdiction Under Section 300, Subdivision (j)
"When a dependency petition alleges multiple grounds for its assertion that a minor comes within the dependency court's jurisdiction, a reviewing court can affirm the [juvenile] court's finding of jurisdiction over the minor if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence." (In re Alexis E. (2009) 171 Cal.App.4th 438, 451.) Because we find substantial evidence supported the court's jurisdictional finding over Elijah under section 300, subdivision (j) (section 300(j)), we need not consider whether the court properly found jurisdiction over Elijah under other subdivisions.
Under section 300(j), the court may assert jurisdiction if: (1) "[t]he child's sibling has been abused or neglected, as defined in subdivision . . . (d)"; and (2) "there is a substantial risk that the child will be abused or neglected, as defined in" section 300, subdivision (d). Here, Father does not dispute that substantial evidence supported a finding that he abused Elijah's half-sister Brianna as defined in section 300, subdivision (d) (providing that a minor can be found to be a dependent if "[t]he child has been sexually abused . . . by . . . a member of the child's household"). Instead, he argues that: (1) the court "rejected" the theory that Father's abuse of Brianna placed Elijah at risk of harm; and (2) substantial evidence would not support such a finding. We address and reject each contention below.
1. The Court Found Father's Abuse of
Brianna Placed Elijah at Risk
Father acknowledges that the court initially found Elijah at risk due to Father's abuse of Brianna, but argues the court changed its mind when it later stated it did not think I.J. applied. We disagree with Father's interpretation of the court's comments. When initially ruling on jurisdiction, the court stated that "the holding in I.J. applies in this case" due to the court's belief that Father posed a risk to Elijah "not only [due] to the actual acts inflicted upon his biological son" but also "because of the nature of the abuse going on between" Father and Brianna. The court stated the abuse of Brianna was a second basis from which Elijah was at risk, finding that "Elijah, the minor, is also at risk, given the nature of the circumstances of [Father]'s conduct towards the girls." Although the court later stated it "'didn't even think that the In re I.J. case applie[d]'" because the court had found that Father directly abused Elijah, we do not read this as a disavowal of its earlier finding that there were two bases for jurisdiction; rather, we construe it to mean that because the court had found Father abused Elijah, it had no need to apply the I.J. framework to find jurisdiction. Indeed, as Father acknowledges, the juvenile court did not amend the petition to remove Elijah's name from counts b-2, d-2, or j-1, which were the counts that alleged Elijah was at risk due to Father's abuse of Brianna.
2. Substantial Evidence Supported the
Court's Finding That Elijah Was at Risk Due to Father's Abuse of Brianna
Father argues that "[i]n any case, substantial evidence did not support an indirect theory of risk." In I.J., our Supreme Court instructed courts to use a sliding scale when evaluating risks to a child due to a parent's sexual abuse of a sibling: "the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse [is needed] to conclude the child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is relatively minor, the court might reasonably find insubstantial a risk the child will be similarly abused; but as the abuse becomes more serious, it becomes more necessary to protect the child from even a relatively low probability of that abuse." (I.J., supra, 56 Cal.4th at 778.) "'The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child.'" (Id. at 773.)
Father contends his abuse of Brianna was "substantively different" than that described in I.J. and not "'so sexually aberrant to support the common sense conclusion that most every person in the family home was at risk of sexual abuse.'" Father further contends there is no evidence that Father would have any interest in sexually abusing a male child.
In I.J., the abuse was "'aberrant in the extreme: [father] sexually abused his own daughter "by fondling the child's vagina and digitally penetrating the child's vagina and forcefully raped the child by placing the father's penis in the child's vagina."' Also relevant to the totality of the circumstances surrounding the sibling abuse is the violation of trust shown by sexually abusing one child while the other children were living in the same home and could easily have learned of or even interrupted the abuse." (I.J., supra, 56 Cal.4th at 778.) Our Supreme Court found that the "serious and prolonged nature of father's sexual abuse of his daughter under these circumstances supports the juvenile court's finding that the risk of abuse was substantial as to all the children." (Ibid.)
We find instructive the case of In re Andy G. (2010) 183 Cal.App.4th 1405. There, two-year-old Andy was removed from his biological father after the juvenile court found that the father had sexually abused Andy's 12- and 14-year-old half-sisters, who were not his biological daughters. (Id. at 1407.) Specifically, the father fondled one sister's breast and exposed her to pornography and masturbated in her presence; he also fondled the other girl's vagina and separately exposed his penis to her while Andy was in the same room. (Id. at 1408-1410.) On appeal, the father argued that "the evidence showing he sexually abused Andy's half sisters was not sufficient to show that Andy was at substantial risk of sexual abuse, since there was no evidence 'of suspicious contact between [the father] and his son Andy or between [the father] and any juvenile or adult male.'" (Id. at 1411.) Our colleagues in Division Eight disagreed, finding that "'aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior.'" (Id. at 1414, quoting In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [affirming a juvenile court order removing two boys from a father who was found to have sexually abused his daughter].)
In the instant case, Elijah also was removed from Father after Father sexually abused Elijah's half-sisters, who were not his biological daughters. Father's abuse of Brianna -- pinning her to a bed, fondling, kissing, and sucking on her breasts, forcibly kissing her mouth, and trying to fondle her vagina -- was not radically different from that in Andy G. Moreover, while Andy was in the same room as the father for one instance of abuse, Elijah directly observed Father abusing Brianna several times, and Father once directed Elijah to participate in the abuse by telling him to slap her buttocks. Additionally, while the abuse in Andy G. consisted of several isolated incidents, the abuse here occurred continuously over a period of nearly a year. Accordingly, like the court in Andy G., we find no error in the assertion of jurisdiction over Elijah based on Father's
abuse of Brianna, and no error in the court's removal of Elijah on that basis.
DISPOSITION
The court's jurisdictional and dispositional orders are affirmed.
We concur: WILLHITE, J. CURREY, J.