Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court for Los Angeles County No. CK65989, Robert Stevenson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Aida Aslanian, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Deborah L. Hale, Senior Deputy County Counsel, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
In this dependency case, the juvenile court declared the four children of appellant D.P. (father) to be dependents of the court under Welfare and Institutions Code section 300, subdivisions (b), (d), and (j), based upon father’s sexual abuse of the eldest child, Aileen P. Father appeals from the jurisdictional findings as to his two sons, D.P., Jr. and Rudy P.; he does not contest the findings as to Aileen or her sister Jessica P. He contends the Department of Children and Family Services (the Department) did not present any evidence -- other than the sexual abuse of Aileen -- to show there was a substantial risk that the two male children will be abused or neglected as described in the relevant subdivisions, and therefore the jurisdictional findings as to those children should be reversed. Two Divisions of this court have come to conflicting conclusions regarding whether a parent’s sexual abuse of a daughter is sufficient by itself to show that a younger son is at substantial risk of sexual abuse: Division Two concluded it was not sufficient (In re Rubisela E. (2000) 85 Cal.App.4th 177), while Division Three held it was sufficient (In re P.A. (2006) 144 Cal.App.4th 1339). We agree with our colleagues in Division Two, and accordingly reverse the jurisdictional order as to father to the extent the order finds that D.P., Jr. and Rudy are dependents of the court under section 300, subdivision (d).
Further undesignated statutory references are to the Welfare and Institutions Code.
BACKGROUND
The children came to the attention of the Department on December 5, 2006, when it received a referral alleging sexual abuse of Aileen by her father and her first cousin, Pedro. The night before, Aileen’s older half-brother, S., filed a missing person report with the police. He told the police he believed Aileen, who was 16 years old, had run away from home and might be at Pedro’s house. The following morning, police detectives spoke with Aileen’s mother, Paula D. (mother), who told them she believed Aileen and Pedro were sexually involved.
The detectives found Aileen and Pedro at Pedro’s house later that morning. When asked why she ran away from home, Aileen said she did not want to be there because father had molested her. Upon further questioning, Aileen told the detectives that father touched her vagina on two occasions and her breast on another occasion. The first incident occurred when Aileen was about 13, and the last took place about a year and a half before she ran away. All three incidents took place while Aileen was asleep; in each instance, she woke up when she felt someone touching her, and saw father leave the room she shared with her sister and younger brother. Aileen also told the detectives that father was in a sexual relationship with Aileen’s older sister, Gloria M., who was 23 years old, and that she (Aileen) had been sexually abused by a family friend seven years earlier. She said she told mother about all of these incidents, but mother did not seem to care or believe her.
The detectives arrested Pedro, who was 19 years old, for violation of Penal Code section 261.5.
Aileen later told the social worker assigned to the case that she lied when she told the police that father had a sexual relationship with Gloria. She explained that she made it up because she was afraid of how father would react when he found out that she was pregnant by her cousin Pedro.
The detectives contacted the Department, and the Department detained all four minor children (Aileen, D.P., Jr., Jessica, and Rudy). In the meantime, the detectives interviewed father, who admitted to touching Aileen’s vagina, over her clothing, one time. He told the detectives that he had been drinking with some friends one night, and went into Aileen’s bedroom to get a blanket. He noticed that Aileen, who was asleep, was not wearing a bra. He said he became slightly aroused and reacted without thinking, touching her vagina for a second over her clothing. He realized he made a mistake, so he quickly left the room.
Father also said that he did not remember any other incidents, but it was possible that similar incidents took place.
The Department filed a section 300 petition against mother and father as to all four children, alleging counts under section 300, subdivisions (b), (d), and (j). In the Detention Report, the Department reported that children’s social worker Aguirre interviewed Aileen at the police station on December 5, 2006. During that interview, Aileen told Aguirre that when she was 15 years old, father touched her breasts under her clothing one time and touched her vagina twice over her clothing. She said that she was asleep in her room with Jessica and Rudy when it happened, and that father was drunk. Aguirre also interviewed Jessica, Rudy, and D.P., Jr., each of whom denied being sexually abused or touched by father or anyone else, and denied any knowledge of Aileen being touched by father.
Because mother is not a party to this appeal, we limit our discussion to the facts relevant to the allegations against father.
The Department filed a Jurisdiction/Disposition Report on January 12, 2007, in which the social worker’s interviews with each of the children the previous week were summarized. Aileen’s account during the later interview of the three incidents involving her father had changed somewhat from her initial account. In the later account, Aileen said that the incidents occurred while she was asleep alone in her room. She said she was not sure that she was touched during the first incident, but that she woke up because she felt someone in her room and saw her father standing by the side of her bed. She said that during the second incident, she woke up when she felt someone covering her up and felt a closed fist brushing against her breast. She saw father quickly leave the room and she believed he had tried to fondle her. Finally, she said that she clearly felt father touch her vagina on the outside of her clothes and saw him quickly leave the room during the third incident. The other children told the social worker during their interviews that they never witnessed father abusing Aileen, nor had father (or anyone else) touched or sexually abused them.
At the jurisdiction/disposition hearing, held on February 1, 2007, father signed a waiver of rights, agreeing to submit the petition on the basis of the social worker’s reports. The amended petition alleged the following counts as to all four minor children: (1) father had inappropriate sexual contact with Aileen’s breast and vagina in 2003, March 2005, and April 2005, and mother failed to protect Aileen (counts b-1, d-1, and j-1); (2) in 1999, an unrelated adult male family acquaintance, Emilio Mendez, sexually abused nine-year-old Aileen and mother did not protect her (counts b-3, d-3, and j-3); and (4) father has a history of alcohol abuse that periodically interferes with his ability to provide regular care for the children (count b-4). All of the counts alleged that the facts alleged placed all four children at risk of harm.
At the start of the hearing, the juvenile court confirmed that father wished to proceed without a full trial. The only evidence offered was the Detention and Jurisdiction/Disposition Reports filed by the Department and other documents not relevant to the issue in this appeal. Counsel for D.P., Jr., Jessica, and Rudy submitted to count b-4 as to all of the children, but asked the court to dismiss counts b-1, d-1, j-1, b-3, d-3, and j-3 as to D.P., Jr., and Rudy on the ground that there was no evidence that the sexual abuse of Aileen placed the two boys at risk. Father’s counsel joined in the minors’ counsel’s argument, and also argued there was insufficient evidence to sustain count d-1 as to any of the children because the conduct Aileen described did not constitute a violation of Penal Code section 11165.1, as required by section 300, subdivision (d).
Section 300, subdivision (d), provides that a child may be adjudged a dependent child of the court if “[t]he 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, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.”
In response to the argument that there was no evidence of risk to the boys, the Department relied upon Division Three’s decision in In re P.A., supra, 144 Cal.App.4th 1339, arguing that father’s sexual abuse of a daughter created a risk to all of the younger siblings who were approaching the age at which the daughter was abused. Minors’ counsel countered by citing to Division Two’s decision in In re Rubisela E., supra, 85 Cal.App.4th 177, which held that a father’s sexual abuse of a daughter is not, by itself, sufficient to show that younger male siblings are at substantial risk of abuse. The court took a recess to read those cases, as well as In re Karen R. (2001) 95 Cal.App.4th 84, another decision from Division Three on which that Division had relied in In re P.A. After reading those cases, the juvenile court found all of the counts as amended were true as to all four children. It found there was a substantial risk to the boys because the incidents took place at night while Aileen was sleeping in the bedroom she shared with her siblings, when father had been drinking. Therefore, the court declared all four children dependent children of the court under section 300, subdivisions (b), (d), and (j). Father appeals from this jurisdictional order.
DISCUSSION
We begin our discussion by noting that at the jurisdiction/disposition hearing, father submitted to count b-4 (alleging that father has a history of alcohol abuse that periodically interferes with his ability to provide regular care for the children) as to all four children, because he joined in minors’ counsel’s argument in which she submitted to that count. Even if he had not submitted, however, father’s argument on appeal is limited to the sufficiency of the evidence that D.P., Jr. and Rudy were at risk of sexual abuse. The Department argues we should affirm the juvenile court’s jurisdictional ruling because the juvenile court properly took jurisdiction over D.P., Jr., and Rudy under count b-4.
While it is true that the juvenile court’s proper exercise of jurisdiction over D.P., Jr., and Rudy, based upon count b-4, would not be defeated even if there was insufficient evidence to support the court’s findings under the other counts (see, e.g., In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045 [insufficiency of the evidence to sustain jurisdictional finding as to one of several count does not defeat jurisdiction of juvenile court]), we nevertheless must address the sufficiency of the evidence to support the court’s jurisdiction under the other counts. This is because the bases for the court’s exercise of jurisdiction will be critical to the juvenile court’s subsequent orders. For example, the programs in which father may be required to participate must “be designed to eliminate those conditions that led to the court’s finding that the [children are] person[s] described by Section 300.” (§ 362, subd. (c).) Subsequent decisions regarding whether the children will be returned to father’s custody will then depend upon whether father has made substantive progress in those programs. (§ 366.21, subds. (e), (f).) Thus, if the juvenile court’s exercise of jurisdiction over D.P., Jr., and Rudy was properly based only upon the finding that father had a history alcohol abuse, father would not be required to show progress in programs regarding sexual abuse in order for the boys to be returned to his custody. Hence, we must examine the sufficiency of the evidence supporting the court’s exercise of jurisdiction under the other counts.
Section 300 provides that a child is within the jurisdiction of the juvenile court if, inter alia, the child has suffered or there is a substantial risk the child will suffer serious physical harm (§ 300, subd. (b)); the child has been or there is a substantial risk the child will be sexually abused by a parent (§ 300, subd. (d)); or the child’s sibling has been abused or neglected and there is a substantial risk the child will be abused or neglected (§ 300, subd. (j)). The juvenile court in this case found that D.P., Jr.,, Jessica, and Rudy were within the court’s jurisdiction on the ground that there was a substantial risk they would be sexually abused by father, and thus they came within subdivisions (b), (d), and (j). It based its finding solely on the fact that father, after he had been drinking, sexually abused Aileen while she was sleeping in the bedroom she shared with her siblings.
Father concedes the court’s jurisdictional finding as to Aileen and Jessica, Aileen’s younger sister, but challenges the finding as to Aileen’s younger brothers, urging us to follow Division Two’s reasoning in In re Rubisela E., supra, 85 Cal.App.4th 177. In that case, there was evidence that the father had sexually touched 13-year-old Rubisela several times while she was sleeping and told her to orally copulate him once. The appellate court found this evidence sufficient to support the juvenile court’s finding that Rubisela fell within section 300, subdivisions (c) and (d). (In re Rubisela E., supra, 85 Cal.App.4th at p. 196.) The appellate court also found this evidence supported the juvenile court’s finding, under section 300, subdivision (j), that Rubisela’s nine-year-old sister was at substantial risk of harm because it was “reasonable for the juvenile court to determine that in Rubisela’s absence, Father’s sexual offenses were likely to focus on his only other daughter.” (Id. at p. 197.) But the appellate court held that evidence that the father had sexually abused his daughter was not sufficient, by itself, to find that the father’s sons (ages 11, 8, 4, and 2) were at risk of sexual abuse (id. at p. 199), even though the court acknowledged “the real possibility that brothers of molested sisters can be molested” (id. at p. 198).
Section 300, subdivision (c) provides that a child may be found a dependent child if the child is suffering or is at substantial risk of suffering serious emotional damage.
Division Three disagreed with the Rubisela E. court’s conclusion, in In re P.A., supra, 144 Cal.App.4th 1339. In that case, the father sexually abused his nine-year-old daughter, P.A., by touching her vagina under her clothes and on top of her underwear while she was sleeping or trying to sleep. The juvenile court found that P.A.’s eight- and five-year-old brothers were at risk of abuse because they were approaching the age P.A. was when the father began to abuse her, and the father had access to them because he awoke during the night to cover them. (In re P.A., supra, 144 Cal.App.4th at p. 1345.) Division Three rejected the father’s argument that In re Rubisela E. applied, stating, “we are convinced that where, as here, a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse. As we intimated in [In re] Karen R. [(2001) 95 Cal.App.4th 84], aberrant sexual behavior by a parent places the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
The court found support for its conclusion in section 355.1, subdivision (d) (hereafter, section 355.1(d)), which provides in relevant part: “Where the court finds that either a parent, a guardian, or any other person who resides with . . . a minor who is currently the subject of the petition filed under Section 300 . . . has been found in a prior dependency hearing . . . to have committed an act of sexual abuse, . . . that finding shall be prima facie evidence in any proceeding that the subject minor is a person described by subdivision (a), (b), (c), or (d) of Section 300 and is at substantial risk of abuse or neglect. The prima facie evidence constitutes a presumption affecting the burden of producing evidence.” Although the court found that section 355.1(d) “was not triggered” because the finding that the father had sexually abused P.A. was made at the same hearing as the finding that P.A.’s brothers were at risk of abuse -- rather than at a prior dependency hearing -- the court explained that the statute “evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts.” (In re P.A., supra, 144 Cal.App.4th at p. 1347.) In other words, the court in effect applied the section 355.1(d) presumption while stating the presumption did not apply.
We agree that section 355.1(d) demonstrates the Legislature’s concern that children living with a parent who has sexually abused a sibling may be at risk and may be in need of the protection of the juvenile court. But the Legislature provided for a presumption that arises only when the parent has been found in a prior dependency hearing to have committed an act of sexual abuse. In such a case, no other evidence need be presented to support a finding that the children are at risk. When no prior finding of sexual abuse has been made, however, the presumption does not apply, and the burden is on the Department to show there is a substantial risk that the children will be abused. The Department did not meet its burden in this case.
The presumption is, of course, rebuttable; it simply shifts the burden of producing evidence.
Jurisdictional findings must be based upon substantial evidence. (See, e.g., In re P.A., supra, 144 Cal.App.4th at p. 1344.) Although substantial evidence may consist of inferences, those inferences “‘must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’” (In re Savannah M. (2005) 131 Cal.App.4th 1387, 1393-1394.) Here, the Department presented no evidence, other than the fact of father’s sexual abuse of Aileen, from which the juvenile court could infer that her brothers were at risk of being sexually abused. In the absence of a statutory presumption, that evidence is insufficient to support the juvenile court’s finding that D.P., Jr., and Rudy were persons described by section 300, subdivision (d). (See, e.g., Wilson, The Cradle of Abuse: Evaluating the Danger Posed by a Sexually Predatory Parent to the Victim’s Siblings (2002) 51 Emory L.J. 241, 263-266 [noting studies showing that, in the absence of other indicators of risk, male siblings of daughter who was sexually abused by father are not likely to be victimized].)
DISPOSITION
The jurisdictional order is reversed to the extent it finds that D.P., Jr., and Rudy are dependents of the court under section 300, subdivision (d).
We concur: MANELLA, J. SUZUKAWA, J.