Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Los Angeles County Superior Court., Ct. No. CK81922, Stephen Marpet, Referee.
Lee Gulliver, under appointment by the Court of Appeal, for Defendant and Appellant Carlos M.
Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant Cristian R.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel and Tracey F. Dodds, Deputy County Counsel, for Plaintiff and Respondent.
BIGELOW, P. J.
We affirm jurisdictional and dispositional findings and orders issued by the juvenile dependency court.
FACTS
The current dependency court proceedings were filed on behalf of two children: Ashley C., born in January 2000, and Angel R., born in April 2003. Katrina C. (Mother) and Carlos M. are the parents of Ashley. At all times during the dependency court case giving rise to this appeal, Carlos was incarcerated at Pelican Bay State Prison. Mother and Cristian R. are the parents of Angel. The current appeal involves claims by Carlos, as to his daughter, Ashley, and Cristian, as to his son, Angel. Mother is not involved in this appeal.
The orders challenged on appeal were issued in August 2010; there are indications in the record that Carlos was expected to be released from prison in October or November 2010. The record does not show Carlos’s current whereabouts.
On April 15, 2010, at which time Mother, Cristian, both children, and the maternal grandfather resided together, an assistant principal at a local elementary school made a referral to the Los Angeles County Department of Children and Family Services (DCFS) reporting that Ashley had disclosed sexual abuse by Cristian. DCFS dispatched a case social worker (CSW) to the school, but police had already taken Ashley and Mother to the police station. The CSW then went to the police station, where an officer declined to allow Ashley to be interviewed until she was transported for a forensic sexual abuse exam. When the CSW spoke to Mother, she denied having any safety concerns about Cristian and Ashley.
Later, the CSW spoke to Angel alone. When asked if he ever saw Ashley “sad, ” Angel said that Ashley “often cried and screamed” because Cristian would “jump” on her. Angel explained that Cristian “jumped” on Ashley “like this” (he moved his pelvis area back and forth) as he “was on top of... Ashley’s body.” Angel said it happened several times, and that, when Cristian got on top of Ashley, she would cry, scream and ask Angel for help. Angel said the behavior between Cristian and Ashley would occur while Mother was at work. The CSW inspected the bedroom shared by Cristian, Mother, and the children; it had a “strong semen odor.” In the kitchen, there was a framed poster that read: “If my body asks for beer; beer I will give it. If my body asks for music; music I will give it. If my body wants sex; sex I will give it. If my body wants work; no I will say no.”
After the sexual abuse exam, a nurse practitioner (NP) informed the CSW that Ashley was “very descriptive” regarding Cristian’s sex acts, and that Ashley had disclosed that Cristian had recently sodomized her and vaginally penetrated her. The results of the sexual abuse exam stated the following conclusions: “normal genital/anal exam. No trauma noted.” The CSW subsequently learned that Cristian had no prior criminal history.
When the CSW was able to talk to Ashley alone, Ashley asked several times about the results of the sexual abuse exam, explaining that Mother did not believe her, and had told her she was lying about Cristian’s abuse. Ashley relayed that Cristian would shower with her, and threatened to spank her if she said anything to Mother. Ashley was “anxious” while talking to the CSW, and held her hands over her stomach area, commenting that she felt “butterflies on [her] stomach” when she talked or thought about what Cristian had done. She confirmed Angel’s observations that Cristian got on top of her body, and also stated that he hit her with a belt. Describing the most recent sexual abuse incident, Ashley said that Cristian sodomized her and vaginally penetrated her, then “He got his middle part and he shake it like this and then a lot of white stuff came out of it.”
On April 20, 2010, DCFS filed a petition (Welf. & Inst. Code, § 300) on behalf of Ashley and Angel. DCFS’s detention report included the CSW’s summaries of her interviews establishing the facts summarized above, a copy of the police crime report, and the sexual abuse exam documents. The dependency court detained the children. In May 2010, DCFS filed a jurisdiction/disposition report. The report included summaries of interviews by a DCFS dependency investigator (DI) with Ashley, Angel, Mother, Cristian, a neighbor, and workers at Ashley’s school. Ashley stated that Cristian had been sexually abusing her since second grade, but she could not recall how often this occurred, and had not reported the abuse at any earlier time. She did not recall the exact date of the most recent incident, but said it was in that month (April), on an “early release” school day, after Cristian picked up her and Angel. Ashley stated that Cristian “tried to rape” her. When questioned what “rape” means, Ashley said it was when Cristian “put his middle part in my butt, that’s all I know.” Ashley said that she had told friends about what Cristian had done, and they had told her to talk to her mother or to her teacher. Ashley eventually told an assistant principal at her school what had happened.
All section references are to the Welfare and Institutions Code.
The DI’s final conclusions read as follows: “Even though the father Cristian... denies sexual abuse allegations, the child Ashley continues to report being sodomized by [Cristian]. The child’s story may be different with regard to dates, times, etc, however, her story with regard to specific incidents... remain to be consistent. Furthermore, even though [Cristian] has provided an account of his work schedule which indicates that he was working during an evening child Ashley reported the sexual abuse occurred, there are other times/days in which [Cristian] could have had access to the child where she reports being sexually abused. With regard to any physical evidence, [a DCFS NP] who conducts forensic examinations for children who have been sexually abused indicates that she has seen children with anal tearing and bruising and that within a week it has healed. Thus there is a possibility that this may have happened with child Ashley. Additionally, the mother continues to struggle with Ashley’s report and it is highly indicative that the mother does not believe the child and will not be able to protect the child. Therefore allegations of sexual abuse to include Ashley’s report of [Cristian] putting his private area in her bottom in a forceful manner where he lifted her legs and covered her mouth appear to be true. With regard to [Cristian] taking a shower with... Ashley, it does not appear that he took showers with her to include being naked with her in the shower. Ashley, sibling Angel, mother and [Cristian] denies that this occurred. However, it seems very inappropriate for [Cristian] to assist a 10 year old child wash her hair while she is in the shower. This type of behavior is neglectful on the mother’s part as she even reports knowing it was wrong.
“With regard to allegations of physical abuse, it appears that there is evidence of physical abuse where both children report [Cristian] hit child Ashley with a belt and where the mother hits child Angel with a shoe.
“With regard to father Carlos..., he remains to be incarcerated at Pelican Bay Prison. [Carlos]’s criminal report indicates a history of violent behavior to include [the] use of weapons. In fact, parents have valid reason to be fearful of [Carlos] as he may retaliate with violence. Furthermore, [Carlos] has not been a consistent figure in child Ashley’s life to include providing emotional and financial support for the child.
“As a result of child Ashley[’s] disclosure of sexual abuse perpetrated by [Cristian] along with mother’s ambivalence about believing child’s disclosure and children’s report of physical abuse, [DCFS] will recommend that children remain in out of home care with family reunification services. With regard to Carlos..., he is an alleged father and thus not entitled to services.”
In June 2010, DCFS filed an amended petition alleging counts under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse), (g) (no provision for support), and (j) (abuse of siblings). On August 24 and 25, 2010, the dependency court conducted a jurisdiction and disposition hearing. The following witnesses testified at the hearing: the assistant principal at Ashley’s school, the CSW, the maternal grandfather, and Mother. Ashley and Angel testified in chambers. Cristian appeared at the proceedings. The court had offered Carlos the right to appear, but he waived his personal presence; Carlos appeared by appointed counsel. At the conclusion of the hearing, the court sustained the allegations in the petition, with minor interlineations. The court’s specific jurisdictional findings are discussed more fully below in addressing the issues raised in Cristian’s appeal and Carlos’s appeal. The court’s dispositional orders included visitation on prescribed conditions, and reunification service plans for Mother and Cristian, and Carlos upon his release from custody. On appeal, Cristian and Carlos do not directly challenge the dispositional orders; the dispositional orders stand or fall in lock-step with the underlying jurisdictional orders.
DISCUSSION
I. Carlos’s Appeal
Carlos contends the dependency court’s jurisdictional findings as to him and Ashley under section 300, subdivisions (b) (failure to protect) and (g) (no provision for support), are not supported by substantial evidence. In other words, Carlos basically argues that he should have been adjudged a nonoffending parent insofar Ashley is concerned, leaving the dependency court with the sole task to “fashion appropriate orders regarding his contact with Ashley.” Carlos has not persuaded us that the dependency court’s jurisdictional findings as to Ashley and him must be reversed; we remain satisfied that the dependency court’s decision to exercise jurisdiction over Ashley and Carlos is proper.
Standing to Appeal
Before addressing Carlos’s sufficiency of the evidence arguments, we dispatch with DCFS’s argument that Carlos does not have standing to bring his appeal because he is Ashley’s “alleged father” only. Although DCFS is correct that (1) the Judicial Council form petition and amended petition filed in this dependency proceeding were check-marked to indicate that Carlos is an “alleged father” only, and (2) the dependency court denied a request from Carlos’s appointed counsel to change his status to a presumed father, these factors do not establish that Carlos lacks standing to bring the current appeal.
The dependency statutes recognize three types of fathers: presumed, natural, and alleged. (In re Zacharia D. (1993) 6 Cal.4th 435, 448.) A person who is only an alleged father may not be not entitled to appointed counsel, custody of the child, or reunification services. (Id. at pp. 448-449; In re Jerry P. (2002) 95 Cal.App.4th 793, 804.) Those rights adhere upon a person being accorded the status of presumed father. Here, despite Carlos’s ostensible status as an alleged father only, the dependency court afforded him several rights, without an objection from DCFS, normally reserved for a presumed father. At the time of the detention hearing, the court ordered DCFS to make arrangements for visitation between Carlos and Ashley on his release from prison, and discussed with DCFS’s counsel the issue of obtaining “in and out” orders for Carlos, so that he could be transported from prison to appear in the court for the proceedings. The issue of “in and out” orders was discussed again at the Pretrial Resolution Conference. (Carlos eventually waived his right to appear in court in person for the proceedings.) At a progress hearing in June 2010, the court appointed counsel for Carlos. At the same hearing, the court ordered DCFS to arrange visitation for the paternal grandparents (Carlos’s parents), and to assess them as possible caregivers for Ashley. During the jurisdictional/dispositional hearing, Carlos’s appointed counsel participated in the proceedings by cross-examining witnesses and by arguing against the petition’s allegation concerning Carlos. DCFS recommended that reunification services be provided to Carlos upon his release from custody.
The record summarized above establishes that Carlos “appeared” in the current dependency proceedings, and that he “asserted” positions concerning his interests in the course of the proceedings. “Whatever merit there may be to the general rule ‘that an alleged biological father who is not a party of record in the dependency court has no standing to appeal an order terminating parental rights’ [citation], that rule cannot apply here because (1) [Carlos] appeared at the earliest practical point and attempted to join the proceedings as a party, and because (2) any other result would be nonsensical.” (In re Baby Boy V. (2006) 140 Cal.App.4th 1108, 1116-1117, citing In re Paul H. (2003) 111 Cal.App.4th 753, 759.) In short, where an alleged father has attempted in the dependency court to defend himself against allegations, and attain a status granting him greater rights, only to be denied, he is an “aggrieved party” with standing to appeal.
Section 300, subdivision (b)
The dependency court sustained the following allegation regarding Carlos under section 300, subdivision (b):
“The child Ashley[’s] father, [Carlos] has a lengthy criminal history of violent related offenses to include assault with a deadly weapon, exhibit firearm with a misdemeanor conviction, and a felony conviction for a felon in possession of a firearm. The father’s criminal history of such violent arrests endangers the child’s physical and emotional health and safety and places the child at risk of physical and emotional harm and damage.” (Italics added.)
Carlos contends the evidence is insufficient to support the dependency court’s jurisdictional finding. More specifically, Carlos argues the evidence does not support a positive finding on one of the three elements required for jurisdiction under section 300, subdivision (b) –– that, at the time of the jurisdiction hearing, Ashley was at substantial risk of some serious physical harm in the future, i.e., evidence showing a substantial risk that past physical harm is likely to reoccur. He cites a line of cases which includes In re Savannah M. (2005) 131 Cal.App.4th 1387, 1396, In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1134 and In re Rocco M. (1991) 1 Cal.App.4th 814, 820-826.
In reviewing a dependency court’s jurisdictional findings, our task is to determine whether substantial evidence, contradicted or uncontradicted, supports the findings. (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) In making this determination, we review the evidence in the light most favorable to the court’s findings, draw all reasonable inferences from the evidence in support of the findings, and do not reassess the credibility of the evidence. (Ibid.) We do not reweigh review the evidence, nor exercise independent judgment, but merely determine whether substantial evidence supports the findings. (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Carlos presents a close argument, but we find substantial evidence does support the dependency court’s jurisdictional finding under section 300, subdivision (b). Carlos argues that his past criminal history does not show that Ashley is subject to the defined risk described in section 300, subdivision (b). The issue is not, however, as Carlos seems to suggest, whether an abstract criminal history shows a risk of future harm. The issue is whether Carlos’s history of violent criminal behavior bears on the risk posed to Ashley. And, in making this evaluation, we will not ignore whether Carlos’s violent tendencies have been addressed and resolved. Carlos’s attempt to minimize his past criminal conduct by asserting that “[n]one of his crimes involved actual violence or harm to others” is not reassuring. The dependency court found that Carlos has prior convictions for assault with a deadly weapon, brandishing a firearm, and possession of a firearm by a felon. He does not dispute these historical facts. We agree with the dependency court that the type and extent of Carlos’s crimes supports a finding that Ashley is at risk of future harm because of the likelihood that a similar, violent criminal history will continue, particularly given the lack of any evidence showing he recognizes the seriousness of his offenses. Based on this foundation, it is reasonable to infer that a risk is posed to Ashley, who may end up in the zone of danger attendant with such violent crime. Violence tends to beget violence, and, coupled with the concerns voiced by Mother that Carlos might try to retaliate against Cristian, supports the conclusion that Ashley could be placed in a sphere of violence in the future. While Carlos is correct that his criminal history does not show that he caused direct physical harm to Ashley, this argument, in our view, is merely a request to reweigh the evidence, a task which we may not perform under the substantial evidence standard of review. (See In re Savannah M., supra, 131 Cal.App.4th at p. 1393 [the test is whether it was reasonable for the dependency court to have made the finding in question in light of the whole record].) Carlos’s past violent criminal behavior supports a finding of risk, and his reliance on factually distinguishable cases such as Jennifer A. v. Superior Court (2004) 117 Cal.App.4th 1322, 1346, is not persuasive in that he has not merely engaged in an isolated instance of non-violent crime such as drug use.
Section 300, subdivision (g)
The dependency court sustained the following allegation regarding Carlos under section 300, subdivision (g):
“The child Ashley[’s] father, [Carlos], has failed to provide the child with the necessities of life including food, clothing, shelter, and medical care. The father is currently incarcerated. Such failure to provide for the child on the part of the father endangers the child’s physical and emotional health, safety and places the child at risk of physical and emotional harm and damage.”
Carlos’s argument rests on this general rule from the published cases: when an incarcerated parent arranges for a child to be cared for by a relative or friend, his actions are sufficient to avoid the dependency court’s jurisdiction under section 300, subdivision (g). (See, e.g., In re S. D. (2002) 99 Cal.App.4th 1068, 1078-1079.) Carlos is careful to explain that he does not challenge the dependency court’s jurisdiction over Ashley based on the abuse by Cristian that came to light in April 2010; he asks only that the petition’s failure-to-support allegation as to him must be dismissed. We do not agree.
Substantial evidence supports the dependency court’s jurisdiction finding under section 300, subdivision (g). Carlos’s rule is correct (i.e., making arrangements for a child may negate a failure-to-support claim in the dependency court), but he is wrong that the evidence shows that he made appropriate arrangements for Ashley’s care. According to Carlos, he avoided the dependency court’s jurisdiction under section 300, subdivision (g), by signing a “Statement Regarding Parentage” in June 2010, offering the suggestion that his parents (i.e., Ashley’s paternal grandparents) were appropriate, prospective custodial caregivers. The problems with Carlos’s argument are (1) he was in state prison for roughly two years before he offered the paternal grandparents as possible caregivers; (2) his Statement form does not show that any arrangements had been made with the paternal grandparents, i.e., that they were actually willing and able to care for Ashley; and (3) his Statement on its face shows that Carlos considered Mother and Cristian to be abusive toward Ashley, suggesting that he knew Ashley was at risk of harm, but took no action until the dependency proceedings were initiated. In short, in viewing the evidence in the light most favorable to the dependency court’s findings and orders, the record does not show as a matter of law that Carlos made proper arrangements for Ashley’s care. Jurisdiction under section 300, subdivision (g), is well-founded.
II. Cristian’s Appeal
Cristian contends the dependency court’s assertion of jurisdiction over Angel is not supported by substantial evidence. Reduced to its essence, Cristian’s argument is that the court bootstrapped the findings of sexual abuse against Ashley into findings to support jurisdiction over Angel, notwithstanding a lack of evidence showing that Cristian poses an actual risk to Angel’s well-being. We are not persuaded that Angel should not be subject to oversight by the dependency court.
As Cristian recognizes, the question on appeal is not whether the evidence supports a different order than was made, but whether substantial evidence supports the order made, and, in undertaking this review, we will not reweigh the evidence, nor will we re-assess the credibility of the witnesses, nor will we resolve evidentiary conflicts. (See, e.g., In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
Cristian contends the evidence does not support the dependency court’s jurisdictional findings as to Angel under section 300, subdivisions (a), (b), (d) and (j), where those findings rest solely on his sexual abuse of Ashley. Subdivision (a) jurisdiction is predicated on a parent’s own infliction of harm or the risk that the parent will inflict harm. Subdivision (b) jurisdiction is predicated on a failure to protect resulting in harm. Subdivision (d) jurisdiction rests on a parent’s own sexual abuse of a child or the risk that the parent will sexually abuse a child. And, finally, subdivision (j) jurisdiction rests on finding that a child’s sibling has been abused or neglected, and there is a substantial risk that the child will also be abused or neglected. Cristian’s argument broadly addresses these different bases for jurisdiction under the rubric of his sexual abuse of Ashley.
We disagree with Cristian’s argument that his abuse of Ashley has no bearing on his risk to Angel. As we articulated in In re Andy G. (2010) 183 Cal.App.4th 1405, the dependency court may reasonably conclude that sexual abuse of a female sibling is sufficient to show a risk of abuse to a male sibling, particularly where the abuse of the female child is not completely isolated from the male child. (Id. at pp. 1414-1415.) In this regard, we tend to agree with our colleagues in Division Three of our court that “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. (2006) 144 Cal.App.4th 1339, 1347.) At the same time, we are not persuaded by Cristian’s argument to reject, in his words, such a “sweeping proposition” when is not accepted by known scientific authority or empirical evidence demonstrating that sex abuse of children crosses gender lines (discussing In re Maria R. (2010) 185 Cal.App.4th 48, 62-63, 68). We do not apply a sweeping proposition in Cristian’s case. The evidence of Cristian’s abuse of Ashley shows that the abuse did not occur in a vacuum, completely isolated from Angel. On the contrary, the evidence showed that Angel was directly cognizant of the sexual abuse as it occurred, that he knew enough about the behavior to feel a need to help his sister, and that Cristian threatened physical harm to Angel when he tried to intervene. We are satisfied that these sexual abuse circumstances were sufficiently serious to show immediate and potential future harm to Angel.
DISPOSITION
The dependency court’s jurisdictional and dispositional findings and orders are affirmed.
I concur: GRIMES, J.
Flier, J., Concurring and Dissenting opinion
For the reasons described by the majority, I agree that ample evidence supported the jurisdictional findings over Ashley. I also agree that sufficient evidence supported the jurisdictional findings over Angel. But I cannot agree with the majority’s conclusion that aberrant sexual behavior by a father necessarily places the victim’s siblings who remain in the home at risk of aberrant sexual behavior. (See maj. opn. ante, at p. 11, citing In re P.A. (2006) 144 Cal.App.4th 1339, 1347.)
Absent evidence that a father has an interest in engaging in sexual activity with a male child, evidence that he engaged in aberrant conduct with a female child does not necessarily show the male child is at substantial risk of sexual abuse. (In re Maria R. (2010) 185 Cal.App.4th 48, 68.) Speculation that a father may sexually abuse a male child is insufficient to support jurisdiction. (Ibid.) Here, no evidence was presented that Angel was at risk of sexual abuse. Speculation standing alone was insufficient to support jurisdiction.
Nevertheless, sufficient evidence supports jurisdiction over Angel based on the risk Cristian would physically abuse him. The juvenile court sustained the allegation that Cristian “physically abused the child Ashley by striking the child with belts inflicting bruises to the child[]” and that the physical abuse places Angel at risk of physical abuse. Angel had reported to a social worker that Cristian threatened him if he tried to intervene to help Ashley. Angel also reported being afraid of Cristian. This evidence supports the finding that Angel was at risk of physical abuse, and the juvenile court properly assumed jurisdiction over him. (In re Alexis E. (2009) 171 Cal.App.4th 438, 451 [reviewing court may affirm jurisdiction if it is proper on any ground].)