Opinion
NOT TO BE PUBLISHED
Los Angeles County Super. Ct. No. CK83711
APPEAL from orders of the Superior Court of Los Angeles County, Sherri Sobel, Referee.
Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Melinda S. White-Svec, Deputy County Counsel, for Plaintiff and Respondent.
KITCHING, J.
INTRODUCTION
Christopher R. (father) appeals from the juvenile court’s dispositional orders dated September 27, 2010, relating to his two sons, Daniel F. and D.C. Prior to issuing these orders the juvenile court asserted jurisdiction over the two boys pursuant to Welfare and Institutions Code section 300, subdivisions (b) (physical abuse) and (d) (sexual abuse). Father contends that the dispositional orders must be reversed because there was no substantial evidence supporting certain jurisdictional findings of the juvenile court.
Except as stated otherwise, all future statutory references are to the Welfare and Institutions Code.
We hold that there was no substantial evidence supporting the court’s section 300, subdivision (d) findings, but there was substantial evidence supporting the court’s assertion of jurisdiction pursuant to section 300, subdivision (b). Accordingly, we affirm the dispositional orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. Father’s Family
Daniel was born in March 2003 and was seven years old at the time this action commenced. His mother is Brittany F. Daniel began having contact with father when he was about five years old but he has never permanently lived with father. Brittany has two other children, born in 2010 and 2007, who are unrelated to father.
According to Brittany, however, Daniel was “staying” with father from July 21, 2010 to August 16, 2010.
D. was born in August 2009 and was one year old when this action commenced. His mother is L.C. Father began living with L. and D. in about January or February 2010.
2. Father’s History of Crime, Use of Illicit Drugs and Anger Management Problems
Father previously used cocaine and, prior to Daniel’s birth, smoked crack cocaine with Brittany’s mother. In the summer of 2009, Daniel stated to Brittany: “I think my dad smokes crack.” Father currently uses marijuana. Although father claims he has a medical prescription to use marijuana, respondent Los Angeles County Department of Children and Family Services (Department) could not find any evidence to support that claim.
In 2003 and 2008, father was arrested for selling controlled substances but was not convicted of those crimes. Father was convicted of misdemeanor theft in 2003 and petty theft in 2004.
According to Brittany, father was verbally abusive toward her and he used threatening behavior to intimidate and control her. Father threatened to kill Brittany several times. In the summer of 2009, father threatened to kill Brittany, her unborn child, and her whole family. Brittany reported the incident to the police.
According to L., starting in February 2010, after she began living with father, father was verbally abusive and threatening toward her on an ongoing basis. In February 2010, father threatened suicide if L. left him.
Daniel stated to the Department that father “yells” at him and others when father comes home from work. Father has physically struck Daniel two times. He once hit Daniel in the head with an open hand. On another occasion he punched Daniel in the stomach with a closed fist. Daniel stated to the Department that he did not cry on either occasion because “it did not hurt that bad.”
3. The August 15 and 16, 2010, Incident
In the evening of August 15, 2010, father found on L.’s cell phone a message indicating that L. was planning on leaving him. Father pulled out a gun and threatened to kill L. He pointed the gun at L.’s head, chest, throat and rib cage. He also was verbally abusive and profane, repeatedly calling L. “bitch.” For example, father said to L.: “Bitch I ought to blow you away right now.” At one point, with a cigarette in his hand, he said to L.: “You want me to burn those pretty brown eyes?” Daniel and D. were present during this incident.
L. feared for her life. Although she would subsequently find out that father was holding a BB gun, at the time she thought he had a “real” gun with full-size bullets. Father knew that L. did not know he only had a BB gun.
L. stayed at father’s home that night because she was afraid of leaving him. The next morning father began beating L. on the legs with rolled-up boxer shorts. L. asked him, “Why did you hit me?” Father responded, “Because I can bitch.” Father also spat in L.’s direction, and stated, “[F]uck you bitch, you ain’t shit to me!”
Before leaving for work father took L.’s cell phone, California identification card and EBT card, which L. used for welfare benefits.
After father left, L. reported the incident to the police. Father was arrested for making criminal threats in violation of Penal Code section 422. Daniel and D. were taken into protective custody.
4. Father’s Rape of Brittany
Shortly after the incident on August 15 and 16, 2010, a Department social worker interviewed Brittany. Brittany stated to the social worker that she was raped by father in about 2002 when she was 15 years old and father was an adult, and that Daniel was conceived as a result. At the time of the rape Brittany was temporarily staying with father because Brittany’s mother, who smoked crack cocaine with father, was incarcerated. Brittany did not report the rape to the police.
Father denied raping Brittany. He told the Department: “Her [Brittany’s] mom was on dope and she said take my daughter.”
5. The Juvenile Dependency Petitions
On August 20, 2010, the Department filed two juvenile dependency petitions, one regarding Daniel and another regarding D. The Department alleged that the juvenile court had jurisdiction over the children under section 300, subdivisions (b) and (d).
With respect section 300, subdivision (b), the petitions alleged that there was a substantial risk the children will suffer serious physical harm. In the petition relating to D., there were four subdivision (b) counts. In the petition relating to Daniel there were five. Both petitions set forth a subdivision (b) count based on father’s alleged rape of Brittany in 2002. In the petition relating to D., this was count b-3. In the petition relating to Daniel, this was count b-2.
Both petitions also set forth subdivision (b) counts on the grounds that (1) father had a history of engaging in violent altercations with L., including the incident on August 15 and 16, 2010, (2) father had a history of illicit drug use and is a current user of marijuana, and (3) father had mental and emotional problems including suicidal and homicidal ideations. Additionally, the petition relating to Daniel alleged that father had a history of engaging in violent altercations with Brittany.
With respect to section 300, subdivision (d), the petitions alleged there was a substantial risk that the children would be sexually abused because father forcibly raped Brittany in 2002. There was only one subdivision (d) count, identified as d-1, in each petition.
6. Restraining and Visitation Orders
The juvenile court issued temporary and permanent restraining orders requiring father to stay at least 100 yards away from L., Brittany, Daniel and D. The permanent restraining orders, issued on September 27, 2010, expire three years after the date of the orders. On September 27, 2010, the juvenile court also issued orders granting father supervised visits with his children once a week.
7. The Juvenile Court’s Jurisdictional and Dispositional Orders
On September 27, 2010, the juvenile court held a jurisdictional and dispositional hearing. At the end of the hearing the court issued minute orders wherein it sustained all counts in both petitions, declared Daniel and D. dependent children of the court, and removed the children from the physical custody of father. Father appeals the September 27, 2010, orders.
CONTENTIONS
Father does not directly challenge the juvenile court’s dispositional orders, that is, the orders declaring the children dependents of the court. Rather, he contends the dispositional orders should be reversed because there was not substantial evidence supporting the juvenile court’s jurisdictional findings related to father’s alleged 2002 rape of Brittany. In other words, father challenges the juvenile court’s order sustaining counts b-3 and d-1 in the petition relating to D., and counts b-2 and d-1 in the petition relating to Daniel. Father does not make any arguments regarding the juvenile court’s other jurisdictional findings or assert any other grounds for reversing the dispositional orders.
Father contends that the only evidence of Brittany’s rape was statements in the Department’s reports filed with the juvenile court. He argues that these statements were “uncorroborated hearsay, ” and that such evidence does not constitute substantial evidence. Father further argues that even if Brittany’s statements were admissible, it is insufficient evidence to support a jurisdictional finding pursuant to section 300, subdivisions (b) and (d).
DISCUSSION
1. The Juvenile Court’s Jurisdictional Findings May Be Challenged In This Appeal of the Court’s Dispositional Orders
Section 300 provides: “Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court:
“[¶]... [¶]
“(b) The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness....
“[¶]... [¶]
“(d) The child has been sexually abused, or there is a substantial risk that the child will be sexually abused....”
A juvenile court’s dispositional order following a section 300 hearing is appealable as a “judgment.” (§ 395; In re S.B. (2009) 46 Cal.4th 529, 531-532.) Although a juvenile court’s jurisdictional order is not directly appealable, a challenge to the court’s jurisdictional findings can be raised in an appeal of a dispositional order. (In re Athena P. (2002) 103 Cal.App.4th 617, 624.)
Here, the September 27, 2010, minute orders consisted of both jurisdictional and dispositional orders. The juvenile court found all of the counts in the petitions were true. Based on these jurisdictional findings, the court asserted jurisdiction over Daniel and D. and declared them dependent children of the court. In his appeal of the dispositional orders, father may challenge the juvenile court’s jurisdictional findings.
2. Standard of Review
We must affirm the juvenile court’s jurisdictional findings if there is substantial evidence to support them. (In re Maria R. (2010) 185 Cal.App.4th 48, 57; In re J.K. (2009) 174 Cal.App.4th 1426, 1433.) “The term ‘substantial evidence’ means such relevant evidence as a reasonable mind would accept as adequate to support a conclusion; it is evidence which is reasonable in nature, credible, and of solid value.” (In re J.K., at p. 1433.) “We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. The appellant has the burden of showing that there is no evidence of a sufficiently substantial nature to support the finding or order.” (In re Maria R., at p. 57.)
3. There Was No Substantial Evidence Supporting the Juvenile Court’s Findings That There was a Substantial Risk That the Children Would Be Sexually or Physically Abused Based on Father’s Rape of Brittany in 2002
There is no evidence Daniel or D. have suffered serious physical harm, or illness or sexual abuse of any kind, nor does the Department contend that the boys have suffered such harm, illness or abuse. The Department contends that there is a “substantial risk” that Daniel and D. will suffer from serious physical harm and sexual abuse in light of father’s rape of Brittany in 2002, as well as other conduct. We shall address father’s other conduct post. In this section, we focus only on father’s rape of Brittany, which was the sole basis for counts d-1 and b-3 in the petition relating to D. and counts d-1 and b-2 in the petition relating to Daniel.
Although father denies raping Brittany, the trial court found he did so. We must accept that finding as true for purposes of this appeal. The issue is whether father’s rape of Brittany in 2002 consists of substantial evidence that there is a substantial risk father will (1) sexually abuse Daniel or D. and (2) cause them serious physical harm. We shall conclude, for reasons we will explain, that father’s rape of Brittany does not constitute evidence sufficiently substantial to sustain jurisdictional findings pursuant to section 300, subdivisions (b) and (d).
a. Brittany’s Statements in the Department Reports Are Admissible
Father argues that Brittany’s statements about the 2002 rape in the Department’s reports constitute inadmissible hearsay. We disagree. Section 355, subdivision (b) provides: “A social study prepared by the petitioning agency, and hearsay evidence contained in it, is admissible and constitutes competent evidence upon which a finding of jurisdiction pursuant to Section 300 may be based, to the extent allowed by subdivisions (c) and (d).” The reports containing Brittany’s statements are “social studies” within the meaning of this statute. (§ 355, subd. (b)(1).)
Section 355, subdivision (d) provides: “This section shall not be construed to limit the right of any party to the jurisdictional hearing to subpoena a witness whose statement is contained in the social study or to introduce admissible evidence relevant to the weight of the hearsay evidence or the credibility of the hearsay declarant.” There is nothing in the record indicating that father subpoenaed Brittany. Further, father did not testify or offer any independent evidence apart from the Department reports regarding Brittany’s rape allegation.
Section 355, subdivision (c)(1) provides: “If any party to the jurisdictional hearing raises a timely objection to the admission of specific hearsay evidence contained in a social study, the specific hearsay evidence shall not be sufficient by itself to support a jurisdictional finding or any ultimate fact upon which a jurisdictional finding is based, ” unless the Department establishes one or more specified exceptions apply.
The exceptions are (A) the hearsay evidence would be admissible under an exception to the hearsay rule, (B) the hearsay declarant is a minor and the objecting party cannot establish that the statement is unreliable, (C) the hearsay declarant is a peace officer, health practitioner, or credentialed teacher, and (D) the hearsay declarant is available for cross-examination. (§ 355, subd. (c)(1).)
Here, the reports were admitted into evidence without any objection. Under the plain terms of section 355, the Department’s reports and Brittany’s hearsay statements therein, constituted admissible and competent evidence.
b. Brittany’s Rape Does Not Constitute Substantial Evidence Supporting a Section 300, Subdivision (b) or Subdivision (d) Jurisdictional Finding
If father indeed raped Brittany, he committed a horrible crime. But Brittany’s statements about the rape in the Department reports do not, by themselves, constitute substantial evidence that there is a substantial risk father will sexually abuse his two young boys or cause them serious physical harm. The crime occurred eight years before the hearing on the Department’s petitions. There is absolutely no evidence that in the interim father or anyone else sexually abused Daniel or D., or caused the boys serious physical harm. This time gap is fatal to the juvenile court’s jurisdictional findings based on father’s sexual assault of Brittany.
It is worth noting that father did not assault one of his children, though he arguably was in a position of trust when he raped Brittany. There are also a number of additional facts we must consider in connection with the risk of father sexually abusing Daniel and D. Brittany was 15 years old and of child-bearing age when father assaulted her, while Daniel and D. are much younger, and will not reach puberty for some time. Further, Brittany is female while Daniel and D. are male. Although the age and gender differences are not necessarily dispositive, they are relevant. Finally, there is nothing in the record indicating that father committed any acts of sexual abuse other than the one incident involving Brittany in 2002 before the boys were born.
In sum, it is simply too far a stretch to conclude that father’s sexual assault in 2002 of a 15-year-old girl who was not his daughter indicated by itself that in 2010 there was a substantial risk father would sexually abuse his two sons, seven and one years old, or cause them serious physical injury. Accordingly, Brittany’s statements to the Department about the 2002 rape were not sufficient to support the juvenile court’s assertion of jurisdiction pursuant to section 300, subdivisions (b) and (d).
The case law cited by the Department does not support its position. In In re Rubisela E. (2000) 85 Cal.App.4th 177, the father sexually abused his 13-year-old daughter by touching her in a sexual way on several occasions and proposing to have oral sex with her. (Id. at p. 195.) The court, however, held that there was not substantial evidence to support the juvenile court’s assertion of jurisdiction over the father’s four sons, ages two to eleven (id. at p. 180, fn. 1), pursuant to section 300, subdivision (j). In reaching this conclusion, the court stated: “We do not discount the real possibility that brothers of molested sisters can be molested [citation] or in other ways harmed by the fact of the molestation within the family.... [¶]... ‘When a parent abuses his or her own child, or permits such abuse to occur in the household, the parent also abandons and contravenes the parental role. Such misparenting is among the specific compelling circumstances which may justify state intervention, including an interruption of parental custody. (See § 300, subds. (d), (e), (j).)’ But in the case at bench, while such a showing is possible, there has been no demonstration by the department that ‘there is a substantial risk [to the brothers] that [they] will be abused or neglected, as defined in... [the applicable] subdivisions’ [citation.]” (In re Rubisela E., at pp. 198-199.)
Section 300, subdivision (j) provides: “The child’s sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions.”
In In re Karen R. (2001) 95 Cal.App.4th 84 (Karen R.), the father raped and beat his daughter while his son, Alvaro R., was in the house. The issue was whether Alvaro R. could be found a dependent child of the court under section 300, subdivision (d). (Karen R., at p. 89.) This court held: “While no act of sexual abuse occurred in Alvaro R.’s presence, the abuse that did take place in his presence clearly was sufficient to warrant the conclusion that a normal child in Alvaro R.’s position would have been greatly disturbed and annoyed at having witnessed these events. Thus, the juvenile court properly could conclude Alvaro R. personally had been the victim of child molestation and thus had been sexually abused within the meaning of section 300, subdivision (d). [Citation.] Thus, even under [In re Rubisela E.], it is clear the evidence supports the juvenile court’s finding under section 300, subdivision (d).” (Karen R., at p. 90.)
This court further held: “[W]e conclude 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 section 300, subdivision (d), if left in the home. To the extent other cases suggest only female siblings are in substantial danger of sexual abuse after a sexually abused female sibling has been removed from the home due to sexual abuse by a father, we respectfully disagree. [Citing In re Rubisela and In re Joshua J. (1995) 39 Cal.App.4th 984.] Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of a sexual abuse of a male sibling, the danger of sexual abuse of the male sibling is nonetheless still substantial.” (Karen R., supra, 95 Cal.App.4th at pp. 90-91.)
In In re P.A. (2006) 144 Cal.App.4th 1339 (P.A.), the father sexually abused his nine-year-old daughter on two occasions by inappropriately touching her. Citing Karen R., this court held that there was substantial evidence the daughter’s two brothers, ages eight and five, were at risk of being sexually abused by the father. (P.A., at pp. 1345-1347.) We stated: “The abuse in this case concededly is less shocking than the abuse in Karen R. However, this does not mean that [In re Rubisela E.] therefore applies. Rather, 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 Karen R., aberrant sexual behavior by a parent places the victim’s siblings who remain in the home at risk of aberrant sexual behavior.” (Id. at p. 1347, fn. omitted.)
The present case is distinguishable from Karen R. and P.A. in three main ways. First, father did not commit incest, that is, he did not sexually abuse one of his children. Father thus did not engage in the same “aberrant” behavior referred to in Karen R. and P.A. Second, as discussed ante, there was a very substantial time gap between father’s rape of Brittany and the date of the jurisdictional/dispositional hearing. The same time gap did not exist between the multiple acts of sexual abuse in Karen R. and P.A. and the jurisdictional/dispositional hearings in those cases. Finally, in this case, unlike Karen R. and P.A., Daniel and D. were not approaching the age at which Brittany was sexually assaulted. Karen R. and P.A. therefore do not support the juvenile court’s assertion of jurisdiction over Daniel and D. pursuant to section 300, subdivision (d).
4. There Was Substantial Evidence Supporting the Juvenile Court’s Assertion of Jurisdiction over the Children
We must nonetheless affirm the juvenile court’s dispositional orders. As stated ante, the only basis for father’s challenge to the juvenile court’s dispositional orders is that the juvenile court did not have jurisdiction over the children. An appellate court can affirm a juvenile court’s jurisdictional order if the evidence supports the decision on any one of the enumerated statutory basis which, if supported by the evidence, can suffice to establish jurisdiction. (In re Jonathan B. (1992) 5 Cal.App.4th 873, 875-876; In re Dirk S. (1993) 14 Cal.App.4th 1037, 1045.) Here, in addition to the counts based on father’s rape of Brittany, the juvenile court asserted jurisdiction over Daniel and D. pursuant to section 300, subdivision (b), on the grounds that (1) father had a history of engaging in violent altercations with L., including the incident on August 15 and 16, 2010, (2) father had a history of illicit drug use and is a current user of marijuana, (3) father had mental and emotional problems including suicidal and homicidal ideations and, with respect to Daniel, on the ground that (4) father had a history of engaging in violent altercations with Brittany. Father did not make any arguments regarding these grounds for jurisdiction and thus forfeited any challenge to them on appeal. (In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) In any case, there was substantial evidence supporting each of these findings in the record. The juvenile court thus correctly asserted jurisdiction over Daniel and D. pursuant to section 300, subdivision (b) on grounds wholly unrelated to father’s rape of Brittany. Accordingly, there is no basis to reverse the juvenile court’s dispositional orders.
DISPOSITION
The juvenile court’s orders dated September 27, 2010, are affirmed.
We concur: KLEIN, P. J., CROSKEY, J.