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In re David L.

Court of Appeal of California
Jul 30, 2008
No. B203457 (Cal. Ct. App. Jul. 30, 2008)

Opinion

B203457

7-30-2008

In re DAVID L., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ARMANDO L., Defendant and Appellant.

Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Kirstin J. Andreasen, Associate County Counsel, for Plaintiff and Respondent. No appearance for Minor.

Not to be Published


In this dependency case, the juvenile court declared the daughter and son of appellant Armando L. (father) to be dependents of the court under Welfare and Institutions Code section 300, subdivisions (a), (b), (d) and (j) based upon fathers sexual and physical abuse of the childrens older stepsister, Olivia C. Father does not contest the findings regarding Olivia and Cynthia L. Rather, father contends there was insufficient evidence to support the juvenile courts jurisdictional findings that his son David L. was at substantial risk of sexual and physical harm as a result of fathers abuse of Olivia. We agree with father that the evidence was insufficient to establish that David was at risk of sexual abuse. We otherwise affirm.

All statutory references shall be to the Welfare and Institutions Code, unless otherwise noted.

FACTUAL AND PROCEDURAL HISTORY

On August 17, 2007, respondent Los Angeles County Department of Children and Family Services (the department) filed a petition under section 300, subdivisions (a), (b), (d) and (j) on behalf of 14-year-old Olivia, 10-year-old Cynthia and five-year-old David. The petition alleged that father had sexually abused Olivia on numerous occasions for two years from the age of 12 through 14 by fondling her breasts and vagina, laying on top of her and simulating sexual intercourse by rubbing his penis against her vagina and buttocks, kissing her mouth and neck and biting her ear, and that he did so in the presence of Cynthia. The petition further alleged that father had physically abused Olivia by striking her face with his fist when she resisted his sexual abuse. The petition alleged that such sexual and physical abuse placed all three children at risk of "physical and emotional harm, damage, danger, sexual abuse and failure to protect."

The departments detention report stated that the children first came to its attention around midnight on August 15, 2007, after police had received a call from a local hospital reporting allegations that Olivia had been sexually abused by father. The departments social worker privately interviewed Olivia, who stated that she had recently disclosed to her mother that father had begun touching her sexually at the age of 12 and had stopped five months ago. Olivia stated that two to three times a week after her mother left for work in the mornings and father returned home from his graveyard shift, father would climb into her bed under the covers, and while he was fully clothed he would rub his penis on her in a "humping" motion and would sometimes rub his finger under her clothes around her vaginal area and caress her breasts. She stated that he also kissed her mouth with his tongue, kissed her neck and bit her ear. Olivia gave the social worker a letter she had started writing to father, in which she wrote that he would often come up to her during the day and rub against her, kiss her neck, lick her ear and wrestle her to the ground and lie on top of her, and that he would laugh at her when she tried to defend herself. She did not report the abuse to anyone because she did not initially realize that it was wrong.

The social worker also privately interviewed Cynthia and David, who both denied being touched inappropriately. Cynthia stated that while she was once hiding behind a couch in the living room, she saw father lying on top of Olivia, who was struggling to get away and who was very upset. Cynthia saw father enter the bedroom she shared with Olivia and get into Olivias bed numerous times, though she did not see any "weird" movements.

The social worker interviewed the childrens mother, who stated that she and father were in the process of divorcing and that five months earlier she had taken the children and moved out of the house. On the way to one of the custody hearings, she asked the children if there was anything they needed to tell her about the way father treated them, and Olivia told her about the sexual abuse. Olivia stated that she finally decided to disclose the abuse because father was threatening to take away Cynthia and David. Olivia stated that father had once punched her in the face while she was defending herself and that she often locked herself in the bathroom to escape from father. On August 15, 2007, the childrens mother received a restraining order against father.

At the request of the police, the social worker did not interview father, who they feared would try to flee the country in advance of an arrest. Neither Cynthia nor David appeared upset or emotional when the social worker informed them that they were to have no contact with father at that time.

At the detention hearing, mother stated that Olivias father was deceased and the court found father to be the presumed father of Cynthia and David. The court ordered that Cynthia and David be detained from father and remain in their mothers custody, that no contact take place between father and Olivia, and that visits between father, Cynthia, and David were to take place at the departments office in the presence of a security guard. The court also ordered the department to provide reunification services to father, including parenting and anger management classes, individual and family counseling and sex abuse counseling.

For the jurisdiction and disposition hearing in September 2007, the departments social worker reinterviewed the children and their mother. Olivia stated that once or twice when she was washing the dishes father came up behind her and she held out a knife to defend herself and father just laughed. Father would also chase her around the house until she locked herself in the bathroom or her mothers room. Other times when father pinned her to the floor, Olivia called out for Cynthia and David, who could not get father off her. David said that father was playing with Olivia. Whenever Olivia called for Cynthia and David or screamed, father would tell her to be quiet. Olivia also told the social worker that father was mean, that he would "get really mad easily," and that he threatened to kick her out of the house. Cynthia told the social worker that she only wanted to visit father in the presence of a monitor who could hear what he said, because he called her mother a "slut" and "whore."

The social worker interviewed father, who denied the allegations and claimed the childrens mother made up the story to keep him away from the children. He reported that he once accidentally struck Olivia when they were practicing a wrestling move, and he admitted calling the childrens mother a "stupid slut" in front of Cynthia and David. The department also submitted a report from a medical examination of Olivia performed on August 22, 2007, stating there were no abnormal physical findings.

At the contested jurisdiction and disposition hearing, which commenced on September 14, 2007, Olivia testified in chambers that for two years father touched her private parts under her clothes against her wishes. She did not report the sexual abuse sooner because she was embarrassed. She stated that father had once struck her in the face with his fist when he started touching her and she told him to stop because he was bothering her and she tried to get him off of her. Cynthia testified in chambers that she twice saw father touch Olivia inappropriately, that she saw father in Olivias bed with her in the mornings, and that once while she was hiding behind the couch she saw father lying on top of Olivia and holding down her wrists. Cynthia denied ever being touched inappropriately by father. Father testified and denied the allegations against him. He stated that Olivia could have a reason to lie because she was not happy with the family law proceedings.

The court sustained the petition as amended, finding that Olivias and Cynthias testimony was "extremely credible," and that the allegations in the petition were true by a preponderance of the evidence. The court declared Cynthia and David to be dependents of the court under section 300, subdivisions (a), (b), (d) and (j), and dismissed the petition as to Olivia since her father was deceased and her mother was nonoffending. The court then proceeded to disposition of the case pursuant to section 361, subdivision (c), and ordered that Cynthia and David be removed from father and remain in their mothers custody and that visits with father be monitored at the departments office. Father was ordered to participate in parent education and individual therapy to address sexual abuse and anger management. This appeal followed.

DISCUSSION

As noted above, father does not challenge the juvenile courts findings that he sexually abused his stepdaughter Olivia for two years and that he physically abused her on one occasion, nor does he challenge the finding that such conduct placed his daughter Cynthia at substantial risk of similar harm. Father challenges the findings that his conduct placed his son David at substantial risk of sexual and physical abuse, contending that the juvenile court erred in finding that David was a child described by section 300, subdivisions (a), (b), (d) and (j).

In addition to appealing from the judgment under section 300, father also appeals from the juvenile courts dispositional order under section 361, subdivision (c), removing David from his custody and requiring that visits be monitored. Father contends the dispositional order requiring monitored visits is unnecessary to protect David if we reverse the jurisdictional findings that David is at substantial risk of harm. Because we reverse only one of these findings, there is no basis for modifying the courts dispositional order.

I. Standard of Review

Challenges to a juvenile courts jurisdictional findings are reviewed for substantial evidence. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1649; In re Carla B. (1993) 20 Cal.App.4th 988, 1000.) Substantial evidence is evidence that is "`reasonable, credible and of solid value" such that a reasonable trier of fact could make such findings. (In re Christina A. (1989) 213 Cal.App.3d 1073, 1080.) "We review the record to determine whether there is any substantial evidence, contradicted or not, which supports the courts conclusions." (In re Kristin H., supra, at p. 1649.) "`All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible." (Ibid.) Issues of fact and credibility are questions for the trial court and it is not our function to redetermine the facts. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 195.)

II. Substantial Evidence Supports the Juvenile Courts Findings Under Section 300

Subdivision (d)

Section 300, subdivision (d), provides that a child comes within the jurisdiction of the juvenile court and may be adjudged a dependent child 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."

Father argues that section 300, subdivision (d), does not apply to David because there was no evidence that David, who was nine years younger than Olivia, had been sexually abused, that David had any understanding of Olivias allegations or knowledge of any sexual abuse, that father had any homosexual or incestuous tendencies (noting that Olivia was not his biological child), and no testimony that David was at risk of any future sexual abuse. We agree with father that there was insufficient evidence that David was at risk of sexual abuse.

We reached the same conclusion in In re Rubisela E., supra, 85 Cal.App.4th 177, where there was evidence that the father had sexually touched his 13-year-old daughter between five and 10 times while she slept and that he once told her to orally copulate him. We found there was substantial evidence that the daughter fell within section 300, subdivisions (c) and (d), and that the nine-year-old sister fell within section 300, subdivision (j) because she was at substantial risk of such abuse in her sisters absence. (In re Rubisela E., supra, at pp. 196-197.) But we concluded that the evidence that the father had sexually abused his daughter was insufficient, by itself, to find that the male siblings (ages 11, 8, 4 & 2) were at substantial risk of sexual abuse. (Id. at p. 199) In reaching our conclusion, we noted "the real possibility that brothers of molested sisters can be molested . . . or in other ways harmed by the fact of the molestation within the family" (id. at p. 198). "Brothers can be harmed by the knowledge that a parent has so abused the trust of their sister. They can even be harmed by the denial of the perpetrator, the spouses acquiescence in the denial, or their parents efforts to embrace them in a web of denial." (Ibid.)

In the subsequent case of In re Karen R. (2001) 95 Cal.App.4th 84, Division Three of this court affirmed a jurisdictional finding under section 300, subdivision (d), as to the younger female and male siblings of a sexual abuse victim. In that case, the father beat and raped his daughter and the siblings saw the father strike the victim, saw her forcibly shaved hair, and heard her crying and telling their mother that the father had raped her. The appellate court found that the abuse the son witnessed made him a victim of child molestation such that he could reasonably be found to have been personally sexually molested within the meaning of section 300, subdivision (d). (In re Karen R., supra, at p. 90.) The court further concluded: "[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." (Id. at pp. 90-91.) Division Three reached the same conclusion in In re P.A. (2006) 144 Cal.App.4th 1339, where there was evidence that the father had twice sexually touched his nine-year-old daughter, but no evidence that he had touched the victims two younger male siblings, who had no knowledge of the abuse. The P.A. court stated: "The abuse in this case concededly is less shocking than the abuse in Karen R. However, this does not mean that 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 victims siblings who remain in the home at risk of aberrant sexual behavior." (Id. at p. 1347.)

Here, in contrast to In re Karen R., there was no evidence that David himself was a victim of sexual abuse, as defined in Penal Code section 11165.1. There was also no evidence that father ever touched David sexually or that David witnessed fathers egregious sexual touching, fondling and kissing of Olivia. Nor, in contrast to In re P.A., was David approaching the age at which father began sexually abusing his stepsister Olivia. There was no evidence that father viewed pornography depicting young boys or that he had a fondness for young boys. There was only the evidence that father sexually abused Olivia from which the juvenile court could conclude that fathers biological son was at substantial risk of being sexually abused. Following In re Rubisela, we conclude that this evidence, by itself, is insufficient to support the juvenile courts finding that David was a person described by section 300, subdivision (d).

Subdivision (a)

Section 300, subdivision (a), provides that a child comes within the jurisdiction of the juvenile court if: "The child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the childs parent or guardian. For the purposes of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the child or the childs siblings, or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm."

Father argues that David does not come within the meaning of this subdivision because there was no evidence that David had ever been physically struck by father or that he would ever be physically struck by father. Father does not contest the juvenile courts findings that he once physically abused Olivia by striking her in the face with his fist and that this conduct placed Cynthia at substantial risk of similar harm. These findings are amply supported by the record. Olivia reported the incident to several people—to her mother after disclosing the sexual abuse, to the social worker, and to the physician who examined her. She also testified to this incident in chambers. Although father admitted hitting Olivia, he claimed that it was an accident while they were wrestling. The juvenile court found Olivia to be more credible than father. The record also shows that Olivia told the social worker that father was mean, that he would "get really mad easily," and that he threatened to kick her out of the house. Cynthia told the social worker that she only wanted to visit father in the presence of a monitor who could hear what he said, because he called her mother a "slut" and "whore" in her and Davids presence. We find that fathers intentional physical assault of Olivia by punching her in the face with his fist, coupled with the evidence of his uncontrolled anger and outbursts during visits with Cynthia and David, was sufficient evidence from which the juvenile court could reasonably infer that David, as well as Cynthia, was at substantial risk of physical harm within the meaning of section 300, subdivision (a).

Subdivision (b)

Section 300, subdivision (b), allows the juvenile court to assert jurisdiction over a child if there is a substantial risk the child will suffer serious physical harm or illness as a result of the failure of the parent to adequately supervise or protect the child.

The petition alleged that David was a child within the meaning of this section because fathers ongoing sexual abuse and his one-time physical abuse of Olivia placed the remaining children in the household at risk of physical and emotional harm. Fathers uncontested sexual and physical abuse of a stepchild within his care demonstrates a wholesale abandonment of the parental role and a betrayal of the adult-child relationship such that father could not adequately supervise or protect the remaining children. Indeed, David was a witness to fathers tackling of Olivia and pinning her down on the floor by lying on top of her. Although David may have been too young to understand that such behavior by father was inappropriate, fathers allowing David to witness such inappropriate behavior constituted a failure by father to adequately supervise and protect David, such that he was a child described by section 300, subdivision (b).

Subdivision (j)

Section 300, subdivision (j), provides that a child may be adjudged a dependent of the court if the "childs 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." Because we have concluded that fathers physical abuse of Olivia placed David at substantial risk of similar harm, the juvenile court properly asserted dependency jurisdiction over David pursuant to section 300, subdivision (j).

DISPOSITION

The judgment is reversed to the extent it finds that David is a dependent of the court under section 300, subdivision (d), otherwise it is affirmed. The dispositional order under section 361, subdivision (c) is affirmed.

We concur:

BOREN, P. J.

CHAVEZ, J.


Summaries of

In re David L.

Court of Appeal of California
Jul 30, 2008
No. B203457 (Cal. Ct. App. Jul. 30, 2008)
Case details for

In re David L.

Case Details

Full title:In re DAVID L., a Person Coming Under the Juvenile Court Law. LOS ANGELES…

Court:Court of Appeal of California

Date published: Jul 30, 2008

Citations

No. B203457 (Cal. Ct. App. Jul. 30, 2008)