Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 78192
Retired judge of the Superior Court of Marin County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
R. F. (Father) is the presumed father of the minor E. F. (born Feb. 2007). He appeals the jurisdictional/dispositional order entered by the San Mateo County Superior Court, Juvenile Division, on July 14, 2008, claiming the court erred in making two jurisdictional findings pursuant to Welfare and Institutions Code section 300, subdivision (j). As discussed below, we reverse as to one of the findings, but conclude that substantial evidence supports the other.
Further statutory references are to the Welfare and Institutions Code.
Background
The county’s Human Services Agency (Agency) initiated this proceeding on April 1, 2008, by filing separate petitions seeking to establish the minor and his two older sisters as dependents of the juvenile court. All three children were living with J. J. (Mother) in South San Francisco. Neither Father nor the father of the minor’s older half siblings lived in the home, although Father visited the home several times a week.
The Agency sought jurisdiction over V. J., the minor’s older half sister, pursuant to subdivisions (a) and (d) of section 300. The Agency sought jurisdiction over the minor and A. J., the younger of his two sisters, under subdivision (j) of section 300, alleging there was a substantial risk they would be abused in the same manner as V. J. Count j-1 of their respective petitions, as amended, stated: that in 2005 Father had sexually abused the minor’s maternal half sister; that the abuse included fondling the girl’s breasts and digitally penetrating her vagina; that in January 2006 the half sister, then 13 years of age, disclosed to Mother that Father had previously abused her by fondling her breasts; and that despite this knowledge Mother continued to allow Father to come into the home and have access to the half sister. Count j-2 of their petitions stated that in March 2008 Mother had physically abused the same half sister, then 15 years of age, by biting the girl on the breast, leaving a visible injury.
At the detention hearing on April 2, 2008, the court formally ordered V. J.’s detention in out-of-home care, and directed that A. J. and the minor remain in Mother’s custody subject to the Agency’s supervision, including unannounced visits. At that time the court authorized Father to have one supervised visit per week with the minor, and ordered Father to have no contact whatever with V. J.
In its jurisdictional/dispositional report, completed in early May 2008, the Agency recommended that the juvenile court sustain the petitions relating to V. J. and A. J. but that it dismiss the petition relating to E. F. On May 12, 2008, the court dismissed the petition relating to E. F. over the objection of the minor’s counsel. Ten days later the minor’s counsel filed a motion requesting that the court set aside the dismissal, pointing out that, once the minor had interposed his objection, he was entitled to an evidentiary hearing on the issue whether his petition should be dismissed. (See Allen M. v. Superior Court (1992) 6 Cal.App.4th 1069, 1074.) The court set aside its dismissal order that same day.
At the jurisdictional/dispositional hearing held July 14, 2008, the Agency took the position that the juvenile court should establish jurisdiction over V. J. and A. J., and that the court should adopt a proposed family maintenance plan for Mother and her daughters. The Agency continued to recommend, however, that the court dismiss the minor’s petition. The minor’s counsel again objected to such dismissal, arguing that there was a sufficient basis to sustain both count j-1 and count j-2 of the minor’s petition.
By this time V. J. had returned to Mother’s custody.
At the conclusion of the jurisdictional/dispositional hearing, the court adopted the Agency’s recommendations as to V. J. and A. J., sustaining the allegations in their respective petitions and adopting the proposed family maintenance plan. It further adopted the Agency’s recommendation that a “no contact” order remain in effect between Father and both of the minor’s half sisters. With respect to the minor, however, the court found the argument of the minor’s counsel to be persuasive, and sustained the allegations of his petition. The court further directed the Agency to prepare a family maintenance plan with respect to Father and the minor, to include a requirement that Father complete a sex offender treatment program in order to maintain supervised visitation with the minor. Father’s appeal followed. (§ 395.)
Discussion
A. Introduction
Father contends the juvenile court erred in sustaining the jurisdictional allegations set out in the minor’s petition. In reviewing the challenged findings, we examine the record to determine whether they are supported by substantial evidence, resolving all conflicts and drawing all reasonable inferences in favor of the lower court’s ruling. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185.)
B. Substantial Risk of Sexual Abuse
Father’s primary objection focuses on count j-1 of the minor’s petition—in which the juvenile court essentially found that the minor was a person described by section 300, subdivision (j), because Father had sexually abused his older half sister within the meaning of section 300, subdivision (d), and, as one court has put it, there was a substantial risk that the minor would be “similarly mistreated.” (In re Jason L. (1990) 222 Cal.App.3d 1206, 1217 (Jason L.).) Father argues that, if there was evidence he had sexually abused the minor’s older half sister, there was no evidence showing that the minor himself was at substantial risk of suffering the same abuse.
When a parent has been found “in a prior dependency hearing,” to have committed an act of sexual abuse that prior finding constitutes “prima facie evidence in any proceeding [in which] 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.” (§ 355.1, subd. (d).) This presumption is one affecting the burden to produce evidence. (Ibid; In re John S. (2001) 88 Cal.App.4th 1140, 1145–1146.) One court has observed that this statutory presumption reflects a legislative recognition that a parent’s known propensity for abuse in and of itself creates a substantial risk of similar abuse to the parent’s minor children of either sex. (In re P. A. (2006) 144 Cal.App.4th 1339, 1347 (P. A.).) But we also recognize that when the circumstances at hand do not meet the criteria of section 355.1, subdivision (d), a court considering jurisdiction under section 300, subdivision (j), may not rely upon a presumption that the subject minor is at substantial risk of suffering the same abuse a parent has inflicted on his or her sibling. Here, the statutory presumption is not applicable because the finding that Father had sexually abused V. J. was not made in a “prior” dependency hearing, but rather in the same hearing in which the court found the minor to be a person within the meaning of section 300, subdivision (j).
Without the presumption of section 355.1, subdivision (d), section 300, subdivision (j) requires evidence of “a substantial risk” to the minor in question over and above the evidence of abuse of the sibling. The record does not show that the minor was at substantial risk of being abused sexually by Father in the way he abused V. J. In analogous situations, in which a father has sexually abused a female minor, courts have upheld a finding of substantial risk of abuse of male minor siblings when there was evidence that the father had an actual propensity to abuse male as well as female minors (Jason L., supra, 222 Cal.App.3d 1206, 1217), when there was evidence that the male minor was approaching the same age as that of the female sibling when she suffered sexual abuse (P. A., supra, 144 Cal.App.4th 1339, 1347), and when the sexual abuse consisted of “two incidents of forcible incestuous rape,”—abuse “so sexually aberrant” that it was deemed necessarily to have placed both female and male siblings at substantial risk of abuse (In re Karen R. (2001) 95 Cal.App.4th 84, 90–91). These determinations are consistent with the language of section 300, subdivision (j), which requires the juvenile court to consider “the circumstances surrounding the abuse . . . of the sibling, the age and gender of each child, the nature of the abuse . . . of the sibling, the mental condition of the parent . . ., and any other factors the court considers probative in determining whether there is a substantial risk to the child.” (§ 300, subd. (j).)
In this case, however, the record contains no evidence of actual propensity to molest male as well as female minors, and the abuse Father inflicted on V. J. cannot be deemed to be as serious in nature as “two incidents of forcible incestuous rape.” The minor, of course, is nowhere near the same age as V. J. was when Father abused her. In fact, the only evidence relevant to the issue, elicited by the minor’s counsel during cross-examination of the assigned social worker, was the worker’s statement that she was familiar with studies that indicated adults who abused minors tended to focus on a particular sex and “age group.”
“[E]vidence of past conduct may be probative of current conditions [but] the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm.” (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 (italics in original).)
As Father argues, his situation is more analogous to that of the father in In re Rubisela E. (2000) 85 Cal.App.4th 177. In that case the father’s abuse consisted of attempted oral copulation with his 13-year-old daughter. The court of appeal upheld jurisdiction under section 300, subdivision (j), as to the girl’s nine-year-old sister, stating it was reasonable for the juvenile court to infer that, given the removal of the older daughter, the father was likely to focus on his only remaining daughter. (Rubisela E., supra, p. 197.) The court overturned the same jurisdictional finding as to four male siblings, concluding there was simply no evidence produced to show that they, too, were at substantial risk of the same sexual abuse. (Id. at pp. 197–199.) The Agency essentially concedes the merit of Father’s argument on this point, noting that “This is not a case of a child being subjected to a substantial risk of being sexually abused.”
We conclude there was insufficient evidence for the juvenile court in this case to find that the minor was at substantial risk of suffering sexual abuse similar to that which Father had inflicted on the minor’s older half sister. The court’s ruling sustaining count j-1 of the minor’s petition must therefore be reversed. As discussed below, however, we affirm the court’s second jurisdictional finding, based on Mother’s physical abuse of the minor’s older half sibling. Hence the court’s error in sustaining count j-1 does not divest the court of its dependency jurisdiction over the minor.
Dependency jurisdiction is over the minor, not the parents, and the juvenile court need not find neglect or abuse by each parent in order exercise that jurisdiction. (In re La Shonda B. (1979) 95 Cal.App.3d 593, 599.)
C. Substantial Risk of Physical Abuse
The juvenile court alternately established jurisdiction over the minor by sustaining count j-2 of the minor’s petition. In doing so it effectively found that the minor was at substantial risk of suffering physical abuse within the meaning of subdivision (a) of section 300, because Mother had inflicted physical abuse on the minor’s older half sibling. The Agency urges that substantial evidence supports this finding.
Father first objects that, since the Agency recommended dismissal of the minor’s petition below, it is estopped from arguing in favor of the jurisdictional findings on appeal. He further claims that, in any event, the evidence was insufficient to support this finding, reasoning that the only evidence of physical abuse as to the minor himself were instances of discipline that the juvenile court characterized as “patting on the hand.”
Initially we reject Father’s suggestion that we cannot consider the Agency’s argument. The principle that precludes a party from changing its theory of the case on appeal is based on unfairness to the lower court and the opposing party. (See Ernst v. Searle (1933) 218 Cal. 233, 240–241.) There is no actual unfairness here. As we have noted, Father had an opportunity to address below the position now advanced by the Agency, because it was argued by the minor’s counsel. Similarly the juvenile court not only considered that argument but found it persuasive. In any event, the applicable standard of review essentially requires that we examine the record to determine the merit of the court’s order.
As for the finding itself, we note the following. In the Agency’s report prepared for and admitted at the jurisdictional/dispositional hearing, the assigned case worker reported a prior referral, substantiated, to the effect that Mother had physically abused V. J. and a niece while they were in her care in 1998. V. J. had disclosed to the worker the more recent incident in late March 2008, when Mother bit and injured her. A police report regarding the incident noted that Mother had admitted biting V. J. during an argument that escalated into a “shoving match.” In the Agency’s detention report, also admitted at the jurisdictional hearing, the case worker described an interview with a maternal aunt, who reported seeing the bite injury on V. J. and the case worker herself observed the bite mark during an interview with V. J. conducted in late March 2008. According to the aunt, A. J., the middle child, had reported at one point that Mother “also punched” V. J. A. J. told the case worker that Mother would discipline her by threatening to get a belt, said she could not remember the last time she herself was hit with a belt, and that she had not been “bruised from this hitting.” In late March 2008, V. J. reported that Mother had once hit her with a closed fist, but that she had not been bruised. V. J. also reported that Mother “barely” disciplined A. J. physically, but when Mother did so she would “hit [A. J.] with a belt and not bruise her.” At the hearing, the case worker testified that it had been reported to her that Mother had disciplined the minor by “hitting on the hand,” but the worker did not consider such discipline to rise to the level of physical abuse.
In our view the foregoing evidence is sufficient to establish that Mother had used abusive physical discipline on multiple occasions, not only with V. J. but with A. J. and Mother’s niece. While the only evidence of touching the minor was “hitting on the hand,” the evidence is more than sufficient to permit a reasonable inference that the minor was at substantial risk of being subjected to Mother’s pattern of physical abuse. We conclude substantial evidence supports the juvenile court’s finding that the minor was a person described by section 300, subdivision (j), in that Mother had inflicted physical abuse on a sibling within the meaning of section 300, subdivision (a), and the minor was at substantial risk of suffering the same manner of abuse.
Disposition
The order of July 14, 2008, is reversed to the extent that it sustains count j-1 of the minor’s petition. In all other respects the order is affirmed.
We concur: Marchiano, P. J., Margulies, J.