Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. CK72817, Donna Levin, Juvenile Court Referee.
Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.
James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Deputy County Counsel, for Plaintiff and Respondent.
ALDRICH, J.
I.
INTRODUCTION
In this dependency matter, Salvador R. (Father) does not challenge many of the dependency court’s jurisdictional findings, including a finding that he sexually molested his stepdaughter. Father argues only that the record lacked substantial evidence to support the jurisdictional finding that his son I.R. was at risk of sexual abuse. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Preliminary facts.
Father is the stepfather to J.G., born in 1993, and the father of N.R. born in 1995 and I.R. born in 2003. Father and all three children lived with Maria G. (Mother), who is the mother of all three children.
For purposes of simplicity, we refer to Salvador R. as “Father” even though Jose G. is J.G.’s presumed father. Jose G. did not make an appearance in the dependency proceedings. Neither Jose G. nor Mother is a party to this appeal. Thus, many facts relating to Mother have been omitted from this opinion.
On May 2, 2008, respondent, the Department of Children and Family Services (DCFS or the Department), filed a petition pursuant to Welfare and Institutions Code section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling) against Father and Mother. The petition alleged, and the dependency court later sustained, that Father physically abused J.G., N.R., and I.R., the parents had a history of engaging in violent altercations in the presence of the children, Father abused alcohol, and Father sexually abused J.G., placing all three children at risk of future harm. The court detained all three children at a May 2, 2008 detention hearing and placed them in foster care. The court also ordered the Department to provide reunification services to Father.
Unless otherwise indicated, hereinafter all statutory references are to the Welfare and Institutions Code.
Over the next months, Father participated in a number of court ordered programs, including anger management and parenting programs. The Department reported that Father acted appropriately during his monitored visits with I.R., although I.R. was reluctant to go to the visits without his sisters.
Subsequently, the dependency court was provided with evidence to prove the following: In mid-2007, Father had come into a bedroom where J.G. was working on a computer. Father came from behind J.G., put his hands on her waist and then down, and underneath her pajamas. He touched her breasts. Father massaged J.G.’s legs and then put his hands below her belly button and above her vaginal area. He did not digitally penetrate her. Father then grabbed J.G.’s wrists and tried to move her onto a bed. J.G. managed to escape. Subsequently, Mother learned of the incident from a cousin, confronted Father, and threw him out of the family home. However, a few months later, Father moved back into the home, where as part of his usual routine he would pick up the children from school. Father admitted touching J.G. inappropriately. Father sexually molested J.G. on two other occasions. Once when J.G. was lying on the couch, Father lay down on top of her and said he was going to massage her back. Another time, Father put J.G. on his lap to massage her back.
After the section 300 petition was filed, these additional facts were ascertained: The children all witnessed Father and Mother hitting and fighting violently. N.R. had seen Father physically abuse J.G. On different occasions, Father dragged Mother across the floor by her hair, held a knife to her throat, threatened to kill her, and kicked her. Father once rammed his truck into Mother’s car. Father verbally abused Mother. Father also abused all three children. Father was alone with the children from the time he picked them up from school at 3:30 p.m. until Mother came home at 4:30 p.m. According to J.G., this was Father’s “hour of revenge.” Father pulled J.G.’s hair and ear, hit her with a closed fist, and hit her with a belt since she was five years old. Father threatened to throw J.G. off a balcony. When she was young, Father would walk behind J.G. and hit her on her back or buttocks so she would fall. As punishment, Father would make J.G. squat against the wall for a long time. Father was verbally abusive to J.G. Father pulled N.R.’s hair, hit her with a belt, and pulled her hair and ears. He picked I.R. up by his armpits and threw the child on the couch more than once. Father spanked and hit I.R. Father would grab I.R. and shake him in an effort to force the child to be quiet. Father was an alcoholic who drank extensively. Father admitted receiving a DUI. Father had been convicted of spousal battery in 2007.
The family had come to the attention of the Department prior to 2008. In an August 2002 referral, the Department substantiated allegations that Father physically abused J.G. and threatened Mother with a knife, and Mother was the victim of domestic violence. There had been referrals to the Department in 2003, 2004, and 2005, which were closed for a number of different reasons, including that the family was in counseling.
B. The findings of the court.
On July 15, 2008, a contested jurisdiction hearing was held. The allegations in the petition were adjudicated. Mother testified in part that Father had admitted sexually molesting J.G. In addition to other evidence, the social worker’s report stated that Father’s visits with I.R. went well. Similar information also would be submitted to the court the next month.
The court found that Father sexually, physically, and emotionally abused the children and Mother failed to protect them. The court sustained the petition as amended and found all three minors persons described in section 300, subdivisions (a), (b), (d), and (j). The court found that Father was a current abuser of alcohol, had physically and emotionally abused all three children, had sexually abused J.G., and had perpetrated domestic violence in the children’s presence. The matter was continued for a contested dispositional hearing.
On August 11, 2008, the dependency court conducted a disposition hearing. DCFS informed the court of the progress Father had made insofar as he has attended a number of programs and classes, and regularly attended counseling. The court declared all three children dependents of the court pursuant to section 300, subdivisions (a), (b), (d), and (j), removed the children from the custody of the parents, and ordered the children be suitably placed. The court also ordered reunification services and directed that Father attend a number of programs. The court ordered that the children were to be in individual and conjoint counseling. Father was to have no contact with J.G. Father was to have monitored visits with I.R., and visits with N.R. only after she had begun counseling.
The case was continued for a section 366.21, subdivision (e) hearing.
Father appeals from the jurisdiction and disposition orders. We affirm.
III.
DISCUSSION
The jurisdictional findings of the dependency court are supported by the record.
We review jurisdictional orders for substantial evidence. Thus, we draw all reasonable inferences in support of the findings. (In re Veronica G. (2007) 157 Cal.App.4th 179, 185; In re Tania S. (1992) 5 Cal.App.4th 728, 733-734.)
Father contends there is no substantial evidence to support the July 15, 2008 jurisdictional findings pursuant to section 300, subdivisions (b), (d), and (j) that I.R. was at risk of sexual abuse. Father does not challenge the court’s other findings, i.e., that Father was a current abuser of alcohol, had physically and emotionally abused all three children, had sexually abused J.G., and had perpetrated domestic violence in the children’s presence. Thus, Father concedes that these findings were supported by substantial evidence. Therefore, we affirm the dependency court’s jurisdictional order as one finding is sufficient to sustain the order. (Randi R. v. Superior Court (1998) 64 Cal.App.4th 67, 72 [where one basis for jurisdiction is supported by substantial evidence, reviewing court need not consider the sufficiency of the evidence to support other basis]; In re Jonathan B. (1992) 5 Cal.App.4th 873, 875 [same].)
Additionally, Father’s single argument is not persuasive.
Section 300, subdivision (b) applies when “[t]he child has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the child....” Subdivision (d) applies when “[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....” In this subdivision, “sexual abuse” includes child molestation. (Pen. Code, §§ 11165.1, subd. (a), 647.6; In re Karen R. (2001) 95 Cal.App.4th 84, 89-90.) Section 300, “[s]ubdivision (j) applies when a sibling has been sexually abused and the child who is the subject of the juvenile proceedings is also at risk of being sexually abused. [Both subdivision (j) and subdivision (d)] require a finding of a substantial risk that the child who is the subject of dependency proceedings will be sexually abused by a parent or member of the child’s household.” (In re P.A. (2006) 144 Cal.App.4th 1339, 1347, fn. 6.)
Penal Code section 11165.1 enumerates specific instances of conduct that constitute acts of “sexual abuse” for purposes of section 300, subdivision (d), as well as conduct constituting “sexual assault” and “sexual exploitation.” Penal Code section 647.6 addresses child molestation.
Father relies on In re Rubisela E. (2000) 85 Cal.App.4th 177 to support his argument. In Rubisela E., Division Two of this court held evidence that the father had sexually abused his daughter was sufficient to establish that a younger daughter was at risk of sexual abuse. Rubisela stated it was reasonable for the juvenile court to conclude that if Rubisela was absent, the father’s “sexual offenses were likely to focus on his only other daughter. [Citation.]” (Id. at p. 197.) Division Two then discussed if the father’s sexual abuse of Rubisela was sufficient to establish that the father’s sons were at risk of sexual abuse. The appellate court noted that “[s]exual abuse of one’s sibling can support a trial court’s determination that there is substantial risk to the remaining siblings. [Citations.]” (Ibid.) The court also noted it was possible for the facts to show that sibling brothers of a female victim were at risk (id. at p. 198), and when a parent abuses his or her own child, the parent “abandons and contravenes the parental role.” (Id. at p. 199.) The appellate 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. 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 spouse’s acquiescence in the denial, or their parents’ efforts to embrace them in a web of denial.” (Id. at p. 198.) Nevertheless, Rubisela held that the fact that the father sexually abused Rubisela, standing alone, was not sufficient to support the finding that there was substantial risk of sexual abuse to her brothers. (Id. at p. 199.)
Thereafter, in In re Karen R., supra, 95 Cal.App.4th 84, we questioned In re Rubisela E., supra, 85 Cal.App.4th 177. In Karen R., we affirmed a dependency court’s conclusion that sexual abuse against one child could support a conclusion that the perpetrator was likely to sexually abuse another child, even if the second child was of a different gender. We held there was sufficient evidence to support the finding that the male sibling was at substantial risk of sexual abuse where the evidence showed that a female child was sexually abused by her father while her male siblings were present in the home and witnessed the father perpetrate other types of abuse and heard the female sibling cry and report the rape to their mother. We came to this conclusion even though no act of sexual abuse occurred in the son’s presence. (In re Karen R., supra, at p. 90.) We disagreed with the suggestion in Rubisela E. and other cases “[t]o the extent [these] 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....” (In re Karen R., supra, at p. 91.)
More recently in In re P.A., supra, 144 Cal.App.4th 1339, we rejected a father’s contention that the evidence was insufficient to support the juvenile court’s finding that his sexual abuse of his nine-year old daughter, P.A., placed P.A.’s male siblings at risk of harm. We stated that there was evidence to support the finding because the boys were approaching the age at which father had begun to abuse P.A. and the father had access to the boys because he routinely awoke during the night to cover them. We reached this result even though there was no evidence the father had ever engaged in homosexual behavior, the father had been participating in sexual abuse and parenting classes, the boys had not been sexually abused, and the boys indicated they were unaware of the abuse of P.A. (Id. at pp. 1345-1347.) We stated that “the juvenile court properly could conclude that father’s presence in the home placed his sons at risk of sexual abuse.” (Id. at p. 1347.) Our conclusion was “consistent with section 355.1, subdivision (d), which provides in pertinent part that: ‘... 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.’ ” (In re P.A., supra, at p. 1347.) We acknowledged that “[a]lthough section 355.1, subdivision (d), was not triggered... because there was no prior dependency proceeding at the time of the jurisdictional hearing, it nonetheless 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, at p. 1347.)
Here, Father argues the dependency court’s finding that I.R. was at risk of sexual abuse is not supportable because J.G. was the only victim of Father’s sexual abuse, I.R. did not witness the abuse of J.G., I.R. was not aware of the abuse of J.G., and there was no evidence I.R. was affected by Father’s sexual abuse of J.G. Father also notes that there were no indications he had participated in any homosexual behavior. Additionally, Father points to the fact that his visits with I.R. had gone well. Father’s analysis ignores other facts in the record.
I.R. was extremely close to his sisters and he was hesitant to be with Father. Father picked up all of the children from school and they remained alone with Father until Mother came home at 4:30 p.m. As J.G. described this time frame, it was Father’s “hour of revenge.” It was during this time that Father molested J.G. and physically abused I.R. and his sisters. Additionally, Father inappropriately disciplined I.R. by forcibly picking I.R. up by his armpits and throwing him on the couch. Father hit I.R. and threw him on the bed. I.R. had witnessed the verbal and physical fights between Father and Mother. I.R.’s fear of his Father was manifested because I.R. did not want to be alone with Father. Thus, Father had easy access to I.R., who was fearful of Father. Father had demonstrated a history of alcoholism. Father emotionally, physically and sexually abused all members of the household, demonstrating Father’s inability to control himself.
In 1999, the Legislature enacted section 355.1, subdivision (d) as emergency legislation. (Stats. 1999, ch. 417, § 2, eff. Sept. 16, 1999.) This legislation acknowledged that children were placed at risk “when permitted contact with a parent or caretaker who has committed a sex crime.” (Leg. Com. com., West’s Ann. Welf. & Inst. Code (2008 ed.) foll. § 355.1, at p. 499.) Section 355.1, subdivision (d) was designed to provide children with “greater protection from sexual abuse by requiring persons with a history of sexual abuse to bring forth evidence sufficient to show that the minor in that person’s care or household is not at risk of harm.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 208 (1999-2000 Reg. Sess.) as amended May 13, 1999.) Section 355.1, subdivision (d) makes no distinction based on the gender of the prior victim and the gender of the child subject to the dependency court proceedings. Section 355.1 was not directly applicable here because at the time of the adjudication hearing there had been no finding in a prior criminal or dependency proceeding that Father had engaged in sexual abuse of a child living in his home. Nevertheless, section 355.1 demonstrates the common sense notion that siblings of molested children are at risk of sexual abuse and are entitled to the protection of the juvenile dependency courts.
The dependency court’s finding that I.R. was at risk of sexual abuse was supported by the Father’s aggressive and violent nature, the violence perpetrated on Mother and all three children, Father’s alcoholism, the sexual assaults on J.G., and the acknowledgement that siblings of molested siblings are at risk of sexual abuse, as evidence by the enactment of section 355.1, subdivision (d).
Thus, substantial evidence support the dependency court’s finding that I.R. was at risk due of sexual abuse.
IV.
DISPOSITION
The findings and orders are affirmed.
We concur: CROSKEY, Acting P. J., KITCHING, J.