Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK71256, J. Carney, Juvenile Court Referee.
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, Denise M. Hippach, Associate County Counsel, for Plaintiff and Respondent.
KLEIN, P. J.
J.G. (father) appeals an order declaring his three children, ages nine, eight and four years, dependents of the juvenile court. (Welf. & Inst. Code, § 300, subds. (b), (d), (j).) We reject J.G.’s assignments of error and affirm the findings.
Subsequent unspecified statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
The family at issue consists of mother, her four children and J.G., mother’s male companion and the father of mother’s three youngest children, two males ages nine and eight years, and a female age four years. On January 10, 2008, the Department of Children and Family Services (DCFS) filed a dependency petition with respect to all four children under section 300, subdivisions (b), (d) and (j). The petition alleged that J.G. sexually abused 13-year-old K.S. and that his frequent abuse of alcohol placed K.S. and her siblings at substantial risk of harm.
The detention report indicated K.S. reported sexual abuse by her stepfather, J.G., after an incident on January 4, 2008, when J.G. entered K.S.’s room with his penis out of his pants and pretended as if nothing was wrong. During this incident J.G. fondled her. K.S. stated J.G. previously had entered her room naked and asked her to touch his penis. On one occasion in December of 2007, when J.G. was intoxicated, he placed his penis on K.S.’s computer mouse while she was at the computer. When K.S. told him to leave, he fondled her breast. J.G. took a shower then apologized. K.S. indicated J.G. had been drinking beer throughout the day. K.S. stated she was scared and uncomfortable in J.G.’s presence. K.S. indicated her mother and J.G. have been together for 10 years. However, J.G. had been sleeping in the living room for the past year. The three youngest children denied inappropriate sexual behavior by J.G. J.G. was arrested for lewd act with a child. (Pen. Code, § 288, subd. (a).)
On January 10, 2008, the juvenile court ordered all four children released to mother. The juvenile court ordered no contact for J.G. with K.S. and monitored visitation with his children.
The jurisdiction report included J.G.’s statement that he does not drink “a lot. If at all, I drink a 12 pack of beer throughout the day, on weekends only.” When asked if he drank to the point of becoming intoxicated, J.G. replied, “Well, not drunk, but at most, I drink a 12 pack of beer. I don’t get dizzy or stumbling, it’s just recreational drinking while doing chores or hobbies . . ., you know, drinking over a long period of time throughout the day.” J.G. admitted he had been under the influence of alcohol in K.S.’s presence because they lived in the same home. Mother described J.G. as a good father but indicated they had an ongoing disagreement about his drinking.
At the adjudication hearing on March 6, and 10, 2008, the juvenile court received into evidence the detention and jurisdiction reports.
K.S. testified that in December of 2007, J.G. entered her room to get his clothing and brushed against her breast as he left. K.S. was working on her computer. K.S. felt “worried and uncomfortable.” Two days later, J.G. touched her again. K.S. testified she is not sure now if J.G. put his penis on her computer mouse. K.S. recalled times when she entered the living room and saw J.G. “rubbing his . . . leg.” K.S. did not remember telling the police that J.G. was rubbing his penis. The first strange incident happened when J.G. threw rocks at her window and, when she looked out, she saw J.G. urinating in the yard. K.S. testified her mother does not want J.G. to return to the home and J.G. no longer makes K.S. uncomfortable.
The parties stipulated mother would testify she has never witnessed J.G. expose himself to any of the children and, over the last couple of weeks, K.S. has been withdrawn and uncomfortable in the presence of J.G.
Emergency response social worker Ricardo Fernandez testified K.S. stated that, on two prior occasions, her stepfather touched her breast and exposed his penis to her. K.S. stated J.G. entered her bedroom with his penis “sticking out of his pants.” K.S. also indicated she had seen his penis on other occasions including the time he placed it on her computer mouse. K.S. described two incidents to Fernandez, one in December and one in January.
The juvenile court sustained the petition under section 300, subdivisions (b), (d) and (j), as amended. As sustained, the petition alleged that on two occasions, J.G. sexually abused K.S. by touching her breasts and exposing his penis to the child such that K.S. and her siblings were at substantial risk of harm and sexual abuse. (Counts b-1, d-1 and j-1.) The juvenile court also sustained an allegation that J.G. is a frequent abuser of alcohol which renders him incapable of providing regular care for the children and places the children at risk of harm. (Count b-2.)
The juvenile court ordered J.G. to participate in individual counseling to address sexual abuse issues and an alcohol program with random testing. The juvenile court granted J.G. unmonitored day visits with his children but only if J.G. visits with all three children at the same time as a group. The juvenile court also conditioned J.G.’s visitation on his continued clean alcohol tests. The juvenile court granted J.G. monitored visitation with K.S. at her request only.
CONTENTIONS
J.G. contends there was insufficient evidence to support the juvenile court’s finding his three children were at risk of sexual abuse within the meaning of section 300, subdivisions (b), (d) and (j), or that they were at risk of harm from his alcohol abuse within the meaning of section 300, subdivision (b).
DISCUSSION
1. Standard of review.
In order to sustain a juvenile dependency petition, the juvenile court must find the allegations of the petition true by a preponderance of the evidence. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1379; § 355.) When the sufficiency of the evidence to support a jurisdictional finding is challenged on appeal, “the reviewing court must determine if there is any substantial evidence . . . to support the conclusion of the trier of fact. [Citation.] In making this determination, all conflicts are to be resolved in favor of the prevailing party, and issues of fact and credibility are questions for the trier of fact. [Citation.]” (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.)
2. Relevant dependency provisions.
Section 300 provides a child is within the jurisdiction of the juvenile court if, as relevant here, the child has suffered or there is a substantial risk the child will suffer serious physical harm (§ 300, subd. (b)); the child has been or there is a substantial risk the child will be sexually abused by a parent (§ 300, subd. (d)); or the child’s sibling has been abused or neglected and there is a substantial risk the child will be abused or neglected (§ 300, subd. (j)). Subdivision (j) further provides: “The court shall consider the circumstances surrounding the abuse or neglect of the sibling, the age and gender of each child, the nature of the abuse or neglect of the sibling, the mental condition of the parent or guardian, and any other factors the court considers probative in determining whether there is a substantial risk to the child.”
3. The evidence showed J.G.’s children were at substantial risk of sexual abuse.
J.G. argues his children neither witnessed the abuse of K.S. nor were they aware of it and there was no evidence that indicated his children had lost trust in him. Further, there was no evidence J.G. had a proclivity for abusing pre-teenage children or that he had incestuous tendencies. J.G. argues this case involves only petting and exposing himself to a stepdaughter who did not view him as a father figure. J.G. concludes the jurisdictional findings must be reversed as to his children. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 198-199.)
A series of cases has addressed this issue. The father in Rubisela E. serially fondled a 13-year-old female and once demanded that she perform oral sex. Rubisela E. upheld a jurisdictional finding as to a nine-year-old female sibling but reversed as to male siblings where no loss of trust in the abusing parent had been shown. With respect to loss of trust, Rubisela E. 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. [¶] . . . 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.’ (Cf., e.g., In re Edward C. (1981) 126 Cal.App.3d 193, 198-199 [where the brothers had witnessed their sister’s severe beatings and had been subjects of less harsh physical discipline by their father].)” (In re Rubisela E., supra, 85 Cal.App.4th at pp. 198-199.)
In In re Karen R. (2001) 95 Cal.App.4th 84, 90-91, this court distinguished Rubisela E. on more egregious facts and found a father who 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).
The next case in the series, In re P.A. (2006) 144 Cal.App.4th 1339, addressed a fact pattern closer to the Rubisela E. end of the spectrum. In re P.A. involved the repeated fondling of a nine-year-old’s vagina under and over her clothing. In re P.A. took the opportunity to disagree with Rubisela E. and held “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. . . . [A]berrant 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.)
Nothing in the facts of the present case convinces us to reconsider our holding in In re P.A. J.G.’s repeated sexual abuse of a stepchild within his care demonstrates a complete abandonment of his parental role and a betrayal of the adult-child relationship. As stated by our Supreme Court in the course of a discussion of de facto parent status: “Of course, sexual or other serious physical abuse of a child by an adult constitutes a fundamental betrayal of the appropriate relationship between the generations. . . . [C]hild molestation is among those acts ‘so inherently harmful that the intent to commit the act and the intent to harm are one and the same. . . .’ [Citation.] 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).)” (In re Kieshia E. (1993) 6 Cal.4th 68, 76-77.)
J.G. argues his transgression is less abusive than it otherwise might appear because K.S. did not regard him as her father or stepfather. Despite J.G.’s protests, the facts are uncontested that he had occupied the role of the adult male in the home since K.S. was three years of age and he was the father of K.S.’s three siblings. In sum, it can hardly be disputed that J.G. occupied a parental role in K.S.’s life.
For all the foregoing reasons, we discern no grounds in the present record that warrant overturning the juvenile court’s finding that all the children in the home were at risk of sexual abuse within the meaning of section 300, subdivisions (b), (d) and (j).
3. The juvenile court also properly sustained the count alleging alcohol abuse.
J.G. claims DCFS failed to show risk of harm to his children caused by his alleged abuse of alcohol. He notes the children did not say they were afraid of him and DCFS did not show that any of the children suffered in any way due to his drinking. J.G. notes mother described him as a good father and the children missed him to the extent DCFS recommended therapy to help them adjust to the loss of J.G.
Clearly, the evidence presented was sufficient to permit the juvenile court to find the children were at risk of harm due to J.G.’s alcohol abuse. J.G. abused K.S. and exposed himself to her while he was drunk. The urinating incident undoubtedly also involved the abuse of alcohol. J.G. admitted weekend beer drinking was his pastime and that he drank 12 cans of beer per weekend. Mother told the children’s social worker that J.G.’s drinking was a source of ongoing conflict. Given J.G.’s demonstrated inability to control himself when drinking, the juvenile court properly concluded that his abuse of alcohol placed the children at substantial risk of harm.
DISPOSITION
The order is affirmed.
We concur: CROSKEY, J., ALDRICH, J.