Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK81549 Margaret S. Henry, Judge.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Judith A. Luby, Principal Deputy County Counsel, for Plaintiff and Respondent.
JOHNSON, J.
Father Jose R. (Father), the father of Kevin R., Doris R., and Wendy R., appeals from the juvenile court’s jurisdictional and disposition orders. Father argues that substantial evidence did not support the court’s conclusion that a single act described by Doris constituted sexual molestation. We affirm.
BACKGROUND
A detention report filed March 18, 2010 related that during a school conference on March 15, 2010, 12-year-old Doris R. told her teacher, a counselor, and her mother A.R. (Mother) about an event in December 2009, when she was at home with Father because she had been suspended from school. Father had called Doris into the bedroom where he was lying down. Father pulled her down, lay on top of her, and attempted to remove her pants; Doris pushed Father away and ran out of the room. On another occasion, Father had hit Doris with a cord. The school called the police, who interviewed Doris, who repeated her story. The police placed Doris, her 15-year-old brother Kevin, and her 11-year-old sister Wendy in temporary protective custody. After consultation with a social worker, all three were left in Mother’s care.
That same day, March 15, 2010, the social worker interviewed the police officer who interviewed Doris. The officer stated that Doris had told him she tried to scream and Father had placed his hand on her mouth. Doris ran out of the house to the house of family friends, and came back home after Mother returned from work. The social worker also interviewed Doris, who added that Father was wearing walking shorts, that she held on to her pants, and that when she ran out of the room she told Father she was going to take out the trash. Doris told the social worker that this was the only time Father had done this. Doris had not told Mother about it for fear that Father would hurt her and Mother, and neither she nor Father had mentioned the event again. She repeated that Father had struck her with a telephone cord in November 2009, and that Father also hit her with a belt. Father also hit Kevin with the belt, but not Wendy. Doris admitted to behavior problems, and she had begun counseling at school a week ago.
Kevin confirmed that Father hit him with the belt. Wendy stated that she had not been hit with the belt, although she had seen Father hitting Doris and Kevin with it. Neither Kevin nor Wendy had seen Father engage in sexual behavior with Doris, but Wendy “‘kind of believe[d] what my sister Doris has told me happened.’”
Mother stated that she was not certain Doris was telling the truth but would protect her. After she heard Doris’s story about the incident with Father, she told her husband to leave immediately, and Father had complied. A social worker contacted Father by telephone, and he denied any abuse. Father claimed Doris was a behavior problem in school and at home.
The Department of Children and Family Services (DCFS) filed a petition on March 18, 2010, which alleged that Kevin, Doris, and Wendy were persons described in Welfare and Institutions Code section 300, subdivisions (a), (b), (d), and (j). At the detention hearing, also on March 18, Father appeared and was appointed counsel. The juvenile court found Father was the children’s presumed father. The court found a prima facie case supported detaining the children from Father, and ordered the children released to Mother pending the next hearing, with monitored visits for Father at a neutral location.
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
On March 26, 2010, Wendy told a dependency investigator that Father had hit her with a belt three times. DCFS filed an amended petition on April 9, 2010, which again included allegations as to Kevin, Doris, and Wendy under section 300 subdivisions (a), (b), (d), and (j). The jurisdiction/disposition report clarified that the police report stated that when interviewed on March 15, 2010, Doris stated that in December 2009 Father had called Doris into the living room (not the bedroom), where he was lying on a fold-out couch. Father pulled Doris down by her shirt, positioned himself above her with his knees on either side of her, and tried to pull off her pants, telling her to keep quiet. Doris pushed Father’s hands away and told him to stop because she needed to take out the trash. Father let her leave, and Doris noticed that the button on her jeans was undone. Doris also stated that Father had hit her with a cord. The investigator had also interviewed Father, who continued to deny the December 2009 incident, but admitted to hitting the children with belts.
Doris described Father repeatedly hitting her with a folded belt on her legs and buttocks. Mother was present but did not intervene when Father hit Doris with the cord, which he used after Doris had hidden Father’s belt so he would not hit her. Father also hit Kevin and Wendy, but not Mother. Doris did not tell about the December 2009 incident because she feared Mother would not believe her, Father would hit her, and might even hit Mother. Doris again described the incident, explaining that Father was on the sofa bed in the living room, pulled her towards him, got on top of her bending her arms back with one hand, and tried to unbutton her pants with the other hand. Doris told Father to stop and he told her to be quiet. She pushed him, got off the bed, and told him she was going to take out the trash. She went to a neighbor’s house. Her pants were unbuttoned. Father did not follow her, and that was the first time he had done that.
Doris also stated that Father “would look at me weird and tell me he thought I was cute. I would just walk away from him, ” and she noticed Father observing her while she walked; “‘when we go to the store he wants me to walk in front of him. He tells me to walk in front of him and I’ve seen him looking at me up and down.’” She had noticed this behavior by Father after Christmas 2009. She had disclosed the incident at the school meeting because she was asked why she was misbehaving at school.
Kevin described seeing Father hit Doris with his belt two times and stated that Father had hit him with a belt more than five times, but he had never seen Father sexually abuse Doris. Wendy described an incident when Father had hit her and Doris with his belt. On other occasions Wendy had seen Father take his belt off and hit Doris with it, and she had seen Father hit Doris with the cord after Doris hid his belt. Wendy had also seen Father hit Kevin with his belt.
Although Wendy had not seen anything, when the children were detained Doris told her “my dad got on top of her and tried to take off her pants” on the day Doris was suspended and stayed at home. Father had never looked at Wendy in a way that made her uncomfortable, or tried to touch her inappropriately. The children disclosed that Father and Mother had separated for about six months because of Father’s alcohol use, although Father had returned recently.
Mother had seen Father hit Doris with a belt, and once with a cord when Doris hid his belts. She had seen Father hit Kevin with a belt, which was how Mother’s and Father’s parents had disciplined them. Mother stated that when she went to the school conference on March 15, 2010, she and Father were considering putting Doris in a “boot-camp program.” She was shocked when she heard that Doris claimed Father had tried to take her pants off. When they got home after the police station, Doris told Mother what she had told the police. Mother at first said she believed Doris and then said she did not know whether to believe her.
Father stated that he did hit Doris with a belt, but only once. He hit her once with the cord when he couldn’t find his belt. He had hit Kevin more than once with a belt. He became angry when asked about the alleged sexual abuse and said it was all a lie because Doris did not want to go to boot camp. He suggested DCFS examine Doris to see that he had not raped her, and denied all allegations of sexual abuse. Father denied that he drank more than once a year.
At the jurisdiction/disposition hearing on April 29, 2010, Father submitted to jurisdiction under section 300, subdivisions (a), (b), and (j) as to the physical discipline, but not to the allegations under subdivisions (b) (failure to protect), (d) (sexual abuse), and (j) (abuse of sibling) as those sections related to Doris’s account of the December 2009 incident. Father testified that he did not sexually abuse Doris and he did not remember her being suspended in December 2009. She had been suspended later, but Father was never home when she was suspended and he had never been alone with Doris. Doris was hyperactive, and before Doris accused Father of trying to abuse her, Father had informed Doris that he and Mother planned to send her to boot camp if she got in trouble again.
Mother signed a waiver of rights and submitted the petition on the basis of the social workers’ reports, and does not appeal.
At the continued hearing on April 30, Father testified that he hit Doris with his or his son’s belt. When Doris was suspended, he was angry with her, and “[m]y intention was to punish her because I love her very much.”
Father’s counsel argued that the incident did not arise to sexual abuse, because “we cannot discern what Father’s intent was.” “There’s no indication at all that he did anything else to her other than pull her down, and that’s the same type of thing one would do if he was hitting her, if he was going to hit her with a belt, as he’s done in the past.” The court reminded counsel that Father also laid on top of Doris. Counsel argued that Doris struggled because “she knows she’s going to get punished, ... she doesn’t like it, so she’s not going to submit easily.” Father’s counsel also pointed out that this was the only such incident, and Father did not try to kiss or touch her. “What we have is mere speculation as to what Father intended, ” and Father may have intended to punish Doris (perhaps by getting her belt off to hit her with it), and that in any event his motivation was not sexual.
Further, Father’s counsel argued that the incident did not constitute sexual abuse under section 300, subdivision (d), or Penal Code section 11165.1. There was no genital contact and no indication that Father was aroused. Counsel argued that Doris had made up her story. “This is a child who is chronically in trouble. This is a child who comes up with something that happened a few months before on the third time she’s gotten in trouble and on the third time when she’s going to be sent to boot camp, and she knows it, and she comes up with something that is bothering her and it sheds a whole bunch of light on this.” Father requested that the court dismiss the section 300(d) and related allegations.
Counsel for Doris told the court that Doris did not want to testify, but “indicates that her father tried to take off her belt on this incident. That he never tried anything like that before. And that she doesn’t feel that her father was trying to abuse her sexually in any way. She believes that he was trying to physically discipline her....”
DCFS argued that annoyance or molestation under Penal Code section 647.6 was sufficient to show sexual abuse, and the standard was whether the perpetrator’s conduct would disturb or irritate a normal person. Father’s pinning Doris down and disturbing the fastening in the pelvic area would meet that standard, and the evidence was sufficient to sustain the sexual abuse allegation.
The court stated that it was typical of children who had been molested to recant to try to put the family back together, that Doris’s initial statement was clear that her jeans were unbuttoned and there was nothing about a belt. “I think she would rather remember it that maybe her father was just trying to punish her, but it was pretty clear at the time, and he did not need to by lying on top of her for that. There’s also the statements that she made describing how he started looking at her and having her walk in front of him, so I am going to sustain the [section 300 subdivision] (d) count.” Father did not testify that he had some other intent during the event and lied instead, stating that he was never alone with Doris.
The court sustained the sexual abuse allegation under section 300, subdivision (d), and the related allegations under section 300 subdivisions (b) (failure to protect) and (j) (abuse of sibling). The court declared Kevin, Doris, and Wendy dependents, removed them from Father, and placed them in Mother’s physical custody, with family maintenance services for Mother, who was to participate in parent education and individual counseling, including sexual abuse awareness. Father was provided with reunification services, including parent education, individual counseling, anger management classes, and sex abuse counseling for perpetrators. The court ordered monitored visitation for Father, and ordered individual counseling for the children.
The court also sustained the allegations of serious physical harm under section 300 subdivision (a), based on Father’s striking Doris with a cord and belt and Kevin and Wendy with a belt, and a related allegation of failure to protect under subdivision (b). Father does not appeal the findings on these allegations.
Father filed this timely appeal.
DISCUSSION
Father challenges each of the bases for the juvenile court’s jurisdictional findings based on his sexual abuse of Doris. Father does not appeal the court’s finding of jurisdiction under section 300, subdivision (a) and (b) as to all three children based on his use of a belt and cord to hit Doris, and his use of a belt to hit Kevin and Wendy. When (as here) a dependency petition alleges multiple grounds for asserting jurisdiction, we may affirm the juvenile court’s finding of jurisdiction “if any one of the statutory bases for jurisdiction that are enumerated in the petition is supported by substantial evidence. In such a case, the reviewing court need not consider whether any or all of the other alleged statutory grounds for jurisdiction are supported by the evidence. [Citations.]” (In re Alexis E. (2009) 171 Cal.App.4th 439, 451.) Because the unchallenged findings regarding Father’s physical abuse of all three children is enough to sustain the court’s exercise for jurisdiction, the sufficiency of the evidence supporting the sexual abuse findings is technically moot. (Ibid.)Nevertheless, a reviewing court ordinarily will not dismiss as moot a challenge to a jurisdictional finding that could adversely affect a parent if, in the future, dependency proceedings are ever initiated or even contemplated. (In re J.K. (2009) 174 Cal.App.4th 1426, 1431–1432.) Further, Father argues that because there was not substantial evidence that he sexually abused Doris, the portion of the court’s order requiring him to participate in sexual abuse counseling for perpetrators should be reversed. We therefore address Father’s contentions regarding the sexual abuse allegations.
We apply the substantial evidence test on appeal, and will affirm if the record shows “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. [Citation.]” (In re J.K., supra, 174 Cal.App.4th at p. 1433.) “We do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Rather, we draw all reasonable inferences in support of the findings, view the record most favorably to the juvenile court’s order, and affirm the order even if other evidence supports a contrary conclusion. [Citation.]” (In re Megan S. (2002) 104 Cal.App.4th 247, 251.) “‘In dependency proceedings, a trial court’s determination will not be disturbed unless it exceeds the bounds of reason. [Citation.]’ [Citation.]” (In re E.B. (2010) 184 Cal.App.4th 568, 575.)
I. Section 300, subdivision (b)
The juvenile court sustained the amended petition’s allegations that Father’s sexual abuse of Doris endangered Doris’s physical and emotional health and safety, and placed all three children at risk “of physical and emotional harm, damage, danger and sexual abuse” under section 300, subdivision (b), which provides for jurisdiction when there exists “a substantial risk that the child[ren] will suffer[] serious harm or illness, as a result of the failure or inability of his or her parent... to adequately supervise or protect the child[ren].” (§ 300 subd. (b).) Father argues that there was no evidence that his sexual molestation of Doris put Kevin, Doris or Wendy at a current risk of harm at the time of the dependency hearing, as required for the allegation of failure to protect under subdivision (b). Father contends that as described by Doris, his actions did not put her at risk of “serious physical harm or illness, ” and that because he was out of the house and visitation was monitored, there was no risk of harm at the time of the hearing to any of the children.
Father does not argue that Kevin and Wendy were not persons described by subdivision (b) because there was no evidence that Father sexually abused them.
“[D]ependency jurisdiction is not warranted under subdivision (b) if, at the time of the jurisdiction hearing, there no longer is a substantial risk that the child will suffer harm.” (In re Carlos T. (2009) 174 Cal.App.4th 795, 803.) Father argues that there is no evidence that his sexual molestation of Doris constituted serious physical harm or that based on the molestation, she or the other children were at risk of such harm at the time of the hearing. First, we note that Father’s molestation of Doris ended only because Doris pushed him away and ran out of the house, returning only after Mother was home. Certainly his behavior, although interrupted, put Doris at risk of serious physical harm. (See In re Alysha S. (1996) 51 Cal.App.4th 393, 398 [“It may be inferred from the fact of a lewd touching that the victim suffered serious physical harm....”].) Second, Father argues that at the time of the hearing he had moved out of the house and was permitted only monitored visitation, so that he posed no risk of harm at that time. Father was living elsewhere only because Mother had ordered him to move out after Doris disclosed the abuse, and the monitored visitation was in place only because the juvenile court had found a prima facie case to detain the children from Father at the detention hearing and had ordered that visitation be monitored pending the disposition hearing, at which time monitored visitation became part of the court’s orders. The fact that monitored visitation protected the children at the time of the disposition hearing does not preclude a finding of a risk of further harm. “The question to be asked is whether, in the absence of the state’s intervention, there is a substantial risk that the child will be abused.” (In re Carlos T., supra, 174 Cal.App.4th at p. 806.) The evidence supports a conclusion that there was a risk of harm at the time of the hearing.
II. Section 300, subdivision (d)
Father also argues that substantial evidence does not support the finding under section 300, subdivision (d) that Father sexually abused Doris. Again, Father’s argument fails.
Section 300, 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....” “Sexual abuse” includes child molestation. (§§ 11165.1, subd. (a), 647.6; In re Karen R. (2001) 95 Cal.App.4th 84, 89–90.) Penal Code section 647.6, subdivision (a)(1) makes it a misdemeanor offense to “annoy[] or molest[] any child under 18 years of age.” No touching is required, but the statute requires conduct that would unhesitatingly irritate a normal person, and “‘conduct ‘“motivated by an unnatural or abnormal sexual interest’” in the victim [citations].’” (In re Karen R., supra, 95 Cal.App.4th at pp. 89–90.) “The forbidden annoyance... is not concerned with the child’s state of mind, but rather refers to the defendant’s objectionable acts that constitute the offense.” (People v. Lopez (1998) 19 Cal.4th 282, 290.)
Father argues that even accepting Doris’s description of his behavior in December 2009, there is no evidence that he was motivated by a sexual interest in her. Doris, however, also described that Father “would look at me weird and tell me he thought I was cute, ” told her to walk in front of him, and looked her up and down. This is evidence from which the court could infer that Father had a sexual interest in Doris. Even without this evidence, Father’s act of pulling Doris down, straddling her, lying on top of her, pinning her arms, and attempting to unbutton her pants could reasonably be construed as motivated by sexual interest, and we draw all reasonable inferences in support of the court’s findings.
Father also complains that the juvenile court did not consider Doris’s motive to lie about the sexual abuse. The court did, however, allow Father to testify that at the time of the initial report Doris knew what Father and Mother intended to do if she got into trouble at school again, stating “we understand the Father’s defense.” Further, this is a challenge to Doris’s credibility. The court stated that Doris’s initial statements were clear and that father’s “testimony was all clearly a lie.” We do not reevaluate the court’s conclusions regarding the credibility of witnesses. (In re Megan S., supra, 104 Cal.App.4th at p. 251.) Substantial evidence supported the court’s finding of jurisdiction over Doris under subdivision (d).
Father’s claim that the case plan must be revised to omit sex abuse counseling for perpetrators is therefore without merit. (In re Andy G. (2010) 183 Cal.App.4th 1405, 1415, fn. 7.)
III. Section 300, subdivision (j)
Finally, Father argues that substantial evidence did not support the court’s findings under section 300, subdivision (j), that the sexual abuse of Doris endangered her siblings Kevin and Wendy, because there was no evidence that he ever annoyed or molested Kevin or Wendy. Section 300, subdivision (j) provides for jurisdiction when “[t]he 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. 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.”
The subdivision (j) allegation stated, “Such sexual abuse of the child by the father endangers the child’s physical and emotional health and safety and places the child and the child’s siblings, [Kevin and Wendy], at risk of physical and emotional harm, damage, danger and sexual abuse.”
“[A] finding of current risk is required for jurisdiction under subdivisions (b) and (j).” (In re Carlos T., supra, 174 Cal.App.4th at p. 803.) “[W]here, as here, a child’s sibling has been sexually abused by a parent..., subdivision (j) allows the court to assume jurisdiction of the child, if after considering the totality of the child’s circumstances, the court finds that there is a substantial risk to the child in the family home, under any subdivision enumerated in subdivision (j), taking into consideration the totality of the child’s and sibling’s circumstances.” (In re Maria R. (2010) 185 Cal.App.4th 48, 65.) The trial court, after considering Wendy’s age and gender, could reasonably have concluded that Wendy, who at 11 was just a year younger than her sister Doris, was at a substantial risk of sexual abuse under subdivision (d) if Father were to remain in the family home. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 197; In re P.A. (2006) 144 Cal.App.4th 1339, 1347.)
Further, “the basis for taking jurisdiction of a [male sibling] under subdivision (j) is not limited to a risk of sexual abuse.” (In re Maria R., supra, 185 Cal.App.4th at p. 63.) The court may take jurisdiction of a child whose sibling has been sexually abused under subdivision (d) if the court finds that there is a substantial risk that the child will be abused or neglected under subdivisions (a), (b), (e) or (i) in addition to subdivision (d). (Id. at pp. 62–63.) “[S]ubdivision (j) was intended to expand the grounds for exercise of jurisdiction as to children whose sibling has been abused or neglected as defined in subdivisions (a), (b), (d), (e), or (i). Subdivision (j) does not state that its application is limited to the risk that the child will be abused or neglected as defined in the same subdivision that describes the abuse or neglect of the sibling. Rather, subdivision (j) directs the trial court to consider whether there is a substantial risk that the child will be harmed under subdivisions (a), (b), (d), (e), or (i) of section 300, notwithstanding which of those subdivisions describes the child’s sibling.” (Id. at p. 64.) Given the express directive in subsection (j) that the court should consider multiple factors including the circumstances surrounding the abuse and neglect and any other factors, “where, as here, a child’s sibling has been sexually abused by a parent..., subdivision (j) allows the court to assume jurisdiction of the child if, after considering the totality of the child’s circumstances, the court finds that there is a substantial risk to the child in the family home, under any subdivision enumerated in subdivision (j), taking into consideration the totality of the child’s and sibling’s circumstances.” (Id. at p. 65.)
The court in this case found jurisdiction based on allegations that Father’s sexual abuse of Doris placed both Kevin and Wendy “at risk of physical and emotional harm, damage, danger and sexual abuse” under subdivision (b), in addition to subdivision (d). Father does not argue on appeal that Kevin and Wendy are not persons described in subdivisions (b) because he did not sexually abuse them. Jurisdiction was therefore proper under subdivision (j), because the court found that Kevin and Wendy were at substantial risk in the family home under subdivision (b).
On appeal, Father includes one perfunctory sentence at the end of his discussion of subdivision (j) stating that the evidence does not support the findings under section 300 subdivision (b) in addition to (j), but we treat that point as forfeited because Father “‘fails to support it with reasoned argument and citations to authority.’” Valov v. Department of Motor Vehicles (2005) 132 Cal.App.4th 1113, 1132.)
DISPOSITION
The April 30, 2010 jurisdictional and dispositional order is affirmed.
We concur: ROTHSCHILD, Acting P. J., CHANEY, J.