Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK80060, Valerie Skeba, Referee.
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, Frank J. DaVanzo, Deputy County Counsel, for Plaintiff and Respondent.
RUBIN, J.
Alberto L. (father) appeals from the order sustaining a Welfare and Institutions Code section 300 petition as to his daughter, Melissa L., and removing her from his custody. He contends insufficient evidence supported the true findings under sections 300, subdivisions (d) and (j); and because the jurisdictional findings were not supported by substantial evidence, the dispositional order must be reversed. We affirm.
All future undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, father and mother were living with their three children: 15-year-old Ryan L., 11-year-old Melissa L., and 1-year-old Allen L. (collectively the children). Mother’s daughter from a prior relationship, 19-year-old Brittney T., was also living with them and had done so since she was very young. In October 2007, Brittney disclosed to mother that father (Brittney’s stepfather) had sexually molested her when she was about six years old. Based on father’s denial and Brittney’s refusal to speak to the police, mother concluded the accusations were false; Brittney moved out of the house and in with her grandmother.
The matter came to the attention of the Department of Children and Family Services (DCFS) two years later, when Brittney reported the abuse to the authorities. In October 2009, Brittney told Detective Patrick Martinez of the Los Angeles Sheriff’s Department that father began sexually abusing her when she was about seven years old; the abuse occurred regularly over the next two years. When she was 13 years old, Brittney told mother about the abuse; mother sent Brittney to live with her biological father. Brittney moved back in with mother and father when she was 18 years old, but left again after she got pregnant.
When Detective Martinez interviewed father a few days later, father denied sexually abusing Brittney. Father voluntarily took a polygraph test, which he failed. According to the transcript of the polygraph test, which is included in an augmented clerk’s transcript, father told the examiner that when Brittney made the allegations in 2007, he personally asked the police to conduct an investigation, but they told him that only the victim could trigger an investigation. The accusations hung over him for the next two years. Father viewed the polygraph test as “a lifesaver.” The examiner explained that he would ask father a set of questions several times. After asking the set of questions a second time, the examiner told father that the first test “was beautiful” but the second test “look[ed] like hell.” When the test was completed, the examiner told father he failed the test and the results were conclusive. He said the test was “scientific proof” that father lied about not touching Brittney. Father explained that what Brittney accused him of did not happen, but he recalled an occasion when he grabbed her to put her on her bed, and while he was covering her legs with a blanket “maybe that’s the part where maybe touching. Not maybe. Let’s face it, touching it.” Father maintained he touched Brittney’s private parts just once or twice when she was eight years old; the touching lasted for two or three seconds and was over her underwear; there was no penetration and he did not have an erection. Father asked the examiner to test him again to prove that he was telling the truth. In response to the examiner’s expressed disbelief, father said there was a second incident when he was lying on the couch watching television with Brittney and Ryan when he grabbed Brittney’s hand and placed it on his penis; father did not have an erection. Father told Detective Martinez that he felt “like a piece of crap” for touching Brittney. Father was arrested and charged with eight counts of committing a lewd and lascivious act against Brittney (Pen. Code, § 288, subd. (a)).
During a subsequent interview with a DCFS social worker, father denied ever abusing Brittney; he explained that during his police interrogation he was told to say things which he now regrets saying. Ryan and Melissa reiterated to the social worker what they previously told Detective Martinez – they never witnessed anything untoward between father and Brittney; although father was strict, he never used corporal punishment or abused them. At a Team Decision Making meeting on November 16, 2009, attended by father and mother, mother said Brittney had a history of making false allegations. Nevertheless, mother and father agreed to participate in sexual abuse awareness programs, ensure that the children were in counseling and that father only had monitored contact with them.
A section 300 petition was filed on November 19, 2009. Paragraphs (b-1), (d-1) and (j-1) of the petition alleged father sexually molested Brittney, that mother knew of the abuse but failed to take action to protect the children, father’s abuse of Brittney and mother’s failure to protect “endangers the children’s physical and emotional health and safety, creates a detrimental home environment and places the children at risk of physical and emotional harm, damage, danger, sexual abuse and failure to protect.” (§ 300, subds. (b), (d) & (j).) Finding a prima facie case had been established under subdivisions (b), (d) and (j) of section 300, the dependency court detained the children from father and placed them with mother; father was given monitored visits with Melissa and unmonitored visits with Ryan and Allen.
According to the report for the January dispositional hearing, father continued to deny Brittney’s accusations; mother, Ryan and Melissa also disbelieved the accusations and all of them wanted father to return to the home; Allen was too young to make a statement. At the continued jurisdictional hearing on March 8, 2010, the dependency court received into evidence the January jurisdictional report and DVD of father’s polygraph examination. Brittney, then 21 years old, testified that when she was about eight years old, she woke up to find father rubbing her with his fingers under her pants. Similar incidents occurred once a month, sometimes when she was awake. Father sometimes made her touch his penis. Brittney was unsure when the abuse stopped, but believed she was in the sixth grade. Brittney’s relationship with mother, who had a drinking problem, was not good; she did not tell mother about the abuse because she doubted mother would believe her. This was confirmed when Brittney was 18 years old and told mother about the abuse, but mother disbelieved her.
The children’s counsel requested that the petition be dismissed as to Ryan and Allen, but sustained as to Melissa. She argued that, although Brittney was not father’s biological child, he had raised her since she was a year old as if she was his daughter; father attempted to abuse Brittney at about the same age Melissa was at the time of the hearing; there was no evidence that father had taken steps to address his actions. Children’s counsel concluded that, absent court intervention and services, Melissa was at risk. The dependency court stated that it agreed almost entirely with counsel’s argument. It found Brittney “very credible, ” “very thoughtful, very insightful.” Noting that the abuse of Brittney occurred 10 years ago and there was no evidence of any abuse since then, the court nevertheless found Melissa was at substantial risk of being abused by father. It dismissed the entire case as to Ryan and Allen. As to Melissa, the dependency court dismissed the allegations against mother; as to father, it dismissed paragraph (b-1) but sustained paragraphs (d-1) and (j-1) of the petition and placed Melissa with mother; father was given monitored visits.
Father filed a timely notice of appeal.
DISCUSSION
Father contends insufficient evidence supports the order sustaining paragraphs (d-1) and (j-1) of the petition. He argues that there was no evidence that father ever sexually abused Melissa. Moreover, there was no evidence that Melissa was at risk of abuse inasmuch as she was older than Brittney had been when father allegedly abused Brittney and Melissa was able to articulate any danger to her person. We find no error.
We begin by noting that the standard of proof at a section 300 jurisdictional hearing is preponderance of the evidence. (§ 355, subd. (a); In re A.M. (2010) 187 Cal.App.4th 1380, 1387; In re J.K. (2009) 174 Cal.App.4th 1426, 1432.) At the dispositional hearing, the dependency court must find clear and convincing evidence to remove a child from his or her parents. (§ 361; In re J.K., supra, at p. 1433.) On appeal, we look to the entire record for substantial evidence to support the jurisdictional and dispositional findings of the juvenile court. In so doing, we draw all reasonable inferences in support of the findings viewing the record in the light most favorable to the juvenile court’s order; we do not assess the credibility of witnesses or attempt to resolve conflicts in the evidence; we will affirm the order even if there is other evidence supporting a contrary finding. It is the appellant’s burden to show the absence of substantial evidence to support the order. (In re A.M., supra, at p. 1388; In re J.K., supra, at p. 1433.)
A child comes within the jurisdiction of the juvenile court under section 300, subdivision (d) if “there is a substantial risk that the child will be sexually abused... by his or her parent....” A child comes within the jurisdiction under section 300, subdivision (j) if the child’s “sibling has been abused or neglected, [as defined in various subdivisions, including subdivision (d)], 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.” (§ 300, subd. (j).) Subdivision (j) requires proof of a current risk of abuse; subdivision (d) does not require a finding of current risk. (In re Carlos T. (2009) 174 Cal.App.4th 795, 803.)
Regarding section 300, subdivision (d), the court in In re Carlos T., supra, 174 Cal.App.4th at page 806, affirmed jurisdiction, finding the father’s failure to acknowledge the abuse or harm he had caused made it likely that he would abuse the children again if he had access to them. (See also In re J.K., supra, 174 Cal.App.4th at p. 1439 [father’s failure to take steps to address his abusive behavior a factor in finding substantial risk of future harm under subdivision (d)].) In In re Karen R. (2001) 95 Cal.App.4th 84, 90-91, the court concluded that “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.” Regarding section 300, subdivision (j), the court in In re Rubisela E. (2000) 85 Cal.App.4th 177, observed, “Sexual abuse of one’s sibling can support a trial court’s determination that there is a substantial risk to the remaining siblings.” (In re Rubisela E., at p. 197 [affirming jurisdiction under § 300, subd. (j), reasoning that in the absence of the abused older sister, the father’s sexual offenses were likely to focus on his only other daughter]; see also 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 545, pp. 669-670.)
Here, evidence that father continued to deny he abused Brittney supported the court’s finding of jurisdiction over Melissa under section 300, subdivision (d) because it made it likely he would abuse her if he had access to her. (See In re Carlos T., supra, 174 Cal.App.4th at p. 806.) The absence of any evidence that father had taken any steps to address his behavior also supports the jurisdictional finding. (In re J.K., supra, 174 Cal.App.4th at p. 1439.) Under the reasoning of In re Rubisela E., supra, 85 Cal.App.4th at page 197, evidence that father sexually abused Brittney multiple times over one or more years was sufficient to support the trial court’s finding of jurisdiction over Melissa under section 300, subdivision (j).
Father’s reliance on In re David M. (2005) 134 Cal.App.4th 822, for a contrary result is misplaced. In that case, the dependency court found jurisdiction over two siblings under section 300, subdivision (b), based on the mother’s extensive history of substance abuse, and the mother and father’s mental conditions. The appellate court reversed, finding that the parent’s mental problems were not tied to any actual harm or substantial risk of harm to either child. Here, there was a specific, defined risk of harm to Melissa – that father would sexually abuse her – tied to father’s actual abuse of Brittney when Brittney was about Melissa’s age and living in father’s home. In re RicardoL. (2003) 109 Cal.App.4th 552, 569, upon which father also relies, is inapposite. In that case, the appellate court reversed a finding of jurisdiction under section 300, subdivision (j) where there was no evidence of the problems that led to the child’s siblings being declared dependent, nor was there any evidence of whether the problems remained after the parents completed some court-ordered services. Here, by contrast, Brittney’s testimony was sufficient to show that she had been sexually abused by father, there was no evidence father had done anything to address his problems, and his continued denial was sufficient to show that Melissa also was at substantial risk.
Because there was sufficient evidence to support jurisdiction, we reject father’s related contention that the dispositional order should be reversed as moot.
DISPOSITION
The order is affirmed.
WE CONCUR: BIGELOW, P. J., GRIMES, J.