Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. CK58226, Steven Berman, Juvenile Court Referee.
Michael A. Salazar, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
KRIEGLER, J.
Juan T. (Juan) appeals from the judgment of November 19, 2007, declaring his daughters Valery, born in December 2006, and Emily, born in August 2000, dependents of the court under Welfare and Institutions Code section 300. He contends substantial evidence does not support the sustained jurisdictional allegations. As substantial evidence supports the findings under section 300, subdivision (j), we affirm the judgment and orders.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
STATEMENT OF FACTS AND PROCEDURE
Valery and Emily were born to Angelica (mother) and Juan, who had been living together since 1996. Valery and Emily lived in the home of mother, Juan, and half-siblings Gabriela, born in 1990, and C., born in 1993. On July 18, 2007, C. disclosed that in May 2006 Juan had inappropriately sexually touched her. The children were detained from Juan on August 9, 2007, and released to mother. A dependency petition was filed. Juan moved out of the home.
The dependency court found that Juan was the presumed father of Valery and Emily.
Gabriela’s father is deceased. C.’s father is not a party to this appeal
At the hearing on the petition, the dependency court took into evidence the detention report and jurisdiction/disposition report. These reports revealed that C. told the police and social workers that Juan molested her on several occasions during a two-week period in June of 2006, when mother was not present. She said Juan came into her bedroom, and acting as though he was doing something else such as waking up Emily, putting the dog under the blanket, or playing with a doll, he brushed against her or rubbed her over her clothes on her breast, vagina, or stomach. C. felt uncomfortable. When C. moved away from him, he laughed and left the room. He made “weird noises” and laughed as he touched her. The last time he touched her was when she and Emily were asleep. He came into the room, lay on top of her, and acted like he was trying to wake up Emily. She was lying on her stomach. She told him to get off, and he did. He never touched her inappropriately again after that. C. told mother about two of the incidents. Juan denied it when mother confronted him. C. concluded the touching was accidental, and she never mentioned it again, as Juan did not bother her anymore. However, she recently thought about it and did not feel it was accidental.
C. testified at the hearing on the petition that she remembered three occasions when Juan touched her. When mother was not home, Juan put the dog under the blanket and “touched my breast, and then he rubbed his hand on my butt, . . . and in my front area too.” A week later, he “rubbed his thing on my butt” as he reached over to wake up Emily. “I put the blanket over my head, and I just started to cry and then he just left out of my room.” On the first occasion when he used the dog as an excuse, the only part of his body that touched her was the back of his hand and it just brushed against her breast. The second time, he rubbed with his hand. The third time, he leaned over her and rubbed his thing on her butt over the blanket.
The trial court found as follows: “The incident took place within a two-week period. First, there was intentional or the intention of brushing the minor’s breasts. Then there were several incidents concerning the dog, using the dog as a ruse, putting the dog on the blanket, then putting the dog under the blanket. And, in fact, the father -- actually, there was no blanket covering the child during one of these incidents because the father put the dog under the blanket and that was the time he touched the child’s buttocks. [¶] There was also a period that he laid across the child. Although, [counsel] is absolutely right that simulating sexual intercourse -- I don’t know where that came from. [¶] There’s also an indication that the child did know this was wrong and did know it was inappropriate because when the father was laying across her and touching her, quote, with his thing, which is what she testified, she covered up and was crying. She cried during this incident because she knew something was wrong; and now, a year later, maybe it’s not as dramatic as it was then. [¶] But the main thing that indicates to me that this happened is because the way the police reports read, the way the minor testified this happened only when mother left. Mother left, taking the baby some place, and those are the only times the incidents happened, which indicates to me that father was waiting for the mother to get out of the house for these things to happen. [¶] I don’t think it’s as evil as the spin put on it by the Department, but I certainly think inappropriate touching took place.” “[A]gain, the mother left the house. The father used the dog as a ruse. The father went under the blanket. And we graduated from brushing her breast to actually touching her buttocks and her front portion.” “I think there’s such a concurrence of events, especially when the mother would leave the house, that indicates that this actually happened for the purposes alleged.”
The Department reported that, in a September 2007 interview, C. stated that Juan “would lay on my back and simulate sex.”
Valery and Emily were declared dependents of the court based on sustained allegations under section 300, subdivisions (b) (substantial risk of serious physical harm), (d) (sexual abuse), and (j) (sibling abuse) that on prior occasions Juan inappropriately touched C. on her vagina, breast, buttocks, and pelvic area; and on a prior occasion Juan lay on top of C. and rubbed his body against her body. Custody was taken from Juan, and the children were permitted to remain in home-of-parent-mother. Juan was ordered to participate in parenting and individual counseling to address sex abuse awareness. If the counselor recommended that Juan take a sex abuse program for perpetrators, Juan must comply with the recommendation. Juan was granted monitored visitation with Valery and Emily at least nine hours per week.
Gabriela and C. were also adjudicated dependents of the court.
This timely appeal followed.
DISCUSSION
Substantial Evidence Supports the Allegation Under Section 300, subdivision (j) That Emily and Valery are at Risk of Sexual Abuse
Juan contends substantial evidence does not support the findings under section 300, subdivision (j) that: (1) C. was abused or neglected under section 300, subdivisions (b) and (d); and (2) there is a substantial risk that Emily and Valerie will be abused as defined in those subdivisions. We conclude substantial evidence supports the finding that Emily and Valery are minors described by section 300, subdivision (j).
“In reviewing the jurisdictional findings and the disposition, we look to see if substantial evidence, contradicted or uncontradicted, supports them. [Citation.] In making this determination, we draw all reasonable inferences from the evidence to support the findings and orders of the dependency court; we review the record in the light most favorable to the court’s determinations; and we note that issues of fact and credibility are the province of the trial court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not reweigh the evidence or exercise independent judgment, but merely determine if there are sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988) 201 Cal.App.3d 315, 321.)
Section 300, subdivision (j) provides: “The 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.”
“SB 243 [the bill enacting section 300, subdivision (j) in 1989] potentially expands the scope of intervention with regard to siblings of children who have been abused. It clarifies that such siblings are within the jurisdiction of the court if there is evidence that the siblings are at risk of being abused. However, SB 243 also makes it clear that there must be specific reasons to believe that the siblings are threatened with harm; thus, it specifies some of the factors that should be considered in making this determination.” (Sen. Select Com. on Children & Youth, Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) p. 5 (hereinafter Task Force Report).)
The dependency court has jurisdiction over the sibling of an abused child under section 300, subdivision (j) if there is a substantial risk the sibling will be similarly abused. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 566-567.) The “terms of [section 300, subdivision (j)] necessarily imply that in evaluating risk to the child at the jurisdictional hearing, the [dependency] court may consider the propensities or predispositions of the parent (i.e., his or her character) in order to determine if he or she is likely to act in conformity therewith in the future toward another child. By enacting section 300, subdivision (j) as an alternative basis for jurisdiction over a dependent child, the Legislature apparently intended to place the parent’s character in issue to some extent.” (In re Mark C. (1992) 7 Cal.App.4th 433, 442.)
Substantial evidence supports the finding under section 300, subdivision (d) that C. was sexually molested by Juan. Section 300, subdivision (d) provides: “The 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, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.” Under section 300, subdivision (d), “[a]ll instances of sexual behavior between an adult and child are covered.” (Task Force Report, p. 5.)
Penal Code section 11165.1 provides in pertinent part: “As used in this article, ‘sexual abuse’ means sexual assault or sexual exploitation as defined by the following: [¶] . . . [¶] (b) Conduct described as ‘sexual assault’ includes, but is not limited to[:] [¶] . . . [¶] (4) The intentional touching of the genitals or intimate parts (including the breasts, genital area, groin, inner thighs, and buttocks) or the clothing covering them, of a child, or of the perpetrator by a child, for purposes of sexual arousal or gratification, except that, it does not include acts which may reasonably be construed to be normal caretaker responsibilities; interactions with, or demonstrations of affection for, the child; or acts performed for a valid medical purpose.”
In statements to police and social workers, and testimony, C. gave evidence that Juan went into C.’s bedroom when she was in bed and rubbed her breasts, vagina, and buttocks, including reaching under the blanket to touch her. He used his hand and, on one occasion, his penis. On one occasion, he lay on her back when she was lying down on her stomach. This is evidence he touched her genital area, buttocks, and breasts within the meaning of Penal Code section 11165.1, subdivision (b)(4). The touching occurred when mother was not at home, and he tried to disguise his purpose by acting as if he were coming into contact with C. for an innocent reason. This evidence, and the evidence of rubbing, indicates the touching was intentional under Penal Code section 11165.1, subdivision (b)(4). His conduct escalated from brushing her private parts with his hand, to rubbing them with his hand, to rubbing her buttocks with his penis. He laughed and made “weird noises” as he rubbed her. This is evidence his contact was for the purposes of sexual arousal or gratification under Penal Code section 11165.1, subdivision (b)(4). Thus, substantial evidence supports the first prong of the finding under section 300, subdivision (j), that C. was sexually abused under section 300, subdivision (d).
The circumstances of C.’s abuse provide substantial evidence that Valery and Emily are at risk of sexual abuse. Juan’s denial of wrongdoing suggests he is not rehabilitated and has the potential to re-offend with the younger girls. Juan did not stop molesting C. until she spoke up and told him to stop. As Valery and Emily are younger and more vulnerable, the dependency court could reasonably conclude there is a substantial danger his behavior will focus on them. The court could also conclude mother’s failure to protect C. indicates that mother’s presence in the household is no barrier to the sexual abuse of her children. Thus, substantial evidence supports the second prong of the finding under section 300, subdivision (j). (See In re P.A. (2006) 144 Cal.App.4th 1339, 1347 [the Legislature has determined “that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts”].) Accordingly, the finding that Valery and Emily are children described by section 300, subdivision (j) is supported by substantial evidence.
Sustained Allegations Under Section 300, Subdivisions (b) and (d)
As we have concluded that substantial evidence supports the determination that Valery and Emily come within section 300, subdivision (j), we need not address Juan’s contentions that substantial evidence does not support the findings Valery and Emily are children described by section 300, subdivisions (b) and (d). (See In re Shelley J. (1998) 68 Cal.App.4th 322, 330.) “Section 300 contemplates that jurisdiction may be based on any single subdivision.” (Ibid.) We disagree with Juan’s contention that reversal of the findings under section 300, subdivisions (b) and (d) will provide him relief. Juan must address issues of sexual abuse under the subdivision (j) finding. Section 361.5, subdivision (b)(3), providing that family reunification need not be provided to a parent whose child or child’s sibling was a dependent as a result of sexual abuse by the parent, will apply in any future dependency proceeding, because of Juan’s sexual abuse of C.
The facts alleged under section 300, subdivisions (b) and (d) are identical to the facts alleged under section 300, subdivision (j): “On prior occasions, [Juan] inappropriately touched the child, C. Such . . . consisted of [Juan] touching the child’s vagina, breast, buttocks and pelvic area. On a prior occasion, [Juan] lay on top of the child and rubbed his body against the child’s body. The inappropriate touching of the child, C., by [Juan] . . . endangers the child’s physical and emotional health and safety, placing the child, and the child’s siblings, . . . Emily and Valery, at risk of physical and emotional harm, damage, sexual abuse and failure to protect.”
DISPOSITION
The judgment is affirmed.
We concur: ARMSTRONG, Acting P. J., MOSK, J.