Opinion
B324349
10-17-2023
In re Mia I. et al., Persons Coming Under the Juvenile Court Law. v. A.S., Defendant and Appellant. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 22CCJP02372A-B, Ashley Price, Juvenile Court Referee.
Robert McLaughlin, under appointment by the Court of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.
LAVIN, J.
INTRODUCTION
A.S. (father) appeals the juvenile court's jurisdictional findings and removal orders as to his children, Mia I. (born May 2019) and Adrian F. (born February 2021). The court concluded that the children were persons described by Welfare and Institutions Code, section 300, based on father's inappropriate sexual behavior with the children's maternal aunt, Daniela, and his grooming behavior towards mother when she was a minor. We affirm.
The children's mother, Samantha I. (mother), is not a party to this appeal.
All undesignated statutory references are to the Welfare and Institutions Code.
FACTS AND PROCEDURAL BACKGROUND
1. Prior Child Welfare History
In April 2019, a caller reported to the Los Angeles County Department of Children and Family Services (Department) that mother, who was then 15 years old, had been absent from school frequently and was pregnant. Father, who was then 20 years old, admitted to law enforcement that he was aware that mother was 15 years old when he had sexual intercourse with her on two separate occasions. Father also admitted that he was living with mother, which was confirmed by the maternal family. Father was arrested for unlawful sexual intercourse with a minor three years younger (Pen. Code, § 261.5, subd. (c)). According to father, he was in the county jail for five months and was released on his own recognizance "but did not follow up with the Court as he did not have an attorney." As of August 2022, the case remained open and the court had issued a warrant for father.
In February 2021, a caller reported that mother, who was then 17 years old, had been admitted to the hospital to give birth to another baby. Mother reported that she had a sexual relationship with her boyfriend, who was then 22 years old. The referral was evaluated out.
2. Referral and Events Leading to the Current Action and Department Involvement
In May 2022, the Department received a call from police that they had transported Daniela, who was then 17 years old, to a station from her school. Daniela reported that father obtained a video of Daniela giving oral sex to her ex-boyfriend. Both Daniela and her ex-boyfriend were 13 years old when the video was recorded. Beginning on May 9, 2022, father began messaging Daniela, stating he would share the video unless she either gave him oral sex for five days or had sexual intercourse with him. On May 11, 2022, he threatened her again and brought up the ultimatum. Daniela also reported that, when she was 13 years old, father said they could "have 'something'" without mother knowing. When she was 14 years old, father again told Daniela that they could" 'be together'" without mother knowing. Daniela stated that mother told father to stop "flirting" with Daniela and he did.
Mother continued a relationship with father and, as of May 2022, he had been living in the same home as Daniela, mother, and maternal grandmother for about a year because mother needed assistance with childcare. Daniela reported that mother was uncomfortable going to work and leaving Daniela and father alone together. Mother told Daniela that she was worried that father and Daniela "will do 'something' together" while mother was at work. Daniela assured mother that she would never have a sexual relationship with father and told the Department that father had never physically sexually assaulted her. Prior to the blackmailing incident, father had not made sexual advances towards Daniela since she was 14 years old. Daniela stated that she had no concerns with respect to the children, that father was a" 'good dad,'" and that she had no knowledge of father sexually assaulting the children.
Maternal grandmother stated that she had no knowledge of the blackmail and that she had informed mother that father could no longer stay in the home, which mother did not oppose. Maternal grandmother also reported that, when Daniela was 13 years old, maternal grandmother had overheard Daniela telling mother that father had stated that he wanted to be with Daniela, but maternal grandmother "did not pay much attention to it as she did not know if it was true or not." Because she had not heard of father "flirting" with Daniela since then, she permitted him to move in again. However, since moving back in, maternal grandmother had heard father tell Daniela that she was "too pretty" to get back with her ex-boyfriend once she turned 18 years old, which upset mother.
Mother confirmed to a social worker that the account from which the messages were sent to Daniela belonged to father. Mother agreed to speak further with a social worker and to allow access to the children. Mother denied that Mia is father's biological child. She claimed that Mia was the product of a one-night stand and that she did not have information about Mia's biological father. She stated that she met father at high school when she was 15 years old, but they were only friends until she turned 18.
Mother denied knowledge of father attempting to persuade Daniela to have a sexual relationship in the past. Three years prior, when Daniela was 13 years old, father had told mother that he believed Daniela was pretty. However, mother had not observed suspicious behavior between Daniela and father. Since he moved in, he had told Daniela that she is pretty in front of everyone, but mother believed it was "a form of motivation in which child Daniela has beauty and potential to do good in life."
Mother stated that she was no longer interested in a relationship with father and intended to focus on caring for her children. She did not have concerns about father sexually abusing the children and had not observed suspicious behaviors. Mother created a safety plan in which father would not live with mother and would not have unsupervised visitation with the children for seven days. The social worker inspected the children and found that they did not have any developmental or medical issues or any suspicious marks or bruises.
Father also informed a social worker that he was not Mia's biological father and that he started dating mother when she was 18 years old. He denied ever flirting with Daniela or sending her blackmailing messages. Father denied having a sex video of Daniela or ever having seen one but claimed that he mentioned having sex videos with other women in her presence so "[mother] can see how it feels" because he claimed that mother had cheated on him and made a sex video with another man while pregnant. Father claimed that the false allegations arose due to rivalry between Daniela and mother. Father had moved out of the maternal grandmother's home and was working on obtaining an apartment for himself, mother, and the children.
On May 18, 2022, a social worker called mother to follow up on the safety plan, which was expiring that day. Mother reported that she brought the children to paternal grandparents' house to allow father to visit them, that she did not leave them unsupervised with him, and that father had not gone to maternal grandmother's house. Mother also reported that father had admitted to sending Daniela the messages, "as he wanted to get back at mother . . . for the video she made." Mother stated that she is not interested in continuing a relationship with father but wanted to be able to coparent without family court intervention. She did not believe the children were at risk and did not wish to extend the safety plan.
Several weeks later, father informed a social worker that he had not gone to maternal grandmother's home nor had any contact with Daniela, and that he had been participating in supervised visitation with the children at paternal grandparents' home. He stated that he and mother were in a relationship and saving money to move in together.
3. Section 300 Petition and Detention Report and Hearing
On June 16, 2022, the court issued an order removing the children from father and releasing them to mother. Neither mother nor maternal grandmother were to take the children to visit father before the court hearing. In connection with the removal order, a social worker informed father that the Department had concerns about father's sexual advances on mother when she was 15 years old and more recently on Daniela. When father questioned the reference to" 'when [mother] was fifteen,'" the social worker explained that the Department had a police report in which father admitted to having sexual intercourse with mother when she was 15 years old. Father denied having possession of a sex tape involving Daniela and claimed that Daniela was in a relationship and having sexual intercourse with her adult boyfriend. Father disclosed that he did send the messages but did so only to make mother jealous. He stated that he lied about having an explicit video of Daniela and that he would not have done anything with Daniela even if she agreed. He continued to deny that Mia was his biological child.
On June 20, 2022, the Department filed a section 300 petition, alleging under subdivisions (b) and (d) that father placed the children in a detrimental and endangering situation by sending inappropriate messages to the children's minor aunt soliciting sexual intercourse and/or oral sex, threatening to release a sexually explicit video of the minor aunt if she refused to do so, and by making inappropriate sexual advances towards minor aunt in the past. In connection with the petition, the Department also filed a detention report.
The petition also alleged that mother failed to protect the children from father, but mother settled with the Department and was ultimately stricken from the petition.
The detention hearing took place on July 5, 2022. The court found father to be the presumed father of Mia and Adrian and concluded that a prima facie case existed and showed the minors to be persons described by section 300. The court ordered the children detained from father and ordered three weekly visits monitored by a Department-approved monitor.
4. Jurisdiction/Disposition Report and Hearing
The Department filed its jurisdiction/disposition report on August 22, 2022. Father admitted to a social worker that he was the biological father of both children and that he regretted not giving Mia his surname out of fear that law enforcement would get involved because mother "was 16 years old at the time of Mia's birth and he was 20." Mother similarly informed the Department that she had lied about Mia's parentage due to fear.
Mother was born in June 2003 and was still 15 years old when Mia was born in May 2019.
A social worker interviewed mother in maternal grandmother's home regarding the allegations of the petition. Mother had recently given birth to her and father's third child.Mother stated that Daniela told her that the allegations were true and that she wanted mother to be around more. Mother recalled that, at the time father blackmailed Daniela, Daniela had called her and sounded weird. Daniela would be alone with father for two to three hours until mother or maternal grandmother got home from work and did not want to be alone with him. However, Daniela "never told [mother] what he was doing." Mother denied having knowledge of father threatening Daniela. She also denied father's claim that he did it to get back at her for being with someone else while she was pregnant. Mother stated, "He is childish and he told me he did it because he can't get over the fact that when we were broken up I dated someone else. He said he didn't think all this was going to happen and he thought she was just going to tell my mom like last time. He said he wasn't serious about it but I don't know." When asked about her relationship with father, mother stated that "[r]ight now [she was] just worried about [her] kids." Mother also stated that she believed the allegations against father because she believed her sister.
The Department did not amend the petition to include this child.
The Department also interviewed father, who reported that he was living out of his car. Father denied the allegations of the petition. He stated that he had founds texts from mother and that he "just did what [mother] was doing to [him] so she could see what [he] felt." Father stated that he did not remember what his texts to Daniela said "but [he] was flirting with her but nothing sexual and [he] never touched her." He claimed that Daniela showed mother and told mother that father wanted to be with Daniela and "[mother] sent [him] to hell and that's what happened." Father again denied that he had an explicit video of Daniela.
Daniela confirmed that the allegations of the petition were accurate. She stated that father made eye contact with her and it made her uncomfortable. With respect to the prior incident in which father made inappropriate comments when she was 13, Daniela stated that father" 'was texting [her] telling [her] to do things with him and that [her] sister didn't have to know,'" and that this went on for about a month before Daniela told her mother. Father was living with them at the time and maternal grandmother" 'kicked him out.'" Daniela stated that if father were to return to live in maternal grandmother's home, she would move out because she did not want him close to her.
Maternal grandmother expressed concern that she had run into father parked outside her home. Father told maternal grandmother that paternal grandmother had kicked him out of the house and that he was living in his car. Maternal grandmother was concerned that he was jeopardizing the children's safety by being so close to their home. Father informed maternal grandmother that the case was closed and he was able to see the kids now. The social worker clarified that the case was not closed and that neither mother nor maternal grandmother could monitor father's visits with the children.
A social worker also spoke with a detective and was informed that the district attorney was going to file charges against father. However, the district attorney ultimately declined the case.
In its report, the Department noted that father admitted that he had sent Daniela messages but was not forthcoming about the contents, whereas Daniela's statements had been consistent. Further, father had engaged in inappropriate behaviors with Daniela when she was 13 and 14 years old and had first engaged in a romantic relationship with mother when she was 14 years old. The Department therefore recommended that Mia and Adrian be declared dependents of the juvenile court, that mother participate in family maintenance services; that father participate in individual counseling, parenting classes, and a sexual abuse for perpetrators program; and that the children remain in mother's home under the condition that mother complies with all court orders and the children be assessed and participate in play therapy to address case related issues if and when appropriate.
The Department also amended the petition to state father's full legal name.
In a last minute information for the court dated August 22, 2022, the Department reported that it had received a copy of the incident report from the County of Los Angeles Sheriff's Department. The report included the texts of the messages that an officer had reviewed. The messages were originally in Spanish, but the English translations in the report state:" 'Now I have the video and I can screw up your relationship and make your life impossible with your current boyfriend (unknown name due to the name of her current boyfriend [being] whited out in the message) and if he forgives you' . . . 'what do you say, sex or 5 days you give me oral sex, and no one can find out' . . . 'Or we can mess around for 5 days in whatever way you want, that's the only way I'll do it.'" When Daniela did not respond, father asked:" 'So you don't care?'" The report also stated that an emergency protective order was issued to protect Daniela from father.
The adjudication hearing took place on September 7, 2022. Counsel for father argued that, under factors set forth in the California Supreme Court's decision in In re I.J. (2013) 56 Cal.4th 766 (I.J.), the children were not at substantial risk of harm. Counsel for the Department argued that there was a substantial risk of harm to the children because father's sexual interest in minors was an "ongoing behavior" and because father "resorted to . . . some pretty serious black mail" against Daniela. The court stated that the arguments of father's counsel were "persuasive" but rejected them. However, it acknowledged "that there does have to be an analysis about whether these children are at risk because they are such a different age than the children that father has been having inappropriate contact with." The court identified several factors that supported its conclusion that it had jurisdiction over the children, including father's "credibility issues," his "grooming behaviors" and the fact that "[t]here's multiple underaged children that he has had inappropriate conduct with." The court observed that father impregnated mother when she was "14 maybe 15" and found Daniela's statements regarding father's comments to her when she was 13 and 14 years old credible. The court also noted that, although father had not acted physically towards Daniela, "he does stare at her and she feels uncomfortable in his presence." It therefore concluded that the Department had carried its burden and sustained the petition against father as amended.
Counsel for father argued that there was "not clear and convincing evidence of detriment to the children and there are reasonable means to protect them if the children were released to both parents." However, the court concluded that this standard had been satisfied and ordered the children removed from father "based on father having inappropriate contact with more than one minor, and father having what this court believes are some unresolved issues as it relates to inappropriate sexual contact or conduct." The court ordered father to complete a sex abuse counseling for perpetrators class, a parenting class, and individual counseling and instructed that father should receive monitored visitation three times a week.
Father timely appealed.
DISCUSSION
Father contends the juvenile court lacked substantial evidence to support its jurisdictional findings. He also asserts the court erred by removing the children from his custody at the dispositional hearing because they did not face substantial danger and there was insufficient evidence there were no other means to protect the children absent removal. We disagree with father on both issues.
1. Substantial evidence supports the juvenile court's jurisdictional findings.
"Section 300 begins: 'Any child who comes within any of the following descriptions is within the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court ....' Then follow several subdivisions describing children who may be adjudged dependents of the court." (I.J., supra, 56 Cal.4th at p. 772.) The Department alleged that Mia and Adrian came within two of these subdivisions: "subdivision (b) ('The 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 . . . to adequately supervise or protect the child ....'); [and] subdivision (d) ('The child has been sexually abused, or there is substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent ....')[.]" (Ibid.)
When reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional findings, we determine if substantial evidence, contradicted or uncontradicted, supports them."' "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.] "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." '" (I.J., supra, 56 Cal.4th at p. 773; accord, In re Alexis E. (2009) 171 Cal.App.4th 438, 451 ["[w]eighing evidence, assessing credibility, and resolving conflicts in evidence and in the inferences to be drawn from evidence are the domain of the trial court, not the reviewing court"].) We"' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find that [the order is appropriate]." '" (I.J., at p. 773.)
Whether there was substantial risk of harm to the children may be established based on evidence of prior acts. (In re J.K. (2009) 174 Cal.App.4th 1426, 1438.) Evidence that an adult has a "proven record of abusiveness" can suffice to support a finding of substantial danger to a different minor. (In re Rocco M. (1991) 1 Cal.App.4th 814, 824, superseded by statute on other grounds as stated in In re J.K., at pp. 1435-1436.) "The court need not wait until a child is seriously abused or injured to assume jurisdiction and take the steps necessary to protect the child." (In re R.V. (2012) 208 Cal.App.4th 837, 843.)" '[T]he more severe the type of . . . abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300.' [Citation.]" (Los Angeles County Dept. of Children &Family Services v. Superior Court (2013) 222 Cal.App.4th 149, 164.) "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm." (In re Rocco M., at p. 824.)
The Supreme Court's 2013 decision in I.J. established that evidence of a father's sexual abuse of his 14-year-old daughter could justify the assertion of jurisdiction over his other children, including those who were significantly younger and of the opposite gender. The Supreme Court observed that "section 300 does not require that a child actually be abused or neglected before the juvenile court can assume jurisdiction," but requires only a" 'substantial risk'" of abuse, and therefore "assume[d] that father's other daughter is at greater risk of sexual abuse than are his sons," but that the risk to his three sons was not "nonexistent or so insubstantial that the juvenile court may not take steps to protect the sons from that risk." (I.J., supra, 56 Cal.4th at pp. 773, 779-780.) The court explained that" '[s]ome risks may be substantial even if they carry a low degree of probability because the magnitude of the harm is potentially great.... [¶] . . . [¶] . . . [I]n order to determine whether a risk is substantial, the court must consider both the likelihood that harm will occur and the magnitude of the potential harm ....' [Citation.] In other words, the more severe the type of sibling abuse, the lower the required probability of the child's experiencing such abuse to conclude the child is at a substantial risk of abuse or neglect under section 300. If the sibling abuse is relatively minor, the court might reasonably find insubstantial a risk the child will be similarly abused; but as the abuse becomes more serious, it becomes more necessary to protect the child from even a relatively low probability of that abuse." (Id. at p. 778.)
The court held that juvenile courts are to consider" 'the totality of the circumstances of the child and his or her sibling in determining whether the child is at substantial risk of harm,'" including" '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.'" (I.J., supra, 56 Cal.4th at p. 774, quoting § 300, subd. (j).) Courts also may consider the egregiousness of the abuse and the "violation of trust" shown by sexually abusing one child "while . . . other children [are] living in the same home and could easily have learned of or even interrupted the abuse." (Id. at p. 778.) "[A]fter considering the nature and severity of the abuse and the other specified factors, the juvenile court is . . . to use its best judgment to determine whether or not the particular substantial risk exists." (Id. at p. 779.)
The Supreme Court further observed that "[s]ection 355.1, subdivision (d), provides that a prior finding of sexual abuse (of anyone, not just a sibling) is prima facie evidence that the child who is the subject of the dependency hearing is subject to the court's jurisdiction under section 300. When it enacted subdivision (d) of section 355.1, the Legislature found 'that children of the State of California are placed at risk when permitted contact with a parent or caretaker who has committed a sex crime.'" (I.J., supra, 56 Cal.4th at p. 779.) Although the father in I.J. correctly argued that section 355.1 did not apply "because there was no finding in a prior proceeding that he committed sexual abuse," the court concluded that section 355.1 was nevertheless "relevant because it evinces a legislative intent that sexual abuse of someone else, without more, at least supports a dependency finding." (I.J. at p. 779, citing In re P.A. (2006) 144 Cal.App.4th 1339, 1347.)
Although I.J. involved the exercise of jurisdiction over siblings of the victim, while the victim here was the mother's younger sister, the analysis set forth by the Supreme Court is instructive. The juvenile court here stated that it had read I.J. and considered it distinguishable, but the record supports that, consistent with I.J., the court considered the totality of the circumstances before deciding to exercise jurisdiction over the children. The court recognized that it needed to analyze whether the children were at risk considering the difference in age between Daniela and the children. The court considered father's credibility issues, his grooming behavior, and his inappropriate sexual contact with multiple children before concluding that the exercise of jurisdiction was appropriate.
As in I.J., section 355.1 does not apply here, but it is relevant because there is substantial evidence that father sexually abused Daniela, which "at least supports a dependency finding" with respect to Mia and Adrian. (I.J., supra, 56 Cal.4th at p. 779, citing In re P.A., supra, 144 Cal.App.4th at p. 1347.) Section 355.1, subdivision (d) provides that, where a court finds that a parent has been previously convicted of sexual abuse as defined in section 11165.1 of the Penal Code, "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." Father's conduct towards Daniela meets the definition of sexual abuse for purposes of section 355.1. Penal Code section 11165.1, subdivision (a), provides that "sexual assault" means conduct in violation of various provisions of the Penal Code, including Penal Code section 647.6, which concerns child molestation. "To convict a defendant of violating section 647.6, the prosecution must prove: (1) the defendant engaged in conduct directed at a child; (2) a normal person, without hesitation, would have been disturbed, irritated, offended, or injured by the defendant's conduct; (3) the defendant's conduct was motivated by an unnatural or abnormal sexual interest in the child; and (4) the child was under the age of 18 years at the time of the conduct. It is not necessary that the child actually be irritated or disturbed or that the child actually be touched." (People v. Clotfelter (2021) 65 Cal.App.5th 30, 50.)
The record establishes that father threatened to expose a video of Daniela, in which she performed a sexual act on another child, to intimidate Daniela into engaging in sexual activity with him. The court could reasonably conclude that such conduct would, without hesitation, disturb or irritate a normal person. There is also substantial evidence to support that father's actions were motivated by an abnormal sexual interest in a child. Father propositioned Daniela over the course of approximately a month when she was 13 years old, did so again when she was 14 years old, and ultimately attempted to blackmail her into a sexual relationship when she was 17 years old.
The conclusion that father's conduct violated Penal Code section 647.6 is supported by In re D.G. (2012) 208 Cal.App.4th 1562. In that case, "[t]he juvenile court found that 'On numerous prior occasions, . . . [Father] inappropriately solicited sexual acts from [his daughter, D.G.] by offering the child money to allow [Father] to orally copulate the child's vagina. [¶] [Father] asked the child to engage in oral sex with [him].'" (Id. at p. 1570.) On appeal, Division One of this District rejected the parents' contention that the father's conduct did not constitute sexual abuse. The court noted that" '[t]he deciding factor for purposes of a Penal Code 647.6 charge is that the defendant has engaged in offensive or annoying sexually motivated conduct which invades a child's privacy and security, conduct which the government has a substantial interest in preventing ....' [Citation.]" (Id. at p. 1571.) The court concluded that "[f]ather's repeated acts of offering D.G. money and a car for oral sex was conduct that evidenced his abnormal sexual motivation and would irritate a normal child and invade her privacy and security." (Id. at p. 1572.) The court also observed that the law is clear that no touching is required to offend Penal Code section 647.6. (Ibid.)
The Department and father dispute whether father's conduct also constituted "sexual exploitation" under Penal Code section 11165.1, subdivision (c)(3), which applies to one who, in relevant part, knowingly streams or accesses through any electronic or digital media a recording in which a child is engaged in an act of obscene sexual conduct. The fact that father, whom the court determined not to be credible, denied that he had possession of such a video does not mean that the court could not reasonably conclude the opposite based on the evidence. Daniela never denied that an explicit video of her existed, and father expressly stated in his messages to her:" 'Now I have the video and I can screw up your relationship and make your life impossible ....'" Father contends that "[t]here is no evidence- apart from his crude solicitation- father actually developed, duplicated, printed, downloaded, streamed, or accessed 'a film, photograph, videotape, video recording, negative, or slide' depicting Daniela engaged in 'obscene sexual conduct.'" But father does not explain why his "crude solicitation" is not substantial evidence of possession and access in and of itself. In any event, even if father's conduct was "at worst" child molestation under Penal Code section 647.6, it was still sexual abuse for purposes of Penal Code section 11165.1, as In re D.G., supra, 208 Cal.App.4th 1562 demonstrates.
A parent's criminal conviction is not a requirement for a finding under section 300, subdivision (d), that a minor is at substantial risk of being sexually abused by that parent. The standard of proof for a jurisdictional finding is preponderance of the evidence (§ 355, subd. (a)), a lesser standard than that required for a criminal conviction. Thus, the fact that the district attorney declined to pursue the possession of child pornography count against father does not mean that father's possession or access to the video of Daniela cannot support a jurisdictional finding.
Although father and Daniela are not biologically related, the court could reasonably conclude that the two had a familial relationship because of father's relationship with mother. The court could also conclude that father's conduct was prolonged because it took place over the course of four years, albeit intermittently. Both when father propositioned Daniela when she was 13 and 14 years old and when he blackmailed her when she was 17 years old, father lived in the same home with Daniela. The record further indicates that Daniela and the children were alone with father for several hours each day before mother and maternal grandmother returned home from work. Thus, we do not agree with father that "[t]here was no possibility Mia or Adrian experienced-either directly or indirectly-any form of inappropriate contact in the family home." While there is no basis to conclude that the children were aware of father's threatening messages to Daniela, the record indicates that father complimented Daniela's appearance in front of others and otherwise made her feel uneasy in the home. Daniela also reported that mother was uncomfortable leaving father and Daniela alone while she worked because there was the possibility they might "do 'something' together", indicating that his behavior towards Daniela reflected a sexual interest in her.
Father's conduct escalated from propositioning a 13-year-old child (troubling behavior in and of itself) to threatening to expose a sexual video of Daniela to coerce her into having sexual relations with him. Thus, there is evidence to support that father has grown more unscrupulous in his pursuit of a sexual relationship with minors. Even if the possibility of father sexually abusing Mia and Adrian was remote, the risk to the children was far greater than the risk to Daniela, who at all relevant times was old enough to know that father's conduct was inappropriate and to report it to adults. Moreover, a child need not be inappropriately touched to suffer a risk of substantial harm, as exposure to sexual abuse is also harmful. (See I.J., supra, 56 Cal.4th at p. 778 ["Also relevant to the totality of the circumstances surrounding the sibling abuse is the violation of trust shown by sexually abusing one child while the other children were living in the same home and could easily have learned of or even interrupted the abuse"]; In re Andy G. (2010) 183 Cal.App.4th 1405, 1412 [" '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 ....' "].) Thus, we conclude that substantial evidence supports that the children were at substantial risk of harm under section 300, subdivision (d). We need not reach the issue of whether jurisdiction was also appropriate under subdivision (b). (I.J. at p. 773.)
We do not disagree that father's conduct was not as aberrant and outrageous as the father's sexual abuse of his daughter in I.J., which involved fondling, digital penetration, oral copulation, compelled viewing of pornographic videos, and forcible rape. (I.J., supra, 56 Cal.4th at p. 771.) Daniela denied that father ever physically assaulted her, and there is no other evidence to suggest that he ever sexually abused Mia or Adrian. Father is not biologically related to Daniela and there is no evidence that father and Daniela, who are approximately six years apart in age, had a parent-child relationship. Further, as the court recognized, Daniela was 13 years old when father's inappropriate conduct towards her began, and thus significantly older than the children.
Our Supreme Court declined to hold "that the juvenile court is compelled, as a matter of law, to assume jurisdiction over all the children whenever one child is sexually abused." (I.J., supra, 56 Cal.4th at p. 780.) The juvenile court here could have reasonably concluded based on the evidence that father's abuse of Daniela was not so severe as to place the children at significant risk of harm. (Id. at p. 778.) However, this does not mean that there is insufficient evidence to support the conclusion that the jurisdiction over the children was proper.
Father distinguishes the facts here from those present in decisions in which the Court of Appeal affirmed the jurisdictional findings of the juvenile court. (See, e.g., In re D.C. (2015) 243 Cal.App.4th 41, 54 [where adoptive father had sexual intercourse with a child in the home and forced her to orally copulate him, the "reasoning and conclusion of I.J. applie[d] equally" and supported jurisdiction over siblings], superseded by statute on other grounds as stated in In re A.M. (2020) 47 Cal.App.5th 303, 322; In re Ana C. (2012) 204 Cal.App.4th 1317, 1332 [father's sexual abuse of a mentally disabled 11-year-old girl was" 'so sexually aberrant'" to support the commonsense conclusion that most every person in the family home was at risk of sexual abuse"]; In re D.G., supra, 208 Cal.App.4th at p. 1573 [substantial evidence supported jurisdiction over sibling where father repeatedly offered the girl's older sister money and a car in exchange for oral sex].) He does not identify any language in those cases establishing that the conduct described therein represented the minimum threshold for the exercise of jurisdiction. Father also does not identify any decision in which there was substantial evidence that one child in the home was sexually abused but the Court of Appeal overturned the exercise of jurisdiction with respect to other children.
Father also relies on In re Luis H. (2017) 14 Cal.App.5th 1223. Although the facts may be comparable to those present here, the procedural posture was entirely different. In Luis H., the juvenile court declined to exercise jurisdiction over the siblings of a female child who had been sexually abused by the mother's boyfriend because it did not believe that the other children, including two younger boys, were similarly situated to the girl who had been abused. (Id. at pp. 1225-1226.) The boys appealed the juvenile court's determination that they were not children described by section 300. (In re Luis H., at p. 1226.) Because the issue on appeal turned on a failure of proof at trial, the Court of Appeal was tasked with determining" 'whether the evidence compel[led] a finding in favor of the appellant as a matter of law.' [Citation.]" (Id. at p. 1227.) The court concluded that the boys had failed to carry their burden on appeal because they had "not argued or demonstrated that the evidence 'was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." [Citation.]' [Citation.]" (Ibid.) In contrast, our task is to determine whether substantial evidence supports the juvenile court's findings, not whether its exercise of jurisdiction was compelled as a matter of law.
The circumstances here are also distinguishable from those present in In re L.O. (2021) 67 Cal.App.5th 227. The Court of Appeal in L.O. reversed jurisdictional findings under section 300, subdivision (d), that relied on allegations that the child may have witnessed his father having sex with his girlfriend. (In re L.O., at pp. 234, 247.) The court concluded that there was insufficient evidence that the father had committed an act of sexual abuse within the meaning of Penal Code section 11165.1 by inadvertently exposing the child to his sexual conduct with his girlfriend. (In re L.O., at pp. 241-243.) The allegations in this case rely on substantial evidence of father's intentional sexual abuse of another child in the home.
Father further contends that there is no present risk to the children because he moved out of maternal grandmother's home. Father did so because maternal grandmother no longer allowed him to live there. Father was previously kicked out of maternal grandmother's home following his inappropriate advances towards Daniela when she was younger, but maternal grandmother permitted him to move back in to help mother with the children after Adrian's birth. Mother recently gave birth to a third child, and thus there is a significant risk that, absent intervention, the exigencies of caring for and supporting three small children will result in mother and maternal grandmother permitting father to return to the family home. Father also stated that he wished to maintain a relationship with mother, and that he felt that she may also want a relationship but was afraid of losing her children. The risk to the children is amplified by the fact that father has consistently denied or downplayed any wrongdoing and instead placed blame on Daniela and mother. (See In re Gabriel K. (2012) 203 Cal.App.4th 188, 197 ["One cannot correct a problem one fails to acknowledge."].) Father also falsely told maternal grandmother that the case had closed and that he could access the children.
The circumstances here are therefore unlike those present in In re Ma.V. (2021) 64 Cal.App.5th 11, on which father relies. In that case, social services initiated a case based on domestic violence perpetrated on mother by her then-boyfriend. (Id. at p. 14.) "It was undisputed the perpetrator of the violence against Mother, B.L., had left the family home and Mother had ended her relationship with him. The same was still true 10 months later; Mother had no contact with B.L." (Id. at p. 22.) The Court of Appeal concluded that "[t]he juvenile court's focus on Mother's past as a victim of domestic violence, which had not occurred again during the 10 months the case was pending, and was not a current risk, was error." (Id. at p. 23.) It observed that, "[b]ecause of the pandemic, Mother had unusually long amount of time before the jurisdiction hearing," and that, during that time, "Mother resolved the key concerns warranting jurisdiction." (Ibid.) Here, there has not been an "unusually long amount of time" between the initiation of the case and the jurisdiction hearing in this case, nor does the evidence support that father "resolved the key concerns warranting jurisdiction." (Ibid.)
In sum, although this presents a closer case than I.J. or subsequent decisions relying on it, we conclude that substantial evidence supports the court's jurisdictional findings with respect to section 300, subdivision (d).
2. Substantial evidence supports the juvenile court's removal orders.
"A dependent child shall not be taken from the physical custody of his or her parents . . . with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence" that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's . . . physical custody." (§ 361, subd. (c)(1).) Removal of a child is also permitted where there is clear and convincing evidence "[t]he minor or a sibling of the minor has been sexually abused, or is deemed to be at substantial risk of being sexually abused, by a parent . . . and there are no reasonable means by which the minor can be protected from further sexual abuse or a substantial risk of sexual abuse without removing the minor from his or her parent...." (Id., subd. (c)(4).) "The parent need not be dangerous and the minor need not have been actually harmed before removal is appropriate. The focus of the statute is on averting harm to the child." (In re Diamond H. (2000) 82 Cal.App.4th 1127, 1136, overruled on another ground by Renee J. v. Superior Court (2001) 26 Cal.4th 735.) The jurisdictional findings are prima facie evidence the minor cannot safely remain in the home. (§ 361, subd. (c)(1); In re T.V. (2013) 217 Cal.App.4th 126, 135.) "The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings or orders." (In re A.E. (2014) 228 Cal.App.4th 820, 826.)
For the reasons discussed above, we conclude that the evidence supported that the children remained at substantial risk of harm even though father left the family home.
Substantial evidence also establishes that an alternative short of removal from father's custody would not have sufficed to protect Mia and Adrian. We note that the Department facilitated a seven-day safety plan pursuant to which mother agreed she would not live with father and would not allow father unsupervised visits for the next seven days. Mother indicated that she did not wish to extend the plan. Father argues "[t]he Department could have maintained close supervision over the family, without removing the children from father's custody, subject to his ongoing compliance with court directives." Despite the detention order, father parked outside the home where the children lived and tried to convince maternal grandmother that the case had closed and that he could visit the children. As discussed, father also denied his misconduct and showed no remorse or recognition that his conduct towards Daniela was inappropriate. He instead seemed to conceive of himself as the victim. These facts support that father had not taken any steps to address his inappropriate sexual behaviors and did not take court directives seriously, and thus that removal of the minors from his custody is the only option that will ensure their protection.
DISPOSITION
The jurisdiction findings and disposition orders are affirmed.
WE CONCUR: EDMON, P. J. EGERTON, J.