Opinion
B231468
10-18-2011
In re V.D. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. S.D., Defendant and Appellant.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK73778)
APPEAL from a judgment of the Superior Court of Los Angeles County. Albert Garcia, Juvenile Court Referee. Affirmed.
Deborah Dentler, under appointment by the Court of Appeal, for Defendant and Appellant.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, Sarah Vesecky, Deputy County Counsel, for Plaintiff and Respondent.
S.D. appeals from the jurisdictional and dispositional orders in the dependency proceeding concerning his son S. We affirm, as we explain:
The Welfare and Institutions Code section 300 petition in this case was filed on July 30, 2010. S. was 11 years old. His sister V. was 12. Father and the children were living at the Union Rescue Mission, and had been for about three months.
All further statutory references are to that code unless otherwise indicated.
Father had custody of the children as the result of an earlier dependency occasioned by Mother's 2008 arrest for physical abuse of the children.
The petition was filed after V. told her mother and school officials that on the night of July 26, 2010, she had woken up and seen that her pants and underpants were pulled down to her thighs, and that Father was beside her, kneeling down. To DCFS, V. added the information that when she went to pull her pants up, she noticed that her buttocks were wet. V. had had a bedwetting problem, but she told DCFS that she had not wet the bed. Only her buttocks were wet, not the bed.
When this happened, S. was sleeping nearby. V.'s, S.'s, and Father's descriptions of the sleeping arrangements were the same: the children had bunk beds and Father had a single bed nearby. V. usually slept on the bottom bunk and S. on the top bunk. However, that night, S. wanted to sleep in the single bed. Father did not want to sleep on the top bunk, so he slept on the floor, near the bunk beds.
When DCFS learned of V.'s statement, the children were detained and placed with their mother.
V. told DCFS that she and Father "argued a lot," and Father told DCFS that he and V. had "been having a lot of problems," that V. had "anger issues," but had not been in counseling for a while, and that she wanted to live with her mother.
Apparently in response to a question, V. told DCFS that "I believe that my dad would pull down my pants. He has all of these women in thongs on his laptop computer. I saw them when I was downloading some music."
V. told DCFS that she "did not feel comfortable" living with Father "after what he did to me," and that she wanted to live with her mother.
V., and everyone else DCFS interviewed (V. and S. had older maternal half siblings) said that they had never seen Father do anything sexual to S.
The reports do not tell us whether those children had lived with Father, or, if they did so, for how long or under what circumstances.
S. told DCFS that Father took good care of him and V., that he felt safe with Father, that neither Father (nor anyone else) had touched his private parts, and that he wanted to stay with Father.
To DCFS and at the section 300 hearing, Father said that he had not pulled V.'s pants or underpants down, and had never abused her.
The jurisdictional hearing did not take place until January 2011. V. did not visit Father until early December, telling the social worker that she was "not ready." However, at the first visit, Father and V. laughed and talked happily. V. told the social worker that she had forgiven Father and wanted "to move on from it."
As to S., on January 11, 2011, the petition was sustained under section 300, subdivisions (b), (d) and (j) on identical allegations that Father had "sexually abused . . . [V.] by pulling down the child's pants and underwear while the child slept. [He] was found by the child kneeling behind the child, and there was an unidentified liquid on the child's buttocks. The child is afraid of the father due to the sexual abuse of the child by the father. Such sexual abuse of the child by the father endangers the child's physical and emotional health and safety and places child and child's sibling [S.] at risk of harm, damage, danger, and sexual abuse."
There were also sustained allegations concerning the children's mother, but she is not a party to this appeal, and we do not discuss them.
Father challenges the substantial evidence for the assertion of jurisdiction over S. "In reviewing the jurisdictional findings . . . 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." (In re Heather A. (1996) 52 Cal.App.4th 183, 193.)
As both parties acknowledge, many courts have considered these statutes and similar facts, that is, jurisdiction over a boy, where the parent had abused a girl, with differing results. (In re Maria R. (2010) 185 Cal.App.4th 48; In re Andy G. (2010) 183 Cal.App.4th 1405; In re P.A. (2006) 144 Cal.App.4th 1339; In re Karen R. (2001) 95 Cal.App.4th 84; In re Rubisela E. (2000) 85 Cal.App.4th 177.) We need not discuss these cases in detail, but say only that we are satisfied that in at least some instances, sexual abuse of a girl can establish that a brother is at risk of sexual abuse, and thus subject to jurisdiction under section 300, subdivisions (b), (d) and (j).
"These subdivisions provide that a child may be adjudged a dependent child of the juvenile court under the following conditions: (1) if 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 or guardian to adequately supervise or protect the child' (§ 300, subd. (b)); (2) if there is a substantial risk that the child 'will be sexually abused . . . by his or her parent or guardian or a member of his or her household' (id., subd. (d)); and (3) if the child's sibling has been abused or neglected 'and there is a substantial risk that the child will be abused or neglected, as defined in' other subdivisions (including subds. (b) & (d)) (id., subd. (j)). Thus both subdivisions (d) and (j) of section 300 'require a finding of a substantial risk that the child who is the subject of dependency proceedings will be sexually abused by a parent or member of the child's household.' (In re P.A. (2006) 144 Cal.App.4th 1339, 1347, fn. 6.)" (In re Andy G. (2010) 183 Cal.App.4th 1405, 1411.)
Father contends that this is not one of those cases. He cites the evidence that S. had never been sexually abused and was not aware that V. had been abused, the evidence that Father and S. had a good relationship, and the absence of evidence that Father had a sexual interest in men or boys.
We find substantial evidence. First, although S. did not know of the abuse when it happened, it was inevitable that if V. became aware of it (as was likely) and reported it (as was in her best interest) S. would be seriously affected by it, as he has been. Due to the abuse, he has been interviewed by DCFS and removed from his father. He has been in Trauma Focused Cognitive Behavioral therapy. By now, he either knows all about the incident of abuse or is suffering because he has been kept in the dark concerning the causes of the changes in his life.
Although we cannot agree with DCFS that the court found that Father masturbated on V., the court did find that he uncovered her buttocks, in the middle of the night, for purposes of his sexual arousal and gratification. (See Pen. Code, § 11165.1, subd. (b)(4).) Further, Father did this while his son was sleeping very close by, in a homeless shelter where (we may infer) others, including staff members, were present on the premises, so that the possibility of detection was increased. Further, at the time this happened, his children had already suffered the trauma of abuse at their mother's hands, and removal from that home.
There is substantial evidence to support a reasonable inference that father's behavior was "so sexually aberrant" that S., a boy close in age to V., was at substantial risk of sexual abuse, and to establish the risk of harm detailed in subdivision (b). (In re Karen R., supra, 95 Cal.App.4th at pp. 90-91; In re Andy G., supra, 183 Cal.App.4th at p. 1415.)
We note, too, that "This conclusion is consistent with section 355.1, subdivision (d), which provides in pertinent part that: '(d) Where the court finds that either a parent, a guardian, or any other person who resides with . . . a minor who is currently the subject of the petition filed under Section 300 . . . (3) has been found in a prior dependency hearing . . . to have committed an act of sexual abuse, . . . 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.' [¶] Although section 355.1, subdivision (d), was not triggered here because there was no prior dependency proceeding at the time of the jurisdictional hearing, it nonetheless evinces a legislative determination that siblings of sexually abused children are at substantial risk of harm and are entitled to protection by the juvenile courts." (In re P.A., supra, 144 Cal.App.4th at p. 1347.)
Father's argument on the dispositional orders is only that, if the jurisdictional orders are reversed, the dispositional orders must be reversed, too. Since we affirm the jurisdictional orders, we affirm the dispositional orders as well.
Disposition
The jurisdictional and dispositional orders are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.