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In re A.G.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
B228115 (Cal. Ct. App. Jan. 31, 2012)

Opinion

B228115

01-31-2012

In re A.G. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SHA.M. et al., Defendants and Appellants.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant Sha.M. Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant K.P. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CK80703

APPEALS from orders of the Superior Court of Los Angeles County. Sherri S. Sobel, Juvenile Court Referee, Judge. Affirmed.

Ernesto Paz Rey, under appointment by the Court of Appeal, for Defendant and Appellant Sha.M.

Joseph D. MacKenzie, under appointment by the Court of Appeal, for Defendant and Appellant K.P.

Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Judith A. Luby, Deputy County Counsel, for Plaintiff and Respondent.

Sha.M. (father) and K.P. (mother) appeal the jurisdictional findings as to their son, S.M. In addition, mother appeals the jurisdictional findings as to her daughter, A.G. We find no error and affirm.

FACTS

Mother gave birth to A.G. in 1996 and S.M. in 2005. W.G. is the biological father of A.G. and father is the biological father of S.M. S.M. is developmentally delayed and did not speak until he was three years old.

The Department of Children and Family Services (Department) filed a petition pursuant to section 300 of the Welfare and Institutions Code and alleged that father sexually abused A.G. and mother failed to protect her. The petition also alleged that S.M. was at risk due to father's sexual abuse of A.G.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

At the jurisdictional hearing, the evidence showed that father began molesting A.G. when she was eight or nine years old. It happened most if not every day and it continued until she was 13 years old. During this period, father slept alone in his room and A.G. slept alone in her room. Mother and S.M., on the other hand, slept together in the living room. Father would enter A.G.'s room in the mornings and evenings to molest her. Other times he would molest her while they were watching television in his room.

Father was very strict about the type of clothes that A.G. wore, and he would not allow her to go to sleepovers with her friends.

Typically, father drove A.G. to and from school.

The whole family played together physically. In the presence of A.G., mother would suck on father's ear and talk to his penis. Mother observed A.G. and S.M. play with father and touch his nipples, and she observed them both sucking on father's ear. In addition, mother knew father woke up at 7:00 a.m. each morning and went into A.G.'s room to wake her up and turn off her alarm; mother saw A.G. hug father and sit next to him to watch television; mother was aware that A.G. shared things with father that she did not share with mother. A.G. left notes in father's shoe, and mother knew about it. One of the notes stated, "Daddy, I love you. Everything is okay." Mother did not inquire about the note.

On various occasions, mother would help father in the shower by shampooing and conditioning his hair. If mother was not available, father would ask A.G. to help. She would stand outside the shower, fully dressed, and he would stand in the shower wearing only his underwear. A.G. would shampoo and condition his hair. This required her to touch his hair and his back.

The juvenile court found that father molested A.G. and declared A.G. and S.M. dependents under section 300, subdivisions (b) and (d). A.G. was removed from the care of mother and father but S.M. was not.

These timely appeals followed.

Subsequently, on April 6, 2011, the juvenile court terminated its jurisdiction over S.M.

DISCUSSION

Jurisdictional findings are reviewed under the well-established substantial evidence rule. (In re A.S. (2011) 202 Cal.App.4th 237, 244.) If the findings are supported by credible evidence and reasonable inferences, conflicting evidence and inferences are ignored. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651; Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)

I. A.G.

Mother argues that there was insufficient evidence to support jurisdiction under section 300, subdivisions (b) and (d). We disagree.

Jurisdiction is proper when a child has suffered or is at risk of suffering serious physical harm as a result of the failure of her parent to provide adequate supervision or protection, or when the parent has failed to adequately protect the child from sexual abuse when the parent knew or reasonably should have known that the child was in danger of sexual abuse. (§ 300, subds. (b) & (d).)

Both standards are met because mother ignored all the signs of danger. She sucked on father's ears and spoke to his penis with A.G. present, behavior that taught A.G. inappropriate boundaries and desensitized her to intimate activity that should only occur between adults and in private. A.G. followed mother's lead and "played" with father by also sucking on his ear, an intimate behavior in which she related to father in manner that was inappropriate for her age and detrimental to her understanding of healthy interaction between a parent and child. Further, A.G. touched father's nipples when the family played together, and at times A.G. bathed and shampooed father in the shower while he was only wearing underwear. By permitting these family behaviors, mother taught A.G. that intimate touching with father was not only permitted, it was an acceptable sign of love and affection.

Mother told a social worker that the way the family plays together "might sound weird."
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A.G. shared information with father she did not share with mother, and A.G. left father notes. One note was left in his shoe. It said she loved him, and that everything was okay. Mother never inquired about the secret information A.G. was sharing, or about any of her notes to father. And even though A.G. was vulnerable and had been desensitized to inappropriate playing and bathing, mother was not concerned about father spending time alone with A.G. every morning, every evening and when they were watching television in his bedroom. The evidence and inferences establish that father was an authoritarian who perpetuated inappropriate boundaries and monopolized A.G.'s time. In short, their interaction was of a kind that no mother should blindly trust. Mother should have been concerned. Instead, she was shockingly indifferent to and negligent regarding A.G.'s well-being.

Mother should have known that A.G. was being sexually abused or was at risk of physical harm and sexual abuse. Nonetheless, mother failed to protect A.G., essentially choosing father over A.G.

II. S.M.

Father contends that there was insufficient evidence of risk to support jurisdiction over S.M. Mother joins. Even though the juvenile court terminated jurisdiction as to S.M., mother and father contend that their appeals are not moot because they might be prejudiced by the jurisdictional finding at a later date. As stated by In re C.C. (2009) 172 Cal.App.4th 1481, 1489, this "concern is highly speculative." But, in an abundance of caution, we analyze the merits.

In our view, jurisdiction was proper.

As a preliminary matter, we dispense with the notion that the juvenile court did not find that S.M. was at risk. The juvenile court impliedly found risk when it sustained the section 300 petition, and it impliedly did so by a preponderance of the evidence as required by section 355, subdivision (a). Mother and father, however, point to the following statement made by the juvenile court when deciding whether to remove S.M. from their home under section 361, subdivision (c): "[As to S.M.], I cannot find by clear and convincing evidence that this special-needs child should be separated any longer, at age four, from his parents. I just don't see it. There are . . . things we can put in the household to make this child safe. . . . I do not believe [S.M.] is at risk and I think he needs to go home." The juvenile court then stated: "I don't want any more of this sex play in the household with [S.M.] I want appropriate boundaries with that child."

Section 361 subdivision (c) provides that a "dependent child may 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 "(1) [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 can be protected without removal.

The juvenile court's finding of risk under section 300 is not inconsistent with its nonremoval order under section 361, subdivision (c) because that the latter statute imposes a heightened burden of proof for risk. In addition, the nonremoval order under section 361, subdivision (c) was premised on a finding that S.M. would be safe but only if safeguards were put in place.

We now move to the merits.

There is a split of authority as to whether the sexual abuse of a child's sibling places the child at risk. Division Three of our district 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." (In re Karen R. (2001) 95 Cal.App.4th 84, 90-91 (Karen R.).) The same court later stated that "we are convinced that where . . . a child has been sexually abused, any younger sibling who is approaching the age at which the child was abused, may be found to be at risk of sexual abuse. As we intimated in Karen R., aberrant sexual behavior by a parent places the victim's siblings who remain in the home at risk of aberrant sexual behavior." (In re P.A. (2006) 144 Cal.App.4th 1339, 1347 (P.A.).) In re Maria R. (2010) 185 Cal.App.4th 48, 63 (Maria R.), decided in the first district, disagreed with "prior cases to the extent that they have held, either explicitly or implicitly, that a parent's sexual abuse of a daughter, either alone or in combination with a factor or factors that have no established correlation with sexual abuse, is sufficient to establish that the parent's son is at risk of sexual abuse by that parent within the meaning of [section 300, subdivision (d)]." After reviewing these cases, we conclude that Karen R. and P.A. offer the better rule because they permit the trier of fact to make the determination. Undeniably, the existence of a risk is a factual question rather than a legal one.

Even though the question is factual, a finding of risk to a minor of a molested sibling must be based on substantial evidence. The record in this case contains substantial evidence of risk to S.M. The family's aberrant dynamic involved S.M. He was with the family during their play time, and he sucked on father's ear and touched father's nipples. S.M. observed A.G. engaging in similar behavior and was therefore taught the same inappropriate boundaries. Not to be forgotten is that father is a controlling sexual predator who engaged in repeated molestation of A.G. on a systematic basis for four to five years. During that time, mother was unable or unwilling to recognize father's true nature. In our view, these facts sufficiently indicate that S.M. was at risk of sexual abuse.

DISPOSITION

The orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________, J.

ASHMANN-GERST

We concur:

_______________, Acting P. J.

DOI TODD

_______________, J.

CHAVEZ


Summaries of

In re A.G.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Jan 31, 2012
B228115 (Cal. Ct. App. Jan. 31, 2012)
Case details for

In re A.G.

Case Details

Full title:In re A.G. et al., Persons Coming Under the Juvenile Court Law. LOS…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Jan 31, 2012

Citations

B228115 (Cal. Ct. App. Jan. 31, 2012)