In re Dylan H.

Filed 3/9/07 In re Dylan H. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court for the County of Los Angeles. Debra Losnick, Commissioner. Affirmed.

Jesse F. Rodriguez, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Fred Klink, Deputy County Counsel, for Plaintiff and Respondent.

Dylan H. is the son of Heather M. (Mother) and David H. (Father). Father is not a party to the appeal. Mother contends that there was insufficient evidence to support the juvenile court order that declared Dylan to be a dependent child of the court, pursuant to Welfare and Institutions Code section 300, subdivisions (b), (d) and (j).[1] We disagree with her, and affirm.

The adjudication hearing was submitted on documentary reports, plus live testimony from Mother. The evidence showed that in February 2006, Dylan was almost three years old. He lived with Mother, Father, and Mothers nine-year-old son, Christian, who is not Fathers child. Father has two minor daughters, Autumn and Leilani, who are not Mothers children, and live with their own mothers. Autumn was born in 1990, and Leilani in 2000. A dependency petition was previously sustained as to Autumn, based on findings that Father had sexually assaulted her, when she was five or six years old.

Beginning around December 2005 or January 2006, five-year-old Leilani began staying at the home of Mother and Father. In February 2006, Leilani complained that Father sexually assaulted her in the living room, while Dylan was present, and Mother and Christian were not in the room.[2] The sexual acts described by Autumn and Leilani included rape, sodomy, and digital penetration. Father denied sexually assaulting either girl. Mother believed Father and thought that both of the girls had lied, even though she was aware of the sustained petition regarding Autumn. Under cross-examination, she admitted that there were periods when Father and Leilani were left alone together. She maintained, however, that Leilani slept with her in the bedroom, which contradicted statements by Leilani and Christian, indicating that Leilani slept with Father in the living room.

In sustaining the petition as to Dylan, the trial court found that there was a substantial risk that Dylan would be abused ( 300, subd. (d)), even though Fathers previous abuse involved girls and not boys. It reached that conclusion because Dylan was approaching the age at which Leilani and Autumn were abused, the abuse of the girls had included anal penetration, and Mother had allowed Father to be alone with Leilani, when she knew of the sustained petition involving Autumn.

On appeal, Mother maintains that there is no substantial evidence to support the juvenile courts jurisdictional findings, as the evidence of Fathers sexual abuse of Autumn and Leilani did not establish a substantial risk that Dylan would be abused or neglected.

Applying the appropriate standard of review (In re Jason L. (1990) 222 Cal.App.3d 1206), we find sufficient evidence to support the findings of the juvenile court.

We realize that there is no evidence of sexually inappropriate behavior by Father towards either Dylan or Christian. Still, there is a real possibility that brothers of molested sisters can be molested . . . 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, the spouses acquiescence in the denial, or their parents efforts to embrace them in a web of denial. (In re Rubisela E. (2000) 85 Cal.App.4th 177, 198; see also In re Karen R. (2001) 95 Cal.App.4th 84, 90.)

Here, Fathers willingness to sexually assault five-year-old children put Dylan at substantial risk of sexual abuse, as he would soon be that age. Also, the assault on Leilani occurred while Dylan was in the same room, which created the possibility that Dylan would be emotionally or psychologically scarred. (See In re Edward C. (1981) 126 Cal.App.3d 193, 203.) Mother persisted in denying that the assaults happened, even though both Autumn and Leilani repeatedly insisted that they were telling the truth. Mother also lied about where Leilani slept, in an apparent effort to protect Father. Her state of denial made it unlikely that she would protect Dylan from sexual misconduct by Father. (See, e.g., In reKatrina W. (1994) 31 Cal.App.4th 441, 447.) Therefore, there was sufficient evidentiary support for the juvenile courts order.

DISPOSITION

The order is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

BOLAND, J.

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[1] All further code citations are to the Welfare and Institutions Code, unless otherwise stated.

[2] The juvenile court simultaneously heard and sustained a dependency petition as to Leilani. She is not a party to this appeal. We note, however, that the court was struck by the complete consistency of Leilanis repeated descriptions of the incident.

No dependency petition was filed as to Christian.