Filed 4/18/17 In re E.G. CA4/3



NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


In re E.G. et al., Persons Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY,

Plaintiff and Respondent,

v.

J.G.,

Defendant and Appellant.



G054038

(Super. Ct. Nos. 16DP0135 &
16DP0136)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gary G. Bishoff, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Matthew I. Thue, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Joyce Riley, Deputy County Counsel, for Plaintiff and Respondent.
No appearance for the Minors.
J.G., the biological father of E.G. and A.G., challenges the sufficiency of the evidence to support the juvenile court’s jurisdictional findings. We affirm.
FACTS AND PROCEDURAL HISTORY
1. Petition
Father married mother in 2013. Mother had two children from previous relationships, then nine-year-old D.S., and two-year-old C.S.
In August 2014, mother gave birth to fraternal twins, E.G. (male) and A.G. (female). The maternal grandparents, a maternal aunt, and the aunt’s six-year-old daughter also lived with the family.
Mother worked outside the home, and father was the primary caregiver. His participation in the Marine Corps Ready Reserve program paid for the family’s housing and father’s part-time schooling.
In late January 2016, Z., a 10-year-old friend of then 11-year-old D.S., told a school counselor father sexually abused her. Z. had attended a big New Year’s Eve party at mother and father’s home. It was the second time she and D.S. had a sleepover at the home.
Sometime after midnight, Z., D.S., and some other children fell asleep on the living room floor. When Z. woke up early the next morning, she saw father touching D.S.’s legs. D.S. shook and kicked at father and told him to leave. Father then removed Z.’s blankets, tried to take off her pants, and touched her vagina over her clothes. Z. also hit and kicked father’s hands away. When Z. “pretended to . . . get up,” father ran to the kitchen and acted like he was cleaning up. Z. was afraid.
When D.S. woke up, Z. went with her to the bathroom. The girls discussed what had happened and decided to tell someone. They told maternal grandmother, and maternal grandmother came into the living room to sleep with them.
After Z. went home, she received texts from D.S. at mother’s direction. D.S. told Z. to stay away because if father “goes away then we’re all dead here.” Z. said father touched her legs and the middle of her shirt, and he touched D.S. and another adult during the party. Z. thought she was being punished and she did not understand why.
Mother texted Z. She told Z. there was no proof of anything, and she forbid D.S. from inviting Z. to another sleepover. She also told D.S. to tell Z. to keep quiet about what happened. Z. repeated this story to a social worker and the police.
When questioned by a social worker, father claimed he put a blanket on D.S. and Z. in the early morning hours of January 1, but he flatly denied any inappropriate touching.
Police questioned D.S. She told them father had been crouched down next to Z. when she woke up, and he touched Z.’s underwear, legs, and waist over the blanket. Father came over and sat by D.S., removed her blanket, and touched D.S.’s thighs and private parts, “a little.”
D.S. reported telling maternal grandmother and mother about the touching. She said mother put them off. After Z. went home, mother asked father about the allegations. He said he could not remember touching the girls. Mother believed father was drunk, and she explained the nature of an alcohol induced “blackout” to D.S. She also reminded D.S. who paid the bills.
D.S. also told the social worker father had done this once before, and he made her feel uncomfortable. She also said her parents drink too much alcohol, and they “get drunk,” and “hav[e] parties.”
C.S. denied being abused, or observing any kind of abuse, but she started to cry and repeatedly said, “I don’t know,” when the social worker asked if anyone had touched her private parts. C.S. told the social worker she did not like or trust father.
Mother and maternal grandmother admitted D.S. and Z. told them about father’s touching shortly after it occurred. Mother admitted telling D.S. and Z. to keep quiet about the allegations, but she told the social worker that was because she thought the girls were lying. Mother also theorized D.S. was attention-seeking, or merely retaliating for some recent discipline, and she accused D.S. of threatening to call social services after losing a game of Monopoly. Moreover, mother emphasized the fact there were other people sleeping in the living room who did not see anything. Mother conceded she told D.S. about alcohol induced blackouts, but she said that was a reference to herself, not father.
After mother’s interview, the social worker told her not to discuss the allegations in front of D.S. However, within hours, mother decided to invite D.S.’s extended family over to explain the situation. Later, mother called the social worker and put D.S. on the telephone. D.S. told the social worker she and Z. planned the whole thing as a prank, but now she wanted to tell the truth to protect her family.
Maternal aunt testified she slept in the living room and did not see anything. She did not believe the allegations because D.S. and Z. were giggling when they emerged from the bathroom, and Z. said she did not want to go home.
On February 2, 2016, Orange County Social Services Agency (SSA) filed a petition under Welfare and Institutions Code section 300 alleging, in pertinent part, father and mother failed to protect D.S., C.S., E.G. and A.G. (§ 300, subd. (b)), father sexually abused D.S. and Z. on January 1, and he sexually abused D.S. on a separate occasion (§ 300, subd. (d)). The petition also alleged father’s sexual abuse of D.S. placed C.S. and her half-siblings, E.G. and A.G., at substantial risk of harm (§ 300, subd. (j)).
2. Detention Hearing
At the detention hearing, D.S. and C.S. were placed with their biological fathers. E.G. and A.G., now about 18-months-old, were taken into protective custody, and the court granted mother and father supervised visitation. Later, E.G. and A.G. were placed in the home of a maternal relative.
3. Jurisdictional Hearing
At the jurisdictional hearing, the court admitted SSA reports, transcripts of the various interviews, exhibits, and considered the testimony of the witnesses. The social worker testified D.S. and Z. gave generally consistent accounts of the allegations against father, and mother pressured D.S into recanting.
Mother’s niece and maternal grandfather testified father put a blanket over the girls, but he did not get close to them and did nothing unusual. Both believed father was not the type of person who would molest little girls.
Maternal grandmother did not believe the girls. She testified D.S. and Z. were talking and laughing in the bathroom that morning. They told her father touched their private parts and they wanted to call the police, but maternal grandmother told the girls to go back to sleep. She admitted reacting to the news by sleeping with the girls on the floor. She also testified father was cleaning the kitchen.
Mother’s testimony was consistent with her previous statements. She did not believe D.S. and Z. To mother, Z. seemed excited to tell her about the touching rather than be afraid. Mother denied pressuring D.S. to recant. She testified D.S. came to her and admitted lying.
The court sustained the allegations of the petition, declared D.S., C.S., E.G. and A.G. to be dependent children of the juvenile court, and set the matter for disposition. The court commented on the total lack of evidence D.S. and Z. made up the allegations as a prank. To the contrary, as the court emphasized, maternal grandmother must have believed them because she left her bed for a place on the floor after they reported the molestation. In her texts to Z., mother did not deny the molestation occurred. Mother’s sole concern was keeping the girls from talking about it, and she arranged a family meeting that presaged D.S.’s retraction.
4. Dispositional Hearing
Following the dispositional hearing, the court returned custody of E.G. and A.G. to mother, but found it would be detrimental to them to vest custody with father. (§ 361, subd. (c).) Both parents were ordered to comply with case plans. Father appealed.
DISCUSSION
The standard of proof in dependency proceedings at the jurisdictional stage is a preponderance of the evidence. (§ 355, subd. (a).) On review, “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.) An appellate court does not reweigh the evidence, nor exercise independent judgment. (Ibid.) Rather, a reviewing court determines if the whole record when viewed in the light most favorable to the judgment discloses reasonable, solid evidence that supports the trier of fact’s determination. (Ibid.)
Father first attacks the girls’ credibility by asserting there is a “lack of certainty” surrounding D.S. and Z.’s allegations. Not so. The court commented on the consistency of the girls’ initial reports, and how other evidence bolstered the girls’ credibility. At the same time, the court was highly skeptical of the testimony of mother’s family members. In short, the court believed D.S. and Z., and disbelieved father, mother, and mother’s family. Under the substantial evidence standard of review, SSA presented sufficient evidence father sexually abused D.S. and Z.
Next, father argues assuming the sexual abuse allegations are true, no substantial evidence showed E.G. and A.G. faced a substantial risk of abuse as described under section 300. We disagree.
Subdivision (j) of section 300 directs the court to 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.” The court may also consider the egregiousness of the abuse and the “violation of trust” shown by sexually abusing one child at a time and place where other children “could easily have learned of or even interrupted the abuse.” (In re I.J. (2013) 56 Cal.4th 766, 778.) In short, juvenile courts 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.” (Id. at p. 774.)
Father discusses In re I.J. at length. In that case, the father repeatedly fondled and digitally penetrated the vagina and anus of his teenage daughter over the course of three years. (In re I.J., supra, 56 Cal.4th at p. 771.) Relying on evidence of the father’s prolonged and egregious sexual abuse of his daughter, the court observed such evidence may provide substantial evidence opposite sex children were also at risk. (Id. at p. 778.) Prolonged sexual abuse constituted “‘a fundamental betrayal of the appropriate relationship between the generations’” and an abandonment and contravention of the parental role. (Ibid.)
Father distinguishes his case from In re I.J. by relying on the absence of evidence he engaged in prolonged and aberrant sexual abuse of D.S., the fact D.S. is his stepdaughter while E.G. and A.G. are his biological children, and that D.S. was 10 or 11 years old when the abuse occurred while the twins were infants.
As father concedes, subdivision (j) of section 300 accords the juvenile court greater latitude to exercise jurisdiction as to a child whose sibling has been found to have been abused than the court would have in the absence of that circumstance. (In re I.J., supra, 56 Cal.4th at p. 774.) While father’s sexual abuse was not prolonged, and comparatively minor, it was nonetheless aberrant and reckless. Sustained, egregious abuse is but one factor in determining if a sibling is at risk for abuse.
Furthermore, nothing in In re I.J. suggests juvenile courts are to apply a different analysis when the abused sibling is not the biological child of the abuser. The factors designated in the statute and identified by the Supreme Court apply equally in both situations. In addition, father assumed a parental role with D.S. Thus, his flagrant abuse of the parent-child relationship with D.S. also supports a finding her stepsiblings were at substantial risk for abuse as described in section 300. (In re I.J., supra, 56 Cal.4th at p. 774.)
In conclusion, the court found E.G. and A.G. at substantial risk of abuse under a totality of the circumstances, and the record supports this determination. Father took advantage of the early morning hours following a New Year’s Eve party to inappropriately touch his stepdaughter and her visiting friend in the presence of several sleeping family members and other children. After the abuse came to light, mother denied and attempted to conceal the abuse, and she also used considerable influence to get D.S. to recant. The juvenile court considered all of these factors and decided E.G. and A.G. were at substantial risk of abuse. The record contains sufficient evidence to sustain the court’s finding.









DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.