In re Geno P.

Filed 6/20/07 In re Geno P. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Humberto P. appeals from jurisdictional and dispositional orders declaring his sons, Geno and Arturo P., dependent children and placing them in out-of-home care. He contends there was insufficient evidence to support either the jurisdictional finding under Welfare and Institutions Code section 300, subdivision (j), or the order continuing the removal of the children from appellants custody. We affirm.

STATEMENT OF THE CASE AND FACTS

On February 17, 2006, the Contra Costa County Bureau of Children and Family Services (the Bureau) filed petitions alleging that Geno and Arturo came within the provisions of Welfare and Institutions Code^[1]section 300, subdivisions (b) and (j). Under section 300, subdivision (b), failure to protect, it was alleged that the childrens mother had a history of domestic violence with appellant, appellant had a history of substance abuse which affected his ability to parent, the parents had neglected to provide adequate care as evidenced by the children coming to school in clothes that were dirty and inappropriate for the weather and having poor school attendance, and appellant had an extensive criminal history including arrests for possession of controlled substance, domestic violence and receiving stolen property. Under section 300, subdivision (j), sibling abuse, the petition alleged that appellant had repeatedly molested half-silbling Cynthia R. and cousin Christy H.

Geno, age seven, and Arturo, age six, are the children of appellant and Regina P.; Reginas other children are Cynthia R., age 11, and Raymond R., age 12. The parents had been living together for about eight years, separating and reconciling on occasion due to appellants abusive behavior. At the time the petition was filed, appellants sister, Leticia P., was living with appellants family, although she recently had been hospitalized for mental illness. Leticias 19-year-old daughter, Christy H., lived in Antioch.

On February 15, 2006, the Bureaus social worker interviewed Cynthia after receiving a referral about her. According to the Bureaus report, asked why someone would be worried about her, Cynthia appeared afraid but eventually told the worker appellant had been molesting her by touching her private part over her clothes two to three times a week over the past year. Appellant was silent during these incidents, but told Cynthia never to tell anyone. Sometimes he came into her room after she was in bed and stood staring silently at her; she usually slept in Raymonds room to avoid this. Cynthia said appellant was nice sometimes but always yelling, and said she was afraid of him. Arturo, interviewed the same day, appeared withdrawn and had a serious expression on his face; he had a lump and bruise on his forehead and said he had accidentally run into a wall. He was dressed inappropriately for the weather, in only a short sleeved tee shirt, with shoes untied and on the wrong feet and no socks. He reported having had cereal for dinner the night before. Asked if anyone had ever done anything to bother him or his body, Arturo said his brother sometimes hit him. Geno, also interviewed on February 15, appeared thin and unhealthy and was dressed in a dirty, long sleeved shirt that was too large for him. Geno confirmed having had cereal for dinner; he said Cynthia had eaten spaghetti, but no one would make us anything. He said his mother usually made meat, mashed potatoes and corn. Geno denied ever having been touched inappropriately. The boys school attendance was very poor but Cynthias was excellent.

The worker contacted the police and Officer Bledsoe interviewed Cynthia, who disclosed the same information she had given the social worker. Bledsoe signed an authorization to take Cynthia, Raymond, Geno and Arturo into protective custody. The social worker transported Cynthia, Geno and Arturo to the Bureau, then went to the parents home to pick up Raymond, who had gotten out of school early. There, police officers were talking with appellants 19-year-old niece, Christy H. Christy had previously disclosed having been molested by appellant and confirmed that this had happened from the time she was 13 years old until a month before. On this last occasion, he digitally penetrated her and held her down on the bed in front of her baby. She said she reported this incident to the police and had made reports to the Bureau in the past.

When the worker told Christy about Cynthias allegations, Christy became upset and rushed into the house to tell Regina. Regina said she believed Cynthia because she knew appellant had molested Christy. She said she had repeatedly asked Cynthia if appellant was molesting her but Cynthia always said no. Regina said she had encouraged Christy to report the molestation to the police, but Christy kept recanting and not wanting to report it, then began to run away frequently. Regina did not believe the other children were at risk because they were younger.

Regina told the social worker that appellant did not make his sons do anything and would not allow Regina to discipline them; she said no one can touch or say anything about his two biological sons, Arturo and Geno. Appellant was cruel to Raymond, forcing him to dig holes in the back yard as punishment and locking him in the backyard for long periods of time, and made Raymond and Cynthia clean the house. Regina was afraid to stand up for her children because appellant had battered her at least 10 times; she reported that he pulled her hair, spit on her and kicked her when she refused him sex. She had called the police, but they did not arrest appellant because she had no visible injuries. Regina reported that appellant abuses methamphetamine, admitting that she did as well until a year before, when she stopped. According to Regina, Geno and Arturo had poor school attendance because appellant let them do whatever they wanted; Cynthia and Raymond both had excellent attendance and grades.

The social worker interviewed Raymond, who appeared small for his age, frightened and unresponsive. One of the police officers tried to talk with him alone, but Raymond would not talk to the officer either.

Regina and Christy told the officers they were afraid to be at home when appellant returned. Christy was afraid she was going to have another panic attack; this had happened a month before, after the last molestation, and she had been hospitalized.

Geno and Arturo were placed in foster care on February 15, 2006; Cynthia and Raymond were placed in foster care the next day. Regina told the social worker she was going to look for an apartment because she did not want to return to the house she shared with appellant.

The Bureaus report indicated that appellant had two felony convictions for possession of a controlled substance (1994, 1998) and several misdemeanor convictions, for possession of a controlled substance (1993), inflicting corporal injury on a spouse (1994, 1995), possession of a hypodermic needle (1995) and receiving stolen property (1999, 2005).

The detention hearing was held on February 22, 2006, and the children were continued in out-of-home placement. Supervised visitation was ordered for each of the parents, and the Bureau was authorized to release the children temporarily to Regina.

On March 6, Regina pled no contest to the allegations under section 300, subdivisions (b)(1) and (b)(3), the allegations of domestic violence and failure to provide adequate care. The children were returned to Reginas custody on March 16.

The April 7 jurisdiction report related the same information contained in the Bureaus initial report, as well as an account of Officer Bledsoes interview of Cynthia, which was consistent with the social workers interview. It also included an account of Bledsoes interview with Christy, including details of numerous molestations by appellant. A May 1 addendum report provided Christys statements regarding these incidents.

On May 1, 2006, the court held a contested jurisdictional hearing regarding the allegations against appellant. Appellant testified that he had never battered Regina or physically disciplined the children. He acknowledged arguing verbally with Regina and yelling at the children as a form of discipline. He testified that he disciplined all the children the same, though with recognition of the difference in their ages. Appellant blamed Regina for not doing her part in getting the children to school and expecting them to dress themselves, and said he would come home from work to find the house a mess, with dirty clothes everywhere, food under the beds and the bathrooms dirty. He said the children were in full control at the house, did and ate what they wanted when he was not at home, and that they preferred eating cereal to the food the parents prepared. When he was at home, he was in control and the children ate what he made for them. He testified that he did not remember getting notices from school about a hearing regarding the boys attendance problem.

Appellant denied molesting Cynthia or Christy. He described Christy as a bad seed, who would steal the childrens play stations and sell them, steal her mothers money, and throw away her mothers medication. He had found Christy smoking marijuana with his children, felt she was a bad influence on the children, and believed she made the molestation allegations to get attention. He testified that Christy wanted to be in charge and control the house, and had been trying for some four years to get him out of the house and away from Regina.

Appellant testified that he paid the deposit for the house Regina moved to and provided her with furniture from the house they had shared, bought her groceries and gave her cash for gas. He stated that Regina did not want to move out of the house but did so at the Bureaus insistence in order to keep the children in her care.

He testified that he was aware a restraining order had been in effect since February 27 prohibiting him from making any contact with Regina and that he had not violated the order. He then testified that Regina called him every day and he returned her calls, stating that he could not and did not want to hang up on her. A few days before the hearing, Regina brought her car to appellant because it needed repairs and stayed at the house while he worked on the car. Appellant testified that Regina came to his house all the time and brought all the children there. He spent the night at Reginas house and she and the children often stayed at his house.

Appellant acknowledged that he had criminal convictions for possession of methamphetamine and denied having convictions for spousal abuse, stating that he had been arrested for domestic violence (not involving Regina) but not convicted. He had successfully completed a 90-day drug treatment program 15 years prior to the hearing. He acknowledged that he had recently started to use methamphetamine again, after having not used for two or three years, due to the stress of this case and losing his family. He had been on stress leave from his employment as a tow truck driver for going on two months.

Christy H. testified that she had lived with appellant and Regina on and off, getting kicked out for not following rules. She told Regina after the first time appellant molested her, when she was 13 years old; Regina told her to go to the police, but Christy had warrants and was afraid she would be sent to juvenile hall. Christy moved into a storage room at her mothers apartment; she could not live there officially because it was a house for mentally disabled people. After a couple of months, she returned to Reginas house. Christy told her mother and brother about the molestation. She told a staff member in juvenile hall when she was about 16 or 17, but did not know what happened to the report.

The social worker assigned to this case testified that Arturo had confirmed that appellant spent the night at Reginas house on a couple of occasions and that Regina sometimes took the children to appellants house. The current court orders required supervised visitation for appellant arranged by the Bureau for Geno and Arturo and no contact between appellant and Cynthia and Raymond. She opined that Regina had violated the court orders regarding visitation as well as the restraining order. Cynthia and Raymond told the social worker that appellant called a lot and Regina did not answer the telephone.

At the conclusion of the testimony, the trial court stated that he found the hearing very disturbing and saw several patterns in the Bureaus report. The court explained, One of the patterns is the father, [appellant], being kind of fitting the classic abuser, controller, both spousal abuser and sexual abuser, of children, a person who wants to control and dominate. I cant tell you the number of times in his testimony he used about control, about Christy, about himself, about the kids, and everything is about domination and control, isolation and abuse. The court found Christy very credible and stated it did not find appellant credible. Based on the Bureaus report, the court stated the similarity of the acts, how they occurred, where they occurred, the pattern that was demonstrated, was horrific. It also noted that while appellant said Christys allegations were a means of seeking attention, Christy did not make her report to the police until she heard that another more vulnerable child had been abused. The court found shocking the pattern of deceit between the parents, noting each blamed the other but both blatantly ignored court orders. This lack of concern for court orders led the court to conclude the children were not protected at all.

The court sustained the petitions as to all the children, under section 300, subdivisions (b) and (d) for Cynthia, and subdivisions (b) and (j) for Geno, Arturo and Raymond, and ordered the children removed from Reginas custody.

The June 1 disposition report stated that appellant had a good relationship with his sons and was loving and appropriate during visitation. Since he denied the molestation and domestic violence allegations, it was stated that the children would be at risk if returned to his care at that time. Regina had been living in a shelter for abused women for three weeks and stated a commitment to a life without appellant, but it was felt premature to return the children to her care. The report noted that appellant had entered [Reginas] home without permission and vandalized it. The recommended case plan for appellant included a requirement that he attend and demonstrate progress in a domestic violence prevention program, and enter and successfully complete individual counseling, a sexual abuse treatment program and a parenting education class.

At the disposition hearing on August 24, appellant objected to the courts finding of jurisdiction and therefore to having to participate in a case plan, and specifically objected to participating in the sexual offender and domestic violence components of the plan. Appellants attorney argued that the allegations against appellant concerned a half-sibling and there was no evidence of risk to Geno or Arturo, whom the evidence showed appellant doted upon. The court adopted the case plan recommended by the Bureau, adding that the Bureau would have authority to authorize overnight visits with Regina provided there was no unsupervised contact with appellant.

Appellant filed a timely notice of appeal on August 31, 2006.

DISCUSSION

I.

Appellant argues there was insufficient evidence to support the trial courts assumption of jurisdiction over Geno and Arturo.  [T]he appropriate standard of review is for this court to determine whether the trial courts order was supported by substantial evidence. Substantial evidence is evidence that is reasonable, credible, and of solid value; such that a reasonable trier of fact could make such findings. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) [] It is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] Issues of fact and credibility are questions for the trial court. [Citations.] It is not an appellate courts function, in short, to redetermine the facts. [Citation.] (In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200; accord, Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) (In re Rubisela E. (2000) 85 Cal.App.4th 177, 194-195; In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.)

Jurisdiction over the boys was based on section 300, subdivision (j). This statute provides that a child may be adjudged a dependent of the court where [t]he childs sibling has been abused or neglected, as defined in subdivision (a), (b), (d), (e), or (i), and there is a substantial risk that the child will be abused or neglected, as defined in those subdivisions. The court shall 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. ( 300, subd. (j).)

Appellant concedes that he must accept the trial courts finding that he sexually molested Cynthia, thus satisfying the first prong of subdivision (j). His contention is that there is no evidence of a substantial risk he would subject Geno or Arturo to similar abuse.

Appellant relies upon In re Rubisela E., supra, 85 Cal.App.4th 177, which upheld jurisdictional findings under subdivision (j) as to the sister of a girl found to have been sexually abused by her father but reversed such findings as to her brothers. The court found it reasonable for the juvenile court to determine that in Rubiselas absence, Fathers sexual offenses were likely to focus on his only other daughter. (See In re Joshua J. (1995) 39 Cal.App.4th 984, 994-995 [substantial risk of abuse to second brother where first had been subject to serious sexual abuse and fathers mental condition had not changed].) (In re Rubisela E., at p. 197.) While the court recognized the real possibility that brothers of molested sisters can be molested (see In re Mark C. (1992) 7 Cal.App.4th 433, 439 [sister and brother both molested; as alternative ground, court did not err in excluding character testimony as to  300, subd. (j) regarding brother]) or in other ways harmed by the fact of the molestation within the family, it found there had been no demonstration by the department that there is a substantial risk [to the brothers] that [they] will be abused or neglected, as defined in . . . [the applicable] subdivisions (cf., e.g., In re Edward C. (1981) 126 Cal.App.3d 193, 198-199 [where the brothers had witnessed their sisters severe beatings and had been subjects of less harsh physical discipline by their father].) (In re Rubisela E., at pp. 198-199.) The Rubisela E. court distinguished In re Jason L. (1990) 222 Cal.App.3d 1206, in which the father was found to have sexually molested the sister and there was also evidence the father had had one or two adult homosexual relationships, shared a bedroom with the younger brother, and showered with the boy when he was 10 years old and initially denied having done so. (In re Rubisela E., at pp. 197-198.)

Appellant similarly distinguishes In re Jason L., as well as In re Joshua J., supra, 39 Cal.App.4th 984, in which sexual abuse of one brother was viewed as presenting a substantial risk of abuse to a second brother. The obvious assumption of appellants argument, and Rubiselasanalysis, is that substantial risk of sexual abuse cannot be inferred from a parents abuse of one child to a child of the opposite gender.

A different conclusion was reached in In re Karen R. (2001) 95 Cal.App.4th 84. There, the sister was beaten and raped, and had her head shaved, by her father; her younger brother saw the beatings and she told him about the rape. The brother also witnessed his sister tell her mother about the abuse and the mother refuse to believe her and watch as the father continued to physically and verbally abuse the girl. The court upheld a finding of jurisdiction as to the brother under section 300, subdivision (d)^[2]: [W]e conclude 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. To the extent other cases suggest only female siblings are in substantial danger of sexual abuse after a sexually abused female sibling has been removed from the home due to sexual abuse by a father, we respectfully disagree. (See In re Rubisela E., supra, 85 Cal.App.4th at p. 197; In re Joshua J., supra, 39 Cal.App.4th at pp. 994-995.) Although the danger of sexual abuse of a female sibling in such a situation may be greater than the danger of sexual abuse of a male sibling, the danger of sexual abuse to the male sibling is nonetheless still substantial. Given the facts of this case, the juvenile court reasonably could conclude every minor in the home, regardless of gender, was in substantial danger of sexual abuse by father. (In re Karen R., at pp. 90-91.)

In re P.A., supra, 144 Cal.App.4th 1339, upheld jurisdictional findings under section 300, subdivision (d), as to a nine-year-old girl and her two younger brothers based on evidence that the father had touched the girls vagina under her clothes and on top of her underwear. The father argued there was insufficient evidence to find his sons at risk of harm because there was no evidence the boys had been touched inappropriately, they were not aware of the abuse of their sister, the father was participating in sex abuse counseling and parent education classes, there was no evidence the father suffered from any mental problem and no evidence he had ever engaged in homosexual conduct. (Id. at pp. 1344-1345.)

In re P.A. elected to follow In re Karen R. rather than In re Rubisela E.: The abuse in this case concededly is less shocking than the abuse in Karen R. However, this does not mean that Rubisela E. therefore applies. Rather, we are convinced that where, as here, 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 victims siblings who remain in the home at risk of aberrant sexual behavior. (In re P.A., at p. 1347.)

We agree. The trial court made clear its view that appellant was a classic abuser, controller, both spousal abuser and sexual abuser, of children, a person who wants to control and dominate. The evidence patently supports this conclusion. Appellant had been molesting Christy for years and had begun to molest Cynthia. He physically abused Regina, at least partly in relation to her refusing him sex. He exercised complete dominion over the boys, refusing to even let Regina discipline them. He and Regina both ignored the courts orders regarding appellants contact with the family. Like the In re Karen R. court, we conclude appellants aberrant sexual conduct with Cynthia (and Christy) left Geno and Arturo at substantial risk of sexual abuse.

II.

Appellant also contends the evidence was insufficient to support the dispositional order continuing the boys placement out of appellants care. The children were removed from appellants custody under the authority of section 361, subdivisions (c)(1) and (c)(4). These provisions require the court to find clear and convincing evidence that there is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor or would be if the minor were returned home, and there are no reasonable means by which the minors physical health can be protected without removing the minor from the minors parents or guardians physical custody ( 361, subd. (c)(1)) or that [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, guardian, or member of his or her household, or other person known to his or her 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 or guardian, or the minor does not wish to return to his or her parent or guardian ( 361, subd. (c)(4)).

On review, we employ the substantial evidence test, however bearing in mind the heightened burden of proof. (In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326; In re Angelia P. (1981) 28 Cal.3d 908, 924.) (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654; In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We review the record in the light most favorable to the courts order to determine whether there is substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that . . . the children would suffer such detriment. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329; cf. In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.)

The Bureaus disposition report stated that the children would be at risk if returned to appellants care because appellant consistently denied the molestation and domestic violence. At the disposition hearing, counsel for the Bureau also noted that appellant denied his substance abuse and violated the restraining order.

Appellant argues there was insufficient evidence to justify removal under section 361, subdivision (c)(1), because the issue of domestic violence was moot, since appellant and Regina had separated and there were no reports of domestic violence since the original report to the Bureau in February 2006, and the Bureau did not mention appellants methamphetamine use in its disposition report or make substance abuse treatment a component of appellants case plan. He maintains there was insufficient evidence to support removal under section 361, subdivision (c)(4), because there was insufficient evidence Geno or Arturo was at risk of being sexually abused.

We reject appellants latter contention for the reasons discussed above in connection with his jurisdictional argument. Although the decision to continue the children outside appellants physical custody had to be based on clear and convincing evidence, rather than the preponderance of the evidence necessary for the court to assume jurisdiction, we have no difficulty upholding it. In light of appellants complete denial of the facts the court found to be true, there can be no doubt the children could not be protected if returned to appellants custody.

As for the courts finding under section 361, subdivision (c)(1), we cannot accept appellants contention that the domestic violence issue was moot simply because no further incidents had been reported since February 2006. Regina and appellant had continued to see each other, with the children, in violation of the courts orders; although Regina was living in a shelter at the time of the disposition hearing, this had been the case for only three weeks. As stated above, the court found that appellant was a classic abuser with a need to control and dominate. Given appellants refusal to acknowledge and take any responsibility for his conduct, the courts decision was amply supported.

DISPOSITION

The judgment is affirmed.

_________________________

Kline, P.J.

We concur:

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Haerle, J.

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Richman, J.

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^[1]All further statutory references will be to the Welfare and Institutions Code unless otherwise specified.

^[2]Section 300, subdivision (d), provides for jurisdiction where a child has been sexually abused, or there is a substantial risk that the child will be sexually abused, as defined in Section 11165.1 of the Penal Code, by his or her parent or guardian or a member of his or her household, or the parent or guardian has failed to adequately protect the child from sexual abuse when the parent or guardian knew or reasonably should have known that the child was in danger of sexual abuse.

As explained in In re P.A. (2006) 144 Cal.App.4th 1339, the requirement of finding a substantial risk that the child for whom dependency is sought will be sexually abused by a parent or member of the childs household is part of both subdivisions (d) and (j) of section 300. (Id. at p. 1347, fn. 6.)