In re D.E.
Filed 8/6/13
In re D.E. CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 ONE
In re D.E. et al., Persons Coming Under the Juvenile Court Law.
B242929
(Los Angeles County
Super. Ct. No. CK93267)
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES,
Plaintiff and
Respondent,
v.
DANIEL E.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel Zeke Zeidler, Judge. Affirmed.
Joseph D. MacKenzie, under appointment by the Court of
Appeal, for Defendant and Appellant.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and Jessica S. Mitchell, Senior Associate County Counsel, for Plaintiff and Respondent.
——————————
A father challenges the
evidentiary bases for a juvenile court’s finding that he sexually molested his
14-year-old stepdaughter, and the court’s conclusion that father’s molestation
of the teen posed a substantial risk of sexual abuse to father’s 15-year-old
biological daughter and 13-year-old stepson who remained in the family
home. We affirm.
BACKGROUND
On
April 18, 2012,
of Children and Family Services (DCFS) received a referral alleging that
appellant Daniel E. (father) had sexually abused his 14-year-old stepdaughter,
M.M. M.M. told Los Angeles Police
Department (LAPD) booking officers that father had “touched her naked body all
over.†M.M. later told LAPD detectives
that father “touched her bare breasts and bare buttocks,†and that he had
“asked her to lift her shirt and also show her vagina.†M.M. denied there had been any bodily
penetration or exchange of fluids. M.M.
had disclosed the sexual abuse to her mother, E.E. (mother). Mother (who is not a party to this appeal) had
not believed her. The LAPD took M.M.,
father’s 13-year-old stepson, C.M., and father’s 15-year-old biological
daughter, D.E., into protective custody.
When interviewed by DCFS at the LAPD station on April 18,
M.M. told a children’s social worker (CSW) that father had sexually abused her
on five occasions. Each incident
occurred on a Saturday when mother had gone out with D.E., leaving M.M. and
C.M. home with father. Each incidence of
sexual abuse took place either in M.M.’s bedroom or in the kitchen while her
brother showered. M.M. described the
following five incidents of sexual abuse to the CSW:
The
first incident took place when M.M. was alone watching TV in the bedroom she
shared with D.E. Father came into the
room, asked her to lift her shirt and touched her bare breasts for about five
minutes. M.M. did not resist or move
away, father did not undress or make M.M. touch him. No words were exchanged and father made no provocative
comments to M.M. (e.g., “you turn me on or you’re so beautiful, etc.â€). C.M. was in his bedroom at the time.
The
second incident took place when M.M. and father were in the kitchen. As M.M. approached the sink carrying dishes,
father kissed her with an open mouth, pulled down her pants and underwear and
rubbed his hands on her bare buttocks, fondling and kissing her for 20 to 30
minutes. During this incident, father
told M.M., “‘You turn me on,’ and ‘Can’t tell or something will happen.’†C.M. was in the shower during this incident;
father stopped when he heard the bathroom door open.
M.M.
told the CSW that the third and fourth incidents “were the same as the 1st
incident in her bedroom.†The fifth
incident “was the same as the 2nd incident in the kitchen.†M.M. said father had not made her touch him
during any incident of sexual abuse. She
denied having resisted, and had not asked father to stop nor moved away from
him during the sexual abuse.
M.M.
had run away from home several times recently.
On April 15, she ran away for two days.
M.M. stayed at her boyfriend’s house and also at a friend’s house. On April 17, M.M. told her boyfriend’s mother
and the friend’s mother about the sexual abuse.
When asked by the CSW why she ran away, M.M.’s immediate response was,
“to be with my boyfriend,†followed quickly by, “I couldn’t take it at home
anymore.†M.M. told the CSW she had told
mother about father’s sexual abuse on April 1, right after mother yelled at her
for having unprotected sex with a boy and texting naked photos of herself to
boys. M.M. then left home. Father found her a few hours later and
brought her back. She went willingly
with father in his car, and was not afraid of him. On April 13, M.M. told mother again about
father’s sexual abuse. Mother responded
by having M.M. “confront†father. Both
parents accused M.M. of lying. M.M. also
told D.E. about the sexual abuse on April 13, but D.E. did not respond. M.M. said father had not touched her
siblings. She denied any neglect,
physical abuse or emotional abuse by either parent. M.M. was not afraid of mother and felt safe
at home. She said she now feared father
because he made a motion as if he meant to strike her when she confronted him
about the sexual abuse on April 13.
After the interview the CSW observed M.M. in the lobby of
the police station with her siblings.
M.M. was smiling, clapping and slapping her knees. M.M.’s siblings sat nearby and did not speak
to her.
The CSW interviewed each parent at the police
station. Both parents denied M.M.’s
allegations of sexual abuse against father.
Father told the CSW he had parented M.M. since she was two years old,
and claimed she had “behavioral issues†since she was three years old. Father told the CSW that M.M. had been
negatively influenced by “bad friends at school†and he believed her behavior
was linked to a “boy crazy†attitude.
Although the parents had a policy of “no boyfriends†until age 16, they
had learned that M.M. had had seven boyfriends since she was in the fifth or
sixth grade. Father denied touching any
of the children inappropriately, except on one occasion long ago when he had
pinched M.M.’s butt affectionately.
Father
did not physically discipline the children, and was rarely home alone with the
children. If he was home alone with the
children, he was usually outside working on the house. Father denied that mother abused or neglected
the children.
Mother confirmed that M.M. had twice told her about
father’s alleged sexual abuse. She
believed M.M. had lied because she was angry about being in trouble for sending
naked pictures of herself to boys, was under the influence of “bad friends†and
had manufactured the allegations to retaliate against her parents for being
tough on her. Mother said M.M.’s
behavior had gotten “out of control†in the past four weeks, during which she
had run away three times. M.M. had been
an “A†student until recently, when she developed an interest in boys. She had had several boyfriends, in violation
of the family’s strict no boyfriends before age 16 policy.
Mother disbelieved M.M.’s accusations against
father. She told the CSW that, “‘if
something like that was actually happening, I would know and I would never let
that happen.’†“‘I would never be with
someone . . . who would touch my children.
I would never let anything bad happen to my children.’†Mother described father as a “good fatherâ€
who treated his stepchildren the same as D.E., and who was always there for his
stepchildren whom he had raised. Mother
was a stay-at-home mom who was always home except when she took D.E. to get her
hair braided, which took one to one and a half hours. On those occasions, father stayed with M.M.
and C.M.
The CSW also interviewed C.M. and D.E. at the police
station. Both children believed they had
been brought to the station because M.M. had run away from home. D.E. acknowledged that M.M. told her on April
13 that father had touched her inappropriately.
D.E. told the CSW that M.M. and her parents had fought that day, and
M.M. had written an accusation against father on a note. Mother confronted M.M. with the note and the
parents went into M.M.’s room to talk.
Later that night, M.M. told D.E. what the note said, but D.E. did not
believe her. She did not believe father
would ever inappropriately touch her or M.M., and denied that father ever made
inappropriate comments. D.E. said her
parents were “good parents,†who disciplined the children by revoking
privileges, and denied that they had committed any verbal or physical abuse or
neglect. Neither D.E. not C.M. feared
their parents, and neither child said that any sibling or half-sibling had ever
before recounted any verbal or physical abuse or neglect.
On April 18 the parents and M.M. signed a safety
plan. M.M. was placed in foster care and
father agreed to leave the home until a team decision making (TDM) meeting was
conducted. D.E. and C.M. remained in
mother’s care.
The TDM took place on April 25, and was attended by the
parents, the children, a CSW and several maternal relatives. The relatives were adamant that father was
falsely accused, and emphatically supported father’s character and mother and
father’s parenting abilities. They all
believed that M.M., whose behavior began to deteriorate after she developed an
interest in boys and began hanging out with the wrong crowd, had manufactured
the allegations against father with coaching from her friends after the parents
confronted her about sending her naked pictures to boys and engaging in vulgar
communications on Facebook. At the TDM,
and in later meetings, maternal and paternal relatives told DCFS the parents
posed no danger to the children; they were adamant that father would not have inappropriately touched
M.M.
M.M. described father’s sexual abuse during the TDM. She also recounted how, after the
confrontation with her parents on April 13 about the sexual abuse, father
returned to her bedroom at mother’s request, to hit her with a belt. Mother was “visibly upset†at the TDM by
M.M.’s description of the sexual abuse perpetrated by father. She adamantly refused to believe M.M. and
accused the girl of lying and deliberately destroying the family so she could
have more freedom to see her boyfriend.
Father persisted in his denial of the allegations of sexual abuse. D.E. and C.M. denied abuse or neglect by
either parent, either of themselves or of M.M.
The CSW noted that the details of M.M.’s stories “change
and appear inconsistent.†However,
because the child’s basic accusation of sexual abuse by father on five
occasions was unwavering, and because mother refused to credit her daughter’s
disclosures, DCFS recommended that the petition be sustained. M.M. was taken into protective custody and
placed her in foster care. The other
children were released to mother. Father
agreed to move out, and the family agreed to have DCFS pursue court intervention.
On April 26, the CSW spoke with close family friends and
neighbors, Mr. and Ms. Harris. Ms.
Harris, who has known father since 1999, described him as a wonderful, decent,
and caring man who treated M.M. like his own daughter. She said her husband, a former detective, had
spent the past year trying to brainstorm with father about behavioral problems
developing with M.M. Ms. Harris told
DCFS that M.M. had “threatened†the parents a few years back telling them, “You
can’t touch me or I’m going to tell the police.†Mr. Harris told the CSW that for the past
several months, father had been calling him more frequently to seek his advice
as to how to “help†M.M. Mr. Harris, who
knew about the allegations of sexual abuse, said that based on his experience
as a detective, father did not act like a perpetrator of sexual abuse. Perpetrators wanted to keep their victims
close by so they could monitor their activities; father had been working hard
to find help for M.M. and had been looking into sending her to a
therapeutic/boot camp.
On Apri1 30, DCFS filed a Welfare and Institutions Code
section 300
title="">[2] petition on behalf of all three children. The petition alleged that father had
physically and sexually abused M.M., and that mother failed to protect her which
created a detrimental home environment and placed all three children at risk of
physical danger and/or sexual abuse.
30, M.M. was detained from the parents and placed in foster care. D.E. and C.M. were detained from father and
released to mother’s care. Father was
given monitored visits with D.E. and C.M., and denied contact with M.M.
DCFS interviewed the children and mother in preparation
for the June 20 adjudication and disposition hearing. M.M. told DCFS that the last time father hit
her with a belt was in Apri1 2012, after she ran away. M.M. said father inappropriately touched her
butt and breasts when she was 13, and had seen her vagina. He sexually abused her five times. The abuse occurred in her bedroom, the living
room and the kitchen. The first time,
mother had gone with D.E. to get her hair braided and C.M. had been in his
room. M.M. said father told her to lift
up her shirt, and “[h]e saw my boobs and touched them and then left. I am scared of him. I didn’t say anything. He grabbed my boobs from the front. I didn’t have nay [sic] bra on. . . . He just touched me and
left.â€
The next time, father saw M.M.’s vagina. M.M. said, “[h]e told me to zip down my
pants. I zipped down my pants and lifted
my underwear up. . . . Then, I left the living
room.†On the third occasion, M.M. said
father was in the kitchen and “[h]e pulled down my pants. He touched my butt from behind. He pulled my underwear
down. . . . He said, ‘You turn me on.’ He kept touching my
butt. . . . My brother was home. He was taking a shower.†M.M. said the fourth incident was the same as
the third. She was unable to describe
the fifth incident.
M.M. said that when she first told mother about the
sexual abuse mother reacted by speaking negatively about M.M.’s biological
father, and said M.M. did not appreciate father. M.M. added, “I think he [father] kissed me in
the kitchen. He was making out. I didn’t tell anyone because I’m scared of
him and my mom wouldn’t believe me anyway.
He didn’t threaten me. He just
said, ‘Don’t tell anyone.’â€
D.E. told DCFS that M.M. made up the accusations of
sexual abuse against father to retaliate against the parents for revoking her
privileges. She wanted the court to know
“that our dad never looked at us or her in the wrong way. She is lying.
She needs to be somewhere to get help.
I want our dad to come back.â€
C.M. also denied having suffered any physical or sexual
abuse, and was not aware of any inappropriate touching having taken place
within his family. He said the parents
had hit the children with a belt when they were six or seven years old, and
said father had also hit M.M. with a belt in mother’s presence. C.M. had been in his bedroom when that
happened. C.M. believed M.M. was removed
because father hit her with a belt.
Mother reiterated to DCFS that she believed M.M. was
lying about the sexual abuse, and was “just retaliating†against the parents
because they revoked privileges after finding out M.M. planned to have sex with
her boyfriend, and after mother learned M.M. had sent her nude photos to boys.
In a last minute information, DCFS reported that father
denied hitting M.M. with a belt. He
claimed he had only pretended he would strike her to scare her. Mother had been present, and M.M. screamed and
mother told father to leave the room.
Father said the parents disciplined all of the kids by revoking
privileges. But father also said that
after M.M. ran away a second time, the police told him he could spank her with
a belt over her clothes. He said he
never would have spanked her with a belt if the police hadn’t told him to do
so. Father said M.M. made up the claim
of sexual abuse at the urging of her new friends and in order to run away.
The adjudication
and disposition hearings were conducted on July 10. M.M. testified that father sexually abused
her five times. The first time he
touched her she was on a Saturday morning.
She was in her bedroom; C.M. was also home, but he was in his own
bedroom. Father came into her bedroom,
left the door open and told her to lift up her shirt. He did not say anything else to her after the
sexual abuse. M.M. could not recall
where in the house father sexually abused her on the second occasion. She remembered that he pulled down her pants,
touched her butt and said, “You turn me on.â€
The third and fourth incidents occurred in the same way as the second
one. Father told her to zip down her
pants to look at her vagina. He looked
at but did not touch M.M.’s “boobs.â€
M.M. told mother about the abuse after the fifth
incident. M.M. also testified that
father’s sexual abuse of her began early in 2011, and the fifth incident took
place at the end of 2011.
M.M. used to call father “dad.†After M.M. told mother about the sexual
abuse, father hit M.M. on the leg with a belt.
M.M. denied that she was upset with father for having rules. She denied that her friends and boyfriend
were gang members, and denied that she made up allegations of sexual abuse to
avoid going to boot camp or in order to move out of the family’s home.
M.M. told her ex-boyfriend and the boyfriend’s mother
that father sexually abused her. M.M.
told mother about the sexual abuse in Apri1 2012 “because she was yelling at
me, and I felt pressured.†She told
mother about the sexual abuse twice, once orally and once in writing. The first time mother said M.M. was
lying. The second time, mother came to
M.M.’s bedroom and had father hit her with a belt. Mother yelled at her, saying, “‘You are going
to mess up our family. You are such a
liar. You are a whore. I wish you were pregnant. You’re dead to me.’†Father told M.M. not to tell mother about the
sexual abuse after the third time. He
kissed M.M. on the mouth more than once.
M.M. was mad that mother did not believe her.
Mother testified that M.M. made up the accusations
against father because she wanted “to do what [M.M.] wants to do,†which meant
“hanging out with her friends and be fast and be with her boyfriends, her seven
boyfriends, whoever she wants to talk to.â€
Mother acknowledged that lifting up a shirt to look at a teenager’s
breasts would constitute sexual abuse.
Father did not testify.
At the conclusion of the adjudication hearing, the court
dismissed the physical abuse counts under section 300, subdivision (a), and
sustained the sexual abuse counts under section 300, subdivisions (b), (d), and
(j).
title="">[4] The court
found all three children were persons described by section 300, subdivisions
(b) and (d), and that D.E. and C.M. were also described by section 300,
subdivision (j). Proceeding to
disposition, the juvenile court declared the children dependents, removed M.M.
from the parents’ custody and placed her in foster care. The other children remained in mother’s
care. DCFS was ordered to provide father
with reunification services for D.E.
Father was ordered to participate in a parenting program, sex abuse and
individual counseling, and was given monitored visits with D.E. He appeals.
DISCUSSION
Father insists that the record contains
insufficient credible evidence to support the juvenile court’s finding that he
sexually abused M.M. within the meaning of section 300, subdivision (d). He also argues there is insufficient evidence
to support the court’s jurisdictional findings as to D.E. and C.M. under
section 300, subdivisions (b) and (j).
We review the juvenile court’s jurisdictional findings
for substantial evidence. (
574–575; In re J.K. (2009) 174
Cal.App.4th 1426, 1433.) Substantial evidence is “evidence that is reasonable,
credible and of solid value.†(
1394, 1401.) Under the substantial
evidence standard, we examine the whole record in a light most favorable to the
findings and conclusions of the juvenile court and defer to that court on
issues of witness and evidentiary credibility.
(In re E.B.,
1. Substantial
evidence supports the finding that father sexually abused M.M.
Father argues that
there was insufficient evidence to support the juvenile court's finding that he
sexually abused M.M. This argument lacks
merit.
Section 300, subdivision (d) states in relevant part that
jurisdiction over a child arises when “[t]he child has been sexually abused, or
there is a substantial risk that the child will be sexually abused . . . by his
or her parent . . . or 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.â€
As summarized above, M.M. informed the police and DCFS
that father committed numerous acts of sexual abuse against her. She also testified about these occurrences
during the adjudication hearing. After
reviewing the evidence and listening to testimony by mother and M.M. at the
adjudication hearing, the court acknowledged that there were inconsistencies in
M.M.’s recounting of the incidents of molestation. But, the court nevertheless observed that
M.M. had been “consistent about [father’s] comments to her including . . .
“‘you turn me on.’†In the end, the
court found that M.M. was “very credible.â€
As in most cases involving claims of sexual abuse of
children, this one hinges almost entirely on who has lied and who has told the
truth. Father insists we must reject the
juvenile court’s findings because of “inconsistencies†in M.M.’s statements and
because family and friends overwhelmingly attested to father’s good moral
character. He also asserts the court erred
in relying on M.M.’s consistent repetition that father told her “[y]ou turn me
on.†He insists the phrase was suggested
to M.M. by “leading questions†from the CSW that “grossly contaminated†the
initial interview and M.M.’s subsequent statements because she had never said
father made such a statement before the CSW asked if he had.
Father’s argument overlooks the limited nature of our
review. We determine only whether the
record contains substantial evidence, contradicted or not, to support the
juvenile court’s order, resolving all conflicts in support of the
“determination and indulging all legitimate inferences to uphold the trial
court’s ruling.†(In re John V. (1992) 5 Cal.App.4th 1201, 1212.) We defer to the lower court on issues of
credibility. (In re E.B., supra,
court’s finding, we must uphold the order even if other evidence would support
a different conclusion. (
247, 250.) Testimony by even “a single
witness can be sufficient to uphold a judgment.†(In re
Rubisela E. (2000) 85 Cal.App.4th 177, 195, disapproved on another ground
by In re I.J. (2013) 56 Cal.4th 766 (
Because the record contains substantial evidence that
father sexually abused M.M., we affirm the juvenile court’s finding on this
point. (See Rubisela E., supra, 85
Cal.App.4th at p. 195 [rejecting father’s argument that “inconsistencies in
[child’s] retelling of the incident to various investigators . . . compel a
conclusion that her testimony and evidence as a whole does not support a
finding that Father ever touched [child] in a sexual wayâ€];
1343–1344 [rejecting father’s arguments that “inconsistencies in [child’s]
various statements and the absence of any corroborating evidence precluded a
finding that father sexually abused the childâ€].) Substantial evidence supports the finding
that M.M. is a child described by section 300, subdivision (d).
2. Father’s
sexual abuse of M.M. puts her siblings at substantial risk of harm.
Father maintains that the juvenile court’s
findings require reversal because there has been no showing of a substantial
risk of harm to his biological daughter or stepson. We reject father’s contention.
Jurisdiction over a child under section 300 may be
established 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†(§ 300, subd. (d)); or if “[t]he
child’s sibling has been abused or neglected, as defined in
subdivisions . . . (b) [or] (d) . . . ,
and there is a substantial risk that the child will be abused or neglected, as
defined in those subdivisions†(§ 300, subd. (j)). Under subdivision (j), the court is required
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.†(§ 300, subd. (j);
48, 64, disapproved on another ground by I.J.,
supra, 56 Cal.4th at p. ___.)
Most courts have held that sexual abuse of one child
constitutes substantial evidence of risk to the child’s siblings who remain in
the household, even if the other child is a different gender, age or is a half
sibling. (See e.g., I.J., supra, 56 Cal.4th
at p. ___; Los Angeles County Dept. of
Children & Family Services v. Superior Court (2013) 215 Cal.App.4th
962, 964 [father’s sexual abuse of stepdaughter five or six years earlier poses
risk of sexual abuse to his biological daughter]; In re Ricky T. (2013) 214 Cal.App.4th 515, 523–524 [grandfather’s
criminal conviction for sexual abuse of step-granddaughters placed grandson at
risk]; In re Ana C. (2012) 204
Cal.App.4th 1317, 1332 [sexual abuse of female child alone is sufficient to
place a male child at risk];
1405, 1407 [two-year-old boy at risk due to father’s sexual abuse of the boy’s
12 and 14–year–old half sisters]; In re
P.A., supra, 144 Cal.App.4th at p. 1345 [father’s sexual abuse of daughter
posed risk of sexual abuse to girl’s younger brothers]; In re Karen R. (2001) 95 Cal.App.4th 84, 91 [father’s rape of his
minor daughter could reasonably be considered “so sexually aberrant†that the
victim’s male and female siblings are also at substantial risk of sexual
abuse]; Rubisela E.,
supports finding of risk to 9–year–old daughter, and poses risk of harm, either
by molestation or by the fact of molestation within the family, to male
siblings]; In re Joshua J.
(1995) 39 Cal.App.4th 984, 987, 994 [father’s sexual abuse of six-month-old boy
also posed risk of sexual abuse to newborn son].)
The California Supreme Court recently resolved the
question of whether a man’s sexual molestation of a female child, by itself,
may place male children in the home at substantial risk of sexual abuse. In I.J.,
affirmed a decision finding that a father’s sexual abuse of his 14-year-old
daughter placed the girl’s three brothers (12-year old twins and an eight year
old) at risk of harm, as defined by section 300, subdivision (j), even though
none of the boys was mistreated, and none had witnessed nor been aware of the
father’s sexual abuse. (
The court focused on section 300, subdivision (j),
observing that it “applies if (1) the child’s sibling has been abused or
neglected as defined in specified other subdivisions and (2) there is a
substantial risk that the child will be abused or neglected as defined in those
subdivisions.†(I.J., supra, 56 Cal.4th
at p. 774.) Because the “father sexually
abused the boys’ sister as defined in subdivision
(d)[,] . . . the first requirement [was] met.†(Ibid.) At issue was the second requirement. “‘[S]ubdivision (j) was intended to expand
the grounds for the exercise of jurisdiction as to children whose sibling has
been abused or neglected as defined in section 300, subdivision (a), (b), (d),
(e), or (i). Subdivision (j)
limited to the risk that the child will be abused or neglected
describes the abuse or neglect of the sibling.
Rather, subdivision (j) directs the trial court to consider whether
there is a substantial risk that the child will be harmed under subdivision
(a), (b), (d), (e) or (i) of section 300, notwithstanding which of those
subdivisions describes the child's sibling.’
[Citation.]†(
The court observed that the “‘broad language of subdivision (j) clearly
indicates that the trial court is to 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, within the meaning of any of the subdivisions enumerated in subdivision (j). The provision thus accords the trial 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.’ [Citation.]†(Ibid.)
In I.J.,
behavior was described as “‘aberrant in the extreme: he sexually abused his own daughter “by
fondling the child’s vagina and digitally penetrating the child’s vagina and
forcefully raped the child by placing the father’s penis in the child’s
vagina.â€â€™ Also relevant to the totality
of the circumstances surrounding the sibling abuse is the violation of trust
shown by sexually abusing one child while the other children were living in the
same home and could easily have learned of or even interrupted the abuse. ‘[S]exual or other serious physical abuse of
a child by an adult constitutes a fundamental betrayal of the appropriate
relationship between the generations. . . . When a
parent abuses his or her own child, . . . the parent also
abandons and contravenes the parental role.
Such misparenting is among the specific compelling circumstances which
may justify state intervention, including an interruption of parental
custody. (See § 300, subds. (d), (e),
(j).)’ [Citation.]†(Id.
at p. 778.) The court found that the
“serious and prolonged nature of father’s sexual abuse of his daughter under
these circumstances support[ed] the juvenile court’s finding that the risk of
abuse was substantial as to all the children.â€
(Ibid.)
Father’s efforts to distinguish this action from the
reasoning of I.J.,
predecessors fails. In
daughter. Five other siblings (four boys
and one girl) had not seen the molestation and had not been targeted. The court upheld the jurisdictional finding
as to the female sibling, but reversed as to the male siblings, finding the
boys were not at risk of abuse. (
risks posed to C.M. lack support as “there is no evidence [he] had any
homosexual interests or sexual encounters with males of any age or at any
time.†Father misses the point. Although the court in Rubisela E. did not find male siblings at risk of sexual abuse, it
found that the brother of a molested sister could suffer harm: “[B]rothers of molested sisters can be . . .
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 spouse’s acquiescence in the denial or their parents’ efforts
to embrace them a web of denial.†(
parents adamantly denied the molestation occurred.
In Karen R.,
found 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 . . . if left in the home.â€
(Id. at p. 84.) Father insists this case is unlike
stepdaughter M.M. was not incestuous.
The record reflects otherwise.
Father has raised M.M. as if she were his own child since she was a
toddler, has provided for her and has held himself out as her father. Until the sexual abuse was revealed, M.M.
referred to father as her “dad.†Father
has gone to similar lengths to establish and cement a parental relationship
with C.M. Indeed, before this case
arose, the parents had never told C.M. that father was not his biological
parent.
Father also attempts to distinguish In re P.A., supra, 144
Cal.App.4th at page 1339, on the ground that D.E. has passed the age at which
his abuse of M.M. began, though he acknowledges that C.M. was approaching that
age. But father ignores the larger point
of In re P.A. which is that,
“aberrant sexual behavior by a parent places the victim’s siblings who remain
in the home at risk of aberrant sexual behavior.†(Id.
at p. 1347, fn. omitted.)
Finally, father attempts to distinguish
1405, in which two female siblings, 12 and 14 years old, were sexually abused
by their father. But in
sexual abuse of the girls was enough to establish a risk of abuse to their
two-year-old male sibling, who was not close to the age at which his sisters’
abuse had begun. Ignoring this point,
father argues only that he never used C.M. as a vehicle to entice M.M. to come
close so he could expose himself to her.
As clarified in I.J.,
supra, 56 Cal.4th 766, and previously
explained in In re P.A.,
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[, and] . . . 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., at p. 1347, fn. omitted; I.J., at p. 776.)
“[S]ubdivision (j) implies that the more egregious the abuse, the more
appropriate for the juvenile court to assume jurisdiction over the
siblings. . . . ‘Some risks may be substantial even
if they carry a low degree of probability because the magnitude of the harm is
potentially great. . . .’†(
accounts of father’s egregious sexual abuse quite credible. The nature of that abuse, coupled with the
fact that it took place while C.M. was present in the home constitutes
sufficient evidence to support the juvenile court’s finding that C.M. was at
substantial risk of harm.
Moreover, this case involves not just father’s illicit
conduct toward M.M., but also mother’s failure to protect. The juvenile court sustained allegations that
mother knew about father’s sexual molestation of M.M. and failed to protect her
daughter. At trial, mother admitted that
M.M. told her twice about father’s sexual abuse. But mother disbelieved M.M. and so made no
effort to keep father from her.
The evidentiary record reflects that mother reasonably
should have known that M.M. was being sexually abused. Under section 300, subdivision (b), the same
evidence established that mother’s conduct toward M.M. constituted a failure to
“adequately supervise or protect the child,†who suffered “physical harm†within
the meaning of the statute. (§ 300,
subd. (b).) “It may be inferred from the fact of a lewd touching that the
victim suffered serious physical harm†within the meaning of section 300,
subdivision (b). (In re Alysha S. (1996) 51 Cal.App.4th 393, 398.)
Mother has not appealed the jurisdictional findings as
they relate to her. Under
76–77, both parents have abandoned and contravened their parental roles: father perpetrated the sexual abuse and
mother failed to stop it. Mother’s
conduct is tantamount to the “web of denial†condemned in Rubisela E., and harms all her children. (Rubisela
E., supra, 85 Cal.App.4th at p.
198.) In light of the parents’ conduct,
it was reasonable for the court to conclude that both D.E. and C.M. remained at
risk of harm in the home.
The sustained allegations of sexual abuse by father of
his stepdaughter demonstrate significant misparenting. No less may be said of mother’s failure to
protect the children in the family’s home.
In the absence of appropriate parenting, the juvenile court reasonably
found that D.E. and C.M. were also at risk of harm under section 300,
subdivisions (b) and (j). Substantial
evidence supports that conclusion.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON,
J.
I concur:
MALLANO, P. J.
Rothschild, J., concurring and dissenting:
I agree
that, despite the serious concerns about the credibility of M.M.’s statements,
the extremely deferential standard of review compels affirmance of the
jurisdictional findings as to both female children, M.M. and D.E. I disagree, however, with the majority’s
conclusion that the jurisdictional finding as to the male child, C.M.,
is supported by substantial evidence, and I accordingly dissent in part.
The
petition alleges that C.M. comes within the jurisdiction of the juvenile
court pursuant to subdivisions (a), (b), (d), and (j) of Welfare and
Institutions Code section 300.
name="_ftnref5" title="">[5] The juvenile court found that C.M. came
within its jurisdiction pursuant to subdivisions (b), (d), and (j) of section
300. Accordingly, the sole issue on
appeal as to C.M. is whether the record contains substantial evidence
supporting the assertion of jurisdiction over C.M. pursuant to one of those
subdivisions.
The record
does not contain such evidence. The
majority’s contrary conclusion is based on a misapplication, in my view,
of the Supreme Court’s recent decision in In re I.J.
(2013) 56 Cal.4th 766. In that case, the
father had repeatedly sexually abused his teenage daughter over the course of
three years. (Id. at p. 771.) The sexual
abuse included fondling, digital penetration of the child’s vagina, oral
copulation of the child’s vagina, forcing the child to watch pornographic
videos with the father, and forcible rape.
(Ibid.) The Court considered “the totality of the
circumstances†(id. at p. 774,
internal quotation marks omitted) and concluded that, given the father’s
“prolonged and egregious sexual abuse of his own child,†the record supported
“a finding that all his children are juvenile court dependents.†(Id.
at p. 770.) The Court cautioned,
however, against an overbroad interpretation of its decision: “In upholding the assertion of jurisdiction
in this case, we are not holding that the juvenile court is compelled, as
a matter of law, to assume jurisdiction over all the children whenever one
child is sexually abused. We merely
hold the evidence in this case supports the juvenile court’s assertion of
jurisdiction.†(Id. at p. 780.) And the
Court cited with approval In re Jordan R.
(2012) 205 Cal.App.4th 111, 136-139,
which affirmed the juvenile court’s assertion of jurisdiction over the
daughter of a man who sexually abused his teenage niece but also affirmed the
court’s refusal to assert jurisdiction over the same man’s son. (In re
I.J., at p. 780.)
I believe
that In re I.J. is distinguishable
and does not require affirmance of the assertion of jurisdiction over C.M. The sexual abuse of the daughter in
penetration, oral copulation, compelled viewing of pornographic videos, and
forcible rape) was undeniably more severe than the sexual abuse of M.M.
(fondling and kissing, no penetration or genital contact of any kind). The sexual abuse in In re I.J. also continued over a substantially longer period (three
years) than the sexual abuse in this case (less than one year). In addition, the record contains no evidence
that father has ever had any homosexual interests or sexual encounters
with males of any age at any time, a factor not mentioned in
In view of
“the totality of the circumstances†(In
re I.J., supra, 56 Cal.4th
at p. 774), I believe that the record does not contain substantial
evidence that C.M. is at substantial risk of nonaccidentally inflicted
serious physical harm, sexual abuse, or the other forms of abuse or neglect
listed in subdivision (j) of section 300.
I therefore would reverse the juvenile court’s jurisdictional finding as
to C.M.
ROTHSCHILD,
J.
name="_ftn1" title="">[1]
Unspecified date references are to calendar year 2012.
name="_ftn2" title="">[2]
All further statutory references are to the Welfare and Institutions Code.
