In re D.Z.
Filed 10/2/13
In re D.Z. CA2/2
NOT TO BE PUBLISHED IN THE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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 TWO
In re D. Z., et al., Persons Coming Under the
Juvenile Court Law.
B243097
(Los
Angeles County
LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff
and Appellant.
v.
JUAN Z.,
Defendant
and Appellant.
Super. Ct. No. CK89502)
APPEAL
from a judgment of the Superior Court
of
County. Marilyn Kading
Martinez, Commissioner. Affirmed.
Andrew F. F.
Toscano, under appointment by the Court of Appeal, for Defendant and Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Kimberly A. Roura, Deputy County Counsel for Plaintiff and Appellant.
Juan Z. (father) appeals from a judgment of the juvenile
court, challenging the adjudication findings in relation to his own children
after he sexually abused his stepdaughter on two occasions and physically
abused her on one occasion. Department
of Children and Family Services (DCFS or respondent) contends that the appeal
is moot and has filed a cross-appeal. We
address father’s contentions but find them to be without merit, and as such we
affirm the judgment. We dismiss
respondent’s cross-appeal as moot.
BACKGROUND
Detention and petition
The juvenile court ordered father’s children D. (born
June 2005) and Juan Jr. (born July 2009) detained on August 29, 2011, along
with their half-siblings, father’s stepdaughters, Adriana (born March 1994), J.
(born December 1995), and A. (born September 2001). On October
13, 2011, the court ordered the detention of father’s youngest
child Di., born after the other children were detained. The children were released to mother and
remained in her home.
DCFS
filed petitions to bring the minors within the jurisdiction of the juvenile
court, pursuant to Welfare and Institutions Code section 300.
alleged that father had sexually abused J. in 2009, by removing her clothes and
placing her on a hotel bed (the San Diego incident), and again in April 2011,
by climbing on her back, placing his penis on her buttocks, and masturbating
(the second incident); and that father had physically abused J. in June 2011,
by slapping her, resulting in a laceration and bleeding (the slapping
incident). The petition also alleged
that J.’s mother Nadia C. (mother) failed to adequately protect the child; that
the sexual abuse and failure to protect “place[d] the child and the child’s
siblings . . . at risk of physical and emotional harm, sexual abuse and failure
to protectâ€; and that the abuse and failure to protect “create[d] a detrimental
home environment and place[d] the child and the child’s siblings . . . at risk
of physical harm, physical abuse and failure to protect.â€
The adjudication hearing was held on May 30, 2012, and the disposition order was
entered the same day. The juvenile court
made some factual modifications to the petition, dismissed the allegations
regarding Adriana, found true the 2009 and 2011 sexual abuse incidents alleged
in counts b-1, d-1, and j-1, as well as the slapping incident alleged in counts
b-3 and j-3, and declared J. a dependent of the court.
evidence that a substantial danger existed to the children with no reasonable
means to protect them without removing them from father’s custody, despite
reasonable efforts to protect them. The
court dismissed the siblings from all counts except j-1 and j-3, thus declaring
them dependents of the juvenile court only under section 300, subdivision
(j). Adriana had been dismissed from the
proceedings when she turned 18 years old.
Father filed a timely notice of
appeal.
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No testimony was presented at the combined jurisdiction
and disposition hearing, rather the issues were submitted on the documentary
evidence admitted by the juvenile court.
In 2009, as part of his job, father
drove to San Diego and asked for J.’s
company in order to use the carpool lane.
J., who was 13 or 14 years old at the time, fell asleep in the car on
the way, and when she awoke, she was naked on a bed in a hotel room. J. felt panic; she cried and screamed at
father to take her home. Father looked
nervous, said that he thought she liked him, and “Don’t act like this is the
first time.†J. did not think he had sex
with her. On the way home, father told
J. that if she told her pregnant mother what happened it would upset mother and
could cause a miscarriage, which would be J.’s fault. Father promised to leave J. alone if she did
not tell mother, so J. said nothing.
When J. revealed the abuse to her mother in July 2010, the incident was
reported to the Sheriff’s Department.
The matter was not pursued due to a lack of evidence.
J. told
a social worker that Adriana had confided to J. that father had touched
Adriana’s breast once when she accompanied him to San
Diego. Adriana
denied saying that father had touched her breast to the social worker, however
Adriana told Detective Rudy Acevedo the preceding day that father had touched
her breast under her shirt once in 2009.
Adriana said she did not say anything before because she is the eldest
sibling and supposed to be the strong one of the family and did not want to
look weak. Adriana also denied she had
ever observed father trying to touch any of her siblings inappropriately. Father denied the San Diego incident had
occurred, but admitted touching Adriana’s breast. Though he denied reaching under her shirt he
explained that he disciplined her for acting up by grabbing and twisting her
breast. He said he told mother about it
and she still allowed him back into the home.
When J.
reported the San Diego incident to mother, father left to live in Guatemala
with another woman. He returned to live
with the family four months later.
Despite J.’s report and knowing that father had been accused in 2003 of
raping a prostitute, mother pressured father to return and allowed him back
into the home because she needed his financial support. Father’s criminal history from 1998 through
2008 contained misdemeanor convictions of prostitution, theft, and
battery. Arrests for corporal injury on
a spouse, rape, sodomy, and forcible oral copulation were also noted.
Mother
told the social worker that she was not sure she believed her daughter, as
father was strict, and she thought J. might have been motivated by anger and
rebellion.
Second incident
In April 2011, mother left J. alone with father for the
first time since she reported the San Diego incident. Mother left J. and her sisters A. and D. at
home asleep in their shared bedroom, and had taken the other children with her
to visit an uncle in jail. D. and J.
were in one bed and Aneyeli in another.
J. was asleep on her stomach in her pajamas when father removed her
blanket, got on top of her and placed his penis between the cheeks of her
buttocks before ejaculating on her back.
Father cleaned J.’s back with wipes.
J. kept her eyes closed throughout the incident because she was afraid
to open them and did not want to wake her sisters. When she heard father leave, J. sent her
mother a message asking her to come home saying that “it was happening again.â€
Mother telephoned father as soon as she received J.’s
message. Father started to go into the
girls’ bedroom while he was on the telephone with mother but J. screamed at him
to get out, so he left for work. While
on the telephone with father, mother heard J. scream in the background, “Get
out of my room.†J.’s screaming woke up
A. and D. The girls remembered waking up
to J.’s crying and screaming at father, but did not know what had happened.
J. did
not shower for three days because she thought her mother was going to take her
to the doctor and feared they would not believe her if she washed. J. thought her mother had retrieved the used
wipes from the trash and stored them, but mother denied having the wipes or
even knowing anything about them. Mother
claimed J. reported only that father had touched her, but did not describe what
he had done. Mother said she did not
have J. medically examined because J. did not ask to see a doctor. She did not make a police report either because
J. did not want to do so.
Detective
Acevedo told father they had recovered the used wipes and had found his semen
and the child’s DNA on them. Father
responded that J. knew he sometimes masturbated in the bathroom, and she must
have taken the wipes out of the trash and wiped herself with them since she was
out to get him. Semen was detected on
J.’s mattress, and when Detective Acevedo informed father of this, father said
J. must have smeared the wipes there.
The slapping incident
In June 2011, an argument erupted in the kitchen among
mother, J., Adriana, and father in the presence of D. and Juan Jr. According to mother, J. and Adriana had been
constantly arguing with father, being very disrespectful, cursing at him and
calling him names. She believed the
tension among them was the result of J.’s allegations, so mother confronted
them. As a result, both girls cursed at
father, who said, “If that is true then call the police, think about what you
are doing, how it will affect your younger siblings.†Mother said there was no slapping and the
family decided to forget about everything and move forward.
J. said
she was holding a kitchen knife during the argument, cursed at father, and
acted as though she would stab him, but slapped him instead. Father slapped her back so hard that her nose
bled. J. surmised that her nose bled because
it had been pierced.
Adriana
recalled that the argument began when mother confronted J. and father about
something. Adriana heard her sister
scream at father to the effect that he had done something. She did not remember seeing a knife. Father denied he had done whatever it was and
asked J. whether she wanted to call the police.
J. replied, “Okay, let’s go call the policeâ€; but the police were not
called. Father then said to the younger
children that all these lies would turn into a “big deal,†that he would go to
jail for something that was not true. He
said they would grow up without a dad, and their mother would have to work hard
to support them. Everyone agreed to “just
forget about everything.â€
Mother
and father did not ordinarily use corporal punishment to discipline the
children, although mother spanked Juan Jr. occasionally with her hand. A. and D. showed no signs of abuse, reported
none, and denied that anyone had ever touched them inappropriately. They both reported feeling safe at home, and
were not fearful of mother or father.
DISCUSSION
Father
contends that insufficient evidence
supported jurisdiction over his three children, D., Juan Jr., and Di.. In particular, father argues the physical and
sexual abuse of J. was insufficient to establish a substantial risk to the
younger siblings of physical or sexual abuse.
Mootness
Respondent
contends the appeal is moot because of a subsequent juvenile court order which
terminated jurisdiction. Respondent also
points out that father does not challenge the findings that he sexually or
physically abused J. or that mother failed to adequately protect her, and that
the juvenile court terminated jurisdiction upon entry of a family law order
granting sole legal and physical custody to mother.
J.’s
dependency was adjudicated under section 300, subdivisions (b) and (d), which
include as a basis for jurisdiction not only the abuse by father, but also
mother’s failure to adequately protect her.
The dependency of the remaining children was adjudicated under
subdivision (j) and also in part on the basis of the sustained allegations
against mother. “‘When a dependency
petition alleges multiple grounds for its assertion that a minor comes within
the dependency court’s jurisdiction, a reviewing court can affirm the [trial]
court’s finding of jurisdiction over the minor if any one of the statutory
bases for jurisdiction that are enumerated in the petition is supported by
substantial evidence. In such a case,
the reviewing court need not consider whether any or all of the other alleged
statutory grounds for jurisdiction are supported by the evidence.’ [Citation.]â€
(In re Drake M. (2012) 211
Cal.App.4th 754, 762.) Thus, as mother
has not joined father’s appeal, the judgment may be affirmed based on findings
as to mother.
Further,
the vesting of jurisdiction in family court after termination of juvenile court
jurisdiction renders a parent’s appeal moot, unless the juvenile court’s orders
continue to adversely affect the parent due to the potential for
Joshua C. (1994) 24 Cal.App.4th 1544, 1547-1548.) Thus, review may be proper where the parent
shows a possibility of prejudice in subsequent family court proceedings. (In re
C.C. (2009) 172 Cal.App.4th 1481, 1488-1489.) The termination order states that father is
not in compliance with the case plan, which included individual counseling and
verification of a sober and stable lifestyle.
However, since father did not attach a copy of the family law order to
his request for judicial notice, the basis of that order is unknown. Nevertheless, as a finding that father poses
a substantial risk of harm to his children could possibly have severe future
consequences, we reach his contentions.
(See In re Daisy H. (2011) 192
Cal.App.4th 713, 716; In re C.C., supra,
at p. 1489.)
Jurisdiction under section 300, subdivision (j)
The
juvenile court declared the three younger siblings dependents after sustaining
counts j-1 and j-2, alleged under section 300, subdivision (j), which provides
for jurisdiction, as relevant here, where the “child’s sibling has been abused
or neglected, as defined in subdivision . . . (b) [or] (d) . . . , 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.â€
“‘The
“nature of the abuse or neglect of the sibling†is only one of many factors
that the court is to consider in assessing whether the child is at risk of
abuse or neglect in the family home.
[Section 300,] [s]ubdivision (j) thus allows the court to take into
consideration factors that might not be determinative if the court were
adjudicating a petition filed directly under one of those subdivisions. [¶]
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.]â€
(In re I.J. (2013)
Substantial evidence: standard
of review
“‘In
reviewing a challenge to the sufficiency of the evidence supporting the jurisdictional
findings and disposition, we determine if substantial evidence, contradicted or
uncontradicted, supports them. “In
making this determination, 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.]
“We do not reweigh the evidence or exercise independent judgment, but
merely determine if there are sufficient facts to support the findings of the
trial court. [Citations.] ‘“[T]he [appellate] court must review the
whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence . . . such that a
reasonable trier of fact could find [that the order is appropriate].â€â€™ [Citation.]â€
[Citation.]’ [Citation.]†(I.J.,
supra, 56 Cal.4th at p. 773.)
Substantial risk to siblings
In his
opening brief, father argued that the sexual abuse of a female child is
insufficient by itself to support a
finding that a male sibling would be at risk for sexual abuse. He relied on cases which were disapproved on
that point by the California Supreme Court after the brief was filed. (See I.J.,
supra, 56 Cal.4th at pp.
780-781.)
relied, the high court held that such evidence may be sufficient by itself
where the sexual abuse was “prolonged and egregious.†(Id. at
p. 770.) In his reply brief, father
argues that I.J. is inapplicable
because the abuse in this case cannot be characterized as egregious or
prolonged as in I.J., or in the
recent case cited by respondent:
Family Services v. Superior Court (2013) 215 Cal.App.4th 962 (
The
juvenile court did not rely on the evidence of J.’s abuse, by itself, to find a risk of harm to her siblings, and we reject
any suggestion in father’s argument that the sexual abuse of a female child
must be disregarded in determining the risk to her brother. I.J. did
not hold that in all cases adjudicated under section 300, subdivision (j), the
sibling abuse must have reached a certain level of severity or take place over
a certain time. Rather, the court held
that in cases where there is no evidence of sexual abuse or other mistreatment
of a male sibling who did not witness his sister’s abuse, “a father’s prolonged
and egregious sexual abuse of his own child may provide substantial evidence to
support a finding that all his children are juvenile court dependents.†(I.J.,
supra, 56 Cal.4th at p. 770.)
Engaging
in any aberrant sexual behavior
provides evidence of a substantial risk of harm to a sibling. (See In
re P.A. (2006) 144 Cal.App.4th 1339, 1347 [two occasions of inappropriate
touching], cited with approval in I.J.,
supra, 56 Cal.4th at p.
775.) Moreover, engaging in the sexual
abuse of one sibling in the presence of another sibling provides additional
evidence of risk, even where the sibling
is unaware of the conduct or too young to understand it. (See In
re Andy G. (2010) 183 Cal.App.4th 1405, 1410-1415, cited with approval in
was in the same room when father masturbated on J.’s back. Although the sisters were asleep during the
act, they soon woke up and became aware that something bad had happened between
J. and father. Juan Jr. was not in the
girls’ bedroom and Di. had not yet been born; however, father’s “total lack of
concern for whether [his children] might observe his aberrant sexual behaviorâ€
placed them all at risk of similar harm.
(In re Andy G,
1317, 1331-1332.)
Further,
father’s sexual abuse was a topic of conversation in the family. Both D. and Juan Jr. were in the kitchen
during the argument over what father had done to J., which led to his slapping
J.’s face and then threatening the siblings with loss of their father and
police intervention. In addition,
father’s criminal history includes sex-related activity which demonstrates the
long-term nature of father’s compulsion.
Thus, the sexual abuse of J. was not the only evidence of risk of harm
to her siblings, as father suggests, and consequently it was unnecessary to
show that the sexual abuse was both egregious and prolonged.
Father
also contends that the slapping incident was “undisputedly an isolated
occurrence†and thus did not support a finding that his children were at
substantial risk of physical harm. We do
not agree that this was an isolated incident, as father had previously harmed
J. by sexually abusing her. Further, the
slapping was hard enough to cause a nose bleed, took place in the presence of
the other children, and occurred in the course of an argument regarding
father’s sexual abuse. Father then used
the incident to manipulate the family into silence by threatening the younger
children with the loss of their father.
The prior abuse, the slapping, father’s lack of concern for J.’s injury
and the children’s presence during this violence, all support the juvenile
court’s finding that the siblings were at risk for
Cross-appeal
We
conclude that substantial evidence supported the jurisdictional findings and
the judgment must be affirmed. As our
resolution of father’s appeal renders the issues in the cross-appeal moot, we
dismiss the cross-appeal.
DISPOSITION
The judgment of the juvenile court
is affirmed, and the cross-appeal is dismissed as moot.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________,
J.
CHAVEZ
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST
further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
recanted her accusations after father was arrested, an immigration hold was
placed on him, and J. was told she would have to testify. Criminal charges were dropped after J.
recanted and father was later released.
The juvenile court disbelieved J.’s recantation.
